148. The representative of New Zealand said that his delegation wanted to register two important points arising from the EC's fax distributed in February of this year.
149. First, New Zealand shared Canada's concerns that the concept of prima facie evidence and absence of proof to the contrary acted as a presumption that a GI on the register should be a GI in all jurisdictions.
150. A second, very real concern for his delegation was the EC's proposal concerning assertions of genericness. The EC delegation had explained in March of this year that its proposal on genericness responded to problems faced by its wine and spirit industry in certain unspecified third markets, where it was reportedly faced with the impossibility of proving that its geographical terms were not generic. Presumably this was because the domestic procedures in place in those markets did not deliver the level of protection the European wine and spirit GI rights holders believed they were entitled to. The EC's preferred option was therefore to amend the TRIPS Agreement to ensure that its wine and spirit industry could more effectively assert its IP rights in those third markets.
151. His delegation would like to point out that it was not aware of any such problems in New Zealand, where EC producers had been able to protect their GIs as registered certification marks. There was also a clear jurisprudence relating to the common law tort of passing-off to protect the intellectual property rights associated with the term "Champagne". The EC's proposal would therefore be an amendment to a finely balanced section of the TRIPS Agreement in order to make it easier for its industry to assert distinctiveness in some markets. His delegation believed that this would create a whole range of new problems for other sectors of the industry, which would then have to gear up to assert genericness in a significant number of markets.
152. It was ironical that, while the European Communities bemoaned the difficulty of proving that its products were distinct in third markets, it had itself provided a useful case study on how difficult it was for others to prove that a term was generic in its own market. Despite concerted efforts over many years, the European Communities itself had been unable to develop a list of terms considered generic within its own borders.
153. There had also been situations before European courts that suggested that others might face the same problem as the European wine and spirit industry, only in reverse. In other words they could be faced with the impossibility of proving that a term was generic. In that context he referred Members to the EC Commission's recent communication on Agricultural Product Quality Policy, dated 28 May 2009. This paper acknowledged that, in the context of a possible recast of the EU's GI legislation, "... the Commission will consider whether any clarifications are needed, in particular in identifying generic terms …". His delegation therefore felt that Members were asked to accept obligations that affected the burden of proof concerning genericness, while the main proponent had only just itself announced that its legislation might require clarification in order to properly identify generic terms.
154. Against that background, his delegation saw a TRIPS amendment of the nature proposed by the European Communities as an extreme way of addressing the commercial problems of the European wine and spirit industry in some markets. The current Article 24 exceptions were very delicately balanced against the obligations outlined in Article 23, and he therefore saw very real problems with the EC's proposed amendment. His delegation did not agree that an amendment establishing conditions for the terms and the application of Article 24.6 was insignificant, far from it. New Zealand would welcome more detailed discussions of this issue in order to understand more fully the EC's commercial concerns behind their demands to impose conditions for the application of the Article 24.6 exceptions, and to explore together whether or not there would be other ways to address these concerns without requiring a TRIPS amendment.
155. As regards legal effects, he said some of New Zealand's unease might be allayed by a fuller understanding of how the terms "evidence", "proof" and "substantiate" would be defined in the context of the register. In the last Special Session the EC delegation had offered to undertake an exercise to define these terms if Members so wished. His delegation warmly welcomed the EC's constructive offer which would allow Members to better understand the proposed legal effects of the EC's latest new thinking and looked forward to reviewing the details of the EC's work in this area in due course.
156. As regards special and differential treatment, he said that the joint proposal was fully consistent with the development principles underpinning this round. The joint proposal did not require Members to delay the negotiations on these important development questions until later, as had been suggested by the delegation of India. Under the joint proposal there would be no need for Members to consider complex approaches such as transition periods, participation based on calculation of the share of global production, export consumption, trade on a certain product, technical support, or even whether special or differential treatment would apply only to developing countries, to LDCs, or to a particular group of Members. This was because the joint proposal allowed all Members, including developing countries and LDCs, to decide for themselves whether or not they wished to participate.
157. The joint proposal also had the benefit of providing important policy space for those Members who for social, moral or religious reasons had explicitly opted not to trade in wine and spirits.
