WTO TRIPS COUNCIL SPECIAL SESSION, MARCH 11, 2005

UNCLAS SECTION 01 OF 03 GENEVA 000836 SIPDIS PASS USTR FOR MENDENHALL, ESPINEL, PECK STATE FOR WILSON, FELT USDA FOR FAS/ITP/SCHWARTZ, TTB/TOBIASSE USPTO FOR LASHLEY, SALMON USDOC FOR ITA/SCHLEGELMILCH E.O. 12958: N/A TAGS: EAGR ETRD WTRO SUBJECT: WTO TRIPS COUNCIL SPECIAL SESSION, MARCH 11, 2005 ¶1. SUMMARY: The TRIPS Council Special Session met on Friday, March 11, 2005. The Special Session is charged with negotiating a system of notification and registration of geographical indications (GI's) for wines and spirits eligible for protection in those WTO Members participating in the system, in order to facilitate the protection of GI's. Ambassador Manzoor Ahmad of Pakistan chaired the meeting. A number of co-sponsors of the so-called "Joint Proposal," including the United States, tabled a draft legal text of the proposal at this session. This document generated much of the discussion at the meeting. The vast majority of the delegations present supported using this document as the basis for further work. However, there was strong opposition from the delegations of the European Communities and Switzerland, who have a different proposal. In the afternoon session, representatives from the WTO Central Registry of Notifications and from the WIPO administering staff for the Lisbon Agreement attended to answer questions. END SUMMARY. AGENDA ¶2. As the Special Session is solely concerned with the negotiations of a system of notification and registration of GI's for wines and spirits, the Agenda was short, including: negotiation of the establishment of a multilateral system of notification and registration of geographical indications for wines and spirits; and other business. NEGOTIATION OF THE ESTABLISHMENT OF A MULTILATERAL SYSTEM OF NOTIFICATION AND REGISTRATION OF GEOGRAPHICAL INDICATIONS FOR WINES AND SPIRITS ¶3. The Chair began the Special Session by noting that Members' statements may address the three sets of issues discussed at the last Special Session meeting in September 2004, which were: legal effects and participation; administrative and other burdens; and technical and procedural issues identified in JOB 03/75 (The Chair reiterated that the referenced JOB document does not have consensus approval and does not have any legal status). The Chair also noted the new document, submitted by co-sponsors of the "Joint Proposal" (TN/IP/W/10). ¶4. Canada took the floor to introduce document TN/IP/W/10 noting the desire of the co-sponsors to move the negotiations forward within the mandate of TRIPS Article 23.4. The delegation noted that this document built on the original Joint Proposal document (TN/IP/W/5) and the recent Q&A document (TN/IP/W/9) in setting forth a draft legal text of the proposal. Canada also noted that this was a draft and that co-sponsors were open to comments and to working with others but that the document preserves the principles of Article 23.4, namely preserving the principle of territoriality and preserving the ability of WTO Members to determine how to implement their TRIPS obligations. Canada also stated that this should be a basis for negotiations. ¶5. Chile, another co-sponsor, gave a more detailed introduction and noted the characteristics of the Joint Proposal being that it is voluntary, creates no legal effects, protects the balance of rights and obligations within the TRIPS Agreement, has no significant costs, respects the principle of territoriality, establishes the freedom to implement TRIPS obligations in national laws, and is limited to wines and spirits, all in terms of the mandate of TRIPS Article 23.4. ¶6. Fellow co-sponsors New Zealand, Australia, Argentina, and the United States all proceeded to take the floor, supporting the new document as a basis for future work in the Special Session. The Dominican Republic, Ecuador, El Salvador, Honduras and Chinese Taipei requested that their names be added as co-sponsors. A number of co-sponsors of the original "Joint Proposal" document (TN/IP/W/5) spoke of support but were not able to co-sponsor at this meeting, including the Philippines, Japan, Colombia, Paraguay, Dominican Republic, and Costa Rica. A number of other delegations gave statements of support for the Joint Proposal, including Malaysia and Korea, noting that it was very useful and support a multilateral system that is voluntary and does not have legal effect, especially for non- participating Members. ¶7. The EC gave a fairly strong and lengthy "preliminary" statement stating that the paper did not move the work forward. The EC stated that they were disappointed in the paper because, instead of bridging the gaps, this proposal increases the gaps between Members. They reiterated views expressed vis--vis previous iterations of the Joint Proposal that the system would be plagued by unreliable information, and that there was a need to have legal effects on all Members. In that light, the EC questioned why the provision governing whether a Member would notify a GI was only voluntary and not mandatory, stating that such a system would allow no notifications whatsoever. He also noted that the contents of the notification as proposed would lack important information such as the basis for protection (laws, etc.),date of protection, and evidence of compliance with TRIPS provisions (Note: these provisions are important to the EC because of their national system, which they see as a model, but are not in the mandate of TRIPS Article 23.4 in the view of the United States.) In addition to a number of other technical critiques, the EC stated that this document is not a basis for future work. Instead, they proposed that document JOB(03)/75, presented by the former Chair of TRIPS Council in 2003 be used as the basis for discussion. ¶8. Switzerland commented that while the co-sponsors indicated a willingness to address concerns of other Members, they could not see how the current draft took into account concerns expressed. Switzerland indicated that the proposal must give meaning to the word "multilateral," as compared to "pluraliteral" which is the nature of the voluntary system proposed. They also noted three major concerns regarding (1) whether there would be any "formal" review of notifications, (2) how the system "facilitates" the protection of GI's in terms of the mandate, and (3) the absence of any procedures to review or address challenges to certain rights. ¶9. Hong Kong, China took the floor to remind delegates that they had earlier submitted a proposal which is still on the table and which, in their view, is voluntary and has no legal effects, but establishes a notification as rebuttable prima facie evidence of (1),(2) and (3). ¶10. Brazil stated that it supported the principles underlying the Joint Proposal. They noted that (1) "facilitation" in TRIPS Article 23.4 does not mean "GATT- plus" protection for GI's, (2) that it preserves the balance of rights and obligations, including preserving the principle of territoriality and flexibilities under TRIPS Article 1.1, and (3) has low costs for Members. They also stated that these principles should also guide work in TRIPS Council with respect to patents. ¶11. Canada responded to a number of questions that had bee raised. They noted that no formality examination should be necessary as it is up to Members to provide the information in the system. As to costs, these should be minimal as the system could likely be implemented within the web site at the WTO, and referenced the notifications page established after the TRIPS and Public Health discussions. Responding to assertions by the EC and Switzerland that co-sponsors of Joint Proposal were not engaging, Canada noted that the co- sponsors have continued to refine the Joint Proposal, while the EC has not recently submitted a paper itself. Further, Canada noted that it will work with others on technical, administrative and other issues, but will not compromise on key principles of the mandate of TRIPS Article 23.4 including the voluntary nature of the system and the lack of substantive legal effects of the system, noting that there was an emerging consensus on these matters and that no delegation outside of Europe supported a contrary position. With respect to questions on reliability of information, Canada expressed surprise with little faith on the integrity of systems of Members, and noted no need for WTO Secretariat to review what may be a GI or to have an international dispute settlement process as disputes should be handled at the national level. Canada noted that the system "facilitates" protection by providing a single place, currently not in existence, for information to be used by national offices in rendering decisions about GI protection. They also noted that document JOB(03)/75 was never accepted by the Council. ¶12. Australia and Chile made statements supporting the Joint Proposal and responding to certain points noting that this document does attempt to bridge gaps among Members, but, of course, the EC is free to develop its own paper. At this point, there were a number of statements from the EC and Switzerland on one hand, and Chile, Australia, Canada, New Zealand, Argentina and the United States on the other hand, focusing on TN/IP/W/10 as a concrete step forward, regarding the status of the discussion. ¶13. Switzerland stated that it agreed with the EC that the administrative body should have a formal role, and agreed with Australia that the date of protection may not be relevant. Switzerland noted the information concerning international agreements for GI protection could be useful for some countries that do not have registration systems. ¶14. In the afternoon session, presentations were given by representatives of the WTO Central Registry of Notifications (CRN) and the WIPO Secretariat regarding the Lisbon Agreement on Appellations of Origin. The CRN is the system used in the WTO to catalog all notifications made pursuant to the various WTO agreements. The Lisbon Agreement, with 23 Members, is a voluntary international protection system for "Appellations of Origin," which are similar to Geographical Indications but more narrow in scope. The delegations of Australia, New Zealand, Canada, the United States, the EC, Switzerland and Turkey asked a number of questions to the representatives, mainly focusing on themes such a voluntary participation, legal effects of the systems, ease of operation, etc. relevant to the negotiations. OTHER BUSINESS ¶15. The Chair noted that the dates of the next Special Session would be June 16-17. After statements by the EC, asking for consultations after Easter using document JOB(03)/75, and statements by Australia, Argentina and the United States objecting to use of JOB(03)/75, and using TN/IP/W/10 as a basis, the Chair stated that while he did not detect any new flexibilities in position, he did see delegations prepared to engage with new intensity, and he suggested that he may call consultations prior to the next TRIPS Council Special Session. DEILY