53. The representative of Switzerland said that it was not because it was a new year that all of the work done since the beginning of this negotiation could be forgotten. There had been many reports, compilations, exchanges of questions and replies on the various proposals put forward. Agreeing with Hong Kong, China' comments on process, she said that it would be useful for this negotiating group to move to a more substantive phase of work as soon as possible, since the essential elements that should be included in the register had been put on the table, including those in the compromise proposal of TN/C/W/52. With the EC's replies given in December 2008 and received in writing last week, the co-sponsors of the TN/C/W/52 proposal, including Switzerland, hoped that they had now clarified the thrust of their register proposal.
54. She said that the compromise proposal for the register was an integral part of a broader compromise proposal covering two other TRIPS-related issues, namely the extension of protection of Article 23 to GIs for all other products and the requirement for a disclosure of genetic resources and associated traditional knowledge in patent applications. Her delegation welcomed the Director-General's forthcoming consultations on these two issues and hoped that they would be just as productive in the future. A process which would help these three issues move together in parallel was necessary in view of the substantial linkages between these three elements but also to understand the full meaning of the proposals.
55. Recalling an informal consultation early this week where it had been explained how much the co-sponsors of TN/C/W/52 had moved towards each other in order to reach a compromise proposal, she highlighted the changes her delegation had accepted, downsizing its initial demands regarding the register in order to establish a notification and registration system which would be as simple as possible and would, as mandated, facilitate the protection of GIs as compared to the current situation without increasing that protection. She recalled the key elements of the mandate: to respect the principle of territoriality; to facilitate the protection of GIs without increasing it; to preserve the existing balance of rights and obligations in the TRIPS Agreement; and to respect Members' freedom to determine the appropriate method of implementing the provisions of the TRIPS Agreement within their own legal system and practice. Those elements had continued to be at the fore of her delegation's thinking and had made it support the proposal contained in TN/C/W/52. She pointed out that Switzerland had over the years accepted to lower its ambitions, namely, to give up the idea of creating an international arbitration system as originally proposed by Hungary for conflicting notified geographical indications, and to renounce the proposal for a rebuttable presumption regarding misleading identical names or genericness following a period of 18 months. That should be taken into account to see the movement leading up to TN/C/W/52. To be able to negotiate, both sides had to move. For her delegation, it was not clear to what extent the proponents of TN/IP/W/10/Rev.2 had moved towards convergence. Her delegation was still confronted with a proposal which provided for the creation of a simple database that Members' authorities might or might not consult, and which was unclear about the effect to be given to the information contained in that database if the authorities consulted it.
56. As regards Canada's offer to answer questions regarding the joint proposal, she said that the proposal had already been discussed in detail over the years so that there were no further questions to address. In her delegation's view, the parameters contained in TN/C/W/52 remedied some of the shortcomings of the joint proposal.
57. On the issue of the mandate "to facilitate" the protection of GIs, her delegation was of the view that it had become indispensable that consultation should be made obligatory, that there should be some clear assurances that the domestic authorities dealing with geographical indications - be they trademark examiners, judges or other administrative authorities - would not only have an obligation to consult the information contained in the multilateral register when taking any decision but that they would also take due account of this information in their decision. In other words, they should give the necessary weight to that information. Only such a procedure would truly facilitate the protection of GIs. The elements contained in TN/C/W/52 reflected such a procedure. In other words, the effect would be a prima facie evidence that the GI met a definition, whose elements might be challenged at any time. Document TN/C/W/52 also stated that a genericness claim could be maintained only if it was substantiated. These two elements would facilitate the right holders' recognition of their rights without affecting the exceptions of Article 24 while respecting the principle of territoriality since the decision would be taken at a national level in each country providing protection according to the procedures it had in place. Recalling that some of the proponents of TN/IP/W/10/Rev.2 had indicated at the last November and December meetings that they would be willing to commit themselves to take account of the information contained in the database proposed, she asked why this commitment could not be put down in writing as it was done in TN/C/W/52.
58. On participation, she said that it would be necessary to go beyond the plurilateral systems of WIPO, such as the Lisbon Agreement, and to be able to establish in the WTO a system which would give full meaning to the word "multilateral" as mandated in Article 23.4 of the TRIPS Agreement. This was an essential element for her delegation. The logical consequences of this mandate would be that all WTO Members, who would be free to notify their domestic GIs or not, would have to take account of the registrations placed on the multilateral register. She reminded delegations that there was no attempt to increase the protection for geographical indications and that all WTO Members already had an obligation under Articles 22 and 23 to provide protection to geographical indications, subject to the transitional period for least-developed countries. Her delegation had proposed that under S&D the needs of developing countries be taken into account.
