64. The representative of Australia thanked the delegation of the European Communities for having elaborated on the ideas it had set out on the register in TN/C/W/52. He expressed his delegation's satisfaction to see this negotiating body make progress on the technical discussions that were required to fulfil its mandate after rather slow progress in previous years, when the joint proposal and Hong Kong, China's proposal had been tabled without attracting the attention and discussion they should have deserved. He said that the relevant agencies in Australia were still considering the EC paper.
65. His delegation endorsed many of the comments made by other delegations, e.g. Canada and New Zealand, on some of the areas where his delegation's understanding remained incomplete. These delegations had identified some key areas where the EC paper seemed to have left some gaps in understanding, such as mandatory participation, particularly in relation to special and differential treatment.
66. In response to a general comment made by the European Communities that the register proposal was a "development proposal", and that it included a special mention of special and differential treatment for developing and least-developed country Members, he said that logically the most effective means of special and differential treatment would be voluntary participation as proposed in the joint proposal. He noted the contention made by several developing country proponents of the joint proposal that this proposal was fully in line with the Doha Round's development focus. This was supported by the impression from reading the EC paper that there could be a considerable administrative burden if participation in such a system were to be mandatory. The first reaction of his IP agencies, which was already telling, was that there would certainly be considerable resource implications and that the processing of thousands, or potentially tens of thousands of applications, would be rather demanding, to say the least.
67. Another area where his delegation shared many of the concerns expressed at this meeting related to the issue of legal effects. It continued to have some doubt as to whether the use of the concept of "prima facie evidence", which could be rebutted by proof to the contrary, was very different from the concept of "rebuttable presumption".
68. A point related to the structure of the EC's elaborated ideas and also to the structure of the discussion was that the matters to be notified to a register had an intrinsic relationship to what legal effects would be reasonable for the information on the register. According to the EC's ideas, Australian domestic authorities should take this evidence as prima facie evidence, and they would have to seek proof that was contrary to the evidence of the register to rebut it or to decide against it. It would therefore be important to know what that evidence might be. This was all the more relevant to the issue of legal effect because of the nature of the GI definition. The Lisbon Agreement contained a definition of "appellation of origin", which arguably would include the name of a place and which would entail finding some objective characteristic that linked a product to that name. It seemed to his delegation that the definition of GIs in the TRIPS Agreement had purposely been made rather broader and therefore included a subjective element, for example with regard to reputation. A subjective element could only be assessed by a Member in regard to its own territory. GI applications submitted in countries that had dedicated GI registration systems had not always shown that they were completely relying on objective grounds that a court could consider as prima facie evidence. So, the evidence to be notified, and therefore what was notified and what was registered, would be very important and not a matter to be left for a later stage. The issue of linkages between all the areas and all the key subjects brought to the fore the fact that what this negotiating group really needed to have would be a fully developed proposal as the next step towards the substantive discussion that Members had called for.
69. He further said that the EC's example of "Bordeaux" presupposed a domestic GI registration procedure. Recalling the comment made by the EC that, once the name "Bordeaux" had been registered, the competent authority of another Member would examine the registration and decide whether or not to register it, he asked whether or not all Members, including all those Members supporting TN/C/W/52, actually had a dedicated GI registration procedure for wines and spirits. While many had one, many others might not have any. It was difficult to see how the EC's ideas would work in those Members that had chosen not to set up such a system. His delegation would therefore be interested in hearing from the proponents of TN/C/W/52 how they would implement the system.
70. Finally, he said that he was reassured by Switzerland's characterization of its needs on legal effects. What was perplexing was that Switzerland's characterization of its needs did not seem to match his delegation's understanding of the effects of the EC's elaborated ideas. Switzerland and no doubt other proponents of the ideas in TN/C/W/52 seemed to require more than an obligation to consult, a clear assurance that domestic authorities concerned would have to take due account of the information in the register and that they would give it its necessary weight. He assured the Special Session that in Australia – as well as in other Members - that would be exactly the effect of the joint proposal. In other words, any information in an international register for which there was an obligation to consult and to give the necessary weight would be a matter of domestic procedure as the proponents of TN/C/W/52 had proposed and the EC and Switzerland had explained. He said there had been many interesting ideas raised at this meeting and in the EC paper.
