22nd April 2004

TRIPS COUNCIL SCRUTINISES GI NEGOTIATING MANDATE

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The Council for Trade-related Aspects on Intellectual Property Rights (TRIPS) met on 7 April for its first special (negotiating) session since the Cancun Ministerial Conference, to continue negotiations on a multilateral register for geographical indications (GI) for wines and spirits. Discussions focused on the key outstanding issues in the negotiating mandate provided in the TRIPs Agreement, with fundamental divisions remaining among Members. Discussions at the meeting broadly fell under the two key outstanding issues related to ‘participation’ and ‘legal effect’ (see BRIDGES Weekly, 12 June 2003). The meeting made virtually no headway, with one observer noting that in contrast to other negotiating areas, such as agriculture, the TRIPs discussions had not even entered the “listening” phase.

Article 23.4 of the Agreement notes that “in order to facilitate the protection of geographical indications for wines, negotiations shall be undertaken in the Council for TRIPS concerning the establishment of a multilateral system of notification and registration of geographical indications for wines eligible for protection in those Members participating in the system”. The mandate was reiterated in the Doha Declaration, with negotiations to be finalised by the Cancun Ministerial meeting. Members, however, failed to reach agreement and are now discussing how to proceed.

Argentina, Australia, Canada, Chile, El Salvador, New Zealand and the US, supported by Ecuador, submitted a ‘joint proposal’ outlining a number of questions and answers clarifying a previously submitted proposal (TN/IP/W/5 and 6). The Members submitting the joint proposal would like the GI register to function as a searchable database for GIs, to provide national intellectual property offices with the information on GI rights claimed by producers in the territory of another WTO Member. The register would be voluntary, ie Members would be able to choose whether to register their GIs. Enforcement of GI protection would remain grounded in national law. The supporters of the joint proposal believe that the European approach, which would allow Members to challenge proposed registrations and would require registered terms to be protected in all WTO Member countries, would amount to “TRIPs-plus” by increasing the obligations under the TRIPs Agreement.

In response, the Europeans, including the EC, Hungary, Switzerland, Bulgaria and Turkey, and supported by Bolivia, noted that such a database would be unreliable — and consequently not ‘facilitate’ protection — if Members were unable to challenge a term internationally. They believe that allowing Members to opt out of the system would make it ‘plurilateral’ rather than ‘multilateral’, as required by the mandate. Rather than increasing obligations, they stated that the system would simply facility Members’ compliance with existing obligations under the Agreement. Hungary also pointed out that in any case, even the ‘joint proposal’ could be regarded as “TRIPs-plus” as it would require a notification that does not currently exits.

Special sessions of the TRIPs Council are currently scheduled for mid-May (date to be determined) and June (back-to-back with the 15-17 June TRIPS Council’s regular session).

ICTSD reporting.