RESTRICTEDWORLD TRADE
ORGANIZATIONTN/IP/M/6
1 July 2003
(03-3493)
Council for Trade-Related Aspects
of Intellectual Property RightsSpecial Session
MINUTES OF MEETING
Held in the Centre William Rappard
on 29–30 April 2003
Chairperson:  Ambassador Eui-yong Chung (Korea)
Subjects discussed: Page No.
A. A DOPTION OF AGENDA 2
B. O BSERVER STATUS FOR INTERGOVERNMENTAL ORGANIZATIONS 2
C. N EGOTIATION OF THE ESTABLISHMENT OF A MULTILATERAL SYSTEM OF
NOTIFICATION AND REGISTRATION OF GEOGRAPHICAL INDICATIONS FOR WINES
AND SPIRITS 2
General comments 2
Communications by Members 3
Hong Kong, China proposal (TN/IP/W/8) 3
Communication from the European Communities (JOB(03)/76) 9
Chairperson's Draft Text (JOB(03)/75) 12
Preamble 18
Paragraph 1:  Participation 21Paragraph 2:  Notification 23
Paragraph 2.1:  Substantive conditions 23
Paragraphs 2.2 – 2.3:  Contents of the notification 26
Paragraphs 2.4, 2.5 and 2.6:   Language of the notification; form of the
notification;  circulation to Members;  publication of notification 30
Paragraph 3:  Registration 32
Paragraph 3.1:  Options A and B 32
Paragraphs 3.2 – 3.3:  Form of the Register and contents of registration 35
Paragraph 4:  Legal Effects in Participating Members 36
Paragraph 5:  Legal Effects in Non-Participating Members 39Paragraph 6:  Legal Effects in Least-Developed Country Members 41Paragraph 7:   Modifications of Notifications and Registrations 42Paragraph 8:  Withdrawals 43Paragraph 9:  Fees and Costs 43Paragraph 10:  Contact Point 44
Paragraphs 11– 15 44
D. O
THER BUSINESS 45
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A. ADOPTION OF AGENDA
1. The sixth Special Session agreed to adopt the agenda as set out in WTO/AIR/2078.
2. The Chairperson proposed to address first the issue of observer status for intergovernmental
organizations.
3. It was so agreed.
4. The Chairperson suggested that, as in previous meetings, the International Bureau of WIPO be
invited to participate in its capacity as expert in the discussions regarding issues such as notification
and registration procedures.
5. It was so agreed.
B. OBSERVER STATUS FOR INTERGOVERNMENTAL ORGANIZATIONS
6. The Chairperson said that there had been no developments at the TNC and General Council
level;  he therefore proposed reverting to this ma tter at the next session in the light of any new
developments in these bodies.
7. It was so agreed.
C. NEGOTIATION OF THE ESTABLISHMENT OF A MULTILATERAL SYSTEM OF NOTIFICATION AND
REGISTRATION OF GEOGRAPHICAL INDICATIONS FOR WINES AND SPIRITS
8. The Chairperson said that there were three new documents:  a proposal from Hong Kong,
China for a multilateral system of notification and registration of geographical indications under
Article 23.4 of the TRIPS Agreement ("Hong Kong, China proposal") (TN/IP/W/8);  a note by the
Chairperson containing a Draft Text of Multilat eral System of Notification and Registration of
Geographical Indications for Wines and Spirits (" Draft Text") (JOB(03)/75);  and a communication
from the European Communities on the subject of traditional expressions (JOB(03)/76).  Hesuggested dealing first with communications from Members and general statements or comments
concerning these communications and the Draft Text.  After that, delegations might address each of
the specific aspects of the Draft Text, using its headings, and make any more detailed comments that
they might have on the way in which the aspect was addressed in the Hong Kong, China proposal.
General comments
9. The representative of Djibouti said that any future multilateral system must be voluntary.  He
was concerned that many developing and least-deve loped country Members, in particular those from
the African region, were entering into an area of negotiations without being fully aware of the
consequences.  His delegation could not appreciate the importance of geographical indications, in
either the trade or legal area, and thought that technical assistance was essential for his country to
understand better the repercussions.  He indicated that Djibouti had recently requested that a joint
regional seminar be held by the WTO and WI PO in 2004 for French-speaking African least-
developed countries as well as a national seminar, possibly this year, in Djibouti.  It was essential that
technical assistance be given, otherwise countries concerned might think that they had signed a blank
cheque without any funds to back it up.
10. The representative of the European Commun ities said that the European Communities and
also many of their member States had had programmes of technical cooperation for many years and
these programmes also included assistance in the area of geographical indications.  He asked theTN/IP/M/6
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representative of Djibouti what the European Communities could do in order to enhance this
assistance.
11. The representative of Argentina, referring to D jibouti's blank cheque analogy, said that these
negotiations were an opportunity for countries, in particular developing and least-developed country
Members, to attempt for once to guide the direction of these negotiations towards results that met theirneeds and interests and that could be implemented.  This was one of the reasons why her delegation
was actively participating in these negotiations.
12. The representative of Djibouti, referring to th e European Communities' statement, said that he
would appreciate increased technical assistance, in particular to help authorities from his capital grasp
the consequences of the ongoing negotiations in the WTO and of various proposals tabled by
Members.  Technical assistance would help his country become a fully fledged member of the
multilateral system.  It would also help weaker countries to understand their interests better andnegotiate more effectively.
13. The representative of the European Communities took note of the comments by Djibouti
regarding the need for technical assistance, and asked the Permanent Delegation of the European
Commission in Geneva to follow up with the representative of the Government of Djibouti regarding
the strengthening of bilateral cooperation, particular ly in the area of intellectual property.  He would
also ask member States of the European Communities about how they could strengthen technical
cooperation in the area of intellectual property.
Communications by Members
Hong Kong, China proposal (TN/IP/W/8)
14. The representative of Hong Kong, China said  that Hong Kong, China did not have any
substantive commercial interest in geographical indications, but rather a systemic interest in meeting
the negotiating mandate under Article 23.4 of the TRIPS Agreement and paragraph 18 of the Doha
Ministerial Declaration.  He recalled that, in January 2003, his delegation had informally floated some
ideas with a number of delegations.  It had further presented these ideas in a detailed statement at the
fifth Special Session in February.  Since then, a number of delegations had expressed an interest inlooking into his delegation's ideas in further detail.  In response, his delegation had tabled TN/IP/W/8.
He described the key elements of the proposal.  First, the multilateral system being envisaged would
involve only a formality examination of the geographical indication which was subject to notification.
Provided that basic information identifying the geographical indication, its ownership, and the basis
on which it was claimed to be protected in the country of origin was submitted to the administering
body, the indication would be entered on the register.    In terms of formal legal effect, registration on
the multilateral register would constitute prima facie evidence:  (a) of ownership; (b) that theindication was within the definition of "geographical indications" under Article 22.1 of the TRIPS
Agreement; and (c) that it was protected in the country of origin.  The effect of the registration would
be that the three issues would be deemed to be proved unless evidence to the contrary was produced
by the other party to the proceedings.  If the othe r party adduced evidence to the contrary, then the
court would weigh the totality of evidence produced by both sides and decide whether the issues andquestions were proved to the standard required in the proceedings.  In other words, a rebuttable
presumption would be created in relation to the three relevant issues.  The proposed tool would
therefore help the assumed owner of the geographical indication discharge the legal burden of proof
on the three issues in the course of domestic proceedings if such burden lay on him under domestic
law.  This would in turn facilitate the protection of geographical indications through each Member'sdomestic legal system.  The proposed framework would not change the substantive legal rights of
either party to a proceeding.  For instance, any question relating to the conformity of a geographical
indication with Article 22.1 would be left to the local jurisdiction in accordance with one's domestic
legal regime.  Questions relating to the applicability of the exceptions under Article 22.4 of the TRIPSTN/IP/M/6
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Agreement would continue to be decided by Members' domestic authorities, having regard to the
relevant local circumstances.  Registration in the multilateral register would not have any legal effect
or create any presumption in relation to these issues, except as it related to Article 24.9.  The system
would also not deal with competing claims for ge ographical indications;  these would continue to be
dealt with under national laws.  Under Hong Kong, China's proposed framework, the legal effect ofregistration would be limited in scope.  Hong Kong , China did not see the need to put in place a
process of substantive examination or opposition at the multilateral level.
15. With regard to participation, he said that Hong Kong, China proposed a voluntary system
under which Members should be free to participate and notify geographical indications protected in
their territories.  The obligation to give legal effect to registration under the system would only be
binding on those Members choosing to participate in the system.
16. With regard to costs, he said that Hong Kong, China appreciated the concerns of many
Members, in particular those that were not users of geographical indications, that they would be asked
to shoulder the cost for the setting-up and runn ing of the system.  Hong Kong, China therefore
proposed a user-pays principle and that the system operate on a full cost-recovery basis.  The cost of
operating the system should be shared between Members on the basis of the number of applications
they file.  In other words, Members who were not users of geographical indications would not beasked to share the costs.  Regarding the question of how to manage the workload, he said that one
further option for consideration would be to set a limit on the number of applications to be processed
each year.  As an illustration of the cost implications, Hong Kong, China had looked at its own
experience of operating registries based on formality checking.  Some figures were presented in
Annex B of TN/IP/W/8.  They were rough estimate s, based on Hong Kong, China's own experience;
obviously, the number of notifications to be handled each year would have a direct impact on the level
of fees to be charged for each application.
17. The representative of Chile expressed appreciation for the constructive contribution made by
Hong Kong, China.  The paper had several interesting elements.  The approach adopted a general
premise which Chile shared:  the establishment of a voluntary multilateral system for notification andregistration that was easy, simple to use and did not involve heavy costs and additional burdens.  The
five points set out under "Purpose" were a rough guide for the negotiations.  Intellectual property
rights were essentially territorial in nature, in this proposed system as in other intellectual property
agreements.  Annex A set out the different parameters of participation and highlighted the voluntary
character of the system.  It then made clear that each participating Member had the right to participate
through notifying geographical indications and that only those who participated could give legal effect
to the geographical indications.  This approach was the only possible approach, given that the systemto be established should not add to existing obligations.  Unlike other proposals, Hong Kong, China
made it clear in paragraph A.1 that the notified geographical indications should be protected under
their domestic legislation, judicial decisions or administrative measures.  He further asked for a
clarification:  while the Hong Kong, China proposal recognized that the differences between
geographical indications should be covered by exceptions according to domestic legislation, it alsosuggested that the burden of proof be reversed on the notifying party.  For Chile, this would mean
additional rights or obligations.
18. The representative of New Zealand expressed her delegation's appreciation to Hong Kong,
China, for its consolidated, clear and structured communication which touched on many of the
necessary elements for the eventual register.  The submission was helpful in trying to put existingproposals into perspective.  It also made a good effort at coming up with a number of elements that
fitted squarely within the negotiating mandate as far as the most important issues were concerned:  the
right of Members to implement the TRIPS Agreement in accordance with their own legal systems and
practices;  the territorial nature of intellectual property rights, including geographical indications;  the
idea that disputes about individual cases should continue to be resolved at the national level;  and theprinciple that there should be no legal obligations for those Members not participating in the register.TN/IP/M/6
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In those respects, the Hong Kong, China proposal tended to reflect the views of a broad range of
Members.   It compared favourably with the Draft Text, which had to include proposals by some
Members that clearly went beyond the mandate of negotiations.  However, the Hong Kong, China
proposal was outside the mandate of negotiations with regard to the idea that registration would
constitute prima facie evidence of a number of elements.  As stated by Chile, there was somecontradiction between the stated objective of not in creasing or detracting from existing legal rights or
obligations under the TRIPS Agreement and the reversal of the burden of proof, which was an
element also present in the European Communities proposal and which had caused a number of
concerns in the past.
19. The representative of Mexico shared the views expressed by other delegations that the
Hong Kong, China proposal would help Members discharge their obligations.  While it contained
positive points, there were others which required greater explanation, such as the burden of proof,which seemed to create additional obligations.
20. The representative of Uruguay said that the Hong Kong, China proposal contained elements
that were closer to her country's expectations than  some other proposals.  Her delegation welcomed its
truly voluntary system of participation, i.e., one without legal effects for those who did not participate.
21. The representative of Japan expressed his delegation's appreciation of the Hong Kong, China
proposal.  His delegation needed further time to study the proposal, especially the legal effect of
registration.
22. The representative of Canada associated her delegation with the comments made by Chile,
New Zealand and Mexico.  The Hong Kong, China proposal recognized:   the voluntary nature of the
multilateral system;  the right of Members to impl ement TRIPS Agreement obligations in accordance
with Article 1.1 of the Agreement;  and the territorial nature of geographical indications.   However,
her delegation had some concerns about some other aspects of the proposal, including the cost-
estimate.  Although it was useful to have a cost-estimate, this estimate did not factor in any of the
arbitration situations that, in Canada's experience, would surely result.
23.  The representative of Australia said that the proposal tabled by Hong Kong, China confirmed
his delegation's thinking that there was still time between this meeting and Cancún to encourage
delegations to come forward with ways of assisting the Special Session in complying with its
mandate.  As had been underscored by Chile, Mexico, Uruguay, New Zealand and Canada, the
mandate established the core principles on which Members had agreed to base their negotiations.  The
first principle related to the type of legal effect that the system should have on Members that decided
to participate in it.  In this regard, there was a clear recognition amongst delegations that the
multilateral system should facilitate the protection of geographical indications for wines and spirits inaccordance with Articles 22 to 24 of the TRIPS Agreement and not impose additional substantive
legal obligations or confer additional legal rights on Members beyond those already contained in the
TRIPS Agreement. Legal effect clearly would be an important issue which would determine the
outcome of these negotiations.  The second core principle related to participation.  Article 23.4
provided that Members had a choice of whether or not to participate in the system and Memberstherefore should be free to choose whether they would make notifications to the system.  This
principle would be perfectly consistent with other comparable intellectual property treaties such as the
Lisbon Agreement, the Madrid Agreement in the area of trademarks, and the Patent Cooperation
Treaty.  Members would also be free to choose whether they would use the system when making
decisions about the recognition and protection of geographic indications, which were territorial innature.  Another principle against which Australia would be judging these negotiations was that the
system to be established should be a system of notification and registration only and should not
contain any procedure of negotiation or arbitrati on or any other procedure regarding decisions on
opposition or other measures as  to how geographical indications were territorially applied.
Regarding the legal effect of the registration, his delegation was of the view that the Hong Kong,TN/IP/M/6
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China proposal was inconsistent with the mandate:  it changed the substance of the TRIPS
Agreement.  Regarding the Annex on cost estimates, his delegation also thought that, while the cost
estimates would be useful to provoke participants  to start thinking about the issue, this would
probably be a gross under-estimate of the costs of the future system.
24. The representative of the Czech Republic said that her delegation continued to support the
European Communities' approach and shared their concerns.  The Hong Kong, China proposal could
not meet the objective of Article 23.4 of the TRIPS Agreement, that is the facilitation of the protection
of geographical indications.
25. The representative of Colombia said that his delegation shared Chile's concerns about the legal
effect of registration.
26. The representative of Costa Rica said that his delegation agreed with certain aspects of the
Hong Kong, China proposal, such as the voluntary nature of the system and the territorial character of
geographical indications.  However, it could not share the approach regarding the legal effect of the
registration:  the rebuttable presumption would have  an impact that went beyond the purview of the
Agreement.
27. The representative of Hungary said that the Hong Kong, China proposal contained some
useful elements and generally was in the right direction.  However, other aspects concerned his
delegation.  It might not have the multilateral character it claimed and some clarifications would be
necessary with regard to legal effects.
28. The representative of Argentina said that her delegation agreed with Hong Kong, China's
recognition that:  participation should have a voluntary character; the legal effects of registration
would apply to participating Members only; Members should have the right to determine theappropriate means for implementing the TRIPS Agreement; Articles 22 and 24 were fully applicable;
and the territoriality principle must be respected.  However, her delegation shared the concerns
expressed by others on the legal effects of a registration, which went beyond the current provisions of
the TRIPS Agreement.
29. The representative of Cuba said that the Hong Kong, China proposal was in various aspects a
balanced one and contained features of fundamental importance to Cuba's approach to the
negotiations, such as a voluntary nature.  However, it would support the request of other delegations
for clarification regarding the reversal of the burden of proof.  The proposal also contained other
points going beyond the mandate of negotiations and which could not be accepted by her delegation.
The purpose of the system was to facilitate protection and not to create additional obligations.
30. The representative of Switzerland said that the Hong Kong, China proposal was well-
structured and coherent.  Compared to the Draft Text, the proposal had the advantage of being
presented in one go.  The Annex on costs was a new and concrete step in addressing the issue of costs.
He wondered whether some of the elements cont ained in the Hong Kong, China proposal could
actually achieve the purpose of the multilateral system as mandated in Article 23.4 and in
paragraph 18 of the Doha Declaration, such as the issues of participation and legal effect.  While
agreeing that there was a voluntary element insofar as Members should be free to notify and registertheir geographical indications,  he believed that, if the multilateral system only had legal effects for
some Members,  it would be a plurilateral rather than multilateral instrument.  With regard to the
formal examination of three issues as proposed by Hong Kong, China, his delegation did not think
that such a simple examination would achieve the go al of facilitating protection.  There would be a
risk that such a system would contain unreliable in formation.  For example, expressions such as those
of concern to Australia, might be recorded on the register and there would be no means to remove
them and have a coherent register at the multilateral level.  He had also noted that Hong Kong, China
had proposed a renewable term of protection of 10 years.  This seemed to be inspired by a certainTN/IP/M/6
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perspective and a certain system of protection.  In that regard, he recalled a point of the utmost
importance to all delegations:  nothing in the future system should prejudice the means by which
Members implement their obligations under the TRIPS Agreement.
31. The representative of the United States expressed his delegation's satisfaction with the
constructive Hong Kong, China proposal.  He appreciate d the provisions that were consistent with the
mandate under Article 23.4, such as those on the voluntary nature of the system as shown in Annex A
of TN/IP/W/8.  However, his delegation had concerns about the legal mechanism and costs.
32.  The representative of the European Communitie s said that, unlike for trademarks, the TRIPS
Agreement did not require registrations of geographical indications to be renewed.  On the contrary,
geographical indication protection under the TRIPS Agreement appeared to be available as long it
was given in the country of origin.  For his delegation, a renewal system would make protection more
difficult and costly and not facilitate it.  If the purpose of such a renewal was only to obtain extra fees,his delegation would feel more comfortable.  For example, such a requirement could be linked to a
requirement for the payment of a fee, the issuance of a certificate of registration or modifications of
existing registrations.  With regard to the number of geographical indications to be notified, he
understood that the number of notifications admitted into any system of a multilateral register might
be a concern when there was a system of examination and opposition.  Indeed, an excessive numberof notifications could be difficult to be absorbed by any administration.  However, as under the
proposal from Hong Kong, China there was no system of examination and opposition, the question of
excessive notifications was moot.  This being sai d, he thought that the idea of some limitations in
terms of numbers should be explored.  His delegation was examining the parts of the Hong Kong,
China proposal dealing with exceptions and formality examination.
33. The representative of the Philippines asked whether there was any implication under the
TRIPS Agreement of a presumption of protection in a multilateral system.  If not, it would seem that
the creation of such a presumption would entail an additional substantive right in favour of a notifying
Member and, as a corollary, an additional substantive legal obligation on other participating
Members, which would contravene the purpose of the system as recognized by Hong Kong, China inSection 3, paragraph 4, of TN/IP/W/8.  This being sai d, he was of the view that the paper provided a
constructive and useful basis for continuing discussions, particularly given its relatively simpler and
more concrete elements.
34. The representative of Chinese Taipei welcomed the Hong Kong, China proposal insofar as it
contained points to be further explored:  voluntary participation;  withdrawal from the system;
recognition of the territorial character of geographical indications;  and recognition of geographical
indications as intellectual property rights and of their territorial character.
35. The representative of Brazil said that Brazil's participation in the Special Session reflected its
openness on how to fulfil the negotiating objectives.  The general parameters of his delegation's
position with regard to the multilateral system were given by those principles which had been
reproduced under the heading "Purpose" in TN/IP/W/8, namely:  to facilitate protection of
geographical indications in accordance with the relevant provisions of the TRIPS Agreement;  topreserve the freedom of Members to determine the appropriate method of implementing the
provisions of the Agreement;  to recognize that intellectual property rights were essentially territorial
in nature;  not to impose additional obligations nor confer additional rights;  and not to impose undue
financial or administrative burdens on Members choosing to participate in the system.  These were
only general principles.  While his delegation welcomed their incorporation in the Hong Kong, Chinaproposal, this should not imply that his delegation necessarily agreed with all of the operative parts of
that proposal.  He appreciated that concrete proposals and texts enabled Members to test their own
flexibility.  Brazil was not a demandeur in this exercise but was willing to make a genuine effort to
accommodate the interests of other Members.  His delegation would therefore be ready to make
positive linkages in the expectation that others would be prepared to reciprocate.  With regard toTN/IP/M/6
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costs, his delegation had concerns about the cost of administering the system and the domestic burden
imposed on Members.  Many WTO Agreements cost little to the WTO as an organization but entailed
significant costs to Members to implement.  For example, it had been estimated that the
implementation of the Agreement on Customs Valuation would cost over US$20 million for Angola.
His second comment related to the question of whether a multilateral system was necessarily auniversal system.  Article 23.4 provided for 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.  If the word "multilateral" in Article 23.4 had been meant as a synonym
for "universal", then that last clause of Article 23.4, namely the words "in those Members
participating in the system", would be redundant.  Therefore, to read "multilateral" as meaning
"universal" in Article 23.4 would be contrary to the customary rules of treaty interpretation laid down
in the Vienna Convention on the Law of Treaties.  The Special Session was not mandated to concludea universal registry.  This should be a subject for negotiation and could not be presumed.  Regarding
the comments made about the impending Cancún deadline and the lack of progress, he quoted a
Brazilian saying that a "shared disgrace, as opposed to a lonely disgrace, would be half of the way to
happiness".
36. The representative of Costa Rica said that the Hong Kong, China proposal was a useful one
and contained some aspects that were acceptable to his delegation and some aspects that were not.
37. The representative of Hong Kong, China, in response to the question by Chile, said that the
idea of prima facie evidence on a few aspects on geographical indications was consistent with the
notion in paragraph 3(iv) of TN/IP/W/8 that the system "shall not impose additional substantive legal
obligations beyond the TRIPS Agreement".  The proposal did not entail a substantive requirement onthe part of the participating Member as far as the reversal of the burden of proof was concerned.  The
requirement was only procedural:  it would assist the geographical indication owner to discharge his
or her evidentiary burden of proof in a Member's domestic court.  The two fundamental principles
under the proposal were still that intellectual property rights were territorial in nature and that any
disputes should continue to be settled in Members' domestic courts.
38. On the term of registrations and renewals, he said that the aim of his proposal was to help
update the multilateral register, and not to change each Member's own domestic laws on geographical
indications.  It did not impose any expiry on the term of geographical indication protection.
39. With regard to formality examination, he said that the primary objective of the proposal was to
ensure that the notifications were complete, particul arly if there was an agreed standard format for
making notifications.  There were similar practices in other areas of intellectual property protection
like petty patents and industrial designs, where registrations were made on the basis of formalityexamination.
40. The representative of the European Communities expressed concern that some delegations
seemed not to make any distinction between notification and registration.  Supposing that a Member
notified, knowingly or not, a name which in practice constituted a misuse of a geographical indication
in Europe, this name would be on the website, everyone would look at it, but it could not bechallenged.  It would be given even more publicity.   Such a system would be counterproductive and
would be the opposite of "facilitation".
41. The representative of Malaysia welcomed the fact that the Hong Kong, China proposal had
reiterated:  that the purpose of the multilateral system was to facilitate the protection of geographical
indications;  that Members would be free to determine the appropriate method of implementing theprovisions of the Agreement within their own legal system and practices; and that the system should
not impose any legal obligations.  A number of features, such as the formality examination of
notifications and the legal effects of registrations would need clarification.  One clarification would be
that these features only applied to participating Members.TN/IP/M/6
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Communication from the European Communities (JOB(03)/76)
42. The representative of the European Communities said that the communication contained in
JOB(03)76 had been triggered by Australia's need to ensure that traditional expressions did not find
their way onto the wine and spirits register that was being negotiated multilaterally.  His delegation
had repeated its view on traditional expressions in the course of the last few months.  It noted thecomment made by India that it was not appropriate to work with footnotes in order to make certain
clarifications of the TRIPS Agreement.  As i ndicated in the last paragraph of JOB(03)/76, the
European Communities did not believe that the mandate contained in Article 23.4 of the TRIPS
Agreement allowed Members to modify or to add footnotes to the TRIPS Agreement.  Therefore,
should any such footnote be included, if at all, it would have to be inserted in the framework of the
agreement establishing the multilateral system of notification and registration rather than in the TRIPS
Agreement itself.  He also referred to the last pa ragraph of the cover page of the Draft Text which
addressed the issue of traditional expressions.
43. The representative of Chile, referring to the comment made by the European Communities
delegation that the mandate contained in Article 23.4 did not allow Members to modify or add
footnotes to the TRIPS Agreement, pointed out th at this logic also meant that the mandate in
Article 23.4 of the TRIPS Agreement did not allow Members to add any obligations to existing ones.
44. The representative of Australia said that the communication made by the European
Communities confirmed that there was a real problem in this area, which could not be resolved simply
by a unilateral statement read out at the time that a register would come into being.  The European
Communities delegation had asserted that the reasoning put forward by Australia in relation to
traditional expressions applied equally to certification marks.  This assertion was very troubling andconfusing.  It was troubling because the European Communities appeared to be saying that, in their
view, certification marks should not be eligible for registration on the multilateral system just as in
Australia's view, traditional expressions should not be eligible for inclusion in the system.  The
problem was that a number of Members did protect geographical indications through certification or
collective trademarks;  they had chosen this form of protection in accordance with their rights underthe TRIPS Agreement to determine the appropriate method of implementing the provisions of the
Agreement within their own legal systems and practice.  It appeared that for some Members this was
not good enough, and that another system of protecti on, one that involved a registration system, must
be used by all Members.  That seemed to be the message that was coming from the European
Commission.  This would mean that a number of Members would be prohibited from notifying a
geographical indication protected by way of a certification mark.  When such a statement was coupled
with the European Communities' view  that participation in the system should be compulsory for all
Members, it became even more worrying.  The same Members that would be prohibited from
notifying their own domestic geographical indi cations would have absolutely no choice but to
recognize and protect the geographical indications notified by those Members who operated a registry
system.  In other words, Members would have to recognize all the European Communities'
geographical indications but they and no-one else would have to recognize any of the geographical
indications that were protected by countries such as New Zealand, Australia, Canada, the United
States, which used other systems.  The communication was confusing because it suggested that
traditional expressions could be compared with certification marks.  On what basis could such a
comparison be made?  Certification marks were intellectual property.  Traditional expressions were
not.  Certification marks could be used to protect geographical indications but traditional expressionscould not be used to protect geographical indications.  Certification marks were used by Members to
protect geographical indications. Traditional expressions were not used by Members to protect
geographical indications.  A certification mark referred to a type of intellectual property protection.  A
traditional expression was simply a specific term recognized in the domestic legislation of one
Member.  In other words, there were simply no grounds on which a comparison could fruitfully bemade.  He reiterated that before signing up to a multilateral system of notification and registration of
wine and spirits, it would be necessary to have a clear idea of what geographical indications would beTN/IP/M/6
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eligible for notification.  Otherwise it would be impossible to gauge the full ramifications and
implications of what was being proposed.  He took the example of the ordinary English words,
"ruby", "tawny" and "vintage".   While the European Communities was describing these terms as
"traditional expressions", Australia was of the view that traditional expressions should not be eligible
for notification to this system.  His delegation had thought that the European Communities had agreedon that point.  However, the European Communities had explained that these terms were not
geographical indications and as long as they were not geographical indications they would not be
eligible for notification, implying that in the futu re they might become geographical indications and
hence notifiable.  He referred to a statement made by European Communities Commissioner Fischler
that there were some traditional expressions so closely associated with geographical indications that
they themselves had become geographical indications.  It had also been suggested that a re-
classification process was under way within the Commission and within the European Communities.If that was the case, there were a huge number of traditional expressions that should be scrutinized
very carefully.  In effect, these lists of traditional expressions were actually lists of future possible
geographical indications.  If ordinary English words could be turned into geographical indications,
then any other matter could be turned into a geographical indication as well.  One Member might feel
that certain types of grape varieties, for example, could also constitute geographical indications;  thishad been mentioned by France and the OIV in the last meeting of the WIPO Standing Committee on
Trademarks, Geographical Indications and Industrial Designs (SCT).  What struck him was that the
core element of the definition of geographical indications, the linkage with the geographical place was
not mentioned but "production method", "plant spec ies" or some other non-geographical attribution.
This was a matter of concern because it expanded the scope of this exercise quite dramatically.  Hesaid that the European Communities had tried to confirm in their statement that traditional expressions
could not be subject to notification under the multilateral system and could never be in the multilateral
register as indicated in JOB(03)/76;  however, the paper did not refer to Article 24.9.  This would
mean that if a traditional expression was protecte d in the European Communities, then the European
Communities would have the right to notify it and put it in the register.  This was not acceptable.  Hefinally said that the suggestion made by the Chairperson in the cover page of his note would not solve
the problem.
45. The representative of New Zealand said that her delegation was shocked that the European
Communities was explicitly proposing to exclude collective and certification trademarks from a
register when in fact these tools were being used by a number of different Members to implement
their existing geographical indication obligations.  This ran counter to the firm position of her
delegation that nothing regarding the future multilateral system should prejudice Membersimplementing systems of geographical indication protection that differed from the European
Communities' own system of geographical indication protection, particularly those countries such as
New Zealand, with a common law system.
46. The representative of Canada said that Canada had implemented its TRIPS obligations
regarding geographical indications for wines and spirits through the Canadian Trademark Act.
Therefore, the future multilateral system was another approach that could be used to facilitate that
type of protection and in that regard it was not meant to incur a "TRIPS plus" obligation in any way.
47. The representative of Hungary, in response to the intervention made by Australia on additional
rights and obligations, said that it was generally agreed that Article 22.1 was clear enough and could
be accepted as it stood without change.  He did not therefore see the point of dealing again with theissue of definition in a footnote to the TRIPS Agreement as proposed by Australia.  Regarding the
concern expressed by Australia that some Members might propose to notify traditional expressions,
he was of the view that this was precisely one more reason to support the proposals regarding a
mechanism of opposition.  Such a procedure would allow the question of whether a notified term met
the definition of Article 22.1 to be considered.  He saw in the suggestion made by Australia acontradiction:  based on the internal legislation of the European Communities, Australia seemed to be
proposing to pre-negotiate what the European Communities and other Members might or might notTN/IP/M/6
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put forward.  He wondered whether this would not be an interference with the internal system of a
Member, an argument which was put forward by a number of delegations.
48. The representative of Argentina shared Australia's concerns about traditional expressions.  In
the penultimate phrase of the last paragraph of JOB(03)/76, the European Communities had indicated
that traditional expressions could not be considered as geographical indications and thatcertification/collective marks could not necessarily be considered in all circumstances as geographical
indications either.  She asked whether the European Communities were implying that if certain
European Community traditional expressions were accepted as geographical indications, they would
in turn accept certain certification/collective marks from other Members?
49. The representative of Switzerland thought that  the European Communities communication had
made it clear that traditional expressions were not a subject of the multilateral system and hoped that
the issue was now settled.
50. The representative of the United States noted that the European Communities delegation was
reluctant to add footnotes to the TRIPS Agreement on the ground that it might exceed the mandate.
This was an ironic situation since much or all of the European Communities proposal exceeded the
mandate under Article 23.4.  Regarding collective marks and certification marks as mentioned in the
European Communities communication, he pointed out that all Members had an obligation to protectcollective marks under Article 7 bis of the Paris Convention.  On the other hand there was no
obligation to recognize a term that was utterly divo rced from geography such as "vintage", "ruby", or
"viejo".  He asked whether the assurance given by the European Communities meant that if a
traditional expression were to become protected within one of the European Communities member
States as a geographical indication, it would become "eligible" for notification and registration underthe multilateral system.
51. The representative of the European Communities recalled that his delegation's position had
been spelt out at several meetings of the Special Session and reflected in the minutes as well as in
JOB(03)/76.  He reiterated that traditional expressions were not part of the notifiable subject-matter of
the future register.  Turning to certification marks,  he stressed that in his delegation's view these
marks were not necessarily notifiable subject-matter in all circumstances.  This did not mean that the
European Communities were, as a matter of principle, always going to object to this type of
protection.  The background for such a statement was the following:  some months previously, his
delegation had scrutinized the legislation of several Members and came up with questions.  These
questions remained unanswered.  The European Communities' impression was that in certain
Members adequate protection had not been granted with regard to geographical indications if these
Members had opted to do so under certification or collective marks.  It would therefore be impossiblefor the European Communities to assess whether those Members granting protection through a system
different from the European Communities were act ually meeting the requirements of the TRIPS
Agreement.
52. The representative of the Philippines welcomed the clarification by the European
Communities regarding its commitment never to notify and seek protection for traditional expressions
under the proposed multilateral register.  What caused concern to his delegation from a systemic point
of view was the implied connotation that certification or collective marks, which might be used as a
means of protecting geographical indications for wines and spirits, were of the same nature as
traditional expressions and could therefore be excluded from the register the same way as traditional
expressions.  For his delegation, this seemed to  miss an important dichotomy between traditional
expressions on one hand and collective/certification marks on the other.  Collective/certification
marks reflected not mere words or expressions  but were a means of protecting geographical
indications and as such they were an inherent part  of the system.  The situation regarding traditional
expressions was different:  as such they did not necessarily attach to a system but merely related toTN/IP/M/6
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certain notions which were being proposed to be eligible for protection under the future multilateral
system.
53. The representative of Chinese Taipei fully supported the comments made by Australia,
Argentina, New Zealand, and the United States.
54. The representative of Australia said that the suggestions made by some delegations that
traditional expressions were an area where future differences would need to be resolved multilaterally
through negotiation, arbitration or both were not about solving the problem.  They were the problem.
This perception was increased if some delegations considered that any notification of a certification
mark to the multilateral system might be also be subject to negotiation and arbitration.  This was
precisely the situation which must be avoided.
55. The representative of India recalled his delegation's position reflected in paragraph 46 of the
minutes of the fifth meeting (TN/IP/M/5).  It would therefore go along with the Chairperson's
suggestion that since "traditional expressions" did not have any established meaning in WTO or other
multilateral law and seemed to derive essentially from the legislation of one Member, it might be
difficult to address them in any instrument to be negotiated.
56. The representative of the European Communities said that his delegation had not proposed to
deal with the issue of traditional expressions through a unilateral declaration but rather supported the
suggestion made by the Chairperson in the last paragraph of page 1 of JOB(03)/76.
Chairperson's Draft Text (JOB(03)/75)
57. The Chairperson said that the Draft Text was based on the Elements/Options paper that he
circulated on 20 March 2003 (JOB(03)/60) and on th e discussion that Members had had on the basis
of that text.
58. The Preamble  was self-explanatory.  The language in the sixth consideration, which was in
square brackets, corresponded in effect to the Op tion A equivalent of the Option B proposals for
challenge and other mechanisms to address possible differences regarding eligibility for protection
found in paragraph 3.1.  At the top of page 3 of the English text, the nature of the action to be taken,
for example whether to "decide" or to "adopt" had been  left open.  In the same vein, at the top of page
2 the body which would take this action had been left unspecified.  This was in order to avoid
prejudging the type of legal instrument, for example whether it would be a decision or an agreement.
59. In regard to paragraph 1 on participation , the action to be taken by a Member wishing to
participate in the system had been left unspecified for the same reason.
60. The section on notification  attempted to take into account the discussion that had taken place
on the basis of the Elements/Options paper.  In the chapeau to paragraph 2.1 and also in paragraph 12,
the question of the "body administering the system" had been left open, whether for example thismight be the WTO Secretariat or the International Bureau of WIPO.  The second part of subparagraph
(a) of paragraph 2.2, which referred to transliteration into Latin characters, attempted to take into
account points that were made about the difficulties that could arise from the use of different types of
characters in the various languages of origin.  The proposed approach was drawn from the experience
of WIPO under some of its registration treaties.  For the second part of subparagraph (b) of paragraph2.3, the text had also drawn inspiration from WIPO experience in order to respond to some points that
had been raised about the feasibility of notifying information on the natural or legal persons that had
the right to use the geographical indication.  In paragraph 2.5, and also in paragraph 9.2, there was a
reference in square brackets to the "committee resp onsible for managing the system".  Obviously, this
question of the appropriate intergovernmental committee of the participating Members that wouldhave this responsibility would be linked to that of the administering body and might also be linkedTN/IP/M/6
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with that of the legal form and perhaps participat ion.  Options for such a committee could include the
TRIPS Council, a newly created subsidiary body of the TRIPS Council, a body in WIPO or some
other body;  it was deemed preferable to leave this matter open.  The issue of the committee
responsible for managing the system was flagged in square brackets in paragraph 11, as a matter for
further discussion in due course.
61. Under registration , there were two main options for paragraph 3.1.  Option A was based on
the Joint Proposal.  Option B reflected the proposals put forward by the European Communities and
Hungary, with this option bifurcating into an  Option B.1, that put forward by the European
Communities, and an Option B.2, that put forward by Hungary.  The Chairperson said that, obviously,
the European Communities and Hungarian ideas took more space, because they were more complex.
However, he said that delegates were too sophisticated to think that a mere difference in the number
of lines reflected any difference in the respective importance of options.
62. The notation for the various options under legal effects  in paragraphs 4 and 5 were the same
as for paragraph 3.1.
63. Paragraph 8 concerned arrangements for withdrawals of notifications and registrations .
Some specific ideas were put forward for consideration.
64. Paragraph 13 dealt with the possible withdrawal  of a participating Member from the system
as a whole.  Since this matter was linked with that of legal form and with the procedures by which a
Member opted to participate in the first place, the Draft Text only flagged the issue for discussion at
the appropriate stage.
65.  Paragraph 14 related to the issue of the review  of the instrument after a certain period had
elapsed.  The text referred to the "competent committee" rather than the "committee responsible formanaging the system" because it could be that the review would be undertaken by another body, for
instance at a higher policy level.
66.  The Chairperson finally recalled that the text remained exclusively on his own responsibility
and did not prejudice the position of any delegation, in accordance with the normal WTO practice that
"nothing is agreed until everything is agreed."
67. The representative of Chile said that the Draft Text would contribute to helping participants
focus discussions and make progress.  While there seemed to be widely divergent views on some
points, achieving a common denominator was possible if certain elements could be brought together.
He was of the opinion that it was legitimate for the Chairperson to prepare a paper which reflected the
different positions expressed by Members and that such a paper could be termed a negotiating basis.
For his delegation, it would not be unreasonable to ask participants to take the Draft Text as a basis
for negotiations even if it contained elements which went beyond the purview of the mandate inArticle 23.4.  The Special Session was still in a phase of negotiations in which different positions
should be able to mature and it should be able to ensure that the different elements of the text fell
within the scope of the mandate.
68. The representative of Uruguay said that her delegation agreed with the approach of reflecting
and giving shape to the various options.  However, it found that there was some imbalance between
the options, in particular with regard to paragraphs 3 and 5.  Because of some options reflected in the
paper, it would not be possible for her delegation to consider the paper as a compromise text until a
decision on the legal effect on non-participating Members had been taken.
69. The representative of Japan stated that his country was fully committed to engage in a
constructive discussion to find a solution by the deadline set by the Doha Declaration and hoped that
the Chairperson's note would help delegations focus on the differences and find possible solutionsTN/IP/M/6
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even though the differences were still very wide.  He reiterated that Japan believed that the Special
Session should establish, as elaborated in the Joint Proposal (TN/IP/W/5), a system that facilitated the
current level of protection of geographical indications for wines and spirits and at the same time did
not have any legal binding effect and minimized the burdens and costs for Members.  He further
asked how to interpret the relationship between the third paragraph of the preamble which says that
"the purpose of the multilateral system of notification and registration of geographical indications for
wines and spirits shall be to facilitate the obtaining of the level of protection which is provided for in
the TRIPS Agreement for geographical indications and not to increase that level of protection" and
the additional legal effects under some options under paragraphs 4 and 5 of the Draft Text, which
might expand the scope of protection under the present TRIPS Agreement.  Another question was
how to interpret the relationship between the multilateral legal effects proposed under a couple of
options and Article 1.1 of the TRIPS Agreement, which stated that "Members shall be free todetermine the appropriate method of implementing the provisions of this Agreement within their own
legal system and practice".
70. The representative of Costa Rica said that the purpose of a multilateral system should be to
facilitate the level of protection which was established in the TRIPS Agreement and not to increase
the level of protection. This had been made quite clear both in paragraph 3 of the Preamble of theDraft Text as well as in paragraph 3(i) of the Hong Kong, China proposal.  In this respect, the Joint
Proposal (TN/IP/W/5) was consistent with the mandate of the Special Session.  He expressed support
for the question raised by Japan with regard to the relationship between paragraph 3 of the Preamble
of the Draft Text and the provisions of the same Draft Text relating to legal effects.  Costa Rica gave
its support to the establishment of a multilateral notification and registration system which wasvoluntary, was in accordance with the mandate under Article 23.4 of the TRIPS Agreement, would
not create new obligations, and would make it possible to reduce the existing national structure
regulating matters like examination, challenge and registration. The system should also be
inexpensive.  He added that Costa Rica had no commercial interest but rather a systemic interest.
71. The representative of Australia said that on legal effects the Draft Text contained elements
that actually represented amendments to the TRIPS Agreement.  Presently, Members had an
obligation "to provide the legal means for interested parties to prevent the use of geographical
indications identifying wines and spirits not origin ating in the place identified by the geographical
indication";  the key obligation was "to provide the legal means".  However, the Chair's text clearly
stipulated exactly what those means had to be, and how and when to make use of the exceptions.  On
participation, the Draft Text provided a single text in paragraph 1:  this way of proceeding incorrectly
suggested that there was agreement on the issue.  Moreover, although the mandate was clear enoughthat only notification and registration procedures were covered, the majority of paragraphs contained
provisions providing for negotiations and arbitration, which had nothing to do with notification and
registration.
72. The representative of Colombia said that the Draft Text prompted considerable concerns about
certain options which actually entailed new obligations, which Colombia was not prepared to accept
and which did not correspond to the mandate of negotiations.  Colombia was currently shouldering
the burden of meeting its obligations under the TRIPS Agreement, for example in the area of
trademarks.  For this reason Colombia had co-sponsored the Joint Proposal, which was characterized
by voluntary participation and would not impose additional burdens particularly for countries like
Colombia, which did not produce nor export wines or spirits, and which did not entail new rights orobligations.  In accordance with Article 23.4, negotiations should have the purpose of facilitating the
protection of geographical indications for wines and spirits eligible for protection in the participating
Members.  The Joint Proposal reiterated the voluntary character of the future system and determined
the scope and coverage of the multilateral system for notification and registration.  She recalled that
Article 1.1 of the TRIPS Agreement established that Members could freely adopt the appropriatemethod to apply the provisions of the Agreement within the framework of their own system and
practice.  Concerns raised by the Draft Text related to the legal effects of participation and theTN/IP/M/6
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challenge procedure, which would result in an accumulation of repercussions and obligations that did
not stem from the Doha mandate and which would not be attractive for those countries wishing to
have a system that facilitated the protection of geographical indications and that would essentially be
informative in nature.
73. The representative of Hungary welcomed the Draft Text as a well elaborated text which built
usefully on previous informal papers and discussion s and also provided clarity about the goals of the
negotiations and the range of options as well.  The paper was correctly termed a note;  it could not be
the Chair's proposal while there were still various proposals on the table.  However, he was
disappointed that the Special Session, within four  months of the Cancún deadline, was still working
on a paper with options, including some which clearly did not even come close to meeting the
mandate.  He nevertheless accepted the Chair's approach to have all options presented and was
surprised by some delegations' statements that they could not accept the Chair's note as a basis forfurther discussions.  Compared to the process of negotiations in agriculture, the Special Session was
in the phase of an overview paper;  delegations would have to take positions and the Chair would
subsequently present a text which would be the real starting point of negotiations.  He viewed the
discussions in this session as an exchange of views.  Regarding the multilateral nature of the system,
he could accept the notion that participation would be voluntary.  However, this did not mean thatthere would not be any effects whatsoever on non-participating Members.  A multilateral system
should cover at least the 146 Members.  Otherwise, it would be a plurilateral system, which would not
correspond to the mandate.  He reaffirmed Hungary's position that countries could choose to join the
system and, if they chose not to joint it, it would mean that they forgo the right to notify and register
names of wines and spirits;  in that event, they clearly would not have to take part in covering thecosts.  However, this did not mean that there were no effects on the non-participating countries.
Hungary had on previous occasions indicated which effects should be on Members.
74. The representative of Argentina said that certain options put forward by the Chairperson were
not an acceptable basis for negotiation.  The document reflected that there was still no consensus, not
even about a small part of it.  It was littered with options that went beyond the mandate of the DohaDeclaration, such as those relating to challenges, to settlement of disputes with binding legal effects,
to mandatory effects for all Members and to removing competence from national jurisdictions.
Nothing in Article 23.4 or elsewhere in the TRIPS Agreement provided a basis for negotiations to
create an instrument which would remove from national authorities the competence of deciding,
according to their national legislation, the eligibility of geographical indications for protection.  For
Argentina the system resulting from these negotiations should operate quite independently of how
Members applied their obligations under the curren t TRIPS Agreement.  For example, the challenge
system clearly proposed standards of protection far beyond those set forth in the Agreement and
which would involve a renunciation of sovereignty by Members.  After so many years of discussions,
where some delegations had repeated that the system  would be voluntary, they had finally given clear
signals that the system should be a system which is not voluntary.  The proposals of these Members
had affected the Draft Text, in particular Option B in paragraphs 4 and 5.  In this regard, Argentinahad indicated in previous informal consultations that depending on the proposals submitted, the
distinction between legal effects for participants and for non-participants was absolutely artificial.
Another important point was the distinction to be ma de between the right to participate and the will to
participate in a system:  a Member could elect to participate without being affected by the legal effects
under the system.
75. The representative of Switzerland said that the Draft Text provided the Special Session with
the basis to enter into real negotiations and in vi ew of the timeline of Cancún, this was the last chance.
He further expressed concerns about the statement made by Chile that the Draft Text could not be
considered as a basis for negotiation because some elements or options went beyond the negotiating
mandate.  He hoped that this did not mean that Chile was actually refusing to enter into negotiationson this text when the Special Session had only a few months left to accomplish its task.TN/IP/M/6
Page 16
76. The representative of the United States said that his delegation considered that JOB(03)/75
was out of step with the balance of the room.  Many comments made over the past couple of months
did not seem to be adequately reflected.  The amount of detail offered on proposals that were clearly
outside of the mandate far outweighed the treatment of the Joint Proposal, which his delegation
considered to be within the mandate.  His delegation wished to stress that it intended to work withinthe mandate of Article 23.4.  Since many Members had stressed at this Session the need to have a
system with voluntary participation, without any "TRIPS plus" elements, his delegation wished to see
this adequately reflected in the text.  Responding to Switzerland's and Hungary's comments regarding
the Joint Proposal, he said that all Members were required to participate in negotiations to establish
the multilateral system as set out in Article 23.4.  Under the Joint Proposal, all Members would have
access to the information in the system once it was established and all Members could participate in
the system at any time by notifying domestic geographical indications. At the same time, the JointProposal was consistent with the mandate to establish "a multilateral system of notification and
registration of geographical indications for wines and spirits eligible in those Members participating
in the system".  Clearly the drafters of Article 23 did not intend to compel all Members to participate
in the system.  In this sense the Joint Proposal would be multilateral in the same way as the
multilateral Code of Good Practice for the Preparation, Adoption and Application of Standards inAnnex 3 of the Agreement on Technical Barriers to Trade, which was open to acceptance by the
standardizing bodies of any Member but was not compulsory for all Members.
77. The representative of Chile, responding to the comments made by Hungary and Switzerland,
said that Chile did want to comply with the obligations as contained in Article 23.4 as expeditiously
as possible, and in the most simple and easy way as possible.  However, it was not prepared to acceptadditional obligations through these negotiations. Therefore the responsibility for the limited progress
of these negotiations did not lie with Chile, but with those who tried, through the back door, to put
more obligations on Members.  He would challenge any delegation to say that Chile was not
complying with its obligations.  He noted that Hungary and Switzerland were seeking an agreement
which would have impact on non-participating Members.  In this connection, he said that he couldunderstand the delegation of Djibouti when it said that it did not understand these negotiations.  Least-
developed country Members, which did not have any obligations until 2006, found themselves in a
position where they witnessed the negotiation of a system in which they might not be interested in
participating but which contained obligations binding upon them, whether they liked it or not.  In
international law, to impose obligations on third countries not participating in a legal system would be
"illegal".  It would be contrary to any domestic legal system and to international law.  He doubted that
it was possible to continue in a negotiating process which was not legal and which was in factcontrary to the legal system established and built up within the WTO.  He supported the comments
made by the United States regarding the effects on non-participating Members.  If this was not
sufficient, it would be necessary to have a study on what would constitute a multilateral agreement or
not.  He wondered how one should consider the Patent Cooperation Treaty, which had 121
Contracting Parties:  a plurilateral or multilateral treaty?  For Chile, it was quite clear that within thelegal order of the WTO the fact that a system of registration had only effect on those wishing to
participate through notification would not in any way diminish the multilateral character of that
system, which would be open to participation by all countries.  He cited the example of anti-dumping
rules:  they were binding on those countries who wished to apply anti-dumping duties but countries
were not obligated to have anti-dumping legislati on.  This was the case of Switzerland, who did not
want to apply anti-dumping duties.  The agreemen t did not lose its multilateral character because it
did not have any effect on countries which had not included this possibility in their domestic
legislation.
78. The representative of the European Communities said that the Draft Text accurately reflected
the points of convergence that had emerged during the last months of discussion. At the same time, it
also carefully reflected the points of divergence, in  particular with regard to the paragraphs dealing
with legal effect and participation.  Most of the options, if not all, which had been discussed to date
had been reflected in the Draft Text, with the exception of ideas amplified in the Hong Kong, ChinaTN/IP/M/6
Page 17
proposal (TN/IP/W/8).  Regarding the substance of the Draft Text, he said that ideas contained in
paragraph 9 were interesting ones.  While the issue had not been dealt with in an elaborate way in the
proposals, with the exception of TN/IP/W/8, his delegation welcomed the pro-active initiative taken
by the Chairperson to bring new ideas, which fell within the tasks attributed to the Chair.  The
question of fees and more generally the question of how to ensure a financially self-supportingmultilateral register was indeed an important one that has been acknowledged by many delegations,
including his.  The possibility of providing for an exemption of fees for least-developed country
Members was also important.  He regretted that the Chairperson had not taken the same pro-active
approach when dealing with the two most contentio us issues, legal effects and participation, and had
limited himself to reproducing the extreme positions.  In this regard, he would consider the paper as
more of an options paper rather than a common negotiating basis.  In spite of this, some delegations
were still objecting to some parts of the text, which he regretted.  He thought that the paper deservedfull attention and discussion.  This being said, he thought that it would be necessary to reflect on the
next steps, that is the real negotiating phase where the Special Session would discuss a text with a
compromise language.  In this connection his delegation would not be in a position to accept that the
Chairperson remove certain parts reflecting the proposals made by some Members.  Turning to Chile's
comment on participation, he recalled that Hungary had repeated the same point for the last threeyears.  He was concerned that in spite of efforts made by the Chairperson to produce a new paper
delegations were only repeating their positions.  He reiterated that the Joint Proposal did not actually
meet the mandate.  For example, "registration" based on the Joint Proposal meant that any notified
name would be automatically registered;  no distinction had been made between notification and
registration, contrary to the mandate.
79. The representative of the Philippines also commended the Chair for the Draft Text.  Obviously
it incorporated elements which were problematic fo r several Members, including the Philippines, but
this was necessitated by the need to accommodate a broad platform of elements as a starting point for
negotiations.  He looked forward to pruning it dow n to a framework which met the mandate of Article
23.4 in a more precise fashion.  He further said that the mandate referred to the establishment of amultilateral system and Article 23.4 of the TRIPS Agreement unequivocally referred to "protection in
those Members participating in the system".  His delegation had always thought that it was clearly
understood by all delegations that, while every Member had a right to contribute to the negotiations
leading to the establishment of such a system, the system need not necessarily result in all Members,
whether they chose to participate or not, acquiring or suffering, as the case may be, the same rights
and obligations as each and every other Member.  In other words, the phrase "protection in those
Members participating in the system" should be inte rpreted as offering some sort of carve-out for
Members which chose not to participate — probably because they were non-wine producing and
therefore did not have anything to submit for protection — and acquire rights.  Conversely and more
importantly for such non-participating Members, the carve-out should also result in such Members not
assuming obligations similar to those obligations assumed by Members participating in and acquiring
rights under the system.  However, based on the proponent's suggestions which had been incorporatedin the Draft Text, it would appear that this woul d not be the case:  the legal consequences on non-
participating Members were  not substantively diff erentiated from those on participating Members.  If
this were the case, the value of a voluntary system as espoused by most developing countries,
especially those which might not have that much to gain from the system by participation, would be
virtually null and illusionary. Indeed, while the Philippines welcomed the notion suggested by thedelegation from Djibouti regarding the provision of technical assistance, at the end of the day, what
would result from such technical assistance would be an increased understanding that non-wine
producing countries would have no rights but only obligations.
80. The representative of Chinese Taipei said that his delegation's concerns about the voluntary
nature of the system and the legal effects on non-participating Members had not been fully reflected
in the Draft Text and that the arbitration system as had been proposed in that text was outside the
negotiating mandate.TN/IP/M/6
Page 18
81. The representative of Barbados associated her delegation with the comments made by the
delegation of the Philippines, in particular with rega rd to the multilateral character of the register.  As
far as the settlement of differences regarding the eligibility for protection was concerned, Barbados
had reservations about the idea of a multilateral system for arbitration.  Under its existing legislative
procedures, her country did provide for a challenge procedure;  she would at this stage want to err onthe side of caution. On the question of the effects on non-participating Members, she would refer to
the comment made by the Philippines and express c oncerns about the automatic effect of registration
even for non-participating Members. As a final re mark, she said that it would be necessary to be
careful of the administrative and financial costs of any system; it should be as economically and
administratively feasible as possible.
82. The representative of Malaysia said that it was her delegation's contention that the system
must be voluntary, as was clearly stated by Article  23.4.  The system was to facilitate the protection of
geographical indications for wines and spirits and was not meant to create additional rights and
obligations.  She further noted that the discussion so far, as well as the options provided in the Draft
Text, did not reflect the legal dichotomy between participation and non-participating Members or the
difference between a voluntary system and a system that was applicable to all.  Malaysia wished to
see the notions of participation and non-participation clearly spelt out in terms of legal effects, feesand costs as well as administrative requirements.  The current negotiations on the multilateral system
should recognize the intent of Article 23.4, namely, "protection in those Members participating in the
system" would mean offering some sort of a carve-out from the multilateral nature of the system.  As
a result, this would mean that there would not be any additional rights or obligations.
83. The representative of Panama said that the system should be voluntary and should not entail
undue costs and additional obligations to non-participating Members.
84. The representative of Colombia reiterated her country's position as reflected in the Joint
Proposal:  the system must be voluntary and not increase the existing obligations under the TRIPS
Agreement.  She expressed concerns about certain options contained in the Draft Text:  the binding
effect of registrations on non-participating Members;  and the opposition or challenge procedure,which would create obligations and implications beyond the Doha mandate and would not be
attractive for countries preferring a system facilitating protection and essentially informative.
Preamble
85. The representative of Australia said that the function of a preamble was to establish the
principles on which the remainder of the text wa s based.  This was the basis on which the preamble
should be judged.  The fact that a great part of the rest of the text did not live up to the principles set
out in the draft preamble was causing problems to Australia.
Third paragraph
86. The representatives of Colombia, supported by the delegations of Canada , New Zealand ,
Australia, Argentina , the Philippines , Costa Rica , the United States , Malaysia , Mexico  and Panama
said that the third paragraph of the recital should state that "the purpose of the multilateral system of
notification and registration of geographical indications for wines and spirits shall be to facilitate theprotection of" and not "to facilitate the obtaining of the level of protection".
87. The representative of the European Communities, supported by the delegation of Slovenia,
opposed the suggestion made by Colombia on the ground that this paragraph had been drafted in a
fairly skilful manner and reflected that the subject-matter was actually the facilitation of the obtaining
of the level of protection.TN/IP/M/6
Page 19
88. The representative of the Philippines, responding to the comment made by the European
Communities, said that it would be preferable to adhere to what was in the clear letter of the
Agreement itself.  Furthermore, there was nothing in the TRIPS Agreement which seemed to indicate
any particular level of protection.
89. The representative of Argentina suggested that the words "obtaining the level of protection"
be put in square brackets if the suggestion made by Colombia and supported by Argentina were not
adopted.
90. The representative of Bulgaria said that, if the suggestion by Colombia were retained, then the
words "not to increase that level of protection" should  also be put in square brackets so as to keep the
balance in the paragraph.
Fourth paragraph
91. The representative of New Zealand, supported by the delegations of Argentina , Chile , and the
Philippines, suggested including in the Preambl e a reference to TN/IP/W/8, in particular its
Sections II and III.  Alt hough the Draft Text already mentioned in the fourth preambular paragraph
that the system should not prejudice any right already afforded to a Member under the provisions of
the TRIPS Agreement to the protection of its geographical indications for wines and spirits,
New Zealand was of the view that it would be necessary to have a more general preambular paragraphstating that "there will not be additional substantive legal obligations or detractions from rights".
92. The representative of the United States underscored in particular paragraphs 3(iii) and 3(iv) in
Section II of the Hong Kong, China proposal that referred, respectively to the territorial nature of
geographical indications and the idea that the mandate of Article 23.4 was neither to create new
substantive legal obligations nor or derogate from existing legal obligations.
93. The representative of the European Communities could accept the draft language proposed in
the Draft Text but not the wording suggested by New Zealand.
94. The representative of Switzerland said that the suggestion made by New Zealand seemed to be
repetitive and pointed out that paragraph 3 of the Preamble already stated that the future system
should not increase the level of protection.
Sixth paragraph
95. The representative of Canada, supported by the delegations of New Zealand , Australia , Chile ,
Costa Rica, the United States , Malaysia , Mexico  and Panama  suggested the removal of the square
brackets on the ground that each Member could determine which form of protection would be the
most suitable.  She also suggested a new paragraph indicating that for both participating and non-
participating Members the notification of a geographical indication would not preclude its protection
under the domestic system or any other means.
96. The representative of the European Communities, supported by the delegations of
Switzerland, Hungary  and Slovenia , said that the square brackets should be retained since the text had
been put in square brackets to reflect Option A of paragraph 3.1, which was still under discussion.
97. The representative of Argentina said that it would be more appropriate to replace in the second
line the words "applicable law" with "national law".
98. The representative of the European Communities said that for his delegation the word
"applicable" had the meaning of "national" or "domestic".  He would prefer that at this stage the word
"applicable" be retained.  He further suggested to add a sentence indicating that the instrument shouldTN/IP/M/6
Page 20
be in accordance with the TRIPS Agreement, otherwise it could be interpreted that national or
domestic law could have primacy over the TRIPS Agreement.  Finally, the suggestion made by
Australia to add a paragraph indicating that disputes should remain essentially at the level of national
law would not take into account the Hungarian  proposal.
99. The representative of Bulgaria agreed with the European Communities that the word
"applicable" should be maintained to reflect situations that were actually more complex.
Proposals for new paragraphs
100. The representative of the European Communities said that, although this part of the Draft Text
was not the most important one, his delegation would suggest adding to the recitals a paragraph
indicating that Members recognized that Section 3 of Part II of the TRIPS Agreement already applied
to all Members, except those benefiting from a transitional period, namely least-developed country
Members.  His delegation was of the view that least-developed country Members who had decided to
develop intellectual property legislation, including on geographical indications, should have the right
to participate.  His delegation would propose wording on the next occasion.
101. The representative of Malaysia suggested adding a new paragraph which would take into
account that the system would be voluntary.  It would read as follows:  "Recognizing also the
voluntary nature of the system and that Members are free to participate or not to participate in thesystem;".
102. The representative of Argentina suggested adding a new paragraph which would clearly
indicate that protection of geographical indications was within the competence of the national legal
systems of Members.
103. The representative of the Philippines suggested to add a reference that the future system
should not impose on Members, in particular non-participating ones, additional substantive legal
obligations or confer any additional rights on Members which would be beyond the TRIPS
Agreement.  This notion had been well captured in paragraph 3(iv) of the Hong Kong, China
proposal.
104. The representative of the United States, supported by the delegations of Switzerland  and
Slovenia, recalled that the purpose of a preamble was to highlight guiding principles, although
perhaps not to state every principle that informed protection of geographical indications. In that spirit,
her delegation noted two guiding principles:  the idea that intellectual property rights were private
rights;  and the idea that geographical indications were, for purposes of the TRIPS Agreement,
intellectual property rights.  These principles had not been reflected in the draft Preamble;  their
addition would add value to the text.
105. The representative of the European Communities, supported by the delegation of Bulgaria ,
expressed concerns about the number of additions and amendments to the Draft Text while there had
not yet been any discussion on the operative parts, where the Chairperson had left open the various
options.  If other delegations continue to make amendments reflecting only their proposals, he then
would propose to add a paragraph stating that the system should be multilateral with legal effects on
non-participating Members.
106. The representative of South Africa said that if the EC's suggestion were to be retained there
should be a reference to the exemption in favour of Members under transitional periods.
107. The representative of Argentina agreed with the Chairperson's note on page 1 of JOB(03)/75
that those provisions on which a single set of paragraphs had been drawn up did not in any way imply
any degree of acceptance by participants in the Special Session.  In response to the comment made byTN/IP/M/6
Page 21
the European Communities, she pointed out that nothing prevented a delegation from making
suggestions for additions or amendments.
108. The representative of Malaysia pointed out, in response to the suggestion made by the
European Communities, that the content of her suggestion for a paragraph on the voluntary character
of the system was not new since it was already in Article 23.4, whereas the European Communitiessuggestion would definitely prejudge the discussions.  If the European Communities proposal were to
be retained, then Malaysia would request that ther e be an alternative sentence that "the multilateral
system should not have any legal effects on non-participating Members".
Paragraph 1:  Participation
109. The representative of Uruguay said that on a first reading paragraph 1 did not present any
problems.  However, this provision should not be read in isolation.  Her delegation would have
difficulty in having paragraph 1 saying that participation was open to all Members and at the sametime paragraph 5 dealing with legal effects on non-participating Members.  Her delegation would
therefore prefer Section E of Annex A of the Hong Kong, China proposal.
110. The representative of Australia said that the way paragraph 1 was presented — a single draft
text — suggested that there was far more agreement on this issue than actually existed.  He observed
that some delegations had made it clear that their agenda was actually to provide legal effects on non-participants, which would clearly be outside the mandate.  Paragraph 1 as it stood left open the
question of what participation would ultimately mean in the context of the register.   It did not make
clear that participation should be entirely voluntary, namely that Members had the right to notify
geographical indications protected in their territories and to choose whether they wanted to be
involved in any outcome of the system.  To the extent that the system involved obligations, thoseobligations should not be imposed upon Members who did not choose to participate in the system.  It
should be made clear that Members had the right to participate at any time and importantly to
withdraw their participation at any time.  The way that Hong Kong, China had expressed its views on
participation was interesting.  It seemed to be simpler, clearer and more in line with the mandate, with
the exception of provisions on the legal effect of registrations.  Paragraph 4(viii)  referred to thesystem being entirely voluntary at the outset and the scope of the system being revisited.  His
delegation might have problems with this proposal because it suggested that voluntary participation
could be reviewed further down the track.
111. The representative of Chile concurred with Australia on the question of participation and the
need for a clearer link with legal effects, espe cially for non-participating Members.  Hong Kong,
China's wording in Section E of Annex A of TN/IP/W/8 was much clearer.
112. The representative of the European Communities agreed that there was a linkage between
paragraph 1 and the rest of the text.  However, his delegation could accept the draft as it stood, with
the formula regarding the notification requirement, provided that this was without prejudice to the fact
that the protection to be facilitated under Article 23.4 already applied to all Members, except for the
least-developed country Members.  This should therefore be duly reflected by the functioning and the
scope of the register.
113. The representative of the United States said that her delegation also thought Article 23.4 was
quite clear regarding the voluntary character of participation and that the meaning of the term
"voluntary" was self-evident.  "Voluntary" implied an affirmative act or election to participate and
failure to take that affirmative act would mean that one was not participating in the system. For
example, the United States would accede, with effect on November 2, to the Protocol Relating to theMadrid Agreement Concerning the International Registration of Marks.  The United States will take
an affirmative act to become a party to that trea ty.  Non-treaty countries did not need to take an
affirmative act to prevent trademarks from having legal effects in their territories.  In other words, if aTN/IP/M/6
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country was not participating in the Madrid system it had not volunteered to participate, it did not
need to do anything to preserve its rights outside that system; there would not be any legal
consequences. In that respect, a clarification could usefully be made in the Draft Text, similar to
Section E of Annex A (on participation) in the Hong Kong, China proposal.  Both texts could be
improved by a very clear and simple statement that  participation would be voluntary and that there
would be no legal effects for a decision not to participate in the multilateral system of notification and
registration of geographical indications for wines and spirits under Article 23.4.
114. The representative of New Zealand thanked the United States for their explanation and
supported the call for something similar to Secti on E on participation in the Hong Kong, China
proposal to be included in the Draft Text.  She echoed Australia's concerns about the issue of
participation being reviewed further down the track after the implementation of the register.  She did
not object to a review of the register as a whole, but could not support identifying particular aspects of
the register that would be a focus of review.
115. The representative of Malaysia, referring to Australia's comment on the exact nature of
participation as provided for in paragraph 1, said that the proposal by the United States would
adequately clarify what participation or non-participation meant and therefore strongly supported their
proposal for clarification.
116. The representative of Switzerland stated that although many delegations made a close link
between participation and legal effect, he understood that it was the intention of the Draft Text not to
prejudice the different positions and options regarding the issues that appeared in the later part of the
paper.  The proposed wording could prejudice legal effect and participation in that multilateral
system.  Therefore he proposed that instead of writing that "Members may elect to participate in themultilateral system", the more neutral words "Members may elect to notify and register their
geographical indications in the multilateral system" should be used.  This would not prejudice
Members' positions on legal effect.  The "affirmative act" to indicate participation would be the
notification of geographical indications.
117. The representative of Argentina agreed with other delegations that there was an inseparable
link between participation and legal effect, and that Article 23.4 contemplated a voluntary register.
Her delegation supported the proposal for clarification made by the United States.  The Draft Text
must clearly reflect that participation would be voluntary and that there would not be legal effects on
non-participating Members.  Her delegation agreed with the United States that a voluntary system
required an express affirmative act by Members before any obligations could be imposed upon them.
118. The representative of Colombia supported the United States' request for clarification that
participation was on a voluntary basis and required a clear and positive act.  The geographical
indication notified must also be one eligible for protection under national law.  She also wondered
about the exact implication of the footnote concerning the relationship between the procedure of
participation and the legal form of the multilateral system.
119. The representative of Bulgaria supported the intervention of Switzerland.  An alternative
means to achieve the same result would be to replace "action to be taken" with "notification under
paragraph 2" and to delete "('the participating Member')".
120. The representative of Chile stated that it was his understanding that delegations were not in a
drafting session to add or remove brackets.  Text  without brackets had not necessarily been agreed
upon either.  Given the complexity of the text and the limited participation in the discussions, adding
options to the text was useful to clarify the problems and options and improve understanding.  It wasan act of transparency and fairness for officials from capital and for Members that could not attend all
of the discussions.  He also pointed out that any text would be carefully scrutinized in the frameworkTN/IP/M/6
Page 23
of the Dispute Settlement Mechanism and therefore it should be carefully defined, fully understood
and agreed upon by all Members.  Members could no longer afford to paper over the cracks.
121. The representative of Canada associated her delegation with the intervention of Chile.  There
was no agreement on participation and including additional options improved clarity.  She also
supported the suggestion of the United States to clar ify that participation was voluntary since the true
intention of some of the language was unclear.
122. The representative of Djibouti supported the intervention of Chile for measures to clarify the
text and to make it understandable to negotiators.
123. The representative of Japan stated that a very simple and clear definition of participation was
required because participation was closely linked to other difficult issues.  He believed that under
Article 23.4 of the TRIPS Agreement participation should be voluntary and the Draft Text needed to
be very clear about this.  He also flagged his concern about the possible effects on non-participatingMembers.
124. The representative of Costa Rica stated that his delegation would like a clear statement that
Members might freely participate in a multilateral system as established in Article 23.4 of the TRIPS
Agreement and as proposed by the Hong Kong, China delegation in Section E of its proposal.  He also
supported the requests of other delegations to define the form in which Members should express theirwill to participate in the system and clarify that non-participating Members would have no rights or
obligations under the system.
Paragraph 2:  Notification
Paragraph 2.1:  Substantive conditions
125. The representative of Australia stated that paragraph 2 must take account of the different
means by which Members protect geographical indications.  The emphasis should be on the fact that
the geographical indication was protected in the territory of the notifying Member.  Australia was
concerned that paragraph 2.1(b) might take the decision about whether a term was a geographical
indication out of Members' hands and put it under multilateral scrutiny in the manner suggested by
some delegations.  Paragraph 2.1(b) seemed to repeat the wording of Article 22.  He wonderedwhether that paragraph was necessary.
126. The representative of Chile stated that neither the Joint Proposal nor the European
Communities' proposal was clear about what geographical indications should be notified under the
system.  The Draft Text stated that the geographical indication must be protected in its territory which
was not as clear as the text in the Hong Kong, China proposal, which specified that the geographical
indications to be notified should be domestic ones.
127. The representative of Bulgaria proposed that references to "a wine or a spirit" in paragraph
2.1(a) and elsewhere in the text be changed to "product protected under Article 23 of the TRIPS
Agreement".
128. The representatives of Turkey, Switzerland , the European Communities , the Czech Republic ,
Kenya, India , Thailand , Mauritius , Hungary  and Slovenia  expressed their support for the proposal
made by Bulgaria.
129. The representative of India said that there was no questioning of the mandate, which remained
a registration system for wines and spirits.  These were the only products covered by Article 23.  The
Bulgarian proposal would only add simplicity by referring to the products covered by Article 23.TN/IP/M/6
Page 24
130. The representative of the United States noted that Article 2.1(c) created a requirement for
notification that the geographical indication be protected in the territory of the notifying Member and
have not fallen into disuse in that territory.  Article 24.9 of the TRIPS Agreement stated that there
"shall be no obligation ... to protect geographical indications which are not or cease to be protected in
their country of origin, or which have fallen into disuse in that country."  The reverse was notmentioned in the TRIPS Agreement.  It did not prohibit the notification or the assertion of rights
pertaining to a geographical indication which was not protected in its territory and which had fallen
into disuse.  This indicated the difficulty in establishing limitations on notifications that did not appear
in the TRIPS Agreement.  Members had concluded a number of bilateral agreements where terms
were protected as geographical indications although they did not appear to be used in the territories of
the notifying Members.  Presumably those Members would want to preserve the right to notify those
terms as geographical indications and leave it to other Members to determine whether they wereprotectable in their territory.  This explained why the paragraphs relating to notification should be
considerably simplified and it should be made clear that a participating Member was entitled to notify
geographical indications for wines and spirits.
131. The representative of New Zealand, supported by the delegation of Colombia
, stated that her
delegation could not support the proposal by Bulgaria to replace the reference to "wine or a spirit"
with a reference to products covered by Article 23.  The supporters of the Bulgarian proposal clearly
hoped that Article 23 would eventually extend beyond wines and spirits.  However, the mandate
covered only wines and spirits.  She noted that if the Bulgarian proposal was pursued her delegation
would suggest that every reference to a geographical indication in the Draft Text be clarified to be a
geographical indication for a wine or spirit.
132. The representative of the Philippines stated that his delegation would have substantial
difficulty in accommodating the Bulgarian proposal.  He noted that Article 23 clearly referred to
additional protection for geographical indications for wines and spirits and should not entail anything
more.  He also suggested that the language in paragraph 2.1(b) concerned the definition of a
geographical indication specified in paragraph 1 of the Article 22 of the TRIPS Agreement.  Thislanguage should be changed to avoid the suggestion that notification conclusively established that a
wine or spirit actually met the definition of a geographical indication.  In that respect his delegation
favoured wording similar to that contained in Section A.2(a) of the Hong Kong, China proposal.  This
would make the issue clearer and more explicit for all parties.
133. The representative of Argentina associated her delegation with the statement made by the
United States regarding paragraph 2.1(c) in relation to Article 24.9.  This would preserve options and
flexibility for Members.  It would also ensure that countries that lacked a specific system to protectgeographical indications had options and could still participate in the system.  She also associated her
delegation with New Zealand regarding the Bulgarian proposal and stated that if the Bulgarian
proposal was pursued she would also ask for "and spirits" to be placed in square brackets, since
Article 23.4 only mandated the establishment of a register for wine.  Proposals such as the Bulgarian
one would hold back negotiations.
134. The representative of Bulgaria stated that his proposal did not change the system to refer to
products beyond the mandate.  He agreed with India that no change would be made to the mandate.
Unless there was an agreement on extension, the system would only cover wines and spirits.  His
proposal made the Draft Text more neutral and did not prejudice the position of any Member on the
extension of protection of geographical indications.
135. The representative of the European Communities noted that when the Joint Proposal was first
made it was left neutral so that developing countries could seek to have geographical indications
protected for products other than wines and spirits.  He asked whether the sponsors of the Joint
proposal could now support the proposal of Bulgaria.TN/IP/M/6
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136. The representative of Chile stated that the Bulgarian proposal was not neutral, helpful or
constructive and did not simplify matters.  If the proposal was pursued his delegation would need to
completely reconsider its position because the products that could be involved would need be assessed
as well as the new economic, social and constitutional consequences.  If delegations wished to be
constructive they should stick to wines and spirits.
137. The representative of Argentina stated that the Joint Proposal as described in TN/IP/W5
contained a clear reference to a register of geographical indications for wine and spirits.
138. The representative of South Africa stated that  the Bulgarian proposal created problems rather
than solving them.
139. The representative of Chinese Taipei stated that the Bulgarian proposal created significant
difficulty for his delegation.  He asked what kind of products should be protected.
140. The representative of Australia noted that certain delegations had stated that the registry must
be compulsory, must have legal effects, and would amend the TRIPS Agreement.  The new proposal
that the system be applied to products other than wines and spirits raised fundamental questions about
the negotiating process and was not a constructive approach.
141. The representative of the United States stated that wines and spirits constituted a reasonably
clear category of goods, although she acknowledged that there was sometimes difficulty in
categorizing a good as either a wine or a spirit.  In contrast, "product" was unclear.  In some
Members, certain categories of products, such as mineral waters, were excluded from protection as
geographical indications, so the use of the term "product" might make it unclear which products were
eligible for protection.
142. The representative of Australia said that his delegation had set out quite clearly the basis on
which it was engaging in these discussions.  It had been playing an active role in discussions on the
register consistent with Australia's commitment to move the discussions forward in a manner
consistent with the Doha mandate.  This was the very basis behind Australia's continuing support for
the Joint Proposal (TN/IP/W/5).  He also noted that some other Members, notably Hong Kong, China,
had also been making valuable contributions to try to achieve progress despite the very differentviews existing between Members.  What his delegation had made abundantly clear was that it was not
prepared to countenance a register that went beyond the mandate of Article 23.4 of the TRIPS
Agreement and paragraph 18 of the Doha Ministerial Declaration.  It was not prepared to consider
anything that would make this exercise a "TRIPS pl us" one:  this was one of the key reasons why his
delegation had stated its strong reservations to the Draft Text.  It came as absolutely no surprise that
the proponents of a TRIPS plus register included issues that would take the Special Session even
further outside the mandate. That was a pretty standard tactic when the discussion was starting to goagainst one's interests, as was clearly evidenced by the large number of delegations who had spoken
out in support of a less burdensome register.  He asked those delegations who expressed their support
for a register that would extend beyond wines and spirits whether they were also supporting additional
amendments to the TRIPS Agreement, an interna tional dispute settlement system exclusively for
geographical indications and compulsory participation in the system.  While his delegation continuedto be prepared to engage in these discussions, it wondered about the value of the exercise when some
Members were so brazenly prepared to ignore the mandate given by Ministers, for example by
suggesting that "voluntary" meant "compulsory" or th at "wine and spirits" meant "other products".  In
a sense, his delegation should not be surprised because it had seen in a number of other parts of the
WTO that the European Communities and their supporters had been prepared to pay no more than lipservice to the clear mandate set out by Ministers in Doha.  For his delegation, it was needless to say
that the direction in which some Members would like to take this discussion was completely
unacceptable.  This made Australia question the very basis on which the Special Session was engaged
in these discussions and was another example of the erosion of trust that was a major reason for theseTN/IP/M/6
Page 26
negotiations being in such a difficult position.  His delegation wondered what the value was of
continuing to engage in these discussions and whether the best approach would not be to refer the
whole issue to Ministers for discussion in Cancún.  There seemed little prospect of real progress
before then with the European Communities and thei r supporters being prepared to go so flagrantly
outside the mandate with their "TRIPS plus" register proposal.  His delegation would continue toengage constructively in these discussions in an attempt to make progress.  However, it had very
strong concerns about the Special Session's ability to make progress when some delegations appeared
so unconcerned about dismissing the very clear directions of the mandate as irrelevant.  He recalled
that the Chairperson had set out very clearly in paragraph 11 of TN/IP/W/7 that:  "Members have a
very clear mandate to negotiate the establishment of a multilateral system of notification and
registration of geographical indications for wines and spirits by the Fifth Session of the Ministerial
Conference.  The Special Session is required to fulfil the mandate in its entirety and not go beyond themandate''.  This was the basis on which his delegation would continue to engage in the discussions.
143. The representatives of Canada, Argentina
, Chile , New Zealand , the United States , Chinese
Taipei, Colombia , Costa Rica  and Mexico  associated their delegations with the statement made by
Australia.
144. The representative of the European Communities said that his delegation would continue to
engage constructively in the discussions on a multilateral register and that the European Communities
had from the outset wanted a meaningful register with legal effect in such a way that the Membership
of the WTO was engaged.
145. The representative of Switzerland said that it was the nature of negotiations to have divergent
views.  To reproach some delegations for having divergent views would not be constructive.  He
understood that the intervention made by Bulgaria was not to extend the mandate but to formulate the
wording in the Draft Text in such a way as not to prejudice any delegation's position in the Special
Session or in any other WTO negotiations.
146. The representative of Australia said that the last intervention made by the delegation of
Switzerland represented the start of the spin he had mentioned in his earlier intervention.  He
reiterated that paragraph 18 of the Doha Declaration contained an extremely clear mandate.
Paragraphs 2.2 – 2.3:  Contents of the notification
147. The representative of China asked for some elaboration on the provisions of paragraph 2.2
that, it had been said, drew upon the practice of WIPO.
148. The representative of the Secretariat explained that when the Chairperson referred to drawing
on the experience of WIPO in paragraph 2.2(a), he was referring to the part of that paragraph that read
"where the geographical indication uses characters other than Latin characters the transliteration intoLatin characters using the phonetics of the language in which the notification is made".  The other
elements of this paragraph were drafted on the basis of the discussion on the Elements/Options Paper.
149. The representative of Argentina stated that in paragraphs 2.2(a) and (b) her delegation would
like the words "in the country of origin" replaced with "in the Member making the notification"
consistent with paragraph 2.2(d).  The examples in paragraph 2.2(c) were unnecessary and the textwas confusing.  The mention of "a reference to the legal instrument" and also "the text of the legal
instrument" created uncertainty as to whether a re ference or just an introduction to the text was
required.  The paragraph should be deleted.  Paragraph 2.2(e) should be included as an optional rather
than substantive requirement.  The determination of the geographical area where the wine came from
was not one of the requirements stipulated in the TRIPS Agreement.TN/IP/M/6
Page 27
150. The representative of Australia stated that some of the elements in paragraph 2.2 had a level
of detail that made the system more cumbersome and were only relevant to a system that created legal
effects not envisaged by her delegation.  Her delegation believed that the notification section should
be kept simple.  Paragraph 2.2(a) should state that no specific legal effects were attached to
transliteration.  In paragraph 2.2(c), the reference to the legal instruments by which the geographicalindication was protected in the notifying Member should be removed.  Such a reference was not
supported by those delegations sponsoring the Joint Proposal.  Previously her delegation had stated
that a list of geographical indications recognized as eligible for protection under a Member's
legislation could be submitted, which would obviate the need to refer specifically to the legislative
act, judicial decision or administrative measure that gave right to use the term.  In the current Draft
Text, Members with common law systems might be prejudiced because in their systems the right to
use a term could arise simply from its use over time.  In this case, it would not be possible to notifythe specific instrument that gave right to use the term.  The Draft Text also left open the possibility
that bilateral, regional and/or multilateral instrume nts might qualify as legal instruments sufficient for
the purpose of establishing that a geographical instrument be recognized or protected.  Article 24.9 of
the TRIPS Agreement mandated that protection be granted in the country of origin of the geographical
indication.  This provision must be fully realized in the contents of the notification section in the DraftText.   The Hong Kong, China paper appeared most cognizant of this issue.  It provided Members
with the option of notifying relevant domestic legislation or judicial decisions but did not require
Members to provide that information.  Her delegation asked how the information mentioned in
paragraph 2.2(e) would be used and whether that level of specificity was required.  That information
was included in some systems that did have legal effect, but her delegation did not understand why itwould be required in a system that did not have legal effect.
151. The representative of the European Communitie s stated that the Draft Text contained the
minimum elements necessary for a predictable, working registry.  He stated that the task was to
include enough information to make the system work without it being too cumbersome.
152. The representative of New Zealand stated that paragraph 2.2(c) must not prejudice Members
with a common law system.  In those Members, a particular geographic indication was often not
protected by a particular legal instrument but was simply eligible for protection under generic
legislation, e.g. on passing off, in the event that the right holder decided to pursue protection for that
geographical indication.
153. The representative of Argentina pointed out, with regard to paragraph 2.2(d), that
Articles 24.4 and 24.5 of the TRIPS Agreement stipulated specific dates where TRIPS obligations
became applicable to Members under two specific circumstances.  This point should be reflected inthe Draft Text.
154. The representative of the United States said that  the trend in international intellectual property
protection was towards simplification and reduction of formalities.  Any system which proposed
certifications or formal statements executed by documents seemed to be inconsistent with this trend.
She agreed with the delegations of Argentina, New Zealand, Australia and others that certainparagraphs appeared to prejudge the legal systems under which notifications would be made. She
recalled that there was no international harmonization in the area of geographical indications and that
it appeared from discussions in the WTO and WIPO that there was little common understanding about
eligible subject matter for protection as a geographical indication.  Therefore any multilateral system
for notification and registration of geographical indications for wines and spirits must accommodateexisting domestic systems for the protection of geographical indications which might be quite
different.  She noted that paragraph 2.2(c) appeared to require the notification of a specific legal
instrument under which the geographical indication was protected.  However in common law systems
use created the rights.  It was possible that there would not even be a relevant judicial decision if there
had been no conflict or controversy with respect to the claimed geographical indication.  Sheconcurred with Argentina with respect to the amendment of paragraph 2.2(a) of the Draft Text.  TheTN/IP/M/6
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language should be the language of the notifying member.  She also agreed with Australia that
translation and transliteration should have legal effect only as determined by domestic law and not as
imposed by an international system.  The mandatory elements should be as simple as possible.  She
pointed out that, even in Section A.2(b) of the Hong Kong, China proposal, something as seemingly
innocuous as the name and contact details of the owner could create a legal conclusion under certainlegal systems.  In the United States, trademark registration was prima facie evidence of ownership.
The decision that some entity was an owner was a legal conclusion.  In Section A.2(e) of the Hong
Kong, China proposal, the requirements for formal statements executed under government seal,
relevant domestic legislation or judicial decisions seemed to contradict the international trend towards
simplification and making it as easy as possible for those wishing to participate in the system to enter
it.  She also noted that most functioning self-supporting systems provided for the payment of a fee for
entering into the system as contemplated by Section A.2(g).  A number of delegations referred to amultilateral register, which appeared to presuppose a finite list of terms.  She understood that for
delegations that sought a system with mandatory le gal effect for all Members it would be desirable to
have as much specific information as possible included in any notification so that the registration of
terms on this list would be as complete as possible.  However, the mandate in Article 23.4 was not for
a multilateral register but for a multilateral system of notification and registration of geographicalindications for wines and spirits.  This was quite distinct from a multilateral register.  She also noted
that neither the Draft Text nor the Hong Kong, China proposal accommodated the important
intellectual property and TRIPS principle of intellectual property rights as private rights. Geographical
indications were indeed intellectual property rights and therefore any multilateral system had to
accommodate private rights whether they were asserted by natural or legal persons, such ascollectives, governments and associations.
155. The representative of Chile stated that the information contained in paragraphs 2.2(a)-(e) was
too complicated and that a simpler format was required.  Each notifying Member should be able to
decide whether any additional information might be useful.  Paragraph 2.3 could be recast and the
chapeau text could stop at "geographical indication".
156. The representative of Hungary stated that paragraph 2.2 contained all of the elements
necessary for notification, but suggested that some information be included concerning the linkage
between the quality, reputation and other characteristics of the product and its geographic origin.  This
could be done with a cross-reference to the document establishing that linkage.
157. The representative of the European Communitie s agreed that there was no movement towards
the international harmonization of geographical indi cations.  However, Section 3 of Part II of the
TRIPS Agreement contained a definition of geographical indications.  He wondered whether therewas a contradiction in the argument of some delegations that the requirements for registration should
not be cumbersome but that there should be a finite list of terms.  He believed that the proposal for a
finite list of terms would further complicate nego tiations and wondered whether it would be possible
to agree on a certain number of terms before Cancún.  He suggested that it would be useful if the
United States indicated what terms required a consensus in order to have a meaningful multilateralsystem of notification and registration.  He was encouraged to hear the United States refer to
notification and registration because he was concerned that the American and some other delegations
did not give any legal effect to the term "registration".  He said that the Draft Text contained the
minimum elements required and he agreed with th e distinction made between compulsory elements
("shall include") and optional ones ("may also include").  The Draft Text recognized that a minimumwas required but that the notification could be made more useful, and the opposition process
facilitated, if Members provide the maximum information possible.
158. The representative of Canada stated that Members had taken on their TRIPS obligations
concerning geographical indications in good faith and had fulfilled these obligations in different ways
domestically.  Recalling that Canada used the Trademarks Act and certification marks to protectgeographical indications, she said that the fact that other countries adopted different approaches didTN/IP/M/6
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not mean that Canada's measures did not comply with its TRIPS obligations.  The Special Session
should not try to create a one-size-fits-all system.
159. The representative of the United States stated that Article 23.4 did not mandate a finite list of
terms.  On the contrary, she believed that any working system for intellectual property protection must
be able to accommodate as many applications as were received.  The US Patent and Trademark Officecould receive as many as 396,000 trademark applications in a year and for 2003, 265,000 trademark
applications were expected.  A functioning intellectual property system must be able to handle these
volumes and on a timely basis.  Therefore, her delegation rejected the notion that Article 23.4 was a
mandate for a finite list of terms.  However, th e reference of the European Communities to a registry
suggested a finite list of terms and she thought that some delegations might be interested in a finite list
of terms that would have an absolute legal effect in all Members, whether they chose to participate in
the multilateral system of notification and registration of geographical indications for wine and spiritsor not.  She noted that a European Community regulation had been recently amended to exclude
mineral waters as a product category that could be eligible for geographical indication protection
because of the inability of the European Community's system for the protection of geographical
indications to process the number of geographical indication applications for mineral waters.  This
created the link between the European Community's use of the term "registry" and a finite list ofterms.
160. The representative for Kenya agreed with the approach taken in paragraph A.2(g) of the
Hong Kong, China proposal in relation to fees, in particular the footnote that consideration should be
given to least-developed country Members and developing country Members in relation to the
payment of fees.  He asked the United States whether a multilateral system of notification andregistration presupposed a multilateral register.  He noted that most systems for the protection of
intellectual property rights used a register.
161. The representative of Japan stated that his country could accept paragraph 2.2 but felt that
further consideration and discussion was needed to ensure that the system accommodated those
Members with a common law system.  It was also important to clarify in paragraph 2.2 thatgeographical indications were private rights as i ndicated in paragraph 2.3(b) and suggested by the
Hong Kong, China proposal in Section A.2(b) of Annex A.
162. The representative of the United States said that, while a register might be the result of a
system, the mandate was for the negotiation of the system itself, i.e. the mechanism by which
Members might be able to assert rights in geographical indications and request their protection in
participating Members.  There was no mandate to negotiate a list of terms that would have
international protection.
163. The representative of the European Communities acknowledged that there was special
treatment of mineral waters but reassured that there was no problem handling the number of
geographical indication applications.  He also recalled that the United States delegation had
mentioned some hundreds of thousands of appli cations under the trademark system.  He asked
Members with a common law system to provide examples of the problem they had raised andproposals to resolve it.
164. The representative of Switzerland, in response to Chile's intervention, said that paragraph 2.3
gave a non-exhaustive list of examples of additi onal information which could be provided.  These
examples were appropriate and useful and should be retained.  Regarding the point of the
United States that a register referred to a limited list of terms, he said that his delegation was using theterm "register" to refer to an open instrument, such as a trademark register.TN/IP/M/6
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165. The representative of Australia expressed concern about the information stipulated in
paragraph 2.3.  There was nothing in the TRIPS Agreement or any of the proposals that would prevent
a notifying Member from providing information to another Member which might be useful to
facilitate protection of the notifying Member's geographical indication.  Enshrining the right to
provide unlimited additional information as part of the notification would create legal uncertainty.  Italso had the potential to increase the cost and complexity of administration.  It was also unclear what
use would be made of this additional information.  An adequate reference to the provision of further
information already existed in Article 63 of the TRIPS Agreement.  She repeated her delegation's
request for the deletion of the notification requirement for bilateral, regional and multilateral
agreements.  She asked how this information would be used. If the purpose was to facilitate
multilateral challenge and opposition procedures then her delegation considered it unnecessary.  It
was also clear that a bilateral agreement was insufficient by itself to invoke the protection ofArticle 23.  The geographical indication must be protected in the Member's territory.
166. The representative of Argentina agreed with other delegations who had stated that the
information contained in paragraph 2.3 was unnecessary.  The register should be as simple as
possible.  The notification of bilateral agreements was particularly problematic.
Paragraphs 2.4, 2.5 and 2.6:   Language of the notification; form of the notification;  circulation to
Members;  publication of notification
167. The representative of Argentina asked about the link between paragraph 2.4, which stated that
the notification, with the exception of the geographic al indication itself, should be translated by the
administering body into the other two official languages, and paragraph 2.3(a) which referred to
translations that the Member might provide under paragraph 2.2(a).  She asked what the legal effect oftranslations would be and what would happen if there was a discrepancy between the Member's and
the Secretariat's translation.
168. The representative of the Secretariat explained that paragraph 2.4 required the notification,
with the exception of the geographical indication itself, to be translated.  Under the Draft Text, the
administering body would not translate the geographi cal indication itself into the two other working
languages.  Any such translation would be the responsibility of the notifying Member under paragraph
2.3(a) or 2.2(b).  Therefore there could be no issue of conflict or contradiction between translations.
The issue of legal effect would depend on other parts of the Draft Text.
169. The representative of Canada stated that the language concerning modifications to the format
by the committee responsible for managing the system was confusing.  She asked whether the
modifications would be simply to the two-page format or whether the committee had some broader
authority to make modifications.  Any change to the system should be the responsibility of the TRIPSCouncil and not the committee responsible for managing the system.  She considered that a limitation
on the number of annual notifications should be co nsidered, as it was in the Hong Kong, China
proposal.  Also each notification should be for an individual term; there should be no bulk
registrations.
170. The representative of Switzerland agreed with Canada that modifications to the system should
be the responsibility of the TRIPS Council.
171. The representative of the United States, noting the trend toward the simplification of
international systems, proposed that the notification provisions focus on data elements, i.e. the
mandatory and optional information, rather than the format of forms.  This approach would be more
flexible and less likely to require changes.TN/IP/M/6
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172. The representative of Chile agreed that the translations in paragraph 2.4 had to be in one of
the WTO working languages but was concerned about the translation costs for the administering
body.  The issue would need be considered together with other proposals, such as a limit on the
number of notifications as proposed by Hong Kong, China.  The costs for non-participating Members
should also be assessed.  She shared the concerns of Canada and Switzerland in relation tomodifications by the responsible committee and believed that such modifications should be the
responsibility of the TRIPS Council.  She also supported the Hong Kong, China proposal for a
periodic review.
173. The representative of the European Communities stated that the composition of the committee
responsible for managing the system was important since it was given the power to modify the format
of notifications.  Although minor adjustments to the format could be left to an administering
committee, substantive changes should be put to the TRIPS Council.
174. The representative of Argentina agreed with the United States that a set format might not be
required, especially since the relevant information was not complex or lengthy.  Paragraph 2.2 could
state what information should be included in the notification and its length.  She proposed that the
TRIPS Council replace the committee in paragraph 2.5 because changes could alter the nature of the
system.  Paragraph 2.5 should also include a reference to the voluntary nature of participation anddistinguish participating Members from other Members.
175. The representative of Australia stated that her delegation was still considering paragraph 2.4.
She considered there to be three options with different costs and benefits.  The first was for the
notifying Member to provide the translation.  This option was simple and placed the cost on the
benefiting party.  However, the translation would need to be without prejudice to the right of otherMembers to challenge it.  These points applied to translations generally.  The second was for the
administering body to do the translation.  This option would significantly increase costs.  The third
option was for each participating Member to do its own translation.  This option would have a
significant disadvantage in that it would shift the costs to Members providing the protection but would
have the advantage of leaving translation questions in the hands of Members.  She supported theUnited States' proposal to focus on data elements rather than on format.  She also stated that her
delegation could not agree to grant authority to a committee until its composition was understood and
the issue of participation was resolved.
176. The representative of the European Communities considered it appropriate to provide a
specific format for notification.  He also considered it appropriate to establish a committee responsible
for managing the system although its authority needed to be explored and refined, including its link to
the TRIPS Council.
177. The representative of Argentina asked the European Communities to clarify the committee's
powers and composition.
178. The representative of Colombia concurred with Chile that translation costs should be part of
the overall costs of the system and not borne by non-participating Members.  It was unclear in
paragraph 2.5 whether the format of notification referred to the length of an individual notification orthe total number of notifications.  She considered that Members should be able to agree to a format for
notifications which would facilitate setting up a database.  She also requested that the European
Communities explain why the committee responsible for administering the system should not be the
TRIPS Council.
179. The Chairperson suggested that the composition or establishment of the committee be
discussed under paragraph 11.TN/IP/M/6
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180. The representative of Malaysia stated that the form of notification should be as simple as
possible.  Without prejudice to what information would be included in paragraphs 2.2 or 2.3, it would
need to correlate with the form of the notification in paragraph 2.5.  Perhaps the format could be more
easily understood if it was clear that it included the elements under paragraphs 2.2 and 2.3.  For
Malaysia, translation costs should be borne by participating Members.  However, it was unclearwhether only the notification needed to be translated or whether the accompanying documents also
needed to be translated.
181. The representative of the Secretariat stated that, under the ideas in the Draft Text, the major
documentation which might be referred to in a notification, but not contained in the two-page
notification, would probably be the legal inst rument forming the basis for protection of the
geographical indication at the national level, as provided under paragraph 2.2(c).  This documentation
would be referred to, but not attached to the notification or translated.  Only the reference to thedocument, but not the document itself, would be translated.  If the reference was to an existing WTO
document, and to the extent that it had already been translated, those translations would be available.
182. The representative of Kenya asked whether the circular to all Members under paragraph 2.6
would be in electronic or paper form.
183. The representative of the Secretariat stated that, if the administering body was the WTO
Secretariat, and if Members decided normal WTO practice would apply, a special documentation
series would be established containing the notifications made under the register and this would be
circulated in the normal way for WTO documents, in  electronic and paper form to Members as well as
made available to the public on the WTO website.
184. The representative of Kenya requested that circulation be in paper form because internet
accessibility was low, slow and expensive in some Members.
Paragraph 3:  Registration
Paragraph 3.1:  Options A and B
185. The representative of the European Communities stated that he understood that the options in
this section reflected the three distinct proposals made before the Hong Kong, China proposal had
been received.  Option A referred to the Joint Proposal from the United States and others, Option B1
to the European Communities' proposal, and Option B2 to the Hungarian proposal.  For his
delegation, Option A was unacceptable because it disregarded the distinction between notification and
registration as embedded in Article 23.4 of the TRIPS Agreement.  Under Option A, all notified
geographical indications would be registered without giving third countries the possibility to provide
valuable information on whether protection could eventually be available in their territory to a
notified geographical indication.  Permitting Members to indicate whether protection was availablefor a particular notified geographical indication under national law would make the system more
useful and reliable.  Without a challenge or opposition system the information in the system would not
be reliable.  Under Option A, all geographical indications that were notified would also be
automatically registered, including those that might b een regarded as generic terms.  They all need to
be taken into account by national courts.  This Option might give rise to different decisions onwhether a geographical indication might be protected, which would be bad for trade and business and
might frustrate investment.  A system of opposition would permit Members to inform a notifying
party whether protection was available or not.  This  would be no different from the Protocol Relating
to the Madrid Agreement Concerning the International Registration of Marks.  Members that, after an
examination, determined that protection was not available would oppose the notification.  This wouldresult in the registration being annotated and producers of the notified Member not relying on being
protected in those Members.  The opposition system offered transparency and legal security, which
was needed for business.TN/IP/M/6
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186. The representative of Argentina noted that Option A, which her delegation supported, stated
that "the administering body shall, immediately after receipt of a notification, circulate it to all
Members and publish it on the Internet."  This paragraph should become the first paragraph of
Option B in the Registration section.  Without this change, the Draft Text assumed an opposition or
challenge mechanism.  Therefore, the two options should be Option A, which was that registrationmust occur immediately after notification, and Option B, which would be that after a notification was
received, it would be circulated and might be challenged.  Her delegation also noted that Option B2
went far beyond existing obligations:  nothing in the mandate required the establishment of an
international dispute body or mechanism for these challenges.
187. The representative of Australia stated that the negotiating mandate required Members to agree
to a system of notification and registration.  What some delegations were proposing was a system of
notification, negotiation, arbitration and registration.  Option B was predicated on bilateralnegotiations and multilateral arbitration which was not part of the mandate.  Nothing in the mandate
required this discussion.  Option B had nothing to do with the registration section and would be more
appropriately placed in an annex or separate document.  It should also be made clear that Option B
rendered the choice about whether to participate in the system a fiction.  Option B did not make clear
that what was really being requested was a fundamental amendment to the TRIPS Agreement.  Onthat basis Australia rejected that text.  Option A, which established a simple notification and
registration system, allowed participating Members to notify information regarding their domestic
geographical indications without undue cost or complexity.  It would allow the same, or similar
geographical indications to be submitted by more than one Member, consistent with Article 23.3
provided that the geographical indication was recognized by each notifying Member in accordancewith its national regime.  Option A was consistent with the operation of the TRIPS Agreement which
allowed for the grant of protection for geographical indications at the national level.  If any interested
party objected to the registration of a geographical indication by a notifying Member then the
interested party might oppose the recognition of that geographical indication in accordance with the
laws of the notifying Member.
188. The representative of Kenya stated that any system of registration should provide an
opportunity for notified Members to challenge that notification.  This challenge should be at the
national level and not at the international level.
189. The representative of the European Communities stated that he would object to putting the
contents of Option B in a separate document.  Annexing Option B would be inconsistent with
previous practice of having proposed texts reflected and create an imbalance between proposals.  He
asked Australia to clarify whether Option A texts would require an amendment of the TRIPSAgreement.
190. The representative of Chile stated that paragraphs 3.1.1 to 3.1.4 were beyond the mandate and
should be moved into an annex.  Any difference regarding a geographical indication should be
covered under the domestic legislation of each Member and should not have effect on non-
participating parties.  His delegation was concerned that difference would create uncertainty on themarkets and distort trade flows.  Even if a proposal such as the European Communities' were to fall
within the mandate, and this was far from being the case, its complex nature meant that it would be
impossible to negotiate within the time limits set by Ministers.
191. The representative of Australia stated that Australia was not interested in exceeding the
mandate or enhancing the level of protection and was not seeking an amendment of the TRIPS
Agreement.  Therefore, there was nothing in the Joint Proposal requiring such an amendment.TN/IP/M/6
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192. The representative of Argentina stated that Article 23.4 was a mandate to facilitate the
protection of geographical indications through the negotiation of a multilateral system of notification
and registration.  There was no mandate to negotiate a new agreement or renegotiate the section on
geographical indications.
193. The representative of the United States asked the delegations sponsoring Option B to confirm
that they were satisfied with the Option B text and that it fully reflected their position.  She supported
the proposal that the opposition aspects of Option B be placed in an annex.  This did not mean that
they would be removed from the text, but rather that there would be a reference in the text
incorporating by reference the annex.  This would go a long way in addressing the concerns of an
imbalance in the Draft Text.  Also, incorporation by reference would highlight the commonality in
positions regarding notification and registration.  Option B was explicit that the registration system
would be mandatory and that its legal effects would apply to all Members.  She also noted thatparagraph 3.1.2(d)-(e) in Option B1 presented TRIPS entitlements as options.  She asked whether
some delegations believed that certain current TRIPS commitments were optional.
194. The representative of Switzerland stated that his delegation had consistently held that a
meaningful multilateral system to facilitate protection of geographical indications needed a system of
opposition and its own dispute resolution mechanism.  Article 23.4 clearly distinguished betweennotification and registration phases.  That implied that between these phases there must be an
opportunity to oppose the registration of a notified geographical indication to keep the multilateral
register free of non-reliable information.  Only by ensuring that solely reliable information was
included in the register could it have added value and fulfil the purposes of transparency and legal
security.  His delegation therefore supported Option B.  His delegation also supported Option B2'sdispute settlement system, to be used when agreement could not be achieved between the parties after
the opposition procedure had concluded.  Bilateral negotiations were useful and helpful but in order to
guarantee a level playing field for all Members, from a procedural and negotiating view point, it
would be important to have a multilateral dispute resolution mechanism.
195. The representative of the European Communitie s stated that if Option B was placed in an
annex, Option A should also be placed in an Annex.  Option A fell short of the mandate of Article
23.4 and would not lead to a system that would facilitate geographical indications obtaining the level
of protection they deserved and on which agreement had been reached in the Uruguay round.  The
question of whether Option A would require an amendment to the TRIPS Agreement needed to be
addressed.
196. The representative of the Czech Republic stated it was necessary to make a distinction
between the two phases of notification and registration to create a meaningful system.  Such a
distinction can be created with an opposition procedure which would effectively protect the legitimate
interests of Members.  Since Option A did not make this distinction it was unacceptable.
197. The representative of Argentina noted that Option B2 raised systemic issues about the
appropriateness of a separate dispute settlement system for a particular type of intellectual property
right.  For her delegation, it was important to understand the implications of such a system.  Theproposal that Members could exercise rights through the challenge procedure on any of the grounds
set out under Option B created a major legal problem.  She recalled that such rights were enshrined in
the TRIPS Agreement and had been transposed into national legislation.  Option B changed the
existing balance of rights and obligations for Members, which was unacceptable.  It would require an
amendment to the TRIPS Agreement, which was beyond the mandate of Article 23.4.  She wonderedwhy a Member should engage in negotiations with  a view to resolving a disagreement regarding a
challenge based on that Member's inalienable rights.  She asked Switzerland to clarify what it meant
by unreliable or inaccurate information.TN/IP/M/6
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198. The representative of Canada stated that it was very clear that the mandate was to develop a
system of notification and registration to facilitate the protection of geographical indications for wine
and spirits and not to amend the TRIPS Agreement.  Her delegation supported Option A.  She
suggested that the arbitration and dispute settlement  discussion be moved to the Special Session of the
Dispute Settlement Body.  The proposal on dispute settlement was complex and might make itdifficult to conclude negotiations in a timely manner.
199. The representative of Switzerland stated that the opposition procedure should not be relegated
to an annex.  It should be treated like any other option and placed in the text itself.  For his delegation,
the main grounds for challenge in the opposition system were 3.1.2(a)–(c) and noted that the issue
was closely related to that of legal effect.
200. The representative of Hungary associated her delegation with the intervention of the European
Communities regarding Option A.  Under Option A, registration would be automatic and lack any real
legal effect.  Therefore it would constitute a mere notification system which could serve as a database,
but under which the act of registration would not add any meaningful value to the notification.
Without a true registration element, Option A woul d not meet the mandate of Article 23.4 of the
TRIPS Agreement.  Challenges should be based on all of the grounds contained in paragraph 3.1.2.
Successful challenges based on paragraph 3.1.2(a) and (b) would be of an erga omnes  nature.
Successful challenges based on paragraph 3.1.2(c)–(e) would only be inter partes , i.e. between the
successful challenger and the notifying Member.
201. The representative of the European Communitie s, reacting to Canada, stated that his
delegation had not proposed to renegotiate Section 3 of Part II of the TRIPS Agreement.  Rather it
wanted to ensure that the rights granted in Section 3 were properly implemented
202. The representative of the United States stated that under Option A participating Members
would review the registrations, and at the national level refuse to grant rights in trademarks and refuse
entry of goods at the border for wines and spirits that contained misleading geographical indications
based on the terms registered.  Therefore, for participating Members there would be substantial legal
effects in their country based on the use of this information.
Paragraphs 3.2 – 3.3:  Form of the Register and contents of registration
203. The representative of Kenya stated that because of low internet connectivity in many
least-developed country Members and developing Members he would prefer the database to be
available not just online but in formats such as CD or DVD-ROM.
204. The representative of Australia stated that translations in paragraph 3.3(a) should be without
prejudice to the right of Members to determine their accuracy.  Also, national legal instruments should
not be included in paragraph 3.3(c).  These provisions created difficulties for common law countries.The reference in paragraph 3.3(f) to annotations derived from bilateral negotiations and multilateral
arbitrations was unacceptable.  There was no mandate for creating a complex system of negotiations
and arbitrations and therefore no mandate for this requirement.  Until the composition of the
committee in paragraph 3.3(g) had been discussed, it was premature to consider its powers.
205. The representative of the European Communitie s stated that the registration requirements in
paragraph 3.3 were necessary, including paragraph 3.3(f).
206. The representative of the United States registered her delegation's concern with
paragraph 3.3(c), (d), (e) and (g).  Paragraph 3.3(d), which was in mandatory form, was a concern
since it was possible that in some systems the precise date on which a geographical indication first
received protection could not be identified.  She expressed her delegation's concern about the formand composition of the committee in paragraph 3.3(g).  In relation to Annex A of the Hong Kong,TN/IP/M/6
Page 36
China proposal she was concerned if Section B.4(a) referred to anything other than the geographical
indication being notified.  She was also concerned about the legal conclusion of Section B.4(c), and
said that Sections B.4(b), (f), (g) and (j) were also areas of concern.
207. The representative of Switzerland stated that it would improve the comprehensiveness of the
register if the following paragraph were included: "Any information referred to in paragraph 2.3 that
the notifying Member considers might be considered useful in illustrating the protection of the
registered geographical indication."
208. The representative of Argentina stated that the register should be as simple and short as
possible to make it a useful database.  She flagged her concern with paragraphs 3.3(f) and (g).  She
also requested clarification from the Secretariat about the information that would be included on the
register from notifications.
209. The representative of the Secretariat stated that the Draft Text envisaged that the register
would not contain all the information in the notifications, only information that could be readily made
available in a systematic way.  However, there would be a reference to the document containing the
notification itself, which might include additional information.
210. The representative of Hungary noted that the debate about the contents of the register related
to different views about the underlying nature of the register and more broadly about the multilateral
system of notification and registration.  Some delegations could not see the difference between a
system of notification and a system of registration.  Those delegations were proposing a system of
notification for transparency purposes which would am ount to nothing more than what already existed
under the TBT or SPS code.  These notifications did not meet the function of a register or the
mandate.
211. The representative of the United States stated that the Joint Proposal envisaged that decisions
with respect to extension of protection of notified geographical indications would take place at the
national level in participating Members so that the registration would reflect over time whether
protection was extended in certain participating Members.  For example, if a notified geographical
indication was successfully challenged at the national level the participating Member would notify theresult of that challenge to the administering body and presumably the registration would be removed.
Therefore there was a lively difference between notification and registration, and registration would
reflect activity at the national level with respect to opposition and challenge.
212. The representative of Argentina asked whether the WTO Central Registry of Notifications,
described in TN/IP/W/4/Add 1, was not a type of register similar to the one envisaged under
Article 23.4.
213. The representative of Hungary noted that other registries existed, but they were not for the
purpose of "facilitating" the protection of geographical indications.  He did not consider that the
United States had clarified the difference between notification and registration under the Joint
Proposal.  The information that would placed in the register was that contained in the notification.  It
performed no additional function and could not facilitate the protection of geographical indications
according to the mandate.
Paragraph 4:  Legal Effects in Participating Members
214. The representative of the European Communities stated that Option B1 accurately reflected
the position of his delegation and that option A was totally unacceptable.  Simply requiring Members
to consult the Register did not guarantee that geographical indication protection would be facilitated.
It would seem impossible to ensure that national au thorities actually did consult the Register and tookTN/IP/M/6
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it into account.  It might even be detrimental to th e extent that it would make information available to
all Members that might adversely affect certain right-holders in other countries.
215. The representative of Australia stated that Option A was the only acceptable option.  She
stated that the purpose of the multilateral system was to facilitate the existing level of protection in the
TRIPS Agreement and not to enhance it as noted in paragraph 3(iv) of the communication from HongKong, China.  Option B contained prescriptive rules regarding how Members should protect
geographical indications which went beyond the re quirements of Article 23 of the TRIPS Agreement,
which clearly stated that "Members shall provided the legal means".  It required participating
Members to institute a rebuttable presumption of the eligibility for protection of terms on the Register
and not to refuse protection on certain grounds.  It was predicated on a multilateral opposition
procedure which would lead to bilateral negotiations followed by multilateral arbitration.  These were
all beyond the mandate.  Option B was therefore unacceptable to Australia.  She said that althoughparagraph 3(iv) of the Hong Kong, China proposal, adequately spelt out the purpose of the system it
might not fulfil the stipulated purpose but go beyond it.
216. The representative of Argentina stated that Option A was the only acceptable option.  She
stated that Option B was beyond the mandate.  She requested clarification from the European
Communities of a number of aspects of their proposal, in particular the scope of the presumption ofeligibility for protection.  It was unclear to her delegation which kind of legal effects were envisaged
by the words "shall not refuse protection" for grounds covered by Article 22.1 or the words "subject
to" for grounds under Article 24.4 and 6.
217. The representative of Mexico indicated her delegation's support for Option A.  This Option
was consistent with the mandate, being to create a system of notification and registration that
facilitated the protection of geographical indications but did not create additional obligations or limit
existing rights under the TRIPS Agreement.
218. The representative of Hungary stated that Option A, which merely required participating
Members to consult the register along with other sources of information, fell short of facilitating the
protection of geographical indications and was unacceptable.  He referred to Article 10.6 of the TBTAgreement as similar to Option A.  His delegation could accept either Option B1 or B2, which were
similar and were the only ones to meet the mandate.
219. The representative of Japan declared his support for Option A.  He did not want any additional
legal effects except those under the present TRIPS Agreement.
220. The representative of the Czech Republic stated that Option A could not meet the objective of
the mandate and was unacceptable.
221. The representative of New Zealand confirmed her support for Option A.  Responding to
Hungary, she stated that although there was nothing in the text of the TBT Agreement that specifically
mirrored Article 23.4 of the TRIPS Agreement, the notification system used in the TBT Agreement
had an effect similar to the intended effect of the mandate in Article 23.4 of the TRIPS Agreement.  In
practice, the systems of notification and registration under the TBT Agreement, which was similar to
the one envisaged by the Joint Proposal, did have great added value both in its own right and as ameans to help Members to implement their wider legal obligations under the TBT Agreement at the
national level and therefore to facilitate the adoption of technical regulations that were consistent with
that Agreement as a whole.  Option A would facilitate the protection of geographical indications
through information-sharing and by assisting Members to better implement their geographical
indication obligations under the TRIPS Agreement.  The TBT system of notification and registration
facilitated adherence to TBT disciplines and ensure d that technical regulations were designed in a
least trade restrictive manner because there was an obligation for a Member to notify draft regulations
to the WTO and then to refer to feedback from  Members when further implementing the notifiedTN/IP/M/6
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subject-matter.  It was also clear that the notification and feedback process assisted Members in
fulfilling a much wider range of TBT obligations than simply their obligation to make a notification.
Through the comments of other Members on its notifications, the notifying Member often became
aware that its notified regulation might not meet WTO disciplines, for example because it might have
overlooked a relevant international standard.  This process "facilitated" the crafting of least traderestrictive measures through the sharing of experiences in implementing TBT obligations in similar
areas at the national level.  The value of this process was suggested in part by the limited number of
dispute settlement cases in the TBT area.  This preventative effect would be the same under the Joint
Proposal, which would assist Members to better implement their Section 3 obligations and hence
facilitate the protection of the relevant wines and spirits geographical indications.
222. The representative of Canada associated herself with the intervention made by New Zealand
and supported Option A.
223. The representative of the United States associated her delegation with the New Zealand
intervention.  Option A was the only option that was consistent with the mandate.  Options B1 and B2
appeared to be exercises in the substantive harmonization of law in respect to geographical indications
in as much as they set forth legal presumptions that would be created by a notification or registration
under the system and also limited domestic bodies, whether they be courts or other administrativebodies, in the type of refusal of protection that could be made.  Her delegation had the same concerns
with respect to Section D in the Hong Kong, China proposal.  Although the Hong Kong, China
proposal clearly stated that participation in the system would be voluntary, it set forth a specific legal
standard.  Specifically, registration of a geographical indication would be required to  constitute prima
facie evidence:  of ownership;  that the geographical indication notified was a geographical indicationfor the purposes of Article 22.1 of the TRIPS Agreement;  and that the indication was protected in the
country of origin.  Those were significant legal presumptions akin to the legal presumptions granted
to trademark registrations.  Any legal presumption of that nature with respect to geographical
indications would have to be considered in connection with the existing obligations to the owners of
registered trademarks under Article 16.1 of the TRIPS Agreement.  She asked what the legalrepercussions at the domestic level would be of two equally valid presumptions – one for a trademark
and another for an identical geographical indication.  Both in the Hong Kong, China proposal and in
Options B1 and B2 were proposals for a substantive harmonization in legal standards and legal effects
which could not be accepted.  Option A was the only proposal that was consistent with the mandate.
224. The representative of Chile stated that Option A was the only acceptable option.  Options B1
and B2 exceeded the mandate and created a "super" category of intellectual property.  It was a
concern that Option B limited the possibility of requesting nullification or elimination of geographicalindications on the register after 18 months since many of the exceptions covered by the TRIPS
Agreement could not be invoked after that time.  Therefore, if a Member did not use the exceptions
during this period they would be obliged to give the geographical indication everlasting protection.
They could not object, for example, that it had become a common name or no longer met the
requirements of Article 22.1.  This issue would be a stumbling block in the negotiations.  He alsonoted that the proponents of Options B1 and B2 did not intend to extend the mandate in respect of the
legal effects only but also in respect of the scope of products.  The principle of territoriality in the
international intellectual property framework was indispensable to any multilateral registration system
set up in the WTO.
225. The representative of Switzerland stated that Option A did not facilitate the protection of
geographical indications at the multilateral level.  Under Option B, the legal effect of registration was
a rebuttable presumption extending to the legal contents of Articles 22.1, 22.4 and 24.6 of the TRIPS
Agreement.   By this presumption and the resultin g reversal of burden of proof, a facilitation of
protection of geographical indications was achieved at the national and international level. However,
such facilitation could only be achieved if the legal effect of registration applied to all Members.Since the goal and the mandate of this system was to facilitate the level of protection that appliedTN/IP/M/6
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already there was no reason to distinguish between Members that made active use of the system and
those that did not as regards the legal effect of such a registration.
226. The representative of the European Communities said they would formally table a paper that
they had circulated at previous informal consultations and which concerned the issue of legal effects
in participating and non-participating Members.  The substance of the paper had not changed.
227. The representative of Costa Rica stated that Option A was the only option consistent with the
mandate.  Option B went beyond the rights and obligations deriving from the Agreement and in this
respect he joined the statement by Chile.
228. The representative of Turkey associated his delegation with Switzerland and the Czech
Republic in relation to the non-acceptance of Option A.
Paragraph 5:  Legal Effects in Non-Participating Members
229. The representative of Colombia stated that any legal effect on non-participating Members was
unacceptable and therefore her delegation rejected Options B1 and B2 and could only accept
Option A.
230. The representative of Brazil asked whether the Secretariat was aware of any provisions similar
to Options B1 or B2 in other legal instruments providing for legal effects on non-participating
countries.
231. The representative of Indonesia associated her delegation with the statements made earlier by
Australia, the United States, New Zealand, Canada and Malaysia that the legal effects of the system
must fall within the mandate.  The multilateral system must be voluntary and there must be no legal
effects for non-participating Members other than those already stipulated in the TRIPS Agreement.
Option A was the only acceptable option.
232. On behalf of her delegation, and the delegations of Malaysia, Singapore , Brunei Darussalam
and Indonesia, she proposed that the issue of legal effect for non-participating Members be addressed
in paragraph 1 on "Participation", making it clear from the outset that the system was voluntary and
that there were no legal effects on non-participating Members.  This would permit paragraph 5 to be
deleted.  If Option A paragraph 5 were to be retained, the title "Legal effects in non-participatingMembers" should be changed to "Use of the Register for non-participating Members" since there was
no obligation to refer to the Register.
233. The representative of Argentina referred to the question by Brazil and stated that she did not
believe that there was any clause in other legal instruments which created obligations on non-
participants.  To create effects for non-participating Members would be an attempt to create a
category of countries which would be merely passive recipients of obligations.  Therefore, Option A
was the only acceptable option. Under Option B the distinction between participating and non-participating Members was illusory because there were no substantive differences between the legal
effects created by the system for the two categories of Members.
234. The representative of Chile stated that she was not aware of any treaty which contained
provisions similar to Options B1 or B2.  She invited the delegations that generated these Options to
indicate precedent for them.  She noted that they appeared to be inconsistent with the provisions of theVienna Convention on the Law of Treaties regarding "Treaties providing for obligations for third
States" (Article 35), which stated that obligations for third States needed an explicit acceptance in
writing.TN/IP/M/6
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235. The representative of the United States associated her delegation with the concern of the
delegations of Brazil, Argentina and Chile about the lack of precedent for imposing legal effects on
non-participants.  She requested that the Secretariat prepare a document describing any existing
systems which provided for obligations for non-participants, together with a brief description of those
systems including the number of participants.  If the Secretariat was unable to find such a precedent,she would then request that the Secretariat make that finding explicit in writing.  She associated her
delegation with the statement made by Indonesia, in particular for the heading "Legal effects in non-
participating Members" to be changed to "Use of the Register for non-participating Members".
236. The representative of the European Communities reiterated that the provisions of Section 3 of
Part II of the TRIPS Agreement already apply to all Members with the exception of least-developed
country Members.  Under Option A, the word "Legal" should be deleted from the title of paragraph 5
or changed to "Non-Legal".  His delegation considered that Option A was unacceptable becausesimply encouraging Members to refer to the Register did not guarantee that protection of geographical
indications would be facilitated.  The information th at would appear in the Register would be largely
irrelevant to determinations for protection of geographical indications under national law;  it would
only be relevant to situations which fell under Article 24.5 and 24.9 of the TRIPS Agreement.  Many
countries did not even need this information.  He pointed out that under the United States' LanhamAct there seemed to be no provisions reflecting Article 24.9.  With regard to Article 24.5, there
seemed to be a corresponding provision under the Lanham Act to letter (a) of Article 24.5 only.
Consequently the information provided under the database would be completely useless to make the
determinations in the United States.  Under Option A, having a geographical indication registered did
not mean that the geographical indication was considered as such in another country.  With regard tothe analysis that some delegations were calling on the Secretariat to undertake, he did not consider
that another paper would be useful at this stage of the negotiations.
237. The Chairperson said that, for the Secretariat to provide the suggested paper, a mandate from
Members would be necessary.
238. The representative of Kenya stated that his delegation was not aware of any multilateral
system that imposed legal effects on non-participants.  His delegation therefore rejected both Options
A and B.
239. The representative of Australia associated her delegation with the request by the United States
for the Secretariat to provide a paper on systems that imposed obligations on non-participants.  If such
a paper had already been prepared she asked the Secretariat to make delegations aware of it.  She
supported the proposal made by Indonesia for changing the title from "Legal effects in non-
participating Members" to "Use of the Register for non-participating Members".  Her delegation couldonly accept Option A and considered that Options B1 and B2 were inconsistent with the mandate.
240. The representative of Switzerland stated that the question raised by certain Members as to
whether there was a precedent for an agreement imposing obligations on non-participants was not
appropriate because no new international agreement was being proposed.  Rather it was an agreement
to facilitate the protection already provided unde r the TRIPS Agreement, to which all Members were
already parties.  His delegation considered that legal effects should apply to all Members and that the
distinction between notification and registration was important to maintain.
241. The representative of Canada stated that if a paper had already been prepared on agreements
which imposed obligations on non-participants it should be circulated again and perhaps expanded.
She considered that it needed to be very clear that non-participating Members did not take on newobligations.  For this reason the text of Option A should remain although her delegation would not
object to the heading being changed as proposed by Indonesia.TN/IP/M/6
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242. The representative of the United States, while clarifying that she was not suggesting that other
Members adopt the United States system for protecting geographical indications, mentioned the case
of Institut National Des Appellations d'Origine v. Brown-Forman Corp , 47 USPQ2d 1875, (TTAB
1998), where in accordance with Article 24.5(b) of the TRIPS Agreement, the United States system
provided the legal means for the owner of the geog raphical indication to identify the date on which it
was protected in its country of origin.  An application to register the trademark "Canadian Mist and
Cognac" had been rejected in recognition that Cognac was a geographical indication for a type of
brandy from a particular area of France.  She suggested that this case illustrated that geographical
indications could be protected in a number of ways and that there was no mandate to develop a
harmonized system.  Her delegation believed that Article 23.4 did provide a framework in which
Members could facilitate the protection of geographical indications for wines and spirits.  She
reiterated that any system under Article 23.4 of the TRIPS Agreement had to be voluntary without anylegal effect for non-participants.  She asked for clarification of the precise legal effect envisaged
under Options B1 and B2.  For example, under Option B1, if a term for wines and spirits was generic
in a non-participating Member and was not challenged, would the non-participating Member be able
to refuse protection of the geographical indication in its territory on the grounds that it was generic?
243. The representative of the European Communities associated his delegation with the statement
made by Switzerland concerning the appropriateness of the question.
244. The representative of Argentina associated her delegation with the request of the United States
for a paper to be produced by the Secretariat and agreed with Chile that the compatibility of Options
B1 and B2 with the Vienna Convention on the Law of Treaties was an important issue.  She pointed
out that the paper which was being requested was simply a document of clarification and therefore itdid not require a consensus.
245. The Chairperson suggested asking the Secretariat to gather information and to deliver an oral
report on this issue at the next meeting.
246. The representative of the European Communities sa id that he could not agree to the suggestion
made by a delegation that, if the Secretariat was unable to find any precedent in any existing systems,
it make that finding explicit in writing.  He did not think that it was the role of the Secretariat to make
this kind of statement.  He reserved his delegation's position in this respect because he did not know
the details and scope of the question which had been raised.
247. The Chairperson said that he understood that a number of delegations had asked the
Secretariat to provide them with information on an y existing international agreements that entailed
obligations or legal effects on non-participating countries.
248. The representative of New Zealand, supported by the representative of Canada , stated that her
delegation supported the idea of having an oral report by the Secretariat at the earliest opportunity.
249. The Chairperson stated that the Secretariat would consider the question put by a number of
delegations and make itself ready to share that information with delegations, perhaps at the next open-
ended informal meeting.
250. The representative of the European Communities stated that his delegation had no objection to
the Secretariat gathering information, but would continue to reserve his delegation's position as
explained previously.
Paragraph 6:  Legal Effects in Least-Developed Country Members
251. The representative of Argentina asked the Secretariat two questions.  The first was whether
paragraph 6 meant that least-developed country Members could make notifications withoutTN/IP/M/6
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themselves experiencing legal effects from other Member's notifications.  The second was what would
happen to Members who wished to become participants after the system had been established.  The
system did not include any exception or safeguard for them and it would appear that under Option B
they would have no right to challenge the regist ered geographical indication and would therefore be
forced to provide protection for all registered geographical indications.
252. The representative of the Secretariat said that, on the basis of the current Draft Text, least-
developed country Members could become participating Members and make notifications under the
system from the outset although paragraph 6 would mean that notifications by other participating
Members would have no effect upon them until their transition period expired.  Second, if a system
with a challenge mechanism were agreed, it might be necessary to provide for special challenge
arrangements for Members joining the system after it had entered into operation, and for least-
developed country Members after their transition period expired.
253. The representative of the European Communities stated that special provision should be made
for least-developed country Members.  However, least-developed country Members that had elected
to apply the provisions of Section 3 of Part II of the TRIPS Agreement during their transition period
should be treated like other Members.  He suggested that the Secretariat might be able to inform
Members how many least-developed country Members had implemented Section 3 of Part II of the
TRIPS Agreement.
254. The representative of Australia stated that she considered that the European Communities'
concerns would have already been met in relation to paragraph 6, which stated: '"when that Member is
required to apply the provisions of Section 3 of Part II of the TRIPS Agreement".
255. The representative of the United States viewed the discussion as indicating the complexity of
trying to create new international instruments and also the importance of stressing the voluntary
nature of Article 23.4 of the TRIPS Agreement.  If the legal effects for least-developed country
Members in the Draft Text were unclear to the Secretariat then there would be difficulties for all
Members in understanding the legal effects in a mandatory system.  Her delegation repeated that it
was important that the system was voluntary with regard to notification and with respect to legaleffects from notifications and registrations under the system.
256. The representative of Argentina stated that allowing least-developed country Members to
make notifications with legal effects for others, while potentially not facing any legal effects
themselves, was problematic.  Under Option B all other Members would be obliged to examine the
geographical indication and lodged a challenge.  Presumably least-developed country Members would
also get involved in the challenge process where their notifications were challenged.  She also
understood that under Option B legal effects would arise for non-participating Members fromnotifications and registrations.  This compelled them to participate and challenge notifications if they
wished to avoid these legal effects.  In her view , this would be harmonization of rights concerning
geographical indications at the international level.
257. The representative of the United States associated his delegation with the statement made by
Argentina.
Paragraph 7:   Modifications of Notifications and Registrations
258. The delegate of Argentina stated that if Option B were adopted, the modification procedure
would create significant uncertainty for third-pa rties, because it triggered the paragraph 2 to 6
procedure, including its challenge procedure.  This was another example of the importance of whether
Option A or B was adopted.TN/IP/M/6
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Paragraph 8:  Withdrawals
259. The representative of Australia stated that it should be made clear in the text that the
conditions for protection of geographical indications were those established by the TRIPS Agreement
and not by the multilateral system.  Also, the reference to "Member" in paragraph 8.2 should be
changed to "participating Member" and "participation" should be understood to relate both tonotification and any consequences of the system.
Paragraph 9:  Fees and Costs
260. The representative of Argentina stated that the choice of options was very relevant to the issue
of fees and costs.  For example, Option A established a simple system and Option B2 involved a
complex system with international arbitration.  Her delegation considered that it was very important
that costs were borne by the central budget of the administering body.  She asked what the estimates
were for the initial cost for the system and whether each of the options could be financed.  Herdelegation considered it indispensable to know the fee and cost implications of each option.
261. The representative of Turkey welcomed the exemption, in the Draft Text, of least-developed
country Members from payment of fees.  Although paragraph 9.2 left the fixing of fees to be
determined by the committee responsible for managing the system, his delegation felt that it was
essential that the costs of the system be borne by the Members that use it, and that special anddifferential treatment provisions also apply to developing country Members.
262. The representative of Canada agreed with the delegation from Argentina that there would be a
cost to the body administering the system.  However, there would also be an enormous cost to
national governments if Option B was adopted because the process of checking each geographical
indication that was notified would be costly and burdensome.  Her delegation appreciated theestimates put forward by Hong Kong, China, but felt that they probably underestimated the costs
involved.  The system should operate on a cost-recovery basis and that fees should be on per-
geographical indication basis, with no bulk rate for notifications.
263. The representative of Colombia associated herself with the delegation of Argentina and stated
that the fees charged should cover both the initia l establishment costs and subsequent on-going costs.
264. The representative of Kenya referred to paragraph A.2(g) in the Hong Kong, China proposal
and stated that it was essential that developing countries were accorded special and differential
treatment in regard to fees.
265. The representative of Australia associated herself with Argentina's statement.  She considered
that further work would need to be done on the type of costs involved in the system as well as
mechanisms for setting, reviewing and revising fees.  The number of notifications was likely to
influence costs and fees and so it would be important that Members that would be high users of thesystem provide estimates about their notifications.  She also reiterated her delegation's concern about
the composition of the "committee responsible for managing the system".
266. The representative of the Secretariat clarified that paragraph 9.2 was drafted with the intention
that fees should cover all of the expenses incurred by the administering body in connection with the
administration of the system.  Paragraph 9.3 addre ssed the problem that the administering body would
need to incur some expenses before it began to rece ive fees and that there would be some initial costs
the administering body would have to incur, for ex ample in relation to staff and facilities.  The
paragraph stated that these initial costs should be factored into the level of the fees.  Therefore, the
fees should not then cover only the ongoing admini strative costs, but also reimburse any initial costs
that were incurred.TN/IP/M/6
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267. The representative of Chile associated her delegation with the statement of Canada.  She
expressed her concern about how the system would be  financed in years when there were insufficient
notifications or renewals.
268. The representative of the United States echoed the concern of Canada, Colombia and other
delegations that paragraph 9.3 appeared to state that initial costs would be borne by all Members.  She
suggested that fees should recover the initial cost s and that fees could be reduced once initial costs
were recovered.  Her delegation was concerned that the initial costs might not be recovered if an
insufficient number of Members participated in th e system.  She appreciated Hong Kong, China's cost
estimate, but agreed with Canada that costs would accrue to national governments as well as the
administering body.  She noted that Hong Kong, China's cost estimate assumed a maximum capacity
of 10,000 registered geographical indications and a workflow of 1,000 applications per year.  She
questioned the usefulness of a system that set a cap on the number of intellectual property rights thatcould be protected.  She considered that on the basis of bilateral arrangements for geographical
indications, individual Members might want to no tify approximately 6,600 geographical indications.
She also noted that Hong Kong, China's proposal was based on formality checking but that, at least in
the United States, the examination would go beyond me re formality.  The United States would review
applications for absolute and relative grounds of refusal with respect to trademarks and whether thenotification met the requirements or the definition of Article 22.1 of the TRIPS Agreement.  She
anticipated that additional examiners would need to be hired and noted that this issue was not
addressed in the Hong Kong, China cost estimate.  For these reasons, her delegation was concerned
that the Draft Text and the Hong Kong, China proposal would involve significant costs for the
administering body and for the national governments of participating Members.  Her delegation heldthe view that these significant costs should not be borne by non-participating Members.
269. The representative of Mauritius welcomed the proposal under paragraph 9.1 that
least-developed country Members be exempted from payment of fees.  Her delegation suggested that
similar facilities should be extended to other vulnerable groups among the developing country
Members.
Paragraph 10:  Contact Point
270. The representative of Argentina queried why non-participating Members should notify a
contact point under paragraph 10.1.  Since under Option B participating and non-participating
Members would be required to lodge a challenge to avoid the legal effects of notification, she
considered the distinction paragraph 10.1 made between the two classes of Members illusionary.
271. The representative of the United States concurred with Argentina.
Paragraphs 11– 15
272. The Chairperson said that paragraphs 11–15 flagged a number of issues which might have to
be addressed in due course.  As indicated on the cover page of JOB(03)/75 these matters might be
better discussed when delegations had a clearer idea of the substance of the system.  However,
delegations might have some points which they would like to share at this stage.  Some of the views
had already been expressed on a number of issues, e. g. with regard to the "committee responsible for
managing the system".
273.  The representative of Argentina asked for clarification about the origins of the proposal in
paragraph 11 to create a committee responsible for managing the system  as well as its composition
and function.  She asked whether the proposal was meant to confer the task of that body to WIPO.  In
this connection, she recalled that WIPO was undertaking a constitutional reform aiming at simplifyingthe structure of the organization and of the vari ous unions it was administering.  Since the
constitutional reform process, which was a complex one, was going on, she saw some difficulty inTN/IP/M/6
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trying at this juncture to transfer such responsib ility to WIPO.  She also asked whether the proposed
committee would be like one of the WIPO assemblies.
274.  Regarding paragraph 13 on withdrawals , she asked for clarification of the intention behind
that paragraph and its modus operandi  under Option B.  Under that Option all Members had an
obligation to make an examination and challenge;  she did not see how it would be possible to totallywithdraw from the system.
275. She finally asked whether the review  would concern the notification and registration
procedures, the format of notification or substantive provisions.
276. The representative of the Europ ean Communities stated that the administering body  would be
responsible for: (1) receiving notifications; (2) translating notifications into other WTO official
languages; (3) circulating notifications and publishing them on the Internet; (4) receiving and
annotating challenges and subsequent withdrawals; and (5) receiving and circulating notifications ofcontact points.
277. The committee responsible for managing the system  would, for example, be responsible for:
(1) modifying the format of notifications which had first been agreed to by the TRIPS Council when it
considered it appropriate;  (2) supplementing the information recorded on registration in Article 3.3 if
it considered it necessary;  and (3) fixing the amount of fees to be paid so as to cover theadministration of the system.  He agreed that more work was required on the tasks and composition of
both bodies.
278.  With respect to the question of withdrawals  from the system, he said that a similar system as
that foreseen for indicating the participation in the system should be provided for in the Draft Text.  It
seemed logical that any such declaration should result in removing that Member's geographicalindications from the register.  Likewise, the legal effect stemming from the registration of
geographical indications in other Members might be adjusted to reflect the new status of the Member
that had withdrawn from the system.
279. With regard to review by a competent committee , he suggested that provision be made or may
have to be made in order to establish a periodic review – say every five years of the functioning of thesystem.
280. Regarding the date of entry into operation  of the system, he said that the system should enter
into operation six months after the date it had been agreed upon to allow sufficient time for logistics.
281. The representative of Hong Kong, China stated that the notification and registration system, in
particular the scope of participation, could be reviewed every four years.
282. The representative of Canada agreed that regular review  would be useful and that the
competent body might be the TRIPS Council.  The Hong Kong, China's suggestion was a good idea
and the competent body should be the TRIPS Council.
283. Regarding suggestions made by the European Communities concerning withdrawals , she said
that these might duplicate the procedure under paragraph 8.
D. OTHER BUSINESS
284. The Chairperson thanked the delegation of Hong Kong, China for its proposal and all
delegations for their detailed comments.   These comments showed that, while delegations might be
closer to agreement on some aspects, they were still far apart on a number of critical issues, including
legal effects, ways of settling differences and participation.  There was a considerable amount of workTN/IP/M/6
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to do in a relatively short period of time in order to complete the mandate by the Cancún Ministerial
Conference in September.  One more meeting of the Special Session was scheduled for 2-3 July
before the Cancún Ministerial Conference.  At that stage, delegations should have ideally completed
their work and forwarded the results of their deliberations to the Trade Negotiation Committee for the
Cancún Ministerial.  However, the possibility that wo rk would need to continue after the July meeting
could not be ruled out.  In any event, the Chairperson hoped that by the July meeting Members would
be able to consider a text with a single set of ideas rather than a text with widely divergent proposals.
With a view to being in a position to have such text by the July meeting, the Chairperson would
continue to consult intensively with delegates in a variety of formats, having regard to the need to
ensure transparency.  As a first step he would hold an open-ended informal consultation with the idea
of having an exchange of views on the main points of difference that had come to the fore more
prominently at this meeting.  He pointed out that consultations by themselves could hardly achieveprogress if delegations remained entrenched in their current positions.  He hoped to see a greater
degree of flexibility and willingness to compromise from all sides in the coming weeks.
285. The representative of the European Communities asked whether the Chairperson intended to
review the Draft Text to include the Hong Kong, Ch ina proposal, so as to enable the Special Session
to work with a single document comprising all the proposals.
286. The Chairperson said he would carefully analyse all the comments made by the delegations
and attempt to come up with, if possible, some ideas to share with participants in an informal setting
before the next formal meeting in early July.  He would take into account comments and proposals
which had been put forward so far by the delegati ons, including the one put forward by Hong Kong,
China.
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