RESTRICTEDWORLD TRADE
ORGANIZATIONIP/C/M/38
5 February 2003
(03-0743)
Council for Trade-Related Aspects
of Intellectual Property Rights
MINUTES OF MEETING
Held in the Centre William Rappard
on 25-27 and 29 November, and 20 December 2002
Chairman:  Ambassador Eduardo Pérez Motta (Mexico)
The present document contains the record of the discussion which took place during the
TRIPS Council meeting held on 25-27 and 29 November, and 20 December 2002.
Subjects discussed     Page Nos
A. N OTIFICATIONS UNDER PROVISIONS OF THE AGREEMENT ........................................................2
B. F OLLOW -UP TO REVIEWS ALREADY UNDERTAKEN ..................................................................3
C. P ARAGRAPH 6 OF THE DOHA DECLARATION ON THE TRIPS A GREEMENT AND
PUBLIC HEALTH ..........................................................................................................................6
D. I SSUES RELATED TO THE EXTENSION OF THE PROTECTION OF GEOGRAPHICAL
INDICATIONS PROVIDED FOR IN ARTICLE 23 T O PRODUCTS OTHER THAN WINES
AND SPIRITS ..............................................................................................................................1 4
E. R EVIEW OF THE PROVISIONS OF ARTICLE 27.3(B)..................................................................49
F. R ELATIONSHIP BETWEEN THE TRIPS A GREEMENT AND THE CONVENTION ON
BIOLOGICAL DIVERSITY ...........................................................................................................49
G. P ROTECTION OF TRADITIONAL KNOWLEDGE AND FOLKLORE ................................................49
H. R EVIEW OF IMPLEMENTATION OF THE TRIPS A GREEMENT UNDER ARTICLE 71.1................56
I. I MPLEMENTATION OF ARTICLE 66.2.........................................................................................56
J. N ON-VIOLATION AND SITUATION COMPLAINTS .......................................................................58
K. E LECTRONIC COMMERCE ..........................................................................................................62
L. O THER OUTSTANDING IMPLEMENTATION ISSUES (TIRETS  93 A ND 94 A ND PROPOSAL
BY LDCS ON THEIR TRANSITION PERIOD )................................................................................62
M. R EVIEW OF THE APPLICATION OF THE PROVISIONS OF THE SECTION ON
GEOGRAPHICAL INDICATIONS UNDER ARTICLE 24.2...............................................................64
N. T ECHNICAL COOPERATION AND CAPACITY -BUILDING ............................................................65
O. I NFORMATION ON RELEVANT DEVELOPMENTS ELSEWHERE IN THE WTO.............................65
P. O BSERVER STATUS FOR INTERNATIONAL INTERGOVERNMENTAL ORGANIZATIONS ..............65
Q. A NNUAL REPORT TO THE GENERAL COUNCIL .........................................................................66
R. O THER BUSINESS ......................................................................................................................66IP/C/M/38
Page 2
1. In proposing the agenda for adoption, the Chairman  said that, as far as the follow-up to the
review of legislation of Chinese Taipei was concerned under item B, his intention had been to
suggest, in accordance with the standard procedures, to delete the review of the legislation of Chinese
Taipei from the agenda, given that it had already provided responses to all questions, with the usualunderstanding that any delegation should feel free to revert to any matter stemming from that review
at any time.  He suggested that the proposed age nda (WTO/AIR/1957) be adopted with an amendment
of item B to the effect that it did not include the follow-up to the review of legislation of Chinese
Taipei.
2. The Council so agreed.
A. NOTIFICATIONS UNDER PROVISIONS OF THE AGREEMENT
(i) Notifications under Article 63.2
- Notifications from Members whose transitional periods under Article 65.2 or
65.3 expired on 1 January 2000 or who acceded to the WTO after that date
3. The Chairman drew attention to the Secretariat's updated note reflecting the status of the
notifications received from these Members so far (J OB(02)/162).  The note showed from which of the
Members in question notifications had been received by 14 November 2002.  Since then, the Councilhad received a notification of laws and regulations from Guyana, and responses to the Checklist of
Issues on Enforcement from Argentina.
1  From the 79 Members in question, there were now six who
had not yet submitted any notification concerning their implementing legislation, namely Egypt,
Papua New Guinea, Saint Kitts and Nevis, Saint Vincent and the Grenadines, Swaziland, and the
United Arab Emirates.  Notifications from a number of other Members were incomplete.  Recallingthat pursuant to Article 63.2 of the Agreement the notifications of the laws and regulations in question
were generally due as of 1 January 2000, he urged those Members to submit the outstanding material
without delay.
- Notifications from other Members and notifications of amendments of laws notified
earlier
4. The Chairman informed the Council that, since its previous meeting, notifications of either
new legislation or amendments to legislation notified earlier had been received from Albania,
Chinese Taipei, the Czech Republic and Jamaica.  These notifications would be available in the
IP/N/1/- series of documents.
5. The representative of Cuba said that her delegation had notified Cuba's new legislation on
geographical indications in September 2002, which she wished to introduce under agenda item B.
(ii) Notifications under Article 69
6.  The Chairman informed the Council that, since its previous meeting, updated notifications of
contact points under Article 69 of the Agreement had been received from Canada, Malawi and
Germany and circulated in documents IP/N/3/R ev.6/Add.2 and Add.3.  There were now 117 Members
who had notified contact points under Article 69.
                                                     
1 Document IP/N/6/ARG/1.IP/C/M/38
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B. FOLLOW -UP TO REVIEWS ALREADY UNDERTAKEN
(i) Follow-up to reviews already undertaken
7. The Chairman recalled that, as requested by the Council at its meeting in September, the
Secretariat had updated an informal note that lists all the outstanding material required to complete
reviews that the Council had already undertaken (JOB(02)/160).  The table attached to the note listed
those Members whose reviews were initiated at the Council's meetings in April, June and November
2001, and March and June 2002 but had not yet been completed, and it identified all the outstanding
material.  In addition, the note also listed a number of Members whose reviews had already been
deleted from the Council's agenda, but to whom further questions had been posed.
8. He said that Guyana and India had now provided responses to all of the questions posed to
them, and all of those responses had been circulated to Members prior to the present meeting. He
proposed that the reviews of the legislation of Guyana and India be deleted from the agenda, it beingunderstood that any delegation should feel free to revert to any matter stemming from these reviews at
any time.
9. The representative of Switzerland said that, in its replies, Guyana had referred to its national
legislation, which he had not yet been able to consult.  He understood from the information provided
under the previous agenda item that the legislation had now been notified.  He said that he intended toanalyse the responses in the light of this legislation and pose further questions if necessary.
10. The Council agreed to proceed with the reviews of the legislation of Guyana and India as
suggested by the Chair.
11. The Chairman said that the table indicated that there were 19 Members whose reviews were
initiated between April 2001 and June 2002 that had not yet been completed.  The table referred to
submissions received before 11 November 2002.  Since the Council's previous meeting, Congo had
provided responses to most of the outstanding questions and Cuba had submitted responses to the
questions posed by the European Communities concerning geographical indications.  He recalled that,
at the Council's meeting in June, the representati ve of Mauritius had informed the Council that the
new draft legislation was before Parliament and would be circulated to WTO Members once adopted.At the Council's meeting in last September, Canada, Switzerland and the United States had requested
Mauritius to respond to the questions they had posed to it on the basis of the new rather than the old
legislation.  The Council had just received a letter from Suriname.
2  In that letter Suriname indicated
that new legislation on industrial property and copyright were presently being finalized, and that it
intended to provide revised responses to certain initial questions as soon as its Parliament had
approved that new legislation, which was expected to take place in the near future.  In that context, it
also intended to provide responses to the outsta nding follow-up questions.  The other Members whose
reviews were still pending were Brazil, Cameroon, Egypt, Fiji, Grenada, Kenya, Malaysia, Moldova,
Nigeria, Oman, Pakistan, the Philippines, Qatar, Saint Kitts and Nevis, Saint Vincent and the
Grenadines, Swaziland, and Zimbabwe.
12. The representative of Cuba recalled that the review of Cuba's legislation had been initiated at
the Council's meeting in November 2001.  On that occasion, her delegation had explained why it had
not requested to postpone the review even though Cuba had not been able to adopt and notify, as it
had desired, the necessary legal reforms adapting its legislation to the provisions of the TRIPS
Agreement.  Therefore, the review had started with legislation in the areas of trademarks  and other
distinctive signs (the Decree-Law No.203 of 24 December 1999 and a related Regulation of
22 May 2000), and enforcement (the Civil Code, the Criminal Code, the Law of Criminal Procedure,
Civil, Administrative and Labor Legislations and Customs Legislation), that had been duly notified.
                                                     
2 Subsequently circulated in document IP/C/W/283/Add.3IP/C/M/38
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At that point, Cuba had provided responses to the Checklist of Issues on Enforcement, and responded
to 18 questions from the European Communities and their member States, two from Switzerland and
two from Canada. All of them were related to the areas of trademarks and enforcement.
13. A new legislation on geographical indications was adopted on 20 February of 2002 and duly
notified to the Council in September 2002.  It defined geographical indications as indications thatidentified a product as originating in a country, a region, or a place, and where a given quality,
reputation, or another characteristic of the product was essentially attributable to its geographical
origin.  It specified that geographical indications included both appellations of origin and indications
of source, which were also defined, and that geographical indications were part of the national
patrimony and that the only right to be granted would be the right to use them.  Protection of
geographical indications that constituted appellations of origin were only recognized through their
registration at the Cuban Industrial Property Office.  Registration requirements included, inter alia :
that the applicant of the right to use should be an  individual or a legal entity;  evidence that its
industrial activity was located in the area of extraction, preparation, or production of the good
protected by the appellation;  and the presentation of a document issued by the head office of the
Hydrographic and Geodesic Services of the Republic of Cuba endorsing the validity of the
geographical name.  Furthermore, the applicant should present a detailed description of thecharacteristics of the product bearing the appellation of origin and of the ways through which natural
or human factors, or both, interacted with the product in question.  It was also a requirement that a
certification be issued by the President of the Local Body of the People's Power endorsing the
economic link between the applicant and the geographical area as well as the veracity of the
characteristics of the geographical area stated in the description.  The registration of foreignappellations of origin was based on their protection and validity in their respective countries of origin;
this requirement should be fulfilled by presenting a certification issued by the institutions in which
these appellations were registered in their countries of origin, as well as the right of use of the
applicants.
14. It was stipulated that geographical indications should be used in accordance with their
distinctive nature and, consequently, it was prohibited to use any means in the designation or
presentation, or in any other form, of a good that indicates or suggests that the good in question
originates from a place or geographical area other than the true place of origin in a manner which
misleads or confuses the public as to the geographical origin of the good.  Consequently, it was
prohibited to use false or deceiving geographical indications, or ones that, although literally true as to
the country, region, or place of origin of the goods, falsely portrayed to the public that the goods
originated in another territory.  It was also prohibited to use geographical indications on products thatdid not originate from the geographical area in question, even when the true origin of the good was
indicated or when the geographical indication was used in translation or accompanied by expressions
such as kind, type, style, imitation or the like.  Any use of a geographical indication that constituted
an act of unfair competition was prohibited.
15. An indication was not registrable as an appellation of origin if it was contrary to morality or
public order, or if it was generic, i.e. if it was, or had become, a common name or the designation of a
product instead of associating itself with or iden tifying a geographical name. Applications for the
registration of appellations of origin were published in the Official Gazette ( Boletín Oficial ), with
which, within the established term, any person claiming to be a senior right holder could present
comments or oppositions.  In the course of an examination and after the Conclusive Report ( Informe
Conclusivo ), any interested party would be able to lodge an appeal with the Cuban Industrial Property
Office and, after a decision in this case was rendered, an administrative process could be established
before a tribunal. Special provisions in this Decree-law also included the exceptions of Article 24 of
the TRIPS Agreement.
16. Concluding her overview of the most relevant provisions of the Decree-law, she noted that a
more complete analysis of this issue could be found in the 53 responses given by her delegation to theIP/C/M/38
Page 5
checklist of questions on geographical indications that was circulated in document
IP/C/W/117/Add.26.
17. Her delegation had provided responses to the five questions on this matter posed by the
European Communities and their member States.  She recalled that Cuba still had not responded to
seven questions from Switzerland on patents and undisclosed information, as well as 35 questionsfrom the European Communities and their member States on patents, undisclosed information, layout-
designs of integrated circuits , and industrial designs and copyright.  Also one question from Canada
on copyright and another from Australia on patents and plant varieties remained pending .  A Decree-
law regulating the granting of patents and the registration of utility models and  industrial designs and
aspects of undisclosed information  would soon be enacted.  She reiterated that the legislative reform
on this matter in her country had required the modification of existing provisions and introduction of
new regulations, especially in certain specific categories of rights in which previous regulations andexperience did not exist.  She called Members' attention to Cuba's presentation on 21 November 2001
at the beginning of this review, according to whic h governments needed to pay close attention to the
implementation of certain norms, and that Cuba, given the fact that it was a developing country,
needed domestic adaptations in order to make it possible for provisions having great impact on
economic development and public policies would respect the obligations undertaken by her countrywithout, at the same time, undermining the need fo r a fair balance between the public and private
interests in question.
18. In concluding, she expressed her hope that the pending legislation could be adopted as soon as
possible, and said that her delegation would keep th e Council informed on the progress in this regard.
Her delegation would answer the remaining pending questions as soon as possible.
19. The representative of Pakistan said that he regretted that his delegation had not yet been able
to submit responses to outstanding questions, but he expected to be able to do so in the following
week.
20. The Chairman urged the 19 delegations who had not yet submitted their responses to all the
outstanding questions to do so without delay.
21. He said that the Secretariat note also listed five Members whose reviews had already been
deleted from the Council's agenda on the understanding that any delegation should feel free to revert
to any matter stemming from the review at any time.  In this connection, certain questions had been
raised with regard to the implementing legislation of these countries.
22. The representative of Argentina said that her delegation had provided responses to the
remaining pending questions posed by Switzerland, the European Communities and Canada.3
23. The Chairman indicated that since the last meeting, Thailand had also provided a response to
the further follow-up question posed by Switzerland in August 2002.4  The remaining three Members
to whom questions had been posed were Dominica, Gabon and Ghana.
24. He suggested that the Council request the Secretariat to again update its note on pending
reviews before the next meeting.
25. The Council took note of the statements and agreed  to proceed as suggested by the Chair and
to revert to the matter at its next meeting.
                                                     
3 Document IP/Q3/ARG/1/Add.1 and IP/Q4/ARG/1/Add.1.
4 Document IP/C/W/319/Add.2.IP/C/M/38
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(ii)  Reviews of legislation of China
26. The Chairman recalled that the Council had taken up the reviews of the legislation of China at
its last meeting and agreed, in accordance with the normal procedures, to provide the period until
11 October for any follow-up questions to be sent in writing with a copy to the Secretariat and for the
period until 8 November for responses to be supplied in writing, again with a copy to the Secretariat.The Council had taken up its normal review of China's TRIPS implementing legislation combined
with the review under the transitional review mechanism. China's responses to questions posed to it
had been circulated in document IP/C/W/374 and its addenda 1 and 2.  However, there were still some
outstanding follow-up questions posed by Japan and the European Communities and their member
States.
27. The representative of China apologised for not yet having been able to translate all the
responses into English, but she expected this to be done soon, at which time the responses would be
forwarded to the respective Members with a copy to the Secretariat.  Her delegation was also ready to
consult bilaterally with delegations with further questions, either in Geneva that week or at some other
time in Beijing or in any other place that was convenient for all concerned.
28. The representative of Japan said that his delegation had submitted follow-up questions within
the agreed timeframe but, unfortunately, had not yet received responses.  He therefore reserved his
right to pose further follow-up questions at the TRIPS Council after receiving responses to the earlier
questions.  He believed that there might be some regulations, such as the one concerning the
protection of well-known marks, that had not yet been notified;  if this was the case, he asked China to
notify such regulations as soon as possible for the pu rposes of transparency and review of legislation
under the normal TRIPS procedures.  Concerning the TRM review, he said that the draft reportcontained in document JOB(02)/193 was acceptable to his delegation.
29. The representative of the European Communities recalled that, at the Council's September
meeting, he had commented on the considerable progress China had made in putting in place a full
IPR system. Since then he had had the opportunity to visit Beijing, which had been an excellent
opportunity to clarify certain issues he had raised in September.  He looked forward to receiving
responses to the outstanding follow-up question and expressed his appreciation of the offer to hold
further bilateral consultations.  His delegation continued to be extremely worried about the high level
of piracy and counterfeiting in China.
30. The Chairman said that, as regards the report that the Council had to submit to the General
Council in accordance with the tr ansitional review mechanism of China, the Council had requested, at
its last meeting, the Secretariat to draft a factual report which would describe what had happened and
make reference to the documentation that had been produced, including the relevant parts of theCouncil's minutes.  This draft report had now been circulated in document JOB(02)/193.
31. The Council adopted the draft report on the transitional review under Section 18 of the
Protocol on the Accession of China as  contained in document JOB(02)/198.5
C. PARAGRAPH 6 O F THE DOHA DECLARATION ON THE TRIPS A GREEMENT AND PUBLIC
HEALTH
32. This agenda item was discussed during the course of this meeting of the TRIPS Council on
three occasions:  on 25 November, on 29 November and on 20 December.  On 25 November, the
Chairman informed Members that he was holding consultations on the subject and would revert back
to the matter later in the course of the meeting.  On 29 November, he reported on the intensiveconsultations he had held in various formats where significant progress had been made.  However, he
                                                     
5 Subsequently circulated as document IP/C/26.IP/C/M/38
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said that he was not yet in a position to present a draft legal instrument that the TRIPS Council might
forward to the General Council and that he would con tinue his consultations with a view to circulating
a draft to the TRIPS Council in time for its submission to the General Council meeting scheduled for
the 10-12 December 2002.  The delegations of Kenya, the European Communities, the United States,
the Philippines, Cuba, Peru, Canada, Botswana, China, Uganda, Malaysia, Switzerland, Senegal,Colombia, Argentina, Brazil, Lesotho, Mauritius, Indonesia and India made statements at that
discussion in that order.
33. On 20 December, the Chairman informed the Counc il that the intensive consultations he had
held had not led to a resolution of the language concerning the scope of diseases/public health
problems in paragraph 1(a) of the draft text he had tabled on 16 December 2002 (JOB(02)/217).  He
requested that he be authorized to report this to the General Council and to recommend that the TRIPS
Council be asked to resume work on this matter at the beginning of 2003 in order to resolve the
outstanding issues in the Chairman's text of 16 December and to report to the General Council in
order to enable it to take a decision implementing a solution to the problem identified in paragraph 6
at its meeting scheduled for 10 February 2003.
34. The representative of the United States regret ted its inability to join the consensus on the
Chairman's draft text of 16 December relating to the implementation of paragraph 6 of the
Declaration.  She indicated that her delegation was willing to join the consensus on all parts of the
draft, except the one on the scope of diseases.  She appreciated the efforts that the Chairman, the
WTO Director-General and the Secretariat, and other delegations had made to try and build a bridge
that would provide the confirmation of Ministers' in tentions at Doha, but said that thus far those
efforts had been unsuccessful.  Among other alternatives, her delegation had suggested adding afootnote to the text but that was not agreeable to some countries.  The discussion had included an
exploration of the concept of a Chairman's statem ent, but that had not provided the legal certainty
needed by her delegation.  She recognized that the Council had not yet reached a positive conclusion
but her delegation remained committed to working with other Members in the new year to find an
approach that would work for all.  She did not believe that the differences were irreconcilable and herdelegation remained committed to finding a workable, transparent, sustainable and legally certain
solution that would fulfill the mandate given to the Council in the Declaration as soon as possible.
Her delegation continued to remember that Members were responding to the needs of poor countries
to gain access to drugs to fight the scourge of epidemics ravaging millions in their countries, while
ensuring that the patent system, which promoted the continued development and creation of new life-
saving drugs, was protected.  Finally, she informed the Council that her Government would be
making a statement soon on this topic from the capital.
35. The representative of Kenya, speaking on behalf of the African group, said that the African
group was disappointed that the Council could not achieve a consensus decision on the
implementation of paragraph 6 of the Declaration that would have allowed countries with no or
insufficient manufacturing capacities for pharmaceutical products to make effective use of
compulsory licensing under the TRIPS Agreement.  She said that although the African Group hadexpressed their concerns on the Chairman's 16 December text, they had agreed to support it on the
understanding that other Members would join the consensus.  She appreciated that some Members had
fears that the mechanism in this text would be inte rpreted in a manner that would be subject to abuse.
However, she thought that these concerns were not well-founded because, first, applications for a
compulsory licence under this mechanism would have  to be considered by relevant governments that
would address them in the context of public health policy and would act in light of the spirit of the
Declaration.  Second, under the terms of a TRIPS-compliant compulsory licensing system,
governments had to first negotiate with patent right holders to obtain a licence on reasonable
commercial terms.  Apart from respecting their WTO commitments and national laws, governments
also had to take into account the need to maintain a conducive investment environment and to buildstrategic partnerships with the pharmaceutical industry.  Third, both developing and developed
countries had agreed to the safeguard provisions in the Chairman's text to prevent the abuse of theIP/C/M/38
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mechanism.  Fourth, in their further efforts to cont ribute to the building of consensus and to allay the
fears and concerns of those who still remained outside the consensus, a group of developing countries
had agreed to work with the Director-General in  finding a formulation that might help bring the
remaining Members into the consensus.  In fact the African Group had worked with the Director-
General on a draft statement and even reformulated it as a text.
36. Furthermore, she expressed her concern about the US proposal to put a footnote in the
Chairman's text.  She said that this footnote would have the effect of redefining and limiting the scope
of public health problems as reflected in paragraph 1 of the Declaration.  In her view, the Declaration
had been a product of intense negotiations and remained a significant milestone in tackling public
health problems.  Any attempt to redefine the Declaration would unravel the delicate balance achieved
at Doha.  Therefore, she urged Members to join the consensus in the spirit of multilateralism and
humanitarianism.
37. The representative of Brazil said that the adoption of the Declaration had been a landmark
victory for all WTO Members, namely developed and developing country Members.  In accordance
with the mandate set out in the Declaration, his delegation had engaged in the discussion on the public
health issue with great flexibility and was willing to join the consensus on the Chairman's 16
December text.  However, the consensus could still not be achieved because of the difference inperception among Members over the Doha mandate.  In his view, it was not in the purview of the
Council to re-examine what had been agreed upon in the Declaration.  In other words, the Council
should work constructively to find a solution to public health problems in paragraph 6 of the
Declaration rather than re-examining the scope of public health problems in the Declaration.  The
Council should not underestimate the possibilities that the Declaration had offered for the promotion
of access to medicines for victims in many developing and least-developed countries, especially those
suffering from HIV/AIDS, tuberculosis, malaria and other epidemics.
38. The representative of India said that, as one of the promises made to developing country
Members at Doha, the Declaration was the most important single achievement of the Doha Ministerial
Conference.  It sent a clear message to the world that the WTO was not insensitive to human sufferingand that the WTO system could respond expeditiously, suitably and adequately to public health
problems afflicting many developing and least-developed countries.  He said that it was time for
Members to reflect on the progress made on those promises.  Paragraph 6 of the Declaration, which
dealt with the difficulties faced by Members with insufficient or no manufacturing capacities in the
pharmaceutical sector, was particularly relevant in the case of the Declaration.  The current situation
in the Council made him wonder whether the Council was discussing how to facilitate access to drugs
at affordable prices to poor people or how to restri ct the scope and ambit of the intended solution.  It
seemed that commercial interests had become in creasingly predominant.  He indicated that
developing and least-developed countries had all along been engaging with a view to finding a
solution acceptable to all Members.  Therefore, it wa s in the spirit of compromise that his delegation
had accepted the Chairman's 16 December text.  In conclusion, he said that the whole world was
waiting expectantly for the outcome of the Council's exercise.  It would be difficult to justify why theWTO could not rise to the occasion and satisfactorily respond to the crises being faced in several parts
of the world on account of public health problems of the kind described in the Declaration.  At stake
were the hopes of millions of people to get access to medicines at affordable prices and, therefore, it
was imperative that the Council find a solution soon.
39. The representative of China supported the statements made by the African group, Brazil and
India.  He said that although his delegation was not fully happy with the Chairman's 16 December
text, it recognized, with great flexibility, that it wa s a fairly balanced text and any change to the text
would disturb the balance.  Furthermore, he noted that, after one year's effort to find a solution to
paragraph 6 of the Declaration, the focus of the discussion had turned to paragraph 1 of the
Declaration, namely the scope of diseases.  In his view, the scope issue had been agreed to andadopted by the Ministers at the Ministerial Conference.  He said that the instructions from his capitalIP/C/M/38
Page 9
were clear that China would be opposed to any departure or dilution of paragraph 1 of the Declaration
as it would totally disrupt the balance in the Chairman's 16 December text and Members had no
mandate to do so.  Finally, he urged Members to adopt the Chairman's text on this humanitarian issue.
40. The representative of Malaysia said that his delegation had been willing to go along with the
Chairman's 16 December text with certain caveats that the balance in this text should not be upset.  He
believed that the Council's report to the General Council should cover some outstanding issues which
some delegations, including his own, had particular intere st in.  In this regard he said that if there were
to be a re-opening of the discussion on the Chairman's 16 December text, there should be flexibility to
allow those delegations that had problems with this  text, including his own, to come up with a more
balanced text.
41. The representative of Canada expressed his disappointment that the Council had missed the
deadline set out in the Declaration.  He said that  although the Council had not had all the answers to
the problems posed, it had endeavoured to make the solution a little more palatable.  In his view, there
seemed to be harsh criticism aimed at the WTO and he hoped that the Council could take the criticism
constructively and redouble its effort in the matter.  Furthermore, he thought that the Council could
learn some lessons from the discussion and that was, perhaps, the silver lining.  One lesson was
related to the issue of the scope of diseases, which had been discussed extensively in the Council.Some Members believed that protection of intellectual property was necessary for continued research
and investment into finding new drugs, and that a one-sided interpretation of the Chairman's
16 December text would serve to undercut their efforts in this regard.  Thus, they had expressed a
legitimate concern on this issue.  Meanwhile his delegation had tried to articulate, not defensively but
honestly, that the Council could not put all of the va rious diseases in the solution since, in his view,
Members did not have the same understanding of the Declaration.  He said that although the
Declaration was the result of great effort and joint action by Members and had been meant to address
public health problems, Members still needed to distinguish between those that were truly epidemics
and those that were not.  He said that Members should bear in mind that they had to legislate
progressively and could not afford to only be gu ided by the lowest possible common denominator that
might or might not accrue.  Members needed to account for this so-called frivolous request because
they could not allow themselves to be placed in a position of not acting on HIV/AIDS, malaria,
tuberculosis or the other epidemics.
42. Another lesson, he thought, was that Members recognized and accepted that all politics were
local and all pressures had started at home.  He noted that Members had been under particularly
crucial pressure when they dealt with an industry which was great, innovative, creative, powerful,
well-financed and politically positioned.  At the same time, Members also needed to find a balancebetween the local politics and multilateralism.  Furthermore, he said that notwithstanding the
legitimate concern that his delegation had had in the previous informal Council's meeting, it was
prepared to join the majority of Members, in th e spirit of compromise, and stand together with what
these Members had been prepared to live with in the Chairman's 16 December text.  He thought that
Members would have to find a balance between what all those countries standing together meantrelative to all local politics.  In his view, the C ouncil had achieved a major part of its task where all
Members were able to close every part of the Declaration and accept it as a compromise except for
one area for some Members.  Thus, Members had to be careful about how they could balance their
local pressures with multilateral aspirations in the WTO.
43. In conclusion, he said that his delegation would continue to expend every effort that it
possibly could with the Council in the days and weeks ahead.  His delegation did not pretend that the
discussion in the Council would be easy because Members understood how fragile it could be.  He
hoped that the window of opportunity to the Chairm an's last text was a long window that allowed
Members to go over that goal line and that Members could stand together on the Chairman's text.IP/C/M/38
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44. The representative of Argentina said that her delegation had serious doubts about the effective
operation of the system being proposed to Members in the Chairman's 16 December text and sought
to find the true benefits which could derive from the proposal when Members balanced against the
burdens and the restrictions involved.  She said that her delegation had some concerns on this text,
especially paragraph 6(2) regarding the desirability of harmonisation of intellectual property rightsstandards.  However, after listening to the stat ements made by some Members, particularly the
African Group, and humanitarian exhortations, her delegation had been ready to make its position
more flexible and to lift its serious reservations and go along with the consensus that existed on the
text.  However, her delegation believed that the discussion on the scope of diseases had been closed in
Doha and should not be re-opened.  If the Council was going to re-open the discussion on this issue,
her delegation would insist on some reservations it had put forward at the Council's meeting on
29
 November 2002.  These reservations included those on the differentiation made between
least-developed and other WTO Members, on information to be provided through notifications and on
the legal mechanism.
45. The representative of the Philippines said that the Declaration was the crowning glory of the
WTO's contribution to global welfare and humanitarian concerns, especially for those who were
gravely afflicted by the scourge of epidemics and other public health problems.  However, it wasdisappointing that the Council had been unable to resolve a simple issue of implementation thus far.
In his view, the Council's mandate was only to find an expeditious solution to the problems faced by
Members with insufficient or no manufacturing capacities in the pharmaceutical sector and it was not
mandated to re-negotiate the Declaration on the issue of the scope of diseases.  The Declaration stood
by itself and had been extensively discussed and decided by consensus at the Doha MinisterialConference.
46. Furthermore, he reminded Members that there remained some other problems in the
Chairman's 16 December text, such as the issue of safeguards in paragraph 4.  He said that there
seemed to be an attempt to manage the discussion solely on the issue of the scope of diseases.  In his
delegation's view, indifference towards other issues should not be construed to mean that there would
be no further discussion on them in the Council.  In this regard, he reiterated the statement made by
Malaysia that the issue of safeguards remained an outstanding issue and must be addressed if the
Council was to re-open the discussion.
47. The observer from the Holy See  said that the Declaration was considered a significant
breakthrough in reconciling two different governments' values in the world, namely the value of the
government which permitted rapid response to urgent public health problems and the government
which respected the creativity and innovative possibilities offered by a rules-based intellectualproperty system.  He hoped that the Declaration was seen as a victory for all Members, especially for
the poorest countries and for those who were exposed to public health problems.  He reported that
Pope John Paul II, in his message on the theme of peace, had stressed that the promises made to the
poor must be respected and the implementation of those promises was a moral problem.  Furthermore,
he said that protection of private property and intellectual property was important, but there was asocial mortgage on all private property including intellectual property.  The impetus which the
intellectual property rights system offered to creati vity and innovation, especially in the field of public
health, was to serve the common good of humanity.  A positive decision on public health problems
would have been a very important decision during this season.  Finally, he hoped that a sense of
common responsibility would help Members ensure th at what had been achieved so far would not be
lost and that a positive decision would be given to the global community as early as possible.
48. The representative of Botswana associated his delegation with the statement made by Kenya
on behalf of the African Group and also endorsed the statements made by Brazil, India and China.  He
said that a solution to public health problems would have more impact on Africa than on all the other
countries.  Therefore, he urged Members to demonstrate heightened political will and determination toreach consensus on this issue which had significant moral and humanitarian dimensions.  He alsoIP/C/M/38
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pointed out that while the Council remained focused on the critical issue of the scope of diseases, it
should avoid a roll-back on the significant achievements that it had already made.
49. The representative of Indonesia recalled that when the public health issue had been raised in
2000, his delegation had undertaken the work on the premise that right to life and a reasonable
standard of physical and mental health, namely prevention and treatment of diseases, was afundamental human right of people.  His delegati on believed that Members should not and must not
stand back in helplessness while people suffered and died of diseases to which there were possible
medicines because they were deprived of access to these medicines simply because they were poor.
50. Furthermore, he said that his delegation recognized that the solution in the Chairman's
16 December text was only a compromise rather than the best solution and it still had serious
concerns, especially with respect to paragraph 4 and the Annex.  However, his delegation was not
willing to stand in the way of consensus because the countries most in need of the solution hadacknowledged that the solution in the text might be helpful in managing their public health problems.
Finally, referring to the statement made by Brazil, he said that his delegation took comfort in the fact
that the Declaration remained intact.
51. The representative of Chile said there were two dimensions of public health problems in the
Council: one was ethical, and the other was humanita rian.  In his view, the Holy See's intervention
had expressed these two dimensions very well.  He said that since many people hoped that the WTO
would undertake to respond to public health problems, lack of such action would have negative
implications for the WTO's work and image and further support.  Therefore, he urged Members to
assume their political responsibility and respond to the problem.  He also indicated that since it was
only one Member that had been unable to join the consensus for various reasons, the politicalresponsibility for failure should fall on that Member and not on all or the majority of Members.
Finally, he hoped that the break in the next few days would enable Members to reflect calmly and
would permit the United States to come back and join  the consensus in order to respond to this ethical
and humanitarian issue.
52. The representative of Thailand said that the public health issue was crucial to the WTO.  She
was disappointed that, despite the tireless effort by the Chairman and the Director-General in trying to
find a solution to this issue, the Council had been unable to reach any conclusion.  Nonetheless, she
said that it was not the end of the world as there was still hope that Members would continue to work
together.  Furthermore, she said that although her delegation still had concerns on several elements in
the Chairman's 16 December text, this text should be preserved in its entirety.  She added that it was
in the Council's interest to further explore ways and means to bridge the gap between divergent views
in order to provide a level of comfort while advocating the need for the protection of public health forall Members.
53. The representative of Cuba said that as regards the need to respond to public health problems
and the need to identify the achievement in the Council, the discussion in the Council should have
been more transparent and straight forward.  Reverting to the Chairman's 16 December text, he said
that the Council had departed from the elements set out in the Declaration, particularly in itsparagraphs 4 and 5.  However, given the urgency of the need to find a solution as requested by the
developing countries, particularly Africa, his delegation had been prepared to give its approval and go
along with the consensus.  Furthermore, he said that any attempt to isolate and lead developing
countries away from the path that had been outlined in the Declaration could be extremely dangerous
for the whole process that Members were engaged in.  If what had been agreed upon was not to berespected and if there was any attempt to draw further away from that text, the overall credibility of
the WTO in the current negotiating process would be at risk.  He indicated that it was important for all
Members to be aware and recognize when the discussion resumed in January 2003 that the text
submitted by the Chairman at his own responsibility already represented major concessions for many
countries.  Therefore, re-opening the discussion on that text could have serious repercussions as itIP/C/M/38
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would not be acceptable to depart further from the pa th traced for the Council in Doha.  He said that
his delegation would submit, in the near future, its written proposal that could be distributed to the
General Council.
54. The representative of Pakistan joined other delegations in expressing his delegation's
disappointment at the Council's inability to reach consensus on the public health issue.  He said that
reaching consensus on this matter would have been good for Members' consciences and would have
boosted their morale and speeded the pace of negotiations elsewhere.  It could also have sent a good
message to the public at large as well.  He said that his delegation had had serious concerns on at least
two paragraphs of the Chairman's text.  However,  in view of the Chairman's explanation, and the
slight change, his delegation was willing to go along with the consensus.  In conclusion, he said that
all Members needed to make some sacrifices in this manner and hoped that progress would be made
in 2003.
55. The representative of Peru shared the concerns expressed by some Members.  She said that
her delegation was willing to be flexible and go along with the consensus despite the concerns it had
had on some elements in the Chairman's 16 December text.  Her delegation hoped that consensus
would be achieved on the basis of this text as any changes to it would reopen the discussion on the
whole text.
56. The representative of Hungary said that his delegation was also disappointed that despite the
tremendous work, the Council had been unable to meet the deadline set out in the Declaration.  He
said that his delegation, like many delegations, had been ready to go along with consensus on the
Chairman's 16 December text.  Although his delegation endorsed this text, it still thought that it did
not reflect its position in full.  However, he believed that this text had struck a basic balance andoffered a workable system.  He added that the Chairman's 16 December text provided the Council the
best shot at finding a solution by early 2003.  He also hoped that the Council would be able to deliver
on its mandate by the General Council's first meeting in 2003 through continued efforts by all
Members.  That was imperative not only because the solution was related to public health but also
because failure to find an expeditious solution by early 2003 could have a serious negative impact onon-going negotiations in other WTO bodies.  He agreed with the delegation of Chile that this issue
had an important political dimension.  He also shared the view that Members and the WTO as a whole
could not afford to be seen as being insensitive, unable and unwilling to find a speedy and workable
solution to the issue in paragraph 6 of the Declaration.
57. The representative of Hong Kong, China sh ared the disappointment expressed by other
delegations.  He said that Members could not help having a sense of failure although they had
achieved much and were close to finding a solution.  He said that Hong Kong, China did not havemuch manufacturing capacity in the pharmaceutical sector but it had neither defensive nor offensive
interests in this issue.  His delegation did not envisage utilizing the solution except under highly
unexpected and exceptional circumstances.  Howe ver, Hong Kong, China was not a disinterested
party since it had recognized that this issue was extremely important and would greatly benefit the
public and was also vital for the WTO's credibility.  For these reasons, his delegation had all alongbeen an active player in the exercise and had tried to be constructive and flexible.
58. With regard to the debate about whether there should be prior exclusion of Members as
eligible importing Members, he said that his delegation maintained that the only criterion under the
mandate was no or insufficient manufacturing capacities.  His delegation had volunteered, as a gesture
of good will, to opt out of the solution except under national emergency or other circumstances ofextreme urgency.  He agreed to the suggestion to make a declaration or statement to that effect once
an agreement on this issue was reached.  Turning to the issue of safeguards, he said that his delegation
would have preferred more clarity on what exactly the measures expected to be taken by importing
Members were to prevent trade diversion under paragraph 4 of the Chairman's 16 December text.
Although his delegation was not completely satisfied with this text, it was prepared to accept theIP/C/M/38
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whole package in the spirit of good will.  In his view, the Chairman's 16 December text represented a
careful and delicate balance and any attempt to change certain parts would risk unravelling the overall
balance.  He hoped that the time ahead would provide Members with an opportunity to reflect on their
positions and move forward in the best and most expeditious manner.  He urged all Members to
redouble their efforts in 2003 to enable the Council reach an early solution on this issue.
59. The representative of Chinese Taipei hoped that a consensus could be reached once the
Council's meeting was resumed in order to give the public a message that the WTO was a place where
Members could solve problems to the benefit of society.
60. The representative of the European Communities said that a great deal of work and effort had
been expended in the process which should not be lost.  In his view, any kind of unravelling of the
Chairman's 16 December text would be extremely dangerous.  He also expressed disappointment that,
despite the hard work and the political importance of this issue, the year had not ended as hoped.However, his delegation was ready to return to th is issue with new resolutions in 2003 and work with
the Chairman to find a solution that would be satisfactory to all Members.
61. The representative of Japan shared the disappointment that the Council could not achieve
concrete results due to the extreme difficulties Members had faced in trying to arrive at a balanced
solution.  This balance, on the one hand, should address the humanitarian concerns of people whowere dying or suffering and having no access to affordable medicines, and, on the other hand, should
maintain the rules-based multilateral trading system  which helped drive growth of trade necessary to
alleviate poverty.  In other words, Members were called to balance their warm hearts and cool minds.
The Council had amply witnessed the warm hearts in Members throughout the process of discussion.
The Council had also been pulled back by the cool minds to ensure that the regime Members wereattempting to create would enable future generations to meet potential calamities.  In any case there
was still a long way to go.  He hoped that the year 2003 would bring new creativity to bridge the gaps
so that the seemingly divergent needs of Members' hearts and minds would be happily reconciled.
His delegation was prepared to continue working based on the results achieved so far until consensus
and an agreement was reached.
62. The representative of Switzerland said that his delegation was disappointed by the current
situation faced by Members.  He said that the reasons cited by other delegations for their
disappointment such as the impact on the WTO's image and on on-going negotiations were secondary.
He believed that the main reason for disappointm ent was that Members had not fulfilled the mandate
set out in the Declaration to ensure that thos e in need of affordable medicines and without
manufacturing capacity could take advantage of compulsory licensing under the TRIPS Agreement.
In his view, it was Members' collective responsibility, namely the responsibility of all those who hadparticipated in the exercise and had failed to brin g it to a satisfactory outcome.  One element of that
responsibility was the early introduction of elements which were foreign to the original aim of the
Declaration, which his delegation had regretted and tried to correct during the course of the
discussion.
63. The representative of the Czech Republic said that, although all Members had shown their
goodwill throughout the whole discussion and demonstrated a sincere desire to find a solution to the
public health issue, the complexity of this issue prevented the Council from meeting the deadline
given by Ministers in Doha.  He shared other delegations' sentiments of frustration that the Council
had not reached a consensus.  However, his delegation remained confident that an agreement was
within the Council's grasp because the remaining gaps were not irreconcilable.   He reaffirmed hisdelegation's commitment to the Council to make effort to find a solution.  He also said that his
delegation was aware of the cost and implication of long and complicated discussions on the small
delegations and it would ensure that the Council woul d not go that far.  His delegation was also aware
of the suffering of those countries from public health problems;  however, a solution being sought in
the Council was one tool to help them overcome the problems rather than a final or only solution.IP/C/M/38
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64. The Council took note of the statements made and agreed  to proceed as suggested by the
Chairman.
D. ISSUES RELATED TO THE EXTENSION OF THE PROTECTION OF GEOGRAPHICAL INDICATIONS
PROVIDED FOR IN ARTICLE 23 T O PRODUCTS OTHER THAN WINES AND SPIRITS
65. The Chairman recalled that, in order to facilitate a more systematic discussion, he had
prepared for the Council's September meeting a Check list of Issues taking into consideration the
points raised in the discussions at the Council's previous meetings, informal consultations and recent
communication (document JOB(02)/117).  At that m eeting, the Council's discussion focused on the
first set of issues identified in the checklist, na mely "the legal issues relating to the differences
between the general protection for geographical indi cations provided for in the TRIPS Agreement and
the additional protection for geographical indications for wines and spirits".  At an informal meeting
held on 10 November 2002, the Council had continued its discussion on the first set of issues, andstarted its discussion on the second set of issues, namely "broader policy issues such as the impact on
producers and consumers of any extended protection".  The Chairman's intention was to continue the
discussion on the second "basket of issues" at the present meeting and then take up the third one,
namely "the administrative costs and burdens of the procedures associated with any extended
protection and any other impacts on governments".
66. The Chairman recalled that, at its September meeting, the Council had requested the
Secretariat to prepare prior to the present meeting a compilation of the elements contained in the oral
statements made at the September meeting and the written submissions prepared for it, including the
points made at the informal meeting of 10 November 2002 in relation to the first "basket of issues".
The representative of the Secretariat said that he regretted to inform the Council that the Secretariat
had not been able to complete and circulate the compilation.  As had been discussed at the Council's
last meeting, the Secretariat faced structural cap acity problems in keeping up with the ever-growing
workload in the Council.  Secondly, the Secretar iat had, like delegations, given priority to the
paragraph 6 negotiations in the period since the last Council meeting, which had been held just over
two months ago.  Thirdly, the Secretariat staff had been working to rule in the recent weeks.
Although this had not applied to the paragraph 6 work, it had been applied to all other work of the
Council.
67. The Chairman recalled that, at its meeting in June, the Council had requested the Secretariat
to circulate to Members the report of the eight session of the WIPO Standing Committee on the Law
of Trademarks, Industrial Designs and Geographical Indications (SCT), held on 27-31 May 2002,
once it became available.  This report had been adopted by the SCT at the Committee's meeting held
on 11-15 November 2002 and was being circulated in document IP/C/W/391.
68. Turning to the second basket of issues concerning broader policy questions, such as the
impact of extended protection on producers and co nsumers, the Chairman said that, although the
Council had already started the debate on these issues at its informal meeting of 10 November 2002,
all delegations should feel free to address any of the matters relevant to this set of issues.  As to
producers, he said that there were two sets of producers whose concerns could be examined.  First,those that produced the goods in the area that was designated by the term that benefited from its
enhanced protection:  to what extent would these producers benefit from such enhanced protection in
the marketing of their goods?  Second, those producers who could be prevented from using the term
in question:  to what extent would they be advers ely affected in the marketing of their goods and what
kind of adjustment costs/burdens would they be faced with?  With regard to the impact on consumers,he said that there could be a need for further discussion to establish the relative importance of the
claimed benefits from greater clarity in the geographical origin of the goods against claimed
confusion and higher prices that would arise from disruption to existing marketing practices.IP/C/M/38
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69. The representative of Switzerland said that producers within designated geographical areas
that produced goods protected by a GI would bene fit from extension because the use of a GI on goods
not actually originating from the place indicated by it would be prohibited even when a "delocalizer",
such as "made in", "imitation", "style" or "type", was added.  Consequently, legitimate producers
would no longer need to fear that their GIs would become generic over time by such misuse on other
products.  As to enforcement, they would no longer need to bear the onerous and costly burden to
prove to the court that the illegitimate use of their GIs had misled the public or that such use
constituted an act of unfair competition:  it would be enough to prove that goods illegitimately bearing
the GI in question did not have a proper origin. Such improved legal security at the multilateral level
would reassure producers to use GIs as an efficient marketing tool. Moreover, it would constitute an
incentive for producers to market their goods internationally, thus promoting international trade.
70. He noted that delegations critical of extension were concerned that extension would
necessitate substantial re-labelling of products by producers outside the designated area, which would
result in administrative costs and consumer confusion.  However, the proponents had repeatedly said
that such re-labelling would not be necessary because the exceptions contained in Article 24 would
continue to apply as they presently applied to GIs for wines and spirits.  These exceptions would take
due account of prior good faith use of GIs for produc ts without the relevant origin.  If, however, such
use had taken place in bad faith, with the intention to free-ride on the reputation of a GI, the Article 24
exceptions would not apply.  In that case, the obligation to re-label a specific product seemed an
appropriate consequence.  The economic long-term benefits of extension would, in any case,
outweigh the costs of a few cases where re-labelling was necessary.
71. Another concern raised by delegations critical of extension was that, in the future, producers
outside the designated area would have to perform extensive examinations to determine whether they
would be allowed to use a GI.  However, in his view, extension would eliminate legal uncertainties,
because producers and traders would need to answer only one simple question when deciding whether
to use a GI on a product:  did the product come from the place and have the given quality designated
by the GI in question?  This was easy to examine and would not result in any additional costs.
72. The representative of the Australia said that a range of broader policy issues existed that were
neither dealt with in the Checklist of Issues nor discussed by the TRIPS Council.  It seemed to him
that the first policy issue would be whether any new or extended IP rights should be attached to food
and other like products.  IP rights were normally granted to those who had discovered or created
something.  Protection was given to creators, scientists, inventors, authors and researchers in order to
reward them for having come up with new products, new processes and new works of art.  At the
same time, they, and their investors, were given an incentive to continue doing so.  By protectingthese IPRs, governments were in effect rewarding them with a monopoly for their creative work.  But
the important question worth asking was whethe r governments should grant similar monopoly rights
based on an accident of history where there would be a geographical connection to a product.  He had
serious doubts about such a proposition.
73. He believed that Members should be very cautious about the examples that had been cited by
demandeurs to show that the adoption of a GI had le d to market benefits.  None of the examples had
showed that GIs were the determining factor in the success of a product.  The causal factors of any
increase in market share could be many and varied. For example, a full and proper analysis would
have to weigh up the relative contribution of various factors in this regard, such as exchange rate
movements, the relative efficiency of distribution channels for different products, the extent to whichconsumer preferences were driven by a company, a country of origin, reputation distinct from the GI
itself, and the quality, quantity and accessibility of competing like-products over the period being
measured.  It would, therefore, be very difficult to see how many of the statistics presented could
convincingly attribute increased prices and market share to a GI.  A dramatic increase in New World
wine exports to the EC market could not be explained on the basis of the benefits of the higher levelof GI protection accorded to wines as most of these countries, and, until very recently, most of theIP/C/M/38
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New World wine suppliers, had not had bilateral agreements on the protection of their wine GIs in
Europe and, therefore, had not benefited from the same level of protection as European producers.
Rather, the success of New World wine exports were attributable to strong competition on price, on
quality, and on effective marketing.  The export success of the Australian wine had being primarily
due to the fact that it was a quality product that had been offered at a competitive price, effectivelymarketed as Australian, and assisted by a domestic regulatory structure that supported international
competitiveness for Australian industries.
74. However, when talking about wine being successfully marketed as an Australian product, one
should not forget that the European Communities were strongly opposed to the concept that
"Australia" would be regarded as a GI.  He was convinced that many of the terms Members sought to
protect as GIs would, at the end of the day, not receive such protection.  Countries would find out that
the terms they wished to protect did not fall within the definition contained in Article 22.1. Australiahad raised the specific issues of country names and blending as examples of the differences between a
theoretical understanding of what Article 22.1 could cover and what some countries interpreted that
provision to encompass when it was implemented domestically.  The question of what would or
would not fall within Article 22.1 was fundamental to assessing what benefits producers would obtain
from increased protection in export markets.
75. The exceptions contained in Article 24 provided an important balance vis-à-vis  GI rights.
These exceptions recognized that there were other legitimate uses of terms claimed as GIs and that
such uses should be allowed to continue.  Many terms that had been advanced to date were likely to
fall within these exceptions. The Czech Republic had noted at the Council's last meeting that the word
"pilsner" was a generic term.  He agreed with this assessment, and said that it would be virtuallyimpossible to claim protection for this indication. But the same would go for many other products
which several Members of the Council believed they would be able to protect, one example being
"feta cheese".  Many of the terms demandeurs had been advancing as worthy of protection had been
used in international markets for decades and producers of those goods had failed to do anything to
protect them or to enforce their rights.  In the case of the EC markets, extended protection would notprovide the level of protection currently afforded to EC producers.  He referred to paragraph 3 of
document IP/C/W/353, in which demandeurs stated that the proposal on extension would only be
designed to have effect for the future and would not affect existing uses of names that coincided with
protected GIs to the extent that they had been in conformity with Article 24.  Did this mean then that
the producers of terms such as "basmati" and "Ceylon tea" would not expect to obtain protection at
the higher level?
76. Continuing, the representative of Australia said that he sought to focus Members' attention on
implementation of the existing provisions.  Members' failure to fully and appropriately implement
existing obligations was leading to the misconception that existing levels of protection were
inadequate.  Further, the failure of many Members to protect their GIs domestically would lead to a
refusal by others to recognize these GIs in export markets.  As noted in a paper Australia had
sponsored on the implications of extension (IP/C/W/360), it appeared that "basmati rice" and "jasminrice" were still not protected domestically, leaving it open to other Members under Article 24.9 to
deny protection on the basis of lack of  protection in the country of origin.
77. Producers also needed to be aware that establis hing rights to a GI domestically would entail
costs.  Domestic producers wishing to establish a GI needed to mobilize other producers in the region
to create a consensus.  As the example of "feta cheese" in the European Communities demonstrated,reaching intra-domestic consensus could be a difficult process.  Producers would need to settle the
territorial limits within which the essential link to a quality, reputation or other characteristic of a
product would apply, and also decide what would be the criteria that would apply in determining
when a GI could be used.  These processes could cause conflicts between domestic producers that
would need to be adjudicated.  Such efforts would also likely require government lobbying, studies to
demonstrate the geographical boundaries, as well as defending claims by producers who would be leftIP/C/M/38
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outside of the boundaries.  Such costs could not be easily borne by developing countries' producers or
industries, which were dominated by small and medium size enterprises.
78. Discussions had also overlooked the fact that producers could not expect to sit back and do
nothing to protect their rights.  A higher level of  protection would not change this. Article 23.1 would
still require Members to take action to enforce their rights and this would result in costs.  This wasentirely consistent with the protection of other types of IPRs.  Producers benefiting from those rights
must bear the costs of protecting them.  Thus, the extent to which producers would actually benefit
from a higher level of protection would also depend on the extent to which producers would be
willing and able to enforce their rights.
79. Demandeurs had claimed that the higher level of protection would not entail significant costs
to producers.  The representative of Switzerland had said that the costs of re-labelling were quite
immaterial.  Australia's experience was quite to the contrary.  Producers prevented from using termsclaimed as GIs were subject to significant adjustment costs, including the costs of re-labelling.  Given
that the TRIPS Agreement did not contain any transitional period for the phasing out of claimed GIs,
producers using such GIs could be subject to immedi ate claims to change labels.  These costs would
likely fall more heavily on small and medium sized enterprises that were producing goods for niche
markets.  Additionally, such producers would be subject to sanctions such as fines or court action.Furthermore, there would be the costs of defending th eir right to continue using a term.  Claimants for
extension seemed to assume that producers would and should automatically cease to use terms that
were the subject of a GI claim under the higher level of protection scheme.  This assumption ignored
commercial reality.  Producers who were subject to such claims would likely be willing to spend
significant resources in defending their right to continue using such terms on the basis of theexceptions contained in Article 24.  The Danish Dairy Board member and the Spanish wine producer
who had talked at a WTO Symposium in May 2002 about their experiences defending their right to
continue using the term "feta" for cheese, and a family name for wine, knew what sort of costs they
had incurred in their defence.  The parties involved in these Danish cheese and Spanish wine cases
incurred many costs, such as costs with government lobbying, court actions, consumer surveys, theproduction of extensive information concerning domestic rules, statistics, market profiles, etc.
80. Furthermore, there were the costs of undertaking a country-by-country analysis of every
export market.  Producers would have to undertake such analysis for every export market to which
they would export, or were planing to export, in order to determine whether they would be able to
continue to use existing packaging and marketing material in those markets.  This would be very
expensive and would constitute an additional burden, particularly to small and medium sized
enterprises and producers not supported by a strong collective industry structure.  If producers failedto do this kind of research they would seriously risk subjecting themselves to sanctions or court
actions in export markets accusing them of breaching another producer's GI.  As to the question of the
cost of developing a new name for a product, he sa id that a producer who was subject to a successful
claim to cease the use of a GI would also have to invest resources in developing a new name for that
product and in marketing that new product to avoid losing market share.  These costs should not beunderestimated, particularly when there was a need to launch a marketing campaign in an overseas
market.  There were also the costs associated with the loss of reputation and market share.
81. As to the implications for consumers, he said that, given that Article 22 protection already
provided protection against misleading consumers, any increase in the level of protection to that
contained in Article 23 would do nothing to enhance the level of information that consumers alreadyhad concerning the origin of a product.  Extension would not therefore entail any cost-savings to
consumers.  Consumers' search costs would not be reduced. On the other hand, extension would likely
entail increased costs to consumers.  The costs with re-labelling, product name development and
advertising that some producers would incur woul d undoubtedly be passed on to consumers through
higher prices.  Furthermore, under extension, there would be a limited number of producers and, as aconsequence, consumers would only have available "Greek feta cheese" rather than, as in Australia,IP/C/M/38
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also "Danish feta cheese", "Bulgarian feta cheese",  "Australian feta cheese", etc.  Where were the
benefits to consumers in that case?
82. The representative of Canada said that the Council's discussions on legal issues had clearly
shown the lack of a common understanding of what constituted a GI.  She stated that the definition set
out in Article 22.1 was very broad and its elements were still open to interpretation, as demonstratedby the recent discussions on the relevance of country names, traditional expressions, and the objective
link that must exist between the origin of the good and its quality, reputation or other characteristics.
In this context, it would be very difficult to properly assess the benefits or the overall economic
impact that extension would have on producers and consumers.  In fact, even if one set aside these
legal uncertainties, the economic value and practical benefits of GIs for all economic agents were far
from being known or understood.  She agreed with those delegations which had said at the Council's
September meeting that an assessment of the economic impact extension would have on producers,distributors and consumers would be required in order to better evaluate the actual need for extension.
83. An assessment of the economic impact of extension for producers could not be decoupled
from the impact it would have on consumers.  Co nsumers and producers were indeed intrinsically
linked through the market, i.e . via the interplay between offer and demand.  It was the demandeurs'
assessment that an increased consumer demand for quality goods would secure better prices for goodsbearing a GI and thus ensure higher producer benefits.  Assessing the impact that extended GI
protection would have on producers thus required a prior assessment of the GI's ability to generate a
different consumer behaviour, i.e. an assessment of the role it would play in differentiating products.
What was still to be determined was the impact a GI would have on consumer purchasing.
84. Examining this issue, her delegation had found a number of recent European studies focussing
on the effectiveness of GIs. The European Union, for example, had set up the DOLPHINS project
("Development of Origin Labelled Products:  Humanity, Innovation and Sustainability").  The
DOLPHINS project, a concerted action to enquire into agriculture and agro-food's origin-labelled
products and, in particular, to look into the link existing between GIs and consumers, had as one of its
three stated objectives "to provide relevant recommendations to the EU to support the negotiationsregarding the protection and promotion of origin-labelled products in the forthcoming WTO Round".
Her reading of the DOLPHINS project's conclusion suggested that GIs were not working very well in
terms of clarifying consumer understanding. Accord ing to these experts, the European directive on
GIs was not working because GIs were not used extensively by consumers to differentiate between
products, since they did not recognize them.  Moreov er, the consumers that did recognize GIs did not
rely on GIs alone to provide them with the information on the origin and qualities of goods.
Consequently, consumer demand for goods bearing a GI did not rise and prices, in reaction, remainedunchanged.  Therefore, producers were not necessarily benefiting from their use of a GI.  She said that
her purpose in calling this work to the Council's attention was not to demonstrate that GIs were not
useful, but to bring a better understanding of their benefits and limitations.  Before supporting an
increased level of protection for GIs and before developing a domestic  sui generis  system of
protection for GIs that would be costly and bu rdensome, Members should think again about what
would really be at stake in order to determine what the actual gains (as opposed to perceived gains)
and the real costs were.
85. The representative of Canada recalled that, at the Council's informal meeting, the
representative of Switzerland had used the French appellation of origin "Piment d'Espelette" as an
example of the success a GI could have in fostering increases in production.  Looking more closely atthis example, her delegation had found that, indeed, the production of this specialty pepper was said to
have doubled since it had been granted an appellation of origin, a fact easily verifiable by visiting the
producers' website.  According to this website, the production of "Piment d'Espelette" had doubled
between 1997 and 2000, but, interestingly enough, the appellation was only effective on 1 June 2000,
i.e. two years after the success had started to be seen.  One could thus question which role the GI (or,in this case, the "appelation d'origine controlée"- A.O.C.) had played in the success of this product.IP/C/M/38
Page 19
The producers also clearly acknowledged on their website the role that the European Communities,
their member States, their region and their departments had played in providing financial support
without which the protection of "Piment d'Espelette"  would never have been achieved.  Another issue
that this example raised was that developing a GI  that would meet the definition of Article 22 would
involve investments in time and effort. It took cl ose to thirty years for the producers of "Piment
d'Espelette" to finally acquire this A.O.C. in Fran ce. This example clearly showed that GI protection
could not be achieved in a short period of time.
86. She recalled that, at the Council's last meeting, the representative of the European
Communities had explained how they provided national treatment to nationals of third countries.  Her
delegation continued to find the European Communities' interpretation of TRIPS very surprising.  The
European Communities had indicated that they believed that registration systems should be primarily
aimed at the identification of domestic GIs. Consequently, nationals from third countries would notbenefit from the European system of GI protection but should rely instead on the labelling foodstuff
legislation "which supplement the European Commun ities unfair competition laws and provide, to all
foreign GIs, the minimum level of protection required by Article 22 against consumer deception".
Surprisingly, this protection was very close to systems of GI protection that the European
Communities qualified as inadequate. Were they saying that this system was not good enough fortheir own GIs but would be for those from third countries?  Furthermore, she noted that the European
Communities emphasized the "importance to demonstrate a link between the protected quality,
reputation or other characteristic of a product and its geographical origin".  In relation to this, she told
that, in the course of its bilateral negotiations with the European Communities, Canada had asked the
European Communities to supply it with this kind of information concerning the wine names theywanted to protect in Canada, but they had refused to give this information to Canada, noting that they
had already registered the names in the European Communities.
87. The representative of New Zealand agreed with Australia's comments relating to producers
that manufacture goods in the area designated by a term that would benefit from enhanced protection
and the question of the extent to which they would benefit from such protection in the marketing oftheir products in other countries.  While recognizing the theoretical benefits that Article 23 protection
would provide, she believed that producers would onl y benefit if there was a strong recognition for
the protected term in other countries.  Otherwise,  they would face exactly the same marketing costs as
other producers selling similar goods − extended protection for GIs would not overcome this.
88. Although the question in the Chair's Checklist of  Issues was framed in terms of marketing
products protected by GIs in other countries, it was important to recognize that one of the major
incentives on the part of demandeurs was to increase the market share of such products in their own
countries.  To the extent that extended protection would increase the market share of such products by
forcing the re-labelling of competing products from other countries, the producers of those products
would benefit.  But the corollary to this was that while they could get a better situation in their own
markets, they could be shut out of foreign markets.   And while she recognized the point made by the
representative of Switzerland that, under Article 23 protection, producers would not have to take the
apparently onerous step of proving that another producer's use of the term was misleading, she said
that they would still have to prove that the term, which they believed was a GI, was in fact valid and
that the Article 24 exceptions would not apply.  As others had already pointed out, this would notnecessarily be a simple task.
89. As to producers from outside the area indicated by the GI and the question as to whether they
would face costs in the marketing of their products and what kind of costs they would be faced with,
she said that her country's own industry had informed her that the costs of this could well be
substantial.  They would include marketing costs associated with developing substitute terms and
getting consumers to recognize them.  The re-naming and marketing process would be complicated by
the fact that, in many cases, producers would have to try and market what would appear to be "new"products (because they had different names), but without the benefits of those products actuallyIP/C/M/38
Page 20
having any new characteristics.  Other costs would include the loss of revenue, as prices would have
to be lowered in order to encourage consumers to buy these "new" products, as well as the costs of
alterations to the production and labelling processes.  There would also be costs resulting from
disruption to consumer relationships.  If in one week one was selling to consumers "emmentaler" and
in the next week it would be called "firm, nutty, light yellow cheese", then one could not expect tonegotiate this change-over without disruption.  And as Australia had noted, TRIPS did not include
transition periods to allow producers sufficient time to adjust to this.  Also, potentially, a loss of
market access could exist, particularly into markets with quotas or tariffs that related to specific
product types or product names.  There would also be obvious costs depending on whether the
extended protection would override pre-existing rights.  Even the International Chamber of
Commerce had recognized this, noting that the implications of extension, notably the interests of
trademark holders, needed to be carefully studied.
90. Commenting on the costs and benefits to consumers, she said that, under extension, one
would have a smaller number of producers making a particular product.  It was basic economics that
as the supply of the named product would fall, prices would likely rise and consumers would be worse
off.  Additionally, there was no guarantee that the quality of what was available to consumers would
be higher.  In fact, the quality could be even worse in a situation of lesser competition.  Certainlythere would be little incentive to improve upon a product.  Consumers would also have diminished
choice.  Previously they were able to choose from a variety of brands of similar products, increasing
the chance of finding a product that would meet  their own needs in terms of quality, price and
process.  Alternatively, one could argue that consumers would not have a diminished choice but that
they would have to increase their search costs to find their preferred price and quality combinationsince a crucial product descriptor would no longer be available to them.  Either way there would be a
cost to consumers.
91. A key principle of the United Nations Guidelines on consumer protection, developed by the
UN Economic and Social Council, was that consumers needed to have access to adequate information
so as to enable them to make informed choices  according to their individual wishes and needs.
Another guideline stated that government policies should seek to enable consumers to obtain optimum
benefit from their economic resources.  They should also seek to achieve the goals of satisfactory
production and performance standards, fair business practices, informative marketing and effective
protection against practices, which could adversely affect the economic interests of consumers and the
exercise of choice in the market place.  These principles seemed to validate the existing level of
protection in Article 22 by recognizing the need for fair business practices while noting the
importance of individual consumer choices and preferences.
92. She did not accept the argument that extension would lead to greater clarity in the
geographical origin of products to such a magnitude that it would outweigh the costs she had outlined
above. Her position derived from the fact that a high level of clarity for consumers was already
provided for under Article 22 level protection.  What consumer would be deceived by a label that
clearly stated "feta made in New Zealand", thinking that it was "feta made in Greece"?
93. Consumers in some rich countries might well be prepared to pay the costs outlined above.
But did this mean that consumers in all other countries should do the same?  She hoped that those
consumers would be prepared to spend an extra second or two standing in the supermarket checking
where a product bearing a GI came from.  It seemed a very small price to pay in order to ensure that
less well off consumers standing next to them would still have the option of buying a similar productbearing a GI that would fit their own particular budg et constraints.  She also noted that the approach
to consumer protection that extension would entail  was quite at odds with consumer policies of a
number of countries.  New Zealand's system of food standards and regulation was designed in a way
to give consumers maximum choice while protecting their right of choice and variety.  Regulators
should and would want to invest their time, energy and resources in making sure that products weresafe.  This objective had nothing to do with a geographic indication.IP/C/M/38
Page 21
94. Concluding, the representative of New Zealand said that what had been asked from the
Council regarding extension was inconsistent with the overarching objectives of the WTO and with
the public policy directions being taken both by individual governments and by other international
organizations.  Finally, she asked the Secretariat to include in its forthcoming compilation the points
raised by delegations under the second and third set of issues as well as the points that had been raisedunder the first, so as to cover the full rang e of issues being considered by the Council.
95. The representative of Japan, commenting on the broader policy issues in the Checklist's
second basket, said that attention should be paid to the expected impact of extension on producers and
consumers.  If additional protection was to be made applicable to certain goods, this could, to some
extent, contribute to the promotion of production, formation of appropriate trade practices, and
protection of consumers.  On the other hand, produ cers would have to bear new costs resulting from
the necessary changes in product labels and repackaging.  There were also concerns that consumerscould be confused as a result of the change of product packages or labelling, which could lead to a
downturn in sales of goods and, in the end, manufacturers would have to reformulate their marketing
strategies.  In order to make a fair assessment of the advantages and disadvantages that producers and
consumers would face with extension, it was essential that Members engage in a concrete and
pragmatic discussion on these issues.
96. The representative of the Unites States, associating himself with the interventions made by the
representatives of Australia and New Zealand, said that it was not true, as stated in the European
Communities' paper introduced at the June 2002 meeting, that the exceptions provided in Article 24
would mean that all geographical terms currently used in connection with WTO Members'
agricultural, processed food, and beer industries could continue to be used even if their protection was
to be extended.  He did not want Members to have any false sense of security about what retaining
those exceptions would mean.  The availability of any Article 24 exception would have to be
determined case by case in each WTO Member and, depending on the determination in each country,
could make it necessary for a producer to vary its labels from one market to the next, or, as an
alternative, to cease using a geographical term altogether in a particular export market, even thoughthe use of that term would not mislead consumers.  In either case, the costs would be considerable.
Additionally, there was another reason why one could not take too much comfort in the existence, or
the retention, of all the Article 24 exceptions.  In his recent discussions with the European
Communities' Agricultural Minister and other representatives of the EC, he had asked what the impact
of extension on existing products would be, particularly the ones of concern to US consumers.  He
found out that while they would not seek to complicate or cancel the use of existing terms through the
TRIPS negotiations, the EC delegation had said quite clearly that it was their intention to withdrawthe use of terms through the agriculture negotiations.  Hence, Members should not rely on the
assertions concerning the continued use of geographical indications under Article 23-level protection.
97. The representative of Argentina noted that some delegations claimed that extension would
provide more effective protection, and recalled that during the Council's informal meeting of
10 November 2002 there had been a discussion regarding a classic case of a Mexican spirit protectedby Article 23 and recognized in a bilateral agreement.  The GI of that Mexican drink was not able to
enjoy such effective and exclusive protection that the Council had been told would be available under
Article 23.  Referring to the assertions by certain delegations that Article 24 exceptions would
continue to apply, she said that one should bear in mind the position of the same delegations in the
negotiations on the establishment of a multilateral system of notification and registration of GIs forwines and spirits.  In that context, Members' ability to apply Article 24 exceptions under their national
legislation and jurisdiction would be curtailed through an opposition procedure to be set up under the
wine registry system suggested by those delegations.  Echoing Australia's comments on the policy
objectives of IP protection, she said that it would be difficult to see how this type of protection would
be appropriate for GIs.IP/C/M/38
Page 22
98. As to the second basket of issues, she said that there would be several costs resulting from
extension, such as the costs to producers who would need to stop using a name they had been legally
using.  It would be important to ensure that ther e would not be unfair gains to persons who claimed
the right to a certain GI.  Someone who had used that name legitimately and created a market for a
given product would be in a difficult situation if that market were simply handed over to the holder ofthe exclusive right under a legislation that was not in line with the legislation of the county where
protection was being requested.
99. The representative of Chinese Taipei said that his delegation believed that any decisions made
in the WTO should benefit all Members or, at least, achieve a balance of interests.  Having reviewed
and carefully examined the current proposals, he said that his delegation needed some statistics and
quantitative analysis in order to be convinced that Members would benefit from extension.  He hoped
that demandeurs could provide the Council with prima facie materials or experiences so as to allow it
to evaluate the potential effects of extension on existing legislation.
100. The representative of Sri Lanka associated herself with the statement of the Swiss delegation.
On the question of the implications of extension for consumers, she said that some countries had
argued that extension would imply search and transaction costs resulting from consumer confusion,
from the need to rename and re-label products and from the disappearance of terms customarily usedto identify products.  She believed this reasoning was not justified.  GIs served to identify a good as
originating in the territory, region or locality of a Member where a given reputation or other
characteristic of the good was essentially attributable to its geographical origin.  Thus, GIs would help
consumers to identify the true origin of a product they wanted to purchase and would also prevent
situations where consumers could be misled as to the true geographical origin or the characteristics ofthat product.  The extension of additional protection of Article 23.1 to include GIs for products other
than wines and spirits and the prohibition of the false use of GIs in translations or accompanied by
expressions would enable consumers to clearly and quickly determine whether the product they
wanted to purchase did in fact originate from the territory referred to by the GI.  They would also be
able to confirm whether that product actually had the qualities, reputation and other characteristicsthat were essentially attributable to its geographical origin.  Consumers would no longer be influenced
in their choice by the use of GIs in combination with a de-localizer.  They would, therefore, be
entitled to a have real choice based on correct distinctive indications.  With the extension of the
protection of Article 23.1 to include GIs for products other then wines and spirits, such use of de-
localizers would no longer be allowed and this would help prevent consumer confusion.
101. The concern expressed by some Members whereby extension could lead to the need to re-
label products and even result in the disappearance of terms customarily used to identify products hadnot been substantiated.  The exceptions provided for in Article 24 of the TRIPS Agreement meant that
indications which had been used in good faith or in a customary manner over some time, and for
specific products, would not have to be abandoned.  With extension, markets would not be closed to
such products and they would not need to be re-labelled.  These exceptions were the proof that the
TRIPS Agreement provided for flexibility and offered a balanced solution for extended protection.
102. She noted that some Members had claimed that extension would have negative implications
on trade.  The argument set forth was that certain industries, in particular those in which GIs were
particularly relevant, such as dairy and food processing industries, could find access to lucrative trade
opportunities in new and emerging markets closed to their products and would incur costs due to the
need to rename and re-label those products.  As already pointed out, Article 24 provided forexceptions taking due account of the need to balance the interests of various parties that had an
interest in GIs.  However, the use of a GI for products not from the place of origin indicated and not
qualifying for one of the exceptions in Article 24 sh ould be prevented.  Otherwise, free-riding would
be encouraged.IP/C/M/38
Page 23
103. The representative of the European Communities associated himself with the comments made
by the representative of Switzerland.  He said that, because his arguments were being contested, he
felt tempted to read out his speaking brief even though he had said he was not going to do so.
However, he would simply hand over his text so that it could be incorporated in the minutes of the
meeting.  He said he was amazed by the dismay with which certain delegations viewed GI protection,which had been said to be based on an accident of history.  While he could understand that some
delegations would have more sympathy for one kind of protection than for another, there was no need
to reinvent a particular type of protection that had existed for a long time, not only in the European
Communities but internationally as well.  He noted that one delegation, continuing to refer to a
bilateral agreement negotiated with the European Communities years ago, did not seem to
acknowledge the value of that agreement.  This was surprising, because the negotiations on that
agreement had been quite time-consuming and, as usual, a bilateral agreement, as any otheragreement, reflected a balance of interests for both parties involved.  He also noted that the question
of country names in the European Communities ha d been raised again despite the information
provided in the past.  It had been suggested that the Council concentrate on the implementation of the
TRIPS provisions on GIs in national law.  Because  these issues were being dealt with under the
agenda item on Article 24.2 and another delegation had volunteered to offer detailed explanationsabout its own legislation, his delegation had raised many questions about six months ago but had not
yet received responses to them.  Noting the comments made on the DOLPHINS project, he said that
he would look again at the website and informa tion produced by the DOLPHINS' group.  He believed
it would not be difficult to find information which would be different from that mentioned by the
delegation which had cited the DOLPHINS project.
104. He was also puzzled by the claim that extension would not be consistent with the overall
objectives of the WTO.  It would be up to each individual delegation to decide what would be
consistent with these objectives.  Another delegation had said that GI extension did not reflect a
balance of interests.  He called Members' attention to the fact that a significant group of countries,
developed and developing, had tabled a communicati on which set out in detail what objectives it was
seeking by extending GI protection.  He was pleased that the US representative had had the
opportunity to meet with the European Commission er for agriculture and that his message had been
understood correctly.  On the "Feta" case, he suggested that, in order to avoid repeating himself, he
would hand over the text of his statement to be inserted in the minutes of the meeting.
105. The Chairman asked the Council whether it could agree that the written statement of the
European Communities be included in the minutes, even though it had not been read out.  The
representatives of Australia and Paraguay  said that it would be more appropriate if the European
Communities would circulate it as a document.  The Chairman asked the EC delegation whether it
wished to circulate its statement as a document.
106. The representative of the European Communities responded that he would prefer to read his
statement.  He recalled that, at an earlier meeting, the representative of Australia had asked what kind
of evidence the European Communities had to determine that "Feta" was not a generic name.  It wasevident that the generic character of a name must be appreciated in relation to the name, not the
product.  A name becoming generic meant that the name of a product which, although relating to the
place where it was originally produced or marketed, had become the common name of a product.
This needed to be proved.  For example, with respect to "Feta", the European Communities had
conducted a consumer survey in which more than 13,000 consumers in twelve EC member States hadbeen asked about "Feta", the origin and product that it evoked and its generic character.  The survey
demonstrated that up to almost 80% of regular consum ers of "Feta" identified "Feta" with an origin of
cheese (in the Communities' territory).  The European Communities had consulted a scientific
committee composed of 14 scientists with specific expertise in geographical indications that
concluded, unanimously, that "Feta" was not a generic term.  The European Communities had alsoconsulted the sales, imports and exports of cheese labelled as "Feta" throughout the European
Communities.  That data indicated that production and consumption of "Feta" were heavilyIP/C/M/38
Page 24
concentrated in Greece (the production of "Feta" cheese in Greece represented 60% of the total EC
production of this cheese and 90% of the EC production from ewe's and goat's milk).  The products
produced in other member States, occasionally bearing the name "Feta", were primarily produced
from cow's milk, using different technology, and were exported in substantial quantities to non-
member States of the European Communities.  As to consumption, about 73% of the consumption of"Feta" cheese took place in Greece, where annu al consumption was 10.5 kg per person, as against
1.76 kg in the rest of the European Communities.  From all that data, the European Communities
could, therefore, not conclude that the designation "Feta" was generic, since the original Greek
product was dominant on the EC market.  Data proved that even in those member States, that were not
significant producers and consumers, the designation "Feta" could not be said to have become generic
since the word was not used as a common name for such a good.  In the consumers' perception, the
name "Feta" always evoked a Greek origin and, therefore, was not something which had become acommon name and hence generic in the Communities.
107. The Commission had also verified the relevant national and Communities' legislation.  In this
respect, 12 member States (i.e. the majority) did not have any specific legislation and, therefore, the
general Community and national rules on cheeses applied to "Feta".  Only Greece and Denmark had
specific legislation.  As to the methods of marketing "Feta" cheese in the Communities, consumerswere offered two products, with differing compositions and organoleptic characteristics, under the
same designation.  Yet, it could not be said that ge nuine "Feta" made of goat's milk and other products
using that term and made of cow's milk were the same product at all.  The Commission had also
checked the large number of general reference works, such as dictionaries and encyclopaedias, and
specialized publications, which showed that in all languages of the Communities the way thedefinition "Feta cheese" had evolved over time had not diminished the association and identification
with Greece.  He said that it was important to point out that the labels for "feta cheese" not originating
in Greece made direct or indirect references to Greece, by adding text or drawings with a marked
Greek connotation.  This link between the name "Feta" and Greece was deliberately suggested and
sold as part of a sales strategy that capitalized on the reputation of the original product, and thiscreated a real risk of consumer confusion.  This implied that the term "Feta" was not used as a
common name without any significance, synonymous  with white cheese in brine.  "Feta" was
generally presented as being of Greek origin.  This was not a coincidence.
108. The representative os Switzerland said that GIs had an enormous potential and would bring
benefits to Members' economies, if protected adequately.  An investigation made by a Swiss institute
the IHA (IHA/GfM Institut für Marktanalysen) showed that consumers paid a great deal of attention
to the geographical origin of products when buying a product.  For example, an investigation on winemarkets concluded that the place of origin was the most important purchasing criterion for consumers.
This survey, conducted with more than 1,000 consumers from different countries, showed that the GI
of a wine accounted for 45% of the consumers' decisions to purchase this product.  The remaining
percentages were:  25% for the price, 11% for the vintage, 10% for the type of grape, 4% for the
trademark, and 4% for the producer.
109. As to the question of the impact of extension on consumers, he said that re-labelling would
not be a widespread consequence of extension due to the exceptions provided in Article 24.  The
Council had not been given examples proving that re-labelling had taken place, when, at the end of
the Uruguay Round, better protection for wines and spirits had been provided at the international
level.  That was the reason why he did not believe that any re-labelling would take place in anextension scenario.  Extension was first and foremost an effort to improve the protection of GIs for
the future.  The intention of his delegation was not to establish roll-back protection.  Extension would
facilitate consumers' choice, since they would be assured that products using a GI actually originated
from the place indicated by the GI on the product.
110. Another concern of the opponents of extension wa s that extension could result in less product
choice, higher prices and lower competition.  Contrary to this, GIs and products' specific qualityIP/C/M/38
Page 25
related to their origin were marketing tools that producers were free to choose to invest in and use for
their own benefit.  Instead of investing time and mone y into the quality or the specific characteristics
of a product, a producer could just as well choose to maximize the efficiency of production processes
or to use mass production, and compete with low prices against more costly quality products.  While
GIs were only one of potentially successful marketing strategies, they were a particularly promisingone in today's international trade and should, therefore, benefit from effective protection.  By
diversifying approaches to the marketing of pr oducts, competition would be enhanced.  Consumers
were free to decide whether to buy a product with a specific geographical origin and a GI indicating
specific characteristics and qualities or to buy a similar, maybe cheaper, product without these
characteristics.  Extension, however, would ensure that consumers would be able to trust in their
choice when opting for a product using a GI.
111. The representative of Guatemala rejected the idea that under extension GI protection would be
automatic and without costs for producers.  As indicated by Australia, Canada and New Zealand,
producers in developing countries, which were generally micro, small and medium sized producers,
would have to go to the courts to fight for the application of the extension.  He wondered how much
his country's producers would have to pay to fight in courts, or administratively, for these rights and
whether they would have the economic resources to bear these costs.  At various seminars held inGeneva, it had been indicated that these administrative and legal proceedings were excessively
expensive.  Would it be better or more efficient to keep the existing protection than make producers
go to courts to defend themselves?
112. The representative of India associated himself with the statement made by Switzerland which
had laid down what the proponents thought the benefits to the producers and consumers were.  India
became a demandeur for extension after it had gone through the legal analysis of the experience of
protecting some of its traditional products in certain markets.  This analysis had convinced his country
that it would be easier to protect certain traditi onal names if additional protection to such GIs would
be provided.  As to certain references made to "Basmati rice" and concerns about whether traditional
names would meet the requirements under the definition of Article 22, he said that this would amountto inventing a new definition of GI.  "Basmati rice" was recognized in India as containing certain
defined characteristics and as coming from certain regions of India.  The legal system had recognized
it although, to date, it had not been formally registered.  However, this was a temporary situation that
did not prevent India from protecting it as a GI.  In view of this, he considered that a lot of benefits
would accrue to producers of such items if additional protection were accorded.
113. The representative of Chile associated herself with the statements made by Australia,
New Zealand, Canada, United States, Guatemala and Argentina.  She believed that extension would
create more problems than benefits for Members, and recalled that most countries had very few GIs
whereas a minority had very many.  The need to develop a new name might require major
investments for producers from countries like Chile.  As stated by Canada at the last Council meeting,
one or too delegations had said that the Council st ill did not have economic statistics fully showing
the benefits of extension.  She would have liked those countries in favour of extension to provideother Members with more information about this, particularly on investments that companies had to
make in order to promote their products with a new name.  In conclusion, she said that the success of
a product, whether wine, cheese or any other good, did not depend on additional protection but instead
on its quality, production and prices.
114. Commenting on the argument made by the delegations of Australia, Canada and other
opponents of extension according to which the costs associated with such extension would by far
outweigh the benefits flowing from it, the representative of Hungary referred to his delegation's earlier
oral statements, reflected in paragraphs 146 to 151 of the minutes of the Council's previous meeting(IP/C/M/37/Add.1), and to the written documents on this issue, particularly a more recent
communication IP/C/W/353.  He believed that paragraph 41 of document IP/C/W/353 was ofparticular importance because it confirmed that all exceptions of Article 24 (related to prior use, goodIP/C/M/38
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faith prior application for the acquisition of a trademark and generic terms) would apply
mutatis mutandis  in an extension scenario.  The grandfathering exception was of particular relevance
and, in his view, would take care of, at least, the majo rity of the concerns in relation to costs, raised by
some delegations.
115. His delegation welcomed and was open to consider the new proposals put forward by
Australia, New Zealand and other Members to include transition periods in the negotiations on the
extension of GI protection.  His delegation saw it as a sign that opponents were willing to take part
constructively in the negotiations.
116. He referred to the detailed concerns expressed by the representatives of Australia,
New Zealand and others on the potential cost-implications of GI-extension and their observation on
how widespread and extensive the use of GIs of  other Members was in some other WTO Members,
and said that, if anything, this would strengthen his delegation's determination to deal with this issueand obtain extension.  Turning to the comment made by Canada that the definition in Article 22.1 was
too broad and open to interpretation, he said that  he did not know how one should interpret this
assertion.  Was the intention of Canada to suggest some change in the definition of a GI contained in
Article 22.1?  Secondly, as to Canada's statement that the definition was open to interpretation, he
wondered whether there would exist any other provis ion in the TRIPS Agreement, and for that matter
in any WTO agreement, which would not be open to interpretation.  Finally, Canada asserted that
because of the fact that this definition was too broad and open to interpretation it would be impossible
to assess the economic impact of extension.  Should  that be the case, how could it then be asserted
that the overall economic impact of extension on Members would be negative?
117. He recalled that New Zealand had said that, for consumer policy purposes, it would like to
retain the possibility to use GIs when the real origin of the product was also indicated, and that, by
keeping that possibility open, prices could be reduced.  He noted that no similar argument by any
delegation, especially by any demandeur, had been made in respect of any other field of IPRs.  For
instance, in the area of trademarks, he had not heard any suggestion that a particular trademark used,
e.g., on a beverage should be allowed, for the sake of the same public policy purposes, to be copiedand used on the products of another manufacturer so as to keep this product affordable for the
consumers.  As to the question of whether the exte nsion of Article 23-level protection would lead to
consumer confusion, he still failed to understand how consumers could be confused if it was agreed
that only a product that in fact originated in a given geographic territory could bear a term which
identified the product as originating from a territory where a given quality, reputation and other
characteristics of the good was essentially attributable to its geographical origin.
118. The representative of Australia, addressing his comments to Sri Lanka, said that the European
Communities and Switzerland had some of the largest tea producers in the world despite the fact that
they did not grow much tea and suspected that they  had high tariff escalation.  He also understood that
Sri Lanka had a certification mark for its tea.  Having said that, he asked whether companies like
Tetley, Twinning, Lipton and Nestlé recognized that certification mark.  Were they licensed by the Sri
Lankan tea authorities to use that mark?  If so, what was the problem that they had in gettingrecognition for their name and, if not, why those big companies, coming from the countries that were
so supportive of GIs, had not done so?  Was Sri Lanka able to register its certification mark in the
European Communities?  And, if not, why not?
119. As to "feta cheese", he noted the remark made by the Bulgarian representative, who had said
that "feta" came from Bulgaria.  However, he now understood that this term came from Greece.  Thedelegate from the European Communities had described the great amount of work that had to be done
in Europe to convince the relevant authorities that "feta" was a Greek GI.  On the other hand, in the
negotiations on the establishment of a notification and registration system for foodstuffs, the
European Communities and Switzerland had been te lling Members that all the exceptions in the
TRIPS Agreement would be retained.  However, from what he understood from their proposal,IP/C/M/38
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Australia would no longer have the power to decide whether "feta cheese" was or was not a generic
term.  Instead, Australia would have to come to Geneva and go through a convoluted arbitration
system at which no Australian would be sitting.  There would be a group of experts, non-Australians,
who would ask Australia to provide, among other things, information from thousands of consumers,
give proof of what scientists had found and of what  the dictionary stated.  Today, clearly under the
current Australian Bill of Rights and Obligations, Australia possessed the right to determine whether a
name was generic or not, just as Denmark w ould.  However, under the European Communities
system, it would be an arbitration panel that would decide such an issue and one would be obliged to
provide all this information to defend a decision that one's national authorities had already taken.
120. Noting that the delegation of Hungary had alwa ys been telling the Council that "tokay" was
Hungarian, he said that the Oxford dictionary de fined the word "tokay" as follows: "1. a sweet
aromatic wine made near Tokay, in Hungary", or "2. a similar wine produced elsewhere".Commenting on the survey referred to by the repr esentative of Switzerland, involving some thousand
consumers who seemed to attribute clearly that their preferences on their wine purchases were
governed by their association with a GI, he said that he had heard from the Swiss delegate in a recent
head of delegations retreat in Sydney that there were a lot of concerns in Switzerland about the
increased level of imports of foreign wines into Switzerland.  He wondered then whether this washappening because the discerning Swiss consumers understood that these foreign wines were from
Chile, Argentina, Australia and New Zealand, none of  whom have GIs?  Finally, as to Hungary's
comment regarding the definition of a GI and its question to Canada asking whether it wanted to
change this definition, he wanted to make it clear that the definition did not include traditional
expressions, despite some countries' positions to the contrary.
121. Responding to Australia, the representative of Bulgaria said that he had never claimed that
"feta" was Bulgarian.  What was true, though, was that Bulgaria produced Bulgarian white cheese.
That cheese was organoleptically not different from the cheese produced in Greece and which the
Greeks called "feta".  "Feta", then, was the Greek name for white cheese.  In Bulgaria, the Greek term
"feta" was not used.  Instead, Bulgarians used their own generic name for white cheese.  Butsometimes their cheeses were sold abroad as "feta" because they were organoleptically identical to
"feta".  It had been said that among the white cheeses produced in the Balkans, the Bulgarian white
cheese was the best.  Because of this reputation, non-Bulgarian products were sold as being of
Bulgarian kind, style, taste, etc.  He demonstrated this by showing to the Council a product which had
both "feta" and Bulgarian designations.  If one looked at the labelling of this product, one could see
"feta" in relatively small letters.  Then, in somewhat bigger letters, one could see "façon", the French
for style, and then, also in big letters, the word "Bulgare", the French for Bulgarian.  And underneath
it there was also the German term "bulgarische Art".  He, like the producer of that sample product,
believed that what was important in the label was the use of the indication "Bulgaria".  If the producer
had used that same label without the term "feta", which for the producer was obviously not that
important because it was used in small letters, and had instead used some other generic description,
like "soft white cheese in brine", he would still be equally concerned by the use of the indication"Bulgarian".  What Bulgarians wanted to protect was their own GI, in this case "Bulgaria".  Now,
under WTO law this term was not protected but it would be under an extended level of protection.  He
believed that the reputation of the products of his country was linked to their origin in Bulgaria and
that the use of the term "feta" was not the crucial element of this reputation.
122. Turning to a more general aspect of the debate about "feta", he said that one of the main
arguments made by the opponents was that no one would benefit from extension because the
European Communities did not, or would not, implem ent GI protection properly.  This argument was
flawed, because it was based on the general assumption that international commitments, including
those in the WTO, would not be properly implemented and that international protection was not
important.  According to that argument, one should look at the domestic systems and ways ofprotection and forget about the WTO.  Opponents were  in fact telling the C ouncil that they would deal
with these problems domestically, in their own courts.  But, if this was true, why did they ask forIP/C/M/38
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WTO commitments in other areas, like in agriculture?  He believed that it would be much easier and
better to achieve international protection within rather than without the WTO.
123. As to the benefits, he believed that the additional protection that extension would give to the
products of his country would increase their market share.  Enforcement of GIs in domestic countries
would become easier and less costly.  He noted that opponents had stated that GIs were not importantfor the success of a product, while at the same time they had raised the fear of losing market shares.
To whom would they lose that market share, then?  Another argument was that the exceptions
provided for in Article 24 of the TRIPS Agreement would diminish those benefits for producers of
goods with GIs.  Did this mean that the oppon ents would not insist on the exceptions?  Such
argument, like others, was made merely for rhetorical purposes.  The same would go to their comment
on the assertion that what demadeurs had been asking for was directed to the future.  They did not
challenge nor negate this assertion.  Opponents just said that it would take a long time and that therewere costs linked to develop a name.  But why then not give demandeurs the increased protection they
had been asking for?  The argument opponents had made was that, in fact, this would not be directed
to the future.  But what about existing names?  What about "Basmati" or  "Ceylon tea"?  Opponents
had made the argument that these were existing names and that they would not get adequate
protection.  He could not understand such rationale:  Were they arguing that there should be fewerexceptions?  If that was the case, he could agree with that.
124. He noted that opponents had referred to the costs of getting domestic protection for products
which would likely benefit from extended protection abroad and to the costs for governments.  This
kind of costs, which would be linked to the domestic protection of GIs as a pre-requisite for protection
abroad, were costs which producers presumably would gladly take upon themselves.  Why not givethem the opportunity to bear those expenses?  If they did not bear these costs, the government would.
Additionally, the registration system would not be ob ligatory anyway.  This would indeed result in
higher prices for the products bearing GIs and this would ultimately be paid by consumers.  So, in a
way it was true that consumers, as indicated in the Checklist, would have to pay somewhat higher
prices for those products bearing genuine GIs.  Consumers would, however, not necessarily have to
pay those prices, as would be the case for patents or  copyrights.  They would always be able to choose
to pay the lower prices of the "generic" products.  And, as opponents had pointed out, that price could
even fall, so consumers would have increased choice and maybe a lower price for the same product
that was usurping another name.
125. Another argument raised by opponents was that new intellectual property rights should not be
given to food products.  Australia had said that IPRs were granted to artists, scientists and researchers
in order to award them with a m onopoly for their creative work.  Did this mean that patents should not
be given to food products, because there was no creativity attached to them?  GIs were not
monopolistic in the same way that patents and copyrights were because, unlike patents and
copyrights, nobody would be prevented from producing and selling the product itself.  Therefore, this
incentive was directed to a much greater extent at small producers looking for niche markets, as
opposed to big companies which more frequently made use of patents and copyrights.  He could notaccept the statement that the efforts invested in the reputation of any famous product in relation to its
geographical origin would not be creative.  Sometimes this reputation would be based on decades or
even centuries of creativity and on the development of traditional knowledge.  In fact, GI protection
was one way, by far not as strong as patents or copyrights, of protecting traditional knowledge
although in a softer and less monopolistic way.  But it was nevertheless a way of protectingknowledge.
126. He said he was coming to the conclusion that opponents were not conducting this discussion
in good faith, which would lead th e Council nowhere.  The deadline was near and the Council was not
properly fulfilling the mandate which it had under paragraph 18 in conjunction with paragraph 12 of
the Doha Declaration.  This would influence his delegation's position in other issues undernegotiation, the deadlines of which were also getting closer.IP/C/M/38
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127. The representative of Turkey, supporting the statements made by the European Communities,
Switzerland, Sri Lanka, India, Hungary and Bulgar ia, said that the several costs mentioned by
opponents did not actually exist.  In Turkey's experience, producers' costs were usually related to the
initial administrative registration of a GI.  For Turkey the issue of GI extension was related to the
relevance of the WTO, in general, and TRIPS, in particular, to its small producers in small towns,functioning under small foundations.  Turkey had a lot of goods which would certainly enjoy and
benefit from extended protection.
128.  The representative of Paraguay said that the position of his delegation was reflected in
document IP/C/W/386 of 8 November 2002, which it had co-sponsored.  He shared the positions of
Australia, Canada, New Zealand, the United States, Argentina and others.  Paraguay did not see the
need nor the suitability of extension.  He said that a GI, if not protected in its country of origin or if
spilled over from a given location to many other locations, would become a generic term, as was thecase of "feta cheese".  Genuine GIs were already protected by Article 22 and, therefore, anyone
interested in this protection should seek it using this provision and should not attempt to reverse the
burden of proof using extension.  The costs of additional protection would always fall on developing
countries, and that was be the advantage that some developed countries wished to get.
129. The representative of the European Communitie s, commenting on the issue of re-labelling and
the alleged displacement of products and goods with existing GIs, said that the effect of the
exceptions under Article 24 was that this sort of shifts, displacements and re-labelling would not
occur.  Such movements and re-labelling would occu r in systems that went beyond TRIPS, in bilateral
agreements or in systems within the European Communities, which was also TRIPS-plus.  For this
reason, his delegation had asked the United States, at the Council's informal meeting in November, togive some examples on displacement and re-labelling resulting from the additional protection wines
had enjoyed since 1994.  The fact that the United States had not submitted such information was
leading him to think that such consequences had never taken place.  He would continue to wait for
such information.  At the same meeting, the Australian delegation had expressed a concern about an
exponential increase of administrative and judicial cases if extension would happen, and also providedan example regarding the Australian GI "Coonawarra", which was subject to a lengthy legal dispute in
Australia.  In this interesting case, some Australian producers had found themselves excluded from
the possibility of using a GI.  This appeared to show that Australians had in fact interest in using GIs.
He asked the Australian delegation how many other cases involving GIs, besides the cited one, had
been filed in Australia, as well as how many cases had been filed involving trademarks.
130. He was perplexed about the statement that GIs should not be protected as an IPR because
such rights were intended to protect innovation an d creativity.  He believed that IPRs went beyond
those two criteria.  In fact, there were many examples in the TRIPS Agreement of categories of IPRs
that did not protect either innovation or creativity, e.g., the protection of undisclosed information for
marketing approval of pharmaceutical products.  This data related to experiments made in order to
obtain the marketing approval of a pharmaceutical product and were protected via unfair competition
rules.  This kind of data did not contain any innovation or creativity.  What was protected was theinvestment made by the pharmaceutical company in the experiments and gathering of data.  The same
could be said regarding trademarks, protected under Article 16 of the TRIPS Agreement, which
protected the reputation and the investment that the trademark owner had made in the product.  Article
23 was not different from this case.  Article 23 protected the investment that producers had made to
make their GIs known, as well as enabling consumers to identify the origin of goods and theircharacteristics.  Therefore, the same respect given to producers who used trademarks to make their
products known in the market should be given to the producers who decided to make their products
known through GIs.
131. The representative of Hungary, reacting to the debate on the protection of GIs as intellectual
property, said that he was not aware that the Council was in the business of renegotiating the TRIPS
Agreement per se , including why GIs needed to be protected or the definition of a GI.  He recalledIP/C/M/38
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that the representative of Australia had found in a dictionary the name "Tokay" defined as meaning
not just a geographical origin in Hungary but also as meaning a certain type of drink.  As a counter-
argument, he noted that the Encyclopaedia Britannica defined "Tokay" exclusively as a geographic
name.  Furthermore, he had found the name "Martini" defined in a dictionary as a cocktail mix made
up of three parts of gin and one part of dry vermouth.  Based on the logic of Australia's argument,Australia or any other country could presumably start producing drinks and bottles with this vermouth
Martini trademark from an Italian firm because that would also be a generic use of this name.
Australia's use of the Oxford Dictionary as "the" source of information to determine whether a term
was generic did not seem consistent with its approach in the Article 23.4 negotiations, or with its
position that it should be left to individual countries to determine whether a particular term met the
requirements under Article 22.1 and whether the Article 24 exceptions would apply in a particular
case.  It was puzzling that, while Australia was not willing to accept the word of expert arbitrators,made on the basis of the provisions of Section 3 of the TRIPS Agreement, it was willing to accept the
opinion of the Oxford Dictionary's editors.  Australia had argued that the type of registration system
that Hungary supported would take away the right of WTO Members to determine whether a term met
the definition of Article 22.1 and the provisions in Section 3.  This was simply not the correct
interpretation of Hungary's proposal, the purpose of which was to create a registry in which therewould be a rebuttable presumption of eligibility for protection.  That, in fact, would mean that the
burden of proof before local courts would be reversed but the ultimate decision whether a term had
met the definition would remain at the national level.   If one would follow the argument put forward
by Australia to the extreme, one might be able to  find a very cost-effective and easy solution to the
establishment of an Article 23.4 registry.  Members could perhaps simply notify the editors of theOxford Dictionary the terms for which they wanted  protection through registration and all they would
have to do then would be to sit back and wait for the revised edition of the dictionary to see whether
these terms were indeed eligible for protection.
132. The representative of Australia said that the comments by the representative of Bulgaria had
shed a completely new light on the Council's discussions.  He understood that the representative of
Bulgaria had said that he had no objection if he was to be placed in a position, as he soon would be, in
which any Bulgarian "soft white cheese" described as "feta" would not be allowed to be sold in the
European Communities because, within the Communities, the word "feta" would no longer be able to
be used in relation to any place other than Greece.  What the representative of Bulgaria disliked about
the tin of "soft white cheese" he had showed to the Council was the fact that it was manufactured in a
member State of the European Communities, that the colours used were the Bulgarian national
colours and that the word "Bulgare" was prominently displayed on the package.  This was a veryimportant point because the question was what ki nd of protection did the TRIPS Agreement give now
for a country to take action to prevent such misleading advertising and passing-off of a product which
was clearly not genuine.  In Australia, and probably in most WTO Members, there existed legal
means and laws which sought to prohibit such misleading advertising.  So, if Bulgaria wanted to take
action to prevent this from happening in the European Communities, what would it do to this end?Was there any recourse in the European Communities to stop this?  But, the most important point one
had to bear in mind in this discussion was what  did this mean in terms of TRIPS protection under
Articles 22 and 23?  Bulgaria had clearly implied that if cheese was given a higher level of protection
this would never happen.  This, however, was completely false.  He was not sure whether this was
given protection under Article 22, because he was also not sure if "Bulgaria" was a GI.  And if thisterm did not meet the definition of a GI, then it  would not get protection under Articles 22 and 23.
So, would Article 23-level protection for "soft white cheese" automatically prevent member States of
the European Communities from producing a good lik e this?  If the answer was yes, then the
discussion would be seen in a different light.  However, he said he did not believe this was the case
because of the question as to whether a country name would automatically be a GI, the question ofwhether it would be protected in Bulgaria or th e country of origin, and the question of whether it
would not be automatically protected under Article 22.  Furthermore, he rejected the notion that
Australia had not been engaging in this discussion in good faith.  Australia had deliberately beenIP/C/M/38
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seeking for the last year to engage in a sensible discussion on this matter.  He was convinced, from his
talks with Ministers, that there was still considerable confusion on the whole question of GIs.
133. As to the issue of "tokay", he quoted from an article published in the Financial Times of
London on 14 November 2002, as follows:  "Europe's economies are plunging into darkness,
European Union competitiveness initiatives are strewn on the wayside:  who blames the 15 EUambassadors in Brussels for taking refuge in the finer things in life, such as Hungary's Tokaj dessert
wine?  A dispute erupted at their weekly meeting yesterday over plans to give Hungarians sole right to
use the Tokaj name.  Italy, which produces Tocai wine, cited 13th-century documentary evidence that
the Hungarians got their original grapes from Italy.  'We have also found documents from 1632
showing that a noble woman from Gorizia married an Hungarian count and took 300 Tocai grape
plants as a dowry', says an Italian official".  So these could be the issues Members would get into if
trying to make a decision on whether a word was owned by someone or someone else or whether ithad become a generic term.  All Members should think very carefully about the costs that would be
involved in researching back to 1632 to find out wh o married whom and who took grapes as a dowry.
134. The representative of Hungary informed the Australian delegation that under a recent
agreement between Hungary and the European Comm unities the name "Tokay" would not be used by
any of these countries that were mentioned after the year 2007.  He considered this to be a goodmodel for the Council's negotiations.
135. The representative of Bulgaria said that the question of country names would only be relevant
to the debate if Members were suggesting something to be changed, which was not the case.  This was
the reason why he had said that opponents were not discussing in good faith.  Country names were
already covered by the TRIPS Agreement.  His conclusion was that opponents were engaging in adebate to distract from the substantive issues.  The present negotiations were based on the agreement
that the substantive issues would be discussed in the Council.
136. The representative of the Czech Republic supported what was said by Switzerland, the
European Communities, Hungary, Sri Lanka, Bulgaria and the other proponents of extension.  In
relation to costs to producers that would be imposed by extension, she hoped opponents wouldprovide information on these costs based on data that would indicate what costs were imposed to
producers of wines and spirits in their countries and how many names, labels and packaging had been
changed since the TRIPS Agreement came into force.  She had also requested this information at the
Council's last informal meeting and she still believ ed that this information would be very important
for the purposes of the discussion.  As to the term "pilsner", she assured the Australian delegation and
the whole Council that her delegation's statement regarding the generic nature of this GI was made on
the understanding that "pilsner" became generic as a result of wrong-doing, free-riding, and non-authorized and misleading use of this indication.  "Pilsner" used to belong to her country but was
misused and stolen due to an insufficient legal level of protection.  Her delegation did not intend to re-
write history to correct this but it would like to pr event similar things from happening in the future.
137. The representative of the Slovak Republic said that the current system of GI protection under
Article 23 was discriminatory and inadequate.  Extension would bring protection and security for
many producers in different countries.  The current imbalance of GI protection under the Agreement
had led to illegitimate free-riding on famous GIs for products other than wines and spirits.  Such free-
riding endangered the investments that local producers had made over the years to develop the
reputation and quality of their products, as well as the future economic development of new local
quality products that were marketed at the national and international levels.  He was convinced thatthe aims of the TRIPS Agreement of reducing distortions and impediments to international trade and
promoting effective and adequate protection of IPRs based on the principle of non-discrimination
should serve as the main premises for all TRIPS negotiations.  This aim was further reflected in
individual Parts of the TRIPS Agreement, including the ones regarding GIs.  While Article 22 defined
principles for protection of GIs generally, Article 23 provided additional protection for GIs for aIP/C/M/38
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particular group of products, namely wines and spirits, dividing GIs into two groups:  GIs with
additional protection and GIs with the basic level of protection.  He considered this discrimination
against other products as falling out of the scope of Article 23.  On the other hand, there were many
other products with a given quality, reputation or other characteristics attributed to their geographical
origin generally known not only in their respective domestic markets but also abroad.  The additionalprotection for GIs should be provided in a non-discriminatory manner and, therefore, extended to all
products.
138. An equal protection of all GIs would have a positive impact on both producers and
consumers.  For producers of such products, extension would be a valuable marketing tool increasing
the chances of better market access and would prevent the free-riding on the reputation of such
products.  Extended protection would also facilitate product identification and eliminate the risk of
consumers being misled.  There was a clear mandate given by the Doha Declaration that needed to be
fulfilled by the end of 2002.  If appropriate action was going to be taken, it should be the elimination
of the imbalance that existed in the TRIPS Agreement regarding GI protection.  Extension and the
establishment of a multilateral register would thus bring about a more equitable and reasonable
system of protection of GIs.
139. The representative of the European Communities advised delegations that were unsure of
whether the European Communities provided a legal means to interested parties to protect their GIs,
to look at page 79 of the minutes of the Council's meeting in September (document
IP/C/M/37/Add.1).  The same statement also prov ided information about country names.  A country
name, or any other name, would not automatically be considered a GI because it would benefit from
protection only after it had met the requirements of the definition in Article 22.1.  As to the EuropeanCommunities' experience in protecting country names, he referred delegations to page 84 of those
minutes, where the European Communities had put forward some examples of country names that
were protected as GIs, such as Germany for Brandy, Italy for Brandy, Spanish for Whisky, and Irish
for Whisky, among others.
140. He said that he was still hoping to get some answers to the questions that he had posed earlier
to Australia concerning litigation on GIs in that country.  Reacting to the statement by Hungary, he
said that, although "Martini" might be defined in a dictionary as a cocktail drink, it would never
become generic just because it was defined in a dictionary in a neutral or generic manner.  He also
noted that "Martini" was not Italian and did not belong to an Italian company, but to Bacardi, a US
company.
141. As to the question of benefits and costs to consumers of GIs, he said that it was well known
that GIs were protected because they identified a good as having an origin where such goods enjoyeda certain quality, reputation or other characteristic s.  In the European Communities, only firms that
abided by controls and inspections to make sure that the said characteristics would be met in a
consistent manner would be entitled to use a GI or a protected appellation of origin as the name of
their product.  Why did firms do that? It was because those firms would then be able to capitalize on a
privileged consumer perception of speciality products.  In order to supplement his previous statement,he shared with the Council some results of tw o consumer surveys that had been done by an
independent institution in 1994 and 1996.  Those two surveys were done throughout the European
Communities.  The consumer sample was about 16,000 EC consumers and, when asked to single out
three out of possible ten indications of quality, they replied that the presence of "quality labels" was in
31.5% of the cases an indication of quality;  an adequately marked origin was in 15% of the cases anindication of quality;  information that the product was made locally was in 22.5% of the cases an
indication of quality;  and information that the product was publicly controlled was in 23.6% of the
cases an indication of quality.  GIs performed all of those functions cited by consumers as they would
serve as quality labels guaranteeing an adequately marked origin, often controlled by a public body.
Indeed, when asked to single out two out of nine possible elements, the sample of consumers saw in a
geographical indication/appellation of origin:  a guarantee of origin (37%);  a quality guaranteeIP/C/M/38
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(35%);  a guarantee of the place of production and/or method (56%);  and a traditional method of
production (17%).  These findings had also been supported by several other independent academic
studies.  He said that he would provide the Secretar iat with the full statement in writing for inclusion
in the minutes.
142. Geographical indications were something on which producers could capitalize and they could
represent a true market access tool.  In these surveys, consumers were asked whether they were ready
to pay more for products bearing a GI.  The results were quite telling.  For example, 43% of EC
consumers indicated that they were ready to pay 10% more for origin-guaranteed products.  If one
took a market like the European Communities, with an estimated 370 million consumers, one could
extrapolate and say that perhaps around 159 million consumers would be ready to pay 10% more for
products bearing a GI.  Additionally, 8% of EC consumers were ready to pay 20% more for origin-
guaranteed products, which would amount to 2 9.6 million consumers and, finally, 3% of EC
consumers were ready to pay 30% more for origin-guaranteed products.  Thus, this made it quite clear
that GIs could indeed be a marketing opportunity and a market access tool.
143. As to the costs to consumers, he found the argument made by opponents striking, according to
which consumers would not be able to recognize the products after extension.  He gave the example
of the Catalan-Spanish GI "Cava".  Producers in that region had been using the term "Champagne"since the nineteen-hundreds.  In 1986, following the entry of Spain into the European Communities,
they had agreed to give up the use of the term "Champagne" and started to use a new denomination
called "Cava".  In 1987 the exports of "Cava" increased by 31% and in 1988 by 16%.  In the next 10
years, the exports of "cava" increased by 1000%.  So, if consumers were really unable to identify the
product that was sold under the new name "Cava", ea rlier sold as "Champagne", how was it possible
that the exports had increased by 1000%?
144. Responding to the question posed by the representative of Australia, the representative of
Sri Lanka said that her country had been protecting the term "Ceylon tea" in most of the major
markets as a trademark because the concept of a GI was not widely known to her country.  However,Sri Lanka had experienced some difficulties in some of the markets where the registration authoritieshad refused the registration of "Ceylon tea" based on the argument that, according to their trademark
laws, any intellectual property requiring protection needed to be owned by a private entity.  Since
"Ceylon tea" was not owned by a private individual but, rather, by a country, Sri Lanka, this was
obviously a problem.  That was the reason why Sri Lanka had had to look for an alternative method of
protection, such as certification marks or GIs.  Sri Lanka would prefer to protect "Ceylon tea" under
the concept of GIs for three reasons.  First, because certification marks needed to be renewed after a
certain period of time and fees would have to be paid for each and every renewal, which was toocostly for Sri Lanka.  Secondly, a certification mark  owner could find it too risky to rely mainly on a
judgement given over the rights to third parties, the so-called senior rights, who would also be entitled
to use the same geographical term.  Thirdly, because under normal circumstances it would be difficult
to prevent a geographical term registered as a certification mark from becoming a generic term.  For
these reasons, Sri Lanka decided to get protection for "Ceylon tea" under a GI rather then throughcertification marks.
145. The representative of Argentina said that rega rding the issue of costs it was evident that no
delegation had denied that there were implicit costs coming from extension.  Evidently, some had
downplayed these costs and others had highlighted them.  There was still confusion regarding this
issue.  It seemed that many delegations had lost track of the fact that what was being discussed wereIPRs, i.e., granting of exclusive rights to producers.  While patents rewarded inventors and, at the
same time, guaranteed that the whole of societ y would benefit from the disclosed knowledge, GIs
were a non-technological innovation with a permanent monopoly.  Some had stated that extension
could indeed result in costs for consumers or producers but these costs could well be borne by
governments.  This would depend on the model of production that each country possessed.  TheIP/C/M/38
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Argentinean agricultural or agro-industrial model, for example, did not necessarily function through
subsidies.  In this system those costs would necessarily be borne by producers and consumers.
146. The consumer surveys presented by the European Communities were not helpful because they
concerned the Communities only.  She wished to know how much the policy of promoting of GIs
within the EC market cost the Communities.  Wh en analysing such surveys one should take into
consideration the special sensibilities of the European consumer vis-à-vis  the conditions of production
and the resulting quality.  In Europe, special sensibilities existed due to serious sanitary problems that
had emerged as a result of a distorted model of production.  Hence, it was not strange that the
European consumer paid attention to labels and wanted  to know what the origin of the product was.  It
seemed that what had been discussed was the concept of a GI as including origin, quality and process.
She believed that if one would be talking about origin, quality and process one would not be talking
about IPRs or issues related to the TRIPS Agreem ent.  One would instead be talking about issues
related to the traceability that had been discussed in the negotiation of the codex.
147. As to the "Cava" wine example and the statis tics of how exports of this product had soared
after this new name was introduced, she said that this data was not convincing because statistics were
relative and one would always be able to come up with numbers proving the contrary.  Additionally,
she asked what the conditions negotiated with the "Cava" producers were that convinced them to stopusing the name "Champagne".  She also asked if any kind of help was offered by governments or the
European Communities.  Were there any expenses in marketing, selling, and publicity?  She asked the
European Communities to provide information about the relation between the expenses related to this
new product ("Cava") and the expenses related to the old product ("Champagne").  Were the costs
covered by the producers or some organization?  She believed this data would help her delegation toevaluate more objectively the situation.  Finally, she reminded delegations from non-Spanish speaking
countries that "cava" meant in Spanish "wine shop" and that this was evidently not a geographic
name.
148. The representative of Australia said that the Bulgarian delegation's concern about the use of
its country's name would be easily solved if it were agreed that producers in countries should not use
the names of other countries in any of their advertising.  He believed Bulgaria's concern was that
someone was misleadingly using its country's name when the product did not come from its country.
He said that he did not know whether this was prohibited under other areas of WTO rules but that it
was something that probably concerned everybody.
149. He also thanked the representative of Sri Lanka for the responses she had given to some of the
questions he had posed.  As he understood it, part of the problem with protecting "Ceylon tea" in
Europe was that Sri Lanka could neither get natio nal treatment nor access the GI registration system
in Europe, and if it could, then this would overco me its concern about the use of "Ceylon tea".  That
was a point that had been raised on a number of occasions.  There was a question mark as to whether
even under the current rules countries were living up to their obligations under national treatment.  It
seemed that the representative of Sri Lanka was not necessarily arguing that GI protection or
additional GI protection was better than a certification mark system.  But she had talked about factorsthat were important to her government, including the fees charged for the renewal of certification
marks.  On that question he asked Sri Lanka to balance this against the fees that were going to be
incurred as a result of a GI extension system.  Some delegations were putting forward a costly system
of a multilateral register that would probably be base d on a fee-for-service cost.  In other words, if one
wanted to register a GI one would have to pay for it.  The more important point here concerned thecosts involved in challenging whether a term was generic.  As the representative of Sri Lanka had
pointed out, under the registration system that demandeurs were pressing for, every country would
retain its rights under the current provisions, and one of those exception provisions was if a term was
generic.  If Sri Lanka were to take issue with a country which was claiming that a term was generic
they would be obliged to go through this arbitrat ion system.  It would be a very costly exercise
because the costs in challenging GIs in the EC system, for example, were massive.  Therefore, heIP/C/M/38
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asked Sri Lanka and other Members to weigh up the costs for re-registering certification marks with
the costs of the disputes they would be involved with in challenging whether a country could use a
generic term.
150. As to the consumer surveys presented by the European Communities, he agreed with
Argentina that they needed very close examination because any of them could come up with statisticsto show whatever they liked.  He thought that some of the statistics that were being cited were
ludicrous, for the reasons Argentina had explained.  It was like asking a European consumer to be
prepared to pay more for a product to defend the common agricultural policy.  If they came up with a
majority that said "yes", would that be a mora l defence for maintaining this distortive common
agricultural policy that had completely ruined international trade and destroyed the aspirations of
developing countries in improving their agricultural  sectors?  So, to suggest that someone would be
prepared to pay a little more for the quality of a term or GI was a completely spurious proposition.
151. The representative of the European Communities noted that the consumer surveys indeed
reported only on EC consumers.  It was not obvious that the results could be extrapolated elsewhere.
European consumers had their own characteristics and it had not been his intention to suggest
otherwise.  However, they were still relevant because everyone seemed interested in accessing the
European market.  He again noted that he had not received responses to the questions he had posed to
the Untied States on examples of re-labelling, and to Australia on the state of its own GI and
trademark litigation.
152. Reacting to the intervention of Sri Lanka, he recalled that, at the Council's last meeting, he
had already explained that foreign geographical indications could be protected without registration in
the European Communities.  In his view, Sri Lanka was right in continuing to support extensionbecause certification marks would not give it the protection that it would get under extension.  To
illustrate this, he said that Italian producers of a product bearing the denomination "Parmigiano
Reggiano" had tried to get protection through a certification mark in the United States.  They
registered not one, but five certification tr ademarks between 1987 and 2001.  They registered
"Parmigiano Reggiano" as a word mark and also as four different figurative trademarks.  Thishowever did not help them in protecting the term in translation, as they would have under Article 23,
because "Parmesan" would be a hindrance to the registration of a certification mark containing the
original Italian term "Parmigiano Reggiano."  And this was not because "Parmesan" was a generic
term, but because "Parmesan" had been registered as such on at least four occasions by a US company
and named "Grande Cheese Company".  This company had even claimed that the translation into
Italian of "Parmesan" was "Parmigiano Reggiano."  So, as much as one would try, certification marks
would get one nowhere.  That was why many delegations were continuing to ask for extension.
153. The representative of the United States said that, in response to the European Communities'
intervention, he would look into the situation con cerning "parmesan".  He doubted that anyone would
have obtained protection in the United States exclusively for the term "parmesan", as it was quite
generic in the United States.  He would also endeavour to identify some examples of re-labelling.
154. He asked the representative of the European Communities to clarify whether he was referring
to some documents that he would not read out but th at he was going to provide to the Secretariat, and
whether he intended to circulate those papers in the room as documents or circulate them for inclusion
in the minutes  The representative of the European Communities replied that his written intervention
with some further data would be given to the Secr etariat for inclusion in the minutes, as an annex, if
the Secretariat agreed.  The Chairman recalled a discussion on this matter earlier in the course of the
meeting, and said that he believed that it would be better if the document was read in case the
delegation wished it to be included in the minutes, which would provide an opportunity for any
reaction to the statement.  The European Communities could circulate the document, if it so wished.
The representative of the European Communities said that the parts he had omitted from his oral
intervention were further statistical data from other studies, apart from those two that he hadIP/C/M/38
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specifically quoted and that they pointed in exactly the same direction.  Therefore, it was not
necessary to include them in the minutes or read them out.  He thought the point had been made and
was sufficiently supported by the data that had already been provided orally.  The Chairman
confirmed that only what was said during the course  of the meeting would be included in the minutes.
155. On the same point, the representative of the United States referred to an annex that appeared
in the minutes of the Council's September meetin g (document IP/C/M/37/Add.1), which was entitled
"Written Statement by the European Communities on item D".  Under part 2 of this document,
"Registration Systems and National Treatment", he found that there was an exhaustive list and
analysis of the registration regimes, or systems, and of the issue of national treatment in Latin
America.  He did not recall that the European Communities had read out this analysis of Argentina,
Uruguay, Chile, Panama, the Andean Community, Co sta Rica, Nicaragua, El Salvador, Guatemala,
Mexico and the Caribbean, where it had asserted that the European Communities' regime, which wasinconsistent with the TRIPS Agreement, was in fact mirrored by all of these other countries.  He
suspected delegations might have had some reaction to such an assertion.  If it had not been read out
by the European Communities at the last meeting,  he did not believe it was appropriate for the
document to appear in the minutes of the Council's last meeting.
156. The representative of the Czech Republic requested Argentina to clarify whether it wanted to
re-open the TRIPS Agreement with the aim to lower the protection of IPRs already provided by this
agreement.  The representative of Argentina responded that an imbalance existed in TRIPS regarding
GIs, whereby certain products benefited at the expense of others.  Demandeurs argued that thisjustified extending Article 23-level protection to all products.  On the other hand, one could well
remedy such an imbalance also by leaving everything to be protected by Article 22.
157. Responding to the delegation of the United States, the Secretariat explained that, at the
meeting in September, when the Council was runnin g out of time in the discussion on extension, two
delegations, the European Communities and Sri Lanka, had said that in the interest of saving time
they would not read out the whole of their statements they had prepared and requested that their
longer written statements be reproduced in the minutes.  No objections had been expressed and thatwas how the matter was left.  However, it was for the reason that the US delegation had raised that the
Chairman had earlier at the present meeting wanted to  clarify the situation so as to ensure that there
was indeed acceptance of this practice by all Members, given the possibility of the sort of concerns
that the United States and Australia had mentioned could arise.
158. The representative of European Communities said he had offered to include his written
statement in the minutes for the only reason that the Council was short of time.  The point he had tried
to make was indeed that the EC interpretation of national treatment had been endorsed by thelegislation of many Members.  He had thought it would have been a waste of time to go through the
information country by country.  He fully understood the concerns of the United States, but it was not
his intention to provide information to which countries would not be able to react.
159. Reacting to a reference to his country in the European Communities' annex to document
IP/C/M/37/Add.1, the representative of Guatemala said that the fact that additional protection of GIs
was provided for in the national legislation of a country and it did not mean that, ipso facto , this
extended protection had been endorsed by this country at the multilateral level.  Guatemala did not
support extension at the multilateral level.  The representative of the European Communities
responded that the reference in the annex to Guatemala's legislation was not intended to imply that, ifa Member's national legislation already included extension, it would then support extension at themultilateral level.  The purpose of the reference was to indicate that Guatemala's legislation would not
require any adaptation were extension to take place.
160. The representative of Panama said that her delegation had not been aware that Panama had
been mentioned in the text annexed to docume nt IP/C/M/37/Add.1.  Therefore, her delegationIP/C/M/38
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reserved its right to react to the text.  She took the opportunity to ask the Secretariat to consider a
solution to this kind of problem to avoid the inc onvenience of not knowing that information about a
Member's delegation was contained in a document, since delegations had the right to comment on
such documents.
161. The representative of Ecuador said that, since his country was mentioned in the European
Communities' document annexed to IP/CM/37/Add.1, he also reserved his right to make comments
and clarifications regarding the Ecuadorian legislation.  There was also a comment in that document
about the Andean Community and this would also be discussed in case the member countries of that
community considered it appropriate.
162. The representative of Switzerland noted that the representative of Australia seemed to
consider that the issue of whether a country name could be protected was not even a TRIPS-related
matter.  In his view, the question of whether country names could qualify as GIs was addressed inArticle 22.1, applied equally to the general protection available under Article 22 and to the additional
protection under Article 23.  Therefore, this was not a question that needed to be raised under
extension.
163. The representative of the United States said that, given the inclusion of the EC statement in
the annex, his delegation would henceforth be more sensitive as to what could happen if the Council
agreed to something as seemingly innocent as his delegation had thought it had agreed to at the last
meeting.  He took issue, nevertheless, with th e previous intervention by the European Communities,
according to which the analysis of laws from Latin America was not intended in any way to cast an
aspersion on them.  However, on page 82 of the minutes, under the description of the Andean
Community, it was stated that "[a]gain we are faced with an unfortunate group of countries that, likethe EU, are apparently in violation of the TRIPS Agreement, according to the US interpretation of the
TRIPS Agreement".  The representative of the European Communities responded that the only point
his delegation had tried to make was that those countries' legislations mirrored the EC legislation, sologically, if the European Communities was being depicted as non-TRIPS compliant, those
legislations should be depicted in the same manner.
164. The representative of Chile, commenting on the EC consumer surveys, wondered how
confused Chilean consumers might be if they were told that the food they had been eating for 10 or 15
years was not what it was supposed to be, and that they would now have to pay 10%, 20% or 30%
more for a product that had been renamed and that was not exactly what they had been consuming
before.  The renaming of a product would entail considerable investments domestically, but even
more in foreign markets.  She supported Argentin a's call for more information regarding the kind of
investments that some companies in the European Communities had had to make in order to promote
their renamed products abroad.  As to the information in the annex containing the EC statement, she
said that Chile had concluded a bilateral treaty with the European Communities that protected their
GIs.  Those GIs were for wines and spirits, and that in no way meant that Chile wanted to extend
additional protection to GIs for other products.
165. The representative of Argentina said that the European Communities, with the exception of
maybe two or three countries that had concluded TRIPS-plus bilateral agreements, was the only WTO
Member that had practical experience in provid ing assistance relating to costs, name changes,
labelling, etc.  Therefore, she wished to know  what kind of help or subsidy producers who had
changed the names of their products had received.  She also asked what happened to the excess of
production from the areas that produce goods with GIs.  She did not believe that producers ofEuropean GIs produced the quantity necessary for the market.
166. Commenting on the annex to the minutes of the Council's September meeting, she said that
she did not recall that there had been a discussion on procedure at that meeting.  The minutes of the
Council's September meeting should only reflect the oral statements made at the session, and,IP/C/M/38
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consequently, the annex should be removed from the minutes.  Any written statement should be
circulated by the delegation which presented it in a separate document.  She understood that the
Secretariat, and on this she spoke from personal experience, had always tried to be as neutral and
faithful as possible to what had been said orally .  Her delegation had been in communication with the
Secretariat on another occasion when her delegation had believed that something it had added to itsintervention was missing from the minutes.  At the meeting in question, her delegation had tried, in
the interest of being brief, to synthesize its oral statement.  But because there had been no way to
include the entirety of the summarized statement late r, it had not had any other choice but to repeat its
complete intervention at the following meeting so that it could be included in the minutes.  She asked
that this criterion be maintained and that the minutes include only exactly what was said in the
Council.  This Council did not have a system of approval of minutes, so Members had to trust the
work of the Secretariat because there was no way to verify what one said, to amend work or toapprove the minutes.
167. The representative of Colombia noted that his country was not included as one of the
members of the Andean Community in the European Communities' statement annexed to the minutes.
He was worried by the possibility that his country, as a member of the Andean Community, could
face litigation brought by the United States for a possible violation of the TRIPS Agreement.  Heasked the European Communities what was the possibl e violation that Colombia would be incurring
by giving reciprocal treatment regarding the protection of GIs.  As to the impact on consumers and
producers, he informed the Council that Colombia had made a detailed geographical, anthropological
and sociological study, in which it had tried to find out the advantages and disadvantages of the
extension of the protection under Article 23.  Unfortunately, the disadvantages were greater than thedisadvantages and no significant benefits had been found.  At least from the Colombian producers'
viewpoint, there was nothing indicating that Colombia should change its position on extension.
168. The representative of the European Communities asked the representative of Argentina to
clarify the connection between her question about excess of production and the issue of intellectual
property.  As to the Colombian question regarding reciprocity, he believed he was not the best personto answer the question, because he had not argued that reciprocity was incompatible with national
treatment.  He wondered whether the delegation of the United States might wish to respond to the
question posed by Colombia.
169. The representative of Argentina said that she understood that certain cheeses produced in the
European Communities were sold only in particular quantities with relevant GIs in order to ensure
that the price did not go down, and that the excess was sold under another name, that is, no longer
under the denomination of origin.  Issues such as quality and origin were ignored and the cheeseswere sold as if they were a different product and competed in the market with similar products.
Requesting the European Communities to confirm this information, she asked in what circumstances
this happened and how the excess was handled.  As to cheeses sold under specific GIs, she asked
whether only the amount sold in such a way was produced or whether there was excess production.
170. The representative of the United States, revert ing to the question on "parmesan", said that he
had performed a search on the US Patent and Trademark Office's trademark electronic searching
system and extracted all of the registrations of "parmesan".  He had found out that in no case had
anyone obtained protection for the term "parmesan".  In fact, it was stated in each of the registrations
that no claim was made to the exclusive right to use the term "parmesan" apart from the mark as
shown.  That meant that the mark was protected only as stylized, but the term itself, "parmesan", wasnot protected.  As to the EC request for a clarification of the US interpretation of national treatment,
he believed it was commonly understood in the Council that national treatment was not to be accorded
only on the basis of reciprocity.  The EC definition of national treatment in their Regulation 2081/92
provided protection and the opportunity to register only if one was attempting to register an EC place
name.  If one tried to register a US place name, that would not be possible, which the EuropeanCommunities considered to be consistent with national treatment.IP/C/M/38
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171. The representative of the European Communities responded that the figurative trademarks
cited by the US delegate sometimes consisted of a stylistic version of the name "Parmesan" and that
was why they were protected.  So, "Parmesan", even in a different, graphic style, was indeed part of a
trademark.  Furthermore, he reiterated that, in the European Communities, foreign GIs were protected
without registration. It was clearly stated in the EC written statement that under the unfair competitionlaws of its member States and Directive 2000/13, protection under Article 22 was granted to any GI
without the registration requirement.
172. The Chairman called Members' attention to the third basket of issues related to administrative
costs and any burdens that would be associated w ith extended protection, especially as they impacted
governments.  As indicated in the Checklist, the issues that had been raised included:  (1) The
adaptation of legislation and institutions:  for example, to what extent could existing models for wines
and spirits be extended to other areas and to what extent would a thorough review of trademark andunfair competition legislation be entailed?  (2) The use of procedures for acquiring protection:  for
example, the extent to which such use might put burdens on governments and commercial interests
because of the number of likely applications, the need to deal with differences as to eligibility for
protection, etc.?  (3) Enforcement:  Issues that could be discussed included the extent to which the
burden for ensuring compliance would rest on th e commercial interests concerned or governments
might be required to monitor compliance and get involved in litigation at the national level and,
potentially, dispute settlement proceedings at the multilateral level.
173. The representative of the United States noted that the European Communities had mentioned
that it provided opportunities for protection for all GIs through their unfair competition laws.  That did
not, in any way, take away from the fact that the European Communities had decided to provide asystem under Regulation 2081/92 that benefited owners of GIs within the Communities.  The TRIPS
Agreement required that any favour, advantage or privilege that one provided to one's own nationals
should also be extended to the products of other WTO Members.  He had not heard any convincing
argument as to why Regulation 2081/92 was not available to all WTO Members.
174. On the third basket of issues, he said that for Members with long-standing statutory
geographical indication systems, the costs of protecting the few additional geographical indications of
other WTO Members would seem to be minimal, to the degree that they would actually provide such
recognition and enforcement on a national treatment basis, which, as he had noted, was far from
assured.  The costs of extending Article 23-level protection for the Members without such formal
systems, in many cases, would be considerable.  In the case of the United States, Article 23-level
protection could not be provided for GIs for products other than wines and spirits merely by extending
what it currently did with respect to GIs for wines and spirits.  In the United States, distribution ofalcoholic beverages was strictly regulated by the US Bureau of Alcohol, Tobacco and Firearms
(BATF), including labelling, advertising, and standards of identity of alcoholic beverages, inter alia ,
to prevent consumer deception and to provide information about the identity and quality of such
beverages.  This century-old regulatory regime allowed the United States to agree to Article 23's
additional protection for GIs for wines and spirits as part of the Uruguay Round's TRIPS Agreement,in exchange for appropriate concessions from other Members, primarily the European Communities.
There was, however, no comparable regulatory regime in the United States for products other than
wines and spirits.  Extension of Article 23 would require either substantial changes in the authorities
of the US Department of Agriculture and th e US Food and Drug Administration, which were
responsible for overseeing the sale and importation of  produce, meat, and dairy products to ensure that
US sanitary and processing standards were met, or significant changes to US trademark and unfair
competition laws.  The Department of Agricult ure and the Food and Drug Administration did not
oversee the sale and importation of all goods, even of all agricultural products.  Were Article 23 level
protection extended to GIs beyond those currently regulated, new statutory authorities would have to
be given to agencies that currently did not have such authority, or new agencies would have to becreated, adding even greater costs.IP/C/M/38
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175. Amending the US trademark and unfair competition laws to provide Article 23-level
protection for all GIs would be to stand those laws on their heads.  Both US trademark law and the US
unfair competition law, which provided protection for GIs in accordance with Article 22, were
intended to prevent consumers from being confused or misled.  They were never intended to provide
the owner of a trademark or other source indicator with protection against all uses of identical orsimilar marks or indicators, regardless of whether that use was likely to confuse or mislead
consumers.
176. As his delegation had pointed out in previous meetings, it would appear that few foreign
entities had sought to obtain certification mark protection for their GIs in the United States.  These
entities had not indicated that the protection was inadequate.  Article 7 bis of the Paris Convention
required that Paris Union Members provide protec tion for collective marks.  That obligation was
incorporated into the TRIPS Agreement via its Article 2.1.  Therefore, protecting GIs throughregistration as collective marks used a system that was already required to be in place under TRIPS.
No additional commitment of resources was required.  A Member's use of its existing trademark
regime to protect GIs involved only the use of that Member's resources already committed to the
trademark system for applications, registrations, opposition, cancellations, adjudication, and
enforcement.
177. The representative of Australia said that many of the considerations that would face the
United States were exactly the same for Australia.  Even though Australia had a system of GIs for
wines and spirits, to think that this would be a simple matter of extending it to other products was not
true.  All of the Members needed to be alerted to the fact that they were likely to face demands to
protect a very large number of European GIs compared to a very small number of their own.  InAustralia's bilateral agreement with the European Communities on wine there were 89 Australian GIs
compared to around 4,500 European GIs.  He understood that other countries had been subjected to
even more extreme EC claims for GI protection.  Members needed to reflect very carefully on the
simple number of GIs that each country was going to have to protect in its own legislation.  He did not
think there was any reason to believe that the numbers he had quoted in the past on wines and spiritswould be any different in terms of non-wines and spirits.  One should look, for example, at the
experience of non-European and developing countries under the Lisbon Agreement.  In a paper
written recently by the South-Center on GIs, it was pointed out that, of the 766 registered appellations
of origin under that agreement, a single country in the European Communities accounted for 66.3%,
and six member States of the European Communities accounted for 94.3% of the registrations.  At the
same time, Burkina Faso, Congo, Costa Rica, Gabon, Haiti, Togo and Yugoslavia had not lodged any
registrations.  This illustrated the imbalance that WTO Members would have in this area.
178. The important issue of enforcement had not been adequately covered in the discussions.
Enforcement obligations in respect of IPRs could be some of the most costly and difficult aspects of
implementing intellectual property protection.  The TRIPS Agreement obligated governments to
provide necessary legal means to right holders and to play a role in enforcing the regime.  For
example, Article 23.2 required a government to refuse or invalidate registration of a trademark thatcontained or consisted of GIs for wines and spirits with respect to wines and spirits that did not have
this origin.  Article 23.3 required Members, that is, governments, to determine the practical conditions
under which homonymous GIs could be used.  Some of  the enforcement provisions contained in Part
III of the Agreement also had application to rights in GIs.  For example, Section 2 of Part III required
application of certain civil and administrative procedures to rights covered by TRIPS, including GIs.Furthermore, it was impossible to isolate the discussion of extension in this context from the
negotiations for a multilateral system of registering wines and spirits GIs.  Under the EC proposals,
Members would have to play an even more active role in enforcement in the following ways:
notifying domestic GIs;  examining GIs by other countries;  engaging in bilateral negotiations and,
possibly, in dispute resolution to either defend or to object to a notification of a particular GI.IP/C/M/38
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179. The representative of the European Communities asked the US delegation to clarify whether
it meant that extension would require an overhaul of the trademark regime protection, given that
protection under that regime met the obligations under Article 22 but not under Article 23.  He also
asked whether certification marks provided the protection required under Article 23.  Responding to
Australia's comments on the number of GIs that developing countries would need to protect afterextension, he recalled that, at the Council's m eeting in September, the European Communities had
provided information on how many European GIs were protected in Brazil and Paraguay:  in
Paraguay, protection had not been sought for any GI on wines or spirits, and in Brazil, protection had
been sought for only two GIs.  It seemed that the reality and the data did not demonstrate that the
extra 500 European GIs that would enjoy protection under extension would in any way alter the
situation.  Therefore, he was not convinced by this argument of imbalance of numbers.
180. The representative of Thailand said that he fully supported the extension of protection of GIs
under Article 23 to cover all products.  Extension was important because GIs were often related to
culture and ancestors' traditional knowledge.  The proponents sought to increase the level of GI
protection for products other than wines and spirits under Article 23 because they strongly believed
that agricultural producers that had been able to develop a product with a certain reputation, quality,
and/or characteristics that originated in their territories had the right to be protected so that they couldcompete effectively in the global market.  Thailand sought a level of GI protection, now accorded to
wines and spirits, to be extended to Thai products such as "Thai rice", the so-called "Thai Hom Mali
rice" and "Thai silk".  "Thai rice" or "Thai Hom Mali rice" were GIs indicating specific
characteristics, resulting not only from specific l ongitude and latitude, but also from specific altitude
from sea level, air pressure, level of sunshine and frequency of rainfall.
181.  Progress had been very limited with extension, like with many other issues of developing
countries' interests and concerns.  At Doha, the TRIPS Council had been mandated to address this
issue as a matter of priority and to report to the TNC by the end of 2002 for appropriate action.
Thailand was of the view that GI extension was in fact one of the implementation-related issues and
concerns that fell under paragraph 12(a) of the Ministerial Declaration, that required Members toengage in a negotiation to find appropriate solutions.  However, after one year it was clear that the
deliberations in the TRIPS Council were far from reaching a definite conclusion.  Thailand suggested,
as regarded the GI extension issue, that the Council report the facts to the TNC and give it specific
recommendations and offer directions as indicated in the letter submitted to the Council and the
Secretariat by a number of Members, including Bulgaria, Cyprus, the Czech Republic, the European
Communities, Georgia, Hungary, India, Jamaica, Kenya, Liechtenstein, Malta, Mauritius, Pakistan,
Romania, the Slovak Republic, Slovenia, Sri Lanka, Switzerland, Turkey and Thailand.  TheseMembers had proposed that the Council recommend to the TNC the adoption of the following
guidelines for the negotiations on the extension of the protection of GIs provided for in Article 23 to
products other than wines and spirits:  (a) the protection of Article 23 of the TRIPS Agreement should
apply to geographical indications for all products;  (b) the exceptions contained in Article 24 of the
TRIPS Agreement should apply mutatis mutandis ;  and (c) the multilateral register to be established
should be open for geographical indications for all products.
182. The representative of Japan said that, regarding the domestic implementation of additional
protection of the GIs, one should keep in mind Article 23.1 and its footnote.  The footnote stated that
"[n]otwithstanding the first sentence of Article 42, Members may, with respect to these obligations,
instead provide for enforcement by administrative action".  If applicable products were expandedbeyond wines and spirits and any Members were to select implementation through administrative
measures, it would be important to give careful consideration regarding any costs and burdens that
would occur.  Effects on consumers and producers should be considered and the extent to which the
necessity existed to additionally protect individual products should be measured.  This would be
beneficial in judging whether it was appropriate to bear corresponding administrative costs or not.IP/C/M/38
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183. Article 23.2 stipulated that, when granting additional protection, it was necessary to refuse
trademark applications containing or consisting of the geographical indication to be protected and
invalidate related registered trademarks.  Therefore, one should pay attention to the effects of
trademark application workloads, like the increase in translation, trademark examinations and
examination-related workloads.  Regarding transla tion, Article 23 said that legal measures should be
taken "even where the geographical indication is used in translation".  In case of extension, Japan
would need to consider how to translate into Japanese geographical indications from various
languages of the world.  It would also be necessary to prepare a database for translation to be used by
trademark examiners.  Also, regarding GIs from countries in whose languages Japan did not have a
great deal of experience, pronunciation data of the translated geographical indication itself would not
be sufficient for the reference purposes of trademark examiners.  The examiner would have to prepare
translated data concerning the name of the region of production and the product itself related to thegeographical indication.  This would create a considerable extra burden.
184. With respect to trademark examination itself, judgement of whether the public had been
confused or misled would not be necessary in case of additional protection.  Consequently, some
countries had claimed that related costs and time required by examiners for judgement would be
diminished.  To some extent, this could be true.  However, since in general trademark examinationthere was judgement regarding the requirement for the registration of these goods, judgement
regarding confusion as to quality in the area outside subject goods would be needed.  Therefore, it
would not be possible to say that the amount of the overall judgement process would greatly decrease,
and Japan doubted that it was possible to further decrease the examination burden resulting from
extension.  As to the examination-related workload, he said that when examining trademarkapplications, an examiner did not just examine substantive requirements, but also prepared and
administered necessary data for examination, notified the applicant, and received responses from
applicants.  It would therefore be necessary to consider what type of effects extension would have on
related examination workloads.  Japan had been lax in meeting the necessity of entering geographical
indications under the general protection of Article 22, which did not cause public confusion.  As aresult, although it had not made data as examination reference material, under additional protection,
public misleading was not necessary and translations could also be the object of protection.  As a
result, preparation of examination reference material data was necessary, which would lead to the
burdens of database entry, computer system construction and its administration.
185. The representative of Jamaica, referring to Australia's comments on the potential imbalance of
extension, said that such imbalance was not unique to GIs.  She thought that in all areas of intellectual
property, in the patent, copyright and trademark sy stems, countries utilized the IP system based on
their comparative advantage.  For instance, countries with a thriving cultural industry would see the
copyright system as more beneficial than the patent system.  Consequently, there was no level playing
field in intellectual property.  Countries benefited based on their comparative advantage and they
would manipulate the system to benefit their respective economies.
186. As to the question of costs, Jamaica believed that this was an important issue, but it should
not be considered as a deterrent.  For example, when Jamaica launched a programme of
modernization of its IP system, it was costly as IP was a fragmented legal area.  Nowadays, her
country had everything under one roof with the creation of its national IP office.  That had been costly
and was still costly because this was a fairly new office, but they had begun to realize the economic
dividends from such an activity.  Her delegation believed that, costs should not be a prohibitive factorand a deterrent to extension.
187. The representative of the European Communities hoped to get an answer to his question on
whether certification trademarks indeed provided for the level of protection prescribed by Article 23
of the TRIPS Agreement, because it was very important to establish the relative efforts that extension
would require from countries that had chosen to  implement GI protection through that particular
system.IP/C/M/38
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188. His delegation was convinced that extension wo uld benefit governments.  To begin with, it
believed that extension would facilitate, for example, the task of trademark examiners who were faced
with an application for the registration of a trademark, including for a GI for a product other than
wines and spirits, and would have to determine whether such an application would mislead the
consumer or not.  Such a determination was often made on the basis of the examiner's information ofwhat an average consumer did or did not think.  However, such a determination could be challenged
before domestic courts on the basis of evidence such as consumer surveys, which were often
unavailable at the time that trademark examiners needed to make their decision.  With extension,
trademark examiners would simply have to assert whether a trademark application contained or
consisted of a protected GI and would only allow registration to proceed if the trademark was entitled
to use the geographical indication for its products.  There would no longer be the need to make a
costly and difficult determination of whether the consumer would be misled by the registration of atrademark, including a GI.  It would be clear to  producers whether they could use a term or not.
Consequently, they would not use GIs that belonged to others or that were used by others in other
countries.  This would result in a greater clarity and certainty of legal protection, which would
diminish litigation and related costs.
189. Regarding the costs to governments, many of the countries that opposed extension claimed
that it would impose the establishment of costly administrative registration systems.  This was not the
case.  As was mentioned in communication IP/C/W/360 by the proponents of extension, registration
was one of many ways and means to implement GI  protection for third country GIs.  Registration
systems were not compulsory.  At the Council's meeting in September, it was shown how Paraguay
and, for that matter, the European Communities, did not use registration systems to protect thirdcountry GIs.  This was why what was stated in paragraph 14 of communication IP/C/W/360 by
Australia, the United States and others was simply not true.  Indeed, his delegation believed that
reproducing the language of Articles 22 and 23 might be one of the valid options to implement
Section 3 of the Agreement without the establishmen t of a registration system.  In sum, registration
systems were not compulsory and it was unfair to stigmatize or criticize extension on the basis thatthis would impose a registration system on Members.
190. As to the government-as-an-enforcer question, he said that a number of delegations had
accurately pointed out that the EC system of GI recognition provided for governmental enforcement.
However, these delegations believed this was not the case for the protection of GIs under TRIPS.  His
delegation, along with 20 other delegations, had st ated very clearly in communication IP/C/W/360,
tabled in June 2002, that extension, or for that  matter GI protection, did not require government
enforcement.  The TRIPS Agreement did not state that governments must police third countries' GIs.The TRIPS Agreement was a minimum-standard agreement and in regard to GI protection it was quite
clear that that enforcement was left to right holders, as far as minimum of third countries was
concerned.  The European Communities had however made a choice of protecting GIs via
government enforcement.  Certainly other countries could choose differently.  The European
Communities fully respected any country's choices and believed that saying that extension requiredgovernment enforcement was simply false and did not hold true with what was stated in TRIPS.
191. The representative of the Czech Republic said that it was true, as opponents had highlighted,
that an establishment of a new IPR protection sy stem for a new IPR category would be burdensome
and costly for each government.  But it was important to stress that they were not discussing the
establishment of a totally new protection system for a new IPR category, which had never benefitedfrom protection.  On the contrary, the Council was discussing the extension of a level of protection
which, for historical reasons, was presently available only for wines and spirits.  From this
perspective, extension should not be expected to be extremely burdensome for administrations that
already provided this kind of protection for wines and spirits.  For example, in the Czech Republic, a
country providing protection on the basis of registration, once the registration system had beenestablished, it started to produce an income for the Czech administration because GI owners had to
pay fees for GI registration.  It was true that the income for governments was not as significant as itIP/C/M/38
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was from the registration of trademarks, for which the payment of renewal fees was necessary.  The
administration's burden of maintaining the GI protec tion system did not, however, exceed that of the
trademark systems. The burden was, in fact, mu ch lower and did not increase in relation to the
number of GIs protected.  What did increase was the income from fees.  The more applications for
GIs they had, the more revenue flowed from it to the government.  She thought, therefore, that theargument on higher administration costs, made by  those who provided GI protection through the
trademark system, was not relevant to this issue.
192. Regarding the costs for administrations relating  to enforcement of protected GIs, all such
costs on national legal systems had been already imposed by the enforcement provisions of the TRIPS
Agreement.  With extension, costly proof in civil or criminal courts or administrative bodies would no
longer be necessary in order to show that either the public was misled or an act of unfair competition
had occurred in relation to the use of a GI.  From this point of view, the additional level of GIprotection would represent not only a simplification of the enforcement process but would also
represent a cost-saving possibility for legitimate producers.
193. The representative of the United States said that his point in discussing certification marks
was that the existing level of protection under the TRIPS Agreement was adequate and effective and,
if implemented properly, could already provide the type of protection that many Members wereseeking with respect to GIs for products other than wines and spirits.  Why should any Member go
through the process of negotiating a higher standard of protection if the standard of protection they
had already negotiated, if implemented properly, could provide the kind of protection they were
looking for?  Furthermore, he wondered why countries would want to get into a situation where they
were undertaking additional obligations that were largely going to benefit only a small number ofMembers who had an extraordinarily large number of GIs, when those Members were not themselves
providing them with the protection that th ey had negotiated for in the Uruguay Round.
194. In response to the EC question on labelling, he said, as reflected in the US responses to the
Checklist of questions under Article 24.2, that the US Bureau of Alcohol, Tobacco and Firearms had
strictly regulated the labelling, advertising and standards of identity of alcoholic beverages, amongother things, to prevent consumer deception and to provide information about the identity and quality
of such beverages.  That regime was over a century old.  The US acceptance of the additional
protection of Article 23 for GIs for wines and spirits,  therefore, did not require any changes in BATF's
labelling regimes for wines and spirits.  On the other hand, there was no similar protection to products
other than wines and spirits and, as a result, the establishment of such a regime would involve
considerable costs to the US government and businesses, and would cause considerable confusion
among consumers who were seeking products that they were interested in purchasing.  Therefore, theUS did not have any re-labelling experiences to offer to the European Communities because its
labelling regime was in fact over a century old.  However, many had already alluded to the fact that
doing so in areas where there were no existing regulations would cause considerable costs and, like
other Members, the United States would be very interested in information from the European
Communities and other demandeurs about the re-labelling costs that they had experienced.
195. The representative of Canada, associating herself with the comments previously made by the
United States, Australia and Japan on the direct costs to their own administrations, said that those who
thought that a few minor adjustments to the legi slation would suffice would have a very unpleasant
surprise waiting from them.  The US delegation had outlined in detail examples of actual costs that
would be realized if the United States needed to change its trademark and certification legislation.Canada would also need to do the same.  The only experience that Canada had with Article 23 level of
protection was with respect to wines and spirits.  Canada had adopted a special regime of protection in
its trademark law for the protection of GIs for wines and spirits.  Canada was currently facing a
request of a Member to protect close to 10,000 name s as GIs.  One of the biggest problems Canada
had faced was not only the number of GIs that it would have to register and the administrative burdenthat this would put upon it, but that Canada did not have sufficient resources to do so in the shortIP/C/M/38
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time-frame that the Member in question was asking Canada to do this.  Her government was also
facing strong pressure to consider bulk registrations for a reduced price or a bulk price.  She knew that
the Czech delegation believed that bulk registrations would not be a burden from the Czech
perspective.  This could be the Czech situation, but it was certainly not Canada's.  If bulk registrations
implied a bulk fee, which seemed to be the case of the demandeurs, it would not generate revenue asthe Czech delegate had suggested.
196. The representative of the European Communities said that the US answer still did not fully
respond to his question, which was:  Did certific ation trademarks provide the level of protection
equivalent to that of Article 23 of the TRIPS Agreement?  Many delegations seemed to believe that
certification marks could be sufficient to provide the level of protection required by Article 23.  If that
was the case, certification marks would apply to all products alike, wines, spirits and other products.
Those delegations' views concerning to administrative costs could change depending on whether theanswer was yes or no.  His impression from an earlier US intervention was that certification marks
were not sufficient and that was why the US representative had explained that the United States would
have to change its trademark regime.  He asked for this to be confirmed.
197. He noted that a country that did not have a bilateral agreement with the European
Communities and had claimed that a considerable amount of re-labelling would result from extensionwas unable to offer a single example of re-labelli ng.  Since 1994, 4,000 EC GIs for wines of spirits
had already been covered by extension.  His delegation, along with many others, had always
maintained that the exceptions of Article 24 were so large that re-labelling was largely avoided.  This
was why his delegation had asked a country without a bilateral TRIPS-plus agreement to give
examples of re-labelling in the area of wines and spirits.  Without such evidence the claim on re-labelling was not credible.
198. As to Canada's comments on bulk registrations and fees, he said that bulk registrations and
fees were being discussed in the framework of bilateral agreements and talks that the European
Communities was having with Canada.  In his view, the TRIPS Council should not discuss bilateral
matters but, it seemed that certain delegations wished to continue to pollute the Council's debate withthings that happened at a bilateral level.  This was regrettable because the Council would not make
much progress in that way.  The idea of bulk registrations and fees was not something stemming from
TRIPS but rather from a bilateral deal that the European Communities was negotiating with Canada.
Countries that had concluded bilateral agreements with the European Communities but believed that
what the European Communities was asking was completely unreasonable had a very simple solution
for this, namely, they should not have accepted or signed the agreement.
199. The representative of Malaysia said, concerning the costs to governments, that there would be
a need for adaptation of legislation and institutions, and that her country would have to train personnel
to understand and take note of the new procedures and requirements in relation to GI administration.
She also noted that it was not very clear what the European Communities meant by saying that
extension would not imply government enforcement.  She noted that there were exceptions under
Article 24 for generic use, and asked what the costs would be to producers as to any legal oradministrative measure to be complied with in order to prove the generic use of GIs.  What would be
the costs to producers to have to prove that their allegedly unlawful use came under an exception in
Article 24?  What would be the cost of proving their case in the courts of hers and various other
countries?
200. The representative of New Zealand said her country did not currently have a bilateral deal on
wines and spirits, but they did have some experience with re-labelling wines and spirits under Article
23-level protection.  Unfortunately they had been unable to get specific data from their capital
overnight, but she did plan to revert to the matter at a future meeting with some more information on
their experience on this issue.  Secondly, she wanted to address the point of whether or not bilateral
deals and discussions were relevant to work in the multilateral Council.  She submitted that it wasIP/C/M/38
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very important in this multilateral forum to have a good understanding of developments at the
bilateral level.  The effects from bilateral deals between two Members were not confined to the parties
to those agreements.  Third countries could experience significant trade impacts from bilateral deals
between two Members.  Therefore, even countries wh ich did not take part in bilateral deals in this
area would have an interest to monitor such developments.
201. The representative of Australia believed that it was unhelpful for the EC delegate to assert
that those who talked about the experiences of their bilateral agreements on wine were in some way
seeking to pollute the present discussion or to divert attention away from what the Council was doing.
He thought that it was those who had had experiences with bilateral wine agreements who could best
appreciate exactly what the implications were of what the demandeurs, such as the European
Communities, were seeking to achieve in the extension debate.  It was necessary to know the costs of
implementation, the costs of disputation, the implications of protectionism, and that was why they hadbeen seeking to contribute to the discussion in th is Council of the broader implications of extension.
A number of developing countries would like to see a relatively small number of their GIs protected,
and one could clearly understand that they would feel some degree of envy that it could be done on
wines and spirits but not in relation to other products.  But he still thought that there was a significant
lack of understanding and appreciation of the very si gnificant costs that were going to be involved in
this higher level of protection.  Therefore, he thought that the remark that Members should not discuss
their bilateral experiences was quite unreasonable, and it did not benefit the discussion within the
Council on this issue.  Australia was very conscious that there was already considerable concern
among developing countries about the TRIPS Agreement and its costs.  He did not think they realized
just what the costs were going to be if they got into the kind of registration system that the EuropeanCommunities was seeking to establish, not only on wine but on all other food products.
202. The representative of Switzerland posed a question to those countries which protected GIs
under a certification mark system:  How were homonymous GIs protected under a certification mark
system?  He wished to have this question answered first in respect of homonymous GIs for wines and
spirits in light of Article 23.2, and then in respect of homonymous GIs for products other than winesand spirits.
203. The delegations that had a critical view of extension had indicated that their fears were based
on the fact that extension might entail, generally  speaking, an administrative burden and increased
costs for governments, and that, in particular, for the countries that did not resort much to the
protection of GIs presently. The reasons why these fe ars were not justified had already been explained
in detail in communication IP/C/W/308/Rev.1 (paragraphs 4-11).  When determining the real costs of
an extension and an adaptation of a protection system, one should compare these possible costs to thebenefits expected from extension.  Only such a comparison between the possible costs and benefits
would give an idea about the whole question.  First and foremost, he wished to point out that all
Members were already obliged to provide protection to GIs according to Articles 22 and 23.
Therefore, extension would imply only minimum ad ministrative charges.  And these costs might be
limited to a modification or change of legislative provisions extending the protection of GIs for winesand spirits to GIs for all other products.  Furthermore, if one compared what the TRIPS Agreement
required under Articles 22 and 23, one would quickly realize that the differences were minimal from
the legal point of view and that they only referred to the criteria to grant the protection – the public
being misled or the existence of unfair competition – present in Article 22 but not in Article 23.
Therefore, the implementation of protection envisaged in Article 23 for all GIs would not necessarilyrequire the establishment of a completely new protection system or the establishment of a registration
system for GIs.
204. It was important to bear two elements in mind.  First, national administrations were free to
determine the appropriate method to implement the provisions of the TRIPS Agreement in the
framework of their own legal systems and practices, as envisaged in Article 1 of the TRIPSAgreement.  Therefore, the protection of GIs could be ensured in different ways, a registration systemIP/C/M/38
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for GIs being one possibility for so doing but certainly not the only one.  Second, the protection given
to GIs under the TRIPS Agreement could be characterized as negative, inasmuch as the Agreement
only required that Members make available to the interested parties the legal means allowing them to
prevent an abusive use of their GIs and nothing more.  The TRIPS Agreement, therefore, did not
require that the Members develop registration systems for GIs at the domestic level or prevent theabusive use of GIs in their territory. A Member could very well leave it to the interested parties to
request judges or any other authorities to stop the abusive use of a GI.  What was important in this
context was that Members should establish a system that ensured the protection of GIs, including if
they did not want other Members to refuse protection of their GIs through Article 24.9, but in
particular Members should envisage rules for the interested parties to be able to prevent the abusive
use of GIs.
205. All this could be done independently of any registration.  In Switzerland, for example, the
protection of both domestic and foreign GIs was ensured, in general, without registration.  This type
of protection did present several advantages.  First, it ensured general protection for all GIs, both
national and foreign, at a lower cost.  Secondly, this type of protection did not entail specific burdens
on national administrations, other than that of developing legislation concerning the subject-matter
and extension of the protection of GIs at the domestic level, as well as providing the means forinterested parties to stop the abusive use of GIs.  Thirdly, the costs linked to the protection of GIs
would be borne by the legitimate producers and consumers' associations and not the national
administration.  Therefore, he did not believe that extension would necessarily entail costs and
administrative burdens that would be out of proportion.
206. When examining the costs that extension could possibly entail, it was advisable not to
consider only the operation costs entailed by certain administrative adaptations, but also the reduction
of administrative and legal costs entailed by the fact that in many cases it would no longer be
necessary to give proof on the public being misled or the existence of an act of unfair competition.
Contrary to Article 22, Article 23 did not require proof of these to prevent the abusive use of GIs.  As
the result of extension, protection of GIs for produc ts other than wines and spirits would no longer
depend on the provision of such proof.  This improvement of the protection of GIs for products other
than wines and spirits would entail an easier access for all parties interested in the effective protection
of GIs.
207. In conclusion, he said that extension was a topic that interested both industrialized and
developing countries.  This was illustrated by the list of countries that had co-sponsored the
communications in favour of extension.  All these co untries  supported extension due to the potential
benefits they would obtain, in particular the export of their products on the world market and to seethem being commercialized as well as protected.
208. The representative of Argentina associated herself with the comments made by Australia,
New Zealand, Canada and the United States, on the issue of administrative costs.  Agreeing with
Australia, she said that it was highly relevant to  discuss bilateral agreements, because that was the
only practical experience available in the international arena in this regard.  Another important pointthat should not be forgotten in the context of extension was the negotiations regarding the
establishment of a multilateral system of notification and registration of wines.  Delegations that had
argued that the exceptions would remain applicable did not seem to have the same view when they
discussed that multilateral system, under which the applicability of these exceptions would be decided
within opposition procedures rather than by the national jurisdiction of each country, as it would bethe case under the system her delegation, along with other delegations, had proposed.  She also
doubted whether the exceptions would continue to apply since in many bilateral agreements none of
the exceptions of the TRIPS Agreement had been able to survive.  She asked from the demandeurs
whether the exception in Article 24.4 had ever been incorporated into any bilateral agreement, and
whether they expressly recognized this exception as applicable and if they respected it in regard towines and spirits.IP/C/M/38
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209. She also wanted to know how a GI was protected in sui generis  systems for GIs?  In the
informal session of 10 November 2002, a delegation had specifically asked from the Swiss delegation
how it had negotiated in respect of the GI "Champagne", because it appeared that there had been no
negotiation based on Article 23.3 and that Switzerland had renounced the use of this homonymous GI.
Responding to Switzerland's statement that extension equally interested both developed anddeveloping countries, she also said that this issue did not interest developing countries as it interested
developed countries.  There were many developing countries in the TRIPS Council that had expressed
that they were not favourable to extension.  She wondered whether developing countries were in a
position to accept higher additional obligations in in tellectual property within this multilateral trade
system, while many of these same countries were still facing problems implementing the obligations
already negotiated in the Uruguay Round.
210. Noting that it was still being argued that developing countries saw extension as an advantage
because this would favour their exports in the world market, she said that she could not understand
how an intellectual property right would improve market access.  If Argentina protected its cheeses
through GIs, how would this overcome the tariff an d non-tariff barriers, and the sanitary barriers that
existed for diary products?  In fact, demandeurs were mixing things that had nothing to do with each
other.  If there was truly a desire for developing countries to increase their exports, this desire,expressed from the countries in favour of extension, should not be pursued in the TRIPS Council but
in other fora.  This issue was extremely relevant for the Latin American countries, not only because of
the fact that these countries were colonized and many places were named after European cities, but
also because of the strong influx of immigration that these countries had been subject to.  Argentina's
experience with at least one homonymous GI had not been, at least to date, a happy one.  Theexperiences that occurred at the bilateral level were undoubtedly determinative of the positions they
would take at the multilateral level.
211. The representative of the European Communities, addressing certain questions raised by the
delegation of Malaysia, said that the very same training received by the personnel responsible for the
protection of GIs for wines and spirits would be enough for the extended protection of GIs for otherproducts.  Therefore, he believed there would not be any additional costs on training personnel.  As to
adaptations to legislation, he believed that th e Malaysian year 2000 GI Act already provided for
extension.  As to the costs of a case establishing that a name was generic, he believed that the costs
depended on each country and on how it had interpreted and implemented the notion of genericness..
212. Responding to delegations that insisted that they should not be criticized for making reference
to bilateral agreements, he said that the Council should understand that the only reason opponents
were talking about bilateral agreements was because re-labelling did not occur under TRIPS.  It wouldonly occur under bilateral agreements.  Article 24.1, second sentence, of the TRIPS Agreement stated
that the provisions of paragraphs 4 through 8 (i.e. the exceptions on prior use, prior trademarks and
generics) shall not be used by a Member to refuse to conduct negotiations or to conclude bilateral or
multilateral agreements.  These bilateral and multilateral agreements were precisely designed to
increase the protection that would otherwise be negated under one of the exceptions.  This was whyre-labelling could occur, but only under bilateral agreements and not under TRIPS.  He was looking
forward to the evidence promised by the delegation of New Zealand, in particular because his most
recent information from the New Zealand Intell ectual Property Office was that the 1994 Act on GIs
was not yet in force.  Consequently, he was interested to find out how re-labelling had occurred on the
basis of the additional protection for wines and spirits.
213. The representative of Singapore said that the it was quite clear that certain costs would result
from the need to modify legislation and to put in place a mechanism for registration.  If one's system
was based on registration, one would need more pe rsonnel to manage additional applications.  He
noted that it had been claimed, on the one hand, that there would be huge costs and, on the other hand,
that this was simply a question of amending one's legislation and applying what one already had tosome additional GIs.  Obviously the truth lay in between these two propositions.  He wonderedIP/C/M/38
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whether it would be useful if the Secretariat were to request a paper from a body that administers
these issues and whether the Council could then gauge what kind of costs would result from
extension.
214. The representative of Argentina said that Article 24.1 provided that no Member should use
the exceptions to refuse to conduct negotiations or  to conclude bilateral or multilateral agreements,
but there was no provision in TRIPS that said  that a Member should renounce the rights and
obligations that existed under the Agreement.
215. The Chairman suggested that the Council request the Secretariat to prepare, prior to the
Council's next meeting, a compilation of the elements contained in the oral statements made at the
present meeting and the written submissions prepared for it in relation to the second and third baskets
of issues, including the points made at the informal meeting of 10 November 2002 in relation to the
second basket of issues.
216. The Council so agreed.
E. REVIEW OF THE PROVISIONS OF ARTICLE 27.3(B)
F. RELATIONSHIP BETWEEN THE TRIPS A GREEMENT AND THE CONVENTION ON BIOLOGICAL
DIVERSITY
G. PROTECTION OF TRADITIONAL KNOWLEDGE AND FOLKLORE
217. The Chairman recalled that, prior to the Council's meeting in September 2002, the Secretariat
had circulated three notes on the review of the provisions of Article 27.3(b), the relationship between
the TRIPS Agreement and the Convention on Biolog ical Diversity (CBD), and the protection of
traditional knowledge and folklore (IP/C/W/369, 368 and 370).  He advised that the discussions on
these items had continued during the last meeting held in September 2002, and he informed theCouncil that a communication had been received from the European Communities and their member
States and circulated in document IP/C/W/383.
218. Furthermore, he reminded the Council that during the March meeting he had urged more
Members to provide, by 1 June 2002, responses to the questionnaire on the implementation of
Article 27.3(b) and that the Secretariat had accordingly issued an airgram (WTO/AIR/1756) on26 March 2002 reminding Members to submit their responses.  Since the September meeting, the
Secretariat had received responses and supplementary information from five Members, namely the
Czech Republic;  Estonia;  Hong Kong, China;  Lithuania;  and Thailand.  The Secretariat would
update the synoptic table in its summary note IP/C/W/273 in light of the new submissions as soon as
possible.  Finally, he recalled that the Council had agreed at the September meeting to invite a
representative of the Food and Agriculture Organization (FAO) to make a presentation on the
International Treaty on Plant Genetic Resources for Food and Agriculture 
(hereinafter referred to as
the "FAO treaty") .
219. The representative of FAO said that it was after 23 years of discussion and seven years of
formal negotiation in the FAO that the FAO treaty had been adopted, by consensus, on 3 November
2001.  The FAO treaty was considered to be an excellent example of North-South cooperation in the
fight against world hunger.  He informed the Council that 815 million people were suffering from
hunger.  He hoped that the FAO treaty could help achieve the World Food Summit's target to halve
the number of hungry by 2015.  He said that the FAO treaty was a binding agreement of importancefor several different sectors, including agriculture, trade and environment.  He recalled that the  WTO
Secretariat had been represented and had provided essential advice to the negotiators at many
meetings of the FAO.  In his view the FAO treaty was in harmony with other international
agreements, including the TRIPS Agreement.IP/C/M/38
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220. Regarding the importance of the FAO treaty, he said that it dealt with plant genetic resources
for food and agriculture, including the crops on which food security depends.  He mentioned the
famine in Europe in the 19th century as an illustration of the importance of these resources to human
kind.  That famine, which caused the death of two million people in Ireland and led to the emigration
of millions, had emanated from the narrow genetic base of the potato in Europe, when the diseasecalled phytopthora infestans  had struck potato plants.  The use of chemicals could not solve the
disease problem.  The problem was eventually solved after discovering resistance genes in the centre
of origin of the potato in Latin America.  A similar problem had occurred in the United States in the
1970s when a disease called helminthosporium maydis  had struck maize in the Southern part of the
country.  That problem was also solved only after finding resistant genes in Africa.  He said such
examples showed that no country could be self-sufficient or independent with respect to plant genetic
resources.  On average, approximately 70% of the genes necessary to solve the problems ofagriculture for the most important crops come from countries other than those with the problem.
Thus, international co-operation was not an option but a necessity.
221. Unfortunately, he said, for the most important crops, up to 90% of the diversity existing at the
beginning of the 20
th century had been lost for ever.  The loss of genetic resources that had existed in
local farmers’ varieties and in the wild relatives of crops limits our ability to develop new plantvarieties capable of resisting future diseases and to cope with unpredictable environmental needs.  He
explained that biotechnology depended upon genetic resources as the raw material to produce new
varieties.  Genetic resources could be compared to the child’s game, “Lego”, as genes were like
building blocks.  Having a large variety of pieces could enable one to build a house, a castle or a
bridge, as needed.  However, if some pieces were missing or if all the pieces were the same, ourchoices would be drastically limited.  Plant improvement needs diversity and, like “Lego”, cannot
build on uniformity.  He noted that biotechnolo gy did not create genes but used genes to make
different useful combinations.  Although biotechnolo gy may appear to be a highly technical field, the
question of protecting genetic resources for food and agriculture had wide socio-economic, political,
cultural, legal and ethical implications affecting the future of humanity.  It was for these reasons thatcountries within the Conference of the Parties to the CBD had recognized in 1995 the specific nature
of agricultural bio-diversity, its distinctive features and problems, which needed distinctive solutions.
222. He described the FAO treaty as having three go als: first, the conservation of plant genetic
resources for the future.  Genetic diversity was part of human  heritage, handed down from previous
generations, but much of which had been lost in the 20th century.  The present generation had an
obligation to conserve for future generations the genetic resources they would need to deal with
threats to food security, and meet evolving needs.  Countries that were party to the FAO treatytherefore had a legal obligation to protect and conserve their plant genetic resources.  The second goal
was the sustainable use of plant genetic resources.  Humanity had so far used only very little of
agricultural genetic diversity: only 150 of the 7,000 plant species used in the course of human history
of food and agriculture were currently farmed.  Twelve of them alone provided most human food
from plants, and four only provide more than half.  Therefore, the FAO treaty established incentivesfor people to use a broader range of the diversity.  The third goal was the fair sharing of the benefits
derived from the use of genetic resources.  Articles 12 and 13 of the FAO treaty provided several
elements that would contribute to the fair sharing of the benefits derived from the use of genetic
resources, including access to genetic resources for research and genetic improvement, exchange of
relevant information, transfer of technology, national capacity building for the conservation andimprovement of genetic resources, and the mandatory or voluntary sharing of the monetary and other
benefits of commercialization.
223. The FAO treaty also set out a number of innovativ e elements to achieve its goals.  Firstly, it
established a Multilateral System for Access and Benefit-sharing that is applicable to 64 crops.  Two
selection criteria were used in identifying these crops, namely the importance of the crop for foodsecurity and the level of interdependence between countries.  The breeding of new plant varieties
often involved the use of tens or hundreds of traditional varieties from different countries.  BilateralIP/C/M/38
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agreements for access to these genetic resources were likely to involve enormous transaction costs.
Countries therefore agreed that a multilateral system was the only effective way of managing these
crops.  Access and the sharing of benefits were to be regulated by standardized material transfer
agreements (MTAs) to be approved by the Governing Board of the FAO treaty.  Secondly, the FAO
treaty provided for the recognition of farmers' rights, including the right to the protection of traditionalknowledge, the sharing of the benefits, and farmers' participation in decision-making at the national
level.
224. He said that countries, through the FAO Commission on Genetic Resources for Food and
Agriculture, had negotiated the Global Plan of Action for the Conservation and Sustainable
Utilization of Plant Genetic Resources for Food and Agriculture, adopted by 150 countries at the
Liepzig International Conference on Plant Genetic Resources, in 1996.  This Plan set out agreed
priorities, programmes and activities necessary for the conservation and the sustainable use of plantgenetic resources.  The Treaty envisaged the implementation of a funding strategy for plans and
programmes that took the Global Plan of Action into account.  The Governing Body of the FAO
Treaty would periodically establish a target for such funding.
225. The FAO treaty would enter into force 90 days after 40 governments had ratified it.  Already
77 countries (including a large number of developing countries, 15 countries of the European Union,the European Communities, the US and Switzerland) had signed the FAO treaty.  Eleven countries,
including several African countries, Canada, India, Jordan and Nicaragua, had ratified the Treaty or
acceded to it.  In 2002, many appeals were made for the ratification of the Treaty, so that it might
enter into force as soon as possible.  These included in the Declaration of the World Food Summit, in
the Ministerial Declaration of the Sixth Meeting of the Conference of the Parties to the CBD in theHague, and in the Plan of Implementation of the Johannesburg World Summit on Sustainable
Development.
226. He said that while many breakthroughs had been made during the negotiation of the text of
the FAO treaty, some issues had deliberately been left  aside for parties to solve later.  These included
the level, form and manner of monetary payments on commercialization, the mechanism to promotecompliance, the development of a funding strategy and the development of a standardized MTA.  All
these elements were essential and were to be cons idered in the first meeting of the Governing Body,
which would meet after 40 countries had ratified the FAO treaty.  Countries may therefore consider it
important to be among the first to ratify, so as to ensure that their national interests be taken into
account at the Governing Body's first meeting.
227. He expected the FAO treaty to be ratified within the year.  With respect to the review of
Article 27.3(b) of the TRIPS Agreement, the FAO treaty had been negotiated by the same membercountries of the WTO and the CBD and was in harmony with the TRIPS Agreement and the CBD.
Cooperation and synergies in the development and implementation of these agreements under national
legislation were still necessary.  He noted that the TRIPS Agreement, the CBD and the FAO treaty
involved three different sectors, namely, trade, environment, and agriculture.  The FAO treaty gave
specific solutions to some important subjects of direct importance to the agricultural sector, such asaccess to genetic resources, the fair and equitable sharing of the benefits and farmers' rights.  Finally,
he said that he would be ready to respond to any question regarding his presentation.
228. The representative of Peru noted that the FAO presentation had stressed that the importance
of protecting plant genetic diversity as a means of dealing with the serious food problems was not
exclusive to developing countries.  Many developing countries, including Peru, suffered from food
insecurity and it was imperative to tackle this seri ous and widespread problem.  Peru recognized that
the FAO treaty was a unique international agreement concerning sustainable development of plant
genetic resources for food and agriculture.  For this reason Peru had signed and would soon be
ratifying the FAO treaty.  She hoped that many other countries would subscribe to and ratify it too soIP/C/M/38
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that it entered into force as soon as possible.  She supported the FAO's proposal to make an informal
presentation on the FAO treaty in February 2003 to Members in the TRIPS Council.
229. The representative of the European Communities said that his delegation had submitted a
comprehensive communication in September 2002 (I P/C/W/383), that dealt with a number of issues
covered by paragraph 19 of the Doha Ministerial Declaration.  The communication covered thereview of Article 27.3(b), the relationship be tween the TRIPS Agreement and the CBD, and the
protection of traditional knowledge and folklore.  It also contained several proposals on disclosure of
genetic resources used in an invention, plant variety rights, traditional knowledge and farmers'
exemptions.  He welcomed comments by other delegations on this submission.
230. The representative of Brazil commended the European Communities and their member States
for their support, as contained in their communicatio n, to grant observer status to the CBD in the
TRIPS Council.  He recalled that Brazil and other de veloping countries, including China, Cuba, the
Dominican Republic, Ecuador, India, Pakistan, Thailand, Venezuela, Zambia, and Zimbabwe had
circulated a proposal on the relationship between the TRIPS Agreement and the CBD in document
IP/C/W/356 on 24 June 2002.  He noted that many Members believed that the TRIPS Agreement and
the CBD should be mutually supportive.  In that respect, his delegation believed that the TRIPS
Agreement should be amended to require, as a condition for acquiring patent rights, that an applicantfor a patent relating to biological material or to traditional knowledge, disclose the source or country
of origin of biological resource and traditional knowledge used in the invention, provide evidence of
prior informed consent through approval of authorities under the relevant national regime and
evidence of fair and equitable benefit sharing under the national regime of the country of origin.
231. As regards the Council's report to the TNC on this subject, he suggested that it would be
appropriate for the Council to signal that the Council had undertaken to find a proper solution to the
implementation issues and had agreed that negotiation on the outstanding implementation issues
should be an integral part of the Council's work programme.  Furthermore, the Council could, based
on paragraph 12(b) of the Declaration, request the TNC to determine the appropriate action that could
be taken on these issues.  He said that his delegation would draft an appropriate reference to itsproposal that could be included in the report to the TNC in due course.
232. The representative of India said that his delegation supported the assertion that the TRIPS
Agreement and the CBD should not undermine each other's objectives and that the two agreements
should be implemented in a mutually supportive manner.  He commended the EC for stating in their
submission IP/C/W/383 that Article 29 of the TRIPS Agreement did not prevent Members from
requiring the patent applicant to disclose the source  of origin or to provide evidence that access and
benefit sharing rules had been respected, as long as such requirements did not constitute apatentability criterion or invoke the validity of the patent.  He recalled that the EC had acknowledged
that it would be important to have uniform requirements on disclosure globally and that the legal
consequences of not respecting these requirements should lie outside the ambit of patent law.  In other
words, the EC believed that patent law should not be used to sanction the non-respect of the domestic
access and benefit sharing requirements through rejection of patent application or the invalidation ofpatent.  However, his delegation believed that leaving the consequences of non-disclosure outside the
realm of patent law would nullify the requirements themselves and that there should, therefore, be
provisions in the patent law to enforce this obligation in order not to reduce the requirement for
disclosure of the source of origin to just a formality.
233. He noted that the EC had not addressed the requirement for patent applicants to provide
evidence that prior informed consent and benefit-sharing had been undertaken in accordance with the
domestic laws of the country of origin.  This requirement was essential in ensuring that domestic
access and benefit sharing regimes were respected and implemented effectively.  It would also require
providing remedial action against violation of domestic law at the global level through the TRIPS
Agreement as a means of implementing the CBD and the TRIPS Agreement in a mutually supportiveIP/C/M/38
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manner.  Furthermore, he recalled that the United Kingdom Commission on Intellectual Property
Rights (CIPR) had stated that the principle of equity dictated that a person should not be able to
benefit from IPRs based on genetic resources or associated knowledge acquired in contravention of
any legislation governing access to that material.  The Commission had also stated that all countries
should have a provision in their legislation on obligatory disclosure of information of geographicsource of the genetic sources from which their inve ntions were derived.  In his view, sanctions should
be applied only when it was evident that the patentee had failed to disclose the source or when he had
sought to mislead the patent office.  He said that the TRIPS Council should, in light of the mandate
contained in paragraph 19 of the Doha Declar ation, consider the proposal made by a group of
developing countries in the document IP/C/W/356.  Finally, he supported the comments made by the
representative of Brazil with respect to the Council's report on the outstanding implementation issues.
234. The representative of the United States reiterated that the TRIPS Agreement and the CBD
were mutually supportive.  Accordingly, his delegation had urged those Members seeking to regulate
access to their genetic resources to carefully consider implementing an access regime based on a
contractual system.  Such a system could be built upon existing contractual law and could be
implemented immediately.  He added that the system  could be associated with Members' visa systems
in order that domestic law is respected by foreign nationals seeking to collect such materials.  The
domestic law could therefore be used to provide access and benefit-sharing with citizens and residents
as well as foreign nationals.  His delegation had submitted a paper to the Council to illustrate how
such a contractual system worked in his country.  That paper described the system being used by US
National Park Service for determining whether to gr ant a permit for access to individual instances and
for determining the conditions under which that access might take place.  In addition, there was amodel law under development for a regime on access to genetic resources and traditional knowledge
that might be adapted by other countries seeking to establish such regimes.  He urged Members to
take a dispassionate look at the contents of his paper, the sample memoranda of understanding and
letters of collection of the US National Cancer Institute, and consider how a contractual system of a
similar nature might be incorporated into their own laws and practices relating to access to geneticresources.  That would provide an immediate benefit for the issues that Members had been concerned
about rather than a much more long-term and much less productive discussion in the Council about
prior informed consent, and benefit-sharing requirements in the patent system.
235. The representative of Cuba supported the statement made by the representative of India and
endorsed the suggestion made by the representative of Brazil about the Council's report to the TNC.
236. The representative of Australia said that her delegation had on previous occasions clarified the
need to address concerns relating to bio-piracy.  She recalled that her delegation had clarified in its
paper of October 2001, that it would support the examination of options for disclosing information
about the source of biological materials used in all patent applications.  Her delegation's interest in
this discussion reflected its position as one of the only 17 mega-bio-diverse countries in the world.
Australia controlled 10% of the world's natural genetic and biochemical resources.  Much of that
material had yet to be evaluated for its commercial potential and a significant portion of thebiodiversity was yet to be described.  For these and other reasons, her delegation shared the interest of
many developing countries in terms of ensuring a fair return on exploitation of Australia's biological
resources and in developing practical, cost-effective measures to discourage unauthorized
commercialization of its genetic resources.  Her delegation had an interest in continued discussion on
these issues and thus held the view that the EC's communication was helpful.  She said that theproblem of bio-piracy should be addressed first thr ough the implementation of effective systems at the
national level for regulating access to genetic resources and benefit-sharing as set out in the CBD.
She also said that her delegation had been an active participant in the negotiations of both the CBD
and the TRIPS Agreement and that it did not consider that there was a conflict between the two
treaties.  She believed that legal certainty was important in ensuring sustainable investment in thissector.IP/C/M/38
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237. She noted that the EC had stated that the disclosure requirement should not constitute an
additional formal or substantial patentability criterion, but should rather be a self-standing
requirement which would apply globally.  She said that her delegation supported, in principle, the use
of documentation associated with patent application to disclose the source of relevant genetic
resources.  Her delegation also supported, in principle, the notion that non-disclosure requirementsmight have legal consequences.  In this respect, Members might wish to consider what legal
consequences might be appropriate, bearing in mind the broader policy objective.  Her delegation was
committed to continued and constructive engagement in the discussion of these issues and looked
forward to other Members' comments and proposals.
238. The representative of Peru supported the suggestions made by the representative of Brazil that
the Council's report to the TNC should include the recommendations made by developing countries.
239. The representative of China recalled that her delegation's position was reflected in document
IP/C/W/356.  Her delegation believed that for im plementing the CBD and the TRIPS Agreement in a
mutually supportive manner, the basic principles recognized by the CBD, such as national
sovereignty, prior informed consent and equitable sh aring of benefits, should be incorporated into the
TRIPS Agreement.  Her delegation also agreed with the statements made by the delegations of Brazil,
India and Peru about the Council's report to the TNC.
240. The representative of Thailand said that her delegation was a co-sponsor of IP/C/W/356
submitted by the representative of Brazil and therefore supported Brazil's proposal to include that
document in the Council's report to the TNC.
241. The representative of Norway said that the relationship between the TRIPS Agreement and
the CBD was not only being studied in the TRIPS C ouncil, but was also being studied inter alia within
the CBD and WIPO.  In his view, the TRIPS C ouncil should not wait for the outcome of the
discussions in the CBD and WIPO, but should pursue the discussion under its mandate in parallel with
discussions in other organizations.  He noted that there were two proposals before the TRIPS Council
that both proposals were aimed at furthering the two basic objectives of the CBD.  While the
implementation of the TRIPS Agreement and the CBD  should be mutually supportive, a key issue
was how the TRIPS Agreement could support the objectives of the CBD, in particular that of the
equitable sharing of benefits and prior informed cons ent.  When discussing this issue, he said that
Members should bear in mind that the primary objective of the TRIPS Agreement was to set
minimum standards for the protection of intellectual property rights, while providing Members with
some amount of flexibility in implementing certain provisions.
242. The TRIPS Agreement already recognized that it should contribute to goals beyond the strict
objective of protecting IPRs, such as "the transfer and dissemination of technology in a mannerconducive to social and economic welfare".  It was important that the TRIPS Agreement actively
acknowledge the importance of the CBD in the same way as the CBD acknowledged the importance
of patents and other intellectual property rights.  He said that his delegation would certainly not
exclude any opinions or options at the current stage, including amending the TRIPS Agreement, in
order to further these objectives of the CBD.  However, the extent to which the TRIPS Agreementcould go in furthering some of the concerns expre ssed would be a matter of discussion.  He added that
any amendments to the TRIPS Agreement should aim to safeguard its objectives and should be
tailored in a manner that would avoid causing unnecessary obstacles to the protection of IPRs relating
to biological materials.
243. Regarding the proposal by Brazil and other Members that a patent applicant must fulfill three
requirements in order to acquire a patent for a biotechnological invention, he said that although
inserting such a requirement into the TRIPS Agreement would no doubt contribute towards achieving
the principles of fair and equitable benefit sharing and prior informed consent, the proposal must be
assessed against its compatibility with the primary objectives of the TRIPS Agreement.  It would alsoIP/C/M/38
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be helpful to clarify, with respect to the first element of that proposal, whether the patentability
criteria of novelty and inventiveness had been fulfilled in certain cases.  He added that the proposed
requirements could be a valuable instrument in cases where a patent official examined a proposed
invention whose effect might turn out to be a mere  replication of traditional knowledge long practiced
by a local community.  However, his delegation was still contemplating whether this aspect alonewould justify a general provision related to the mandatory disclosure of the source of origin of genetic
resources.  An analysis of that would inter alia  have to take into consideration how frequently a
biotechnological invention was likely to conflict with traditional knowledge.  Therefore, his
delegation needed to study the consequences of the first element of the proposal in more detail.
244. Regarding the other two elements of the proposal, he said that they would potentially involve
difficult assessments of commercial agreements between patent applicants and host countries, based
on host countries' national legislation.  His delegation would have to examine further whether thistype of scrutiny would be a suitable task for national patent offices.  He indicated that another
possibility could be to add a provision under Article 29 of the TRIPS Agreement, which would either
require or enable a Member to oblige a patent applicant to disclose the source of origin on biological
resources.  The understanding of the legal consequences of such an amendment would be that the
failure to reveal such origin would not result in a rejection of a patent.  However, the Member wouldhave the possibility to invoke other types of sanctions or repercussions vis-à-vis  an applicant who had
failed to reveal the geographical origin.  Increased fees could be one possibility, provided that these
were reasonable under Article 62.1 and any submission of false information could certainly be
punishable under criminal law.  The primary objective of an amendment to oblige a patent applicant
to disclose the source of origin should be to incr ease the awareness of the patent applicant about the
potential source of patentable biological materials.  Such a provision would also place added focus on
those patent applicants who for some reason or another failed to reveal the source of origin in their
applications.  The provision would, in much the same way as the EC proposal, encourage the
voluntary disclosure of such material and would thus contribute to the achievement of the basic
objectives of the CBD.  His delegation believed that the system proposed by the EC could be avaluable instrument that could encourage patent applicants to reveal, on a voluntary basis, the source
of origin of patentable genetic material.  He said that the proposal should be clarified further in the
Council's discussions in relation, among other things, to the choice of legal instruments.
245. The representative of Peru said that her country was working on the establishment of a system
for the protection of indigenous peoples' traditional knowledge and those relating to biological
resources.  Law number 26811 had been promulgated in July 2002 with the objective of promoting
the protection, conservation, broad application and development of the collective knowledge ofindigenous people.  It sought to promote the fair and equitable distribution of benefits derived from
the use of indigenous knowledge and to guarantee that such use was made with the prior informed
consent of indigenous people.  It was also aimed at  avoiding the patentability of inventions based on
indigenous knowledge that had not been taken into account in considering the inventive steps and
innovation.  In other words, the law was aimed at av oiding piracy.  Furthermore, three registers were
to be set up as an enforcement mechanism to ensure the conservation and safeguarding of the
collective knowledge of indigenous peoples and their rights to that knowledge.  The registers would
also ensure availability of information to the competent national intellectual property authority,
INDECOPI, to allow it defend the rights of indige nous peoples to their traditional knowledge.  A
Fund would be set up to help promote the full de velopment of indigenous people.  This Fund would
enjoy technical, financial and administrative autonomy and would be run by representatives of the
indigenous communities.  It would also be administered through traditional mechanisms to ensure the
sharing of benefits.  Indigenous peoples with collective traditional knowledge would be protected
against the revelation, acquisition or use of thei r knowledge without thei r prior consent.  The
mechanism would enable indigenous peoples to grant licences to third parties in order to safeguard
against the unfair use of their knowledge.  The licensing contracts would have to be registered with
the Intellectual Property Office of Peru to ensure that they were in line with the provisions ofIP/C/M/38
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Article 27.  There would also be a system to deal with infringements to ensure that any action taken
against the law was sanctioned and dealt with properly.
246. The representative of Bolivia reiterated the importance of traditional knowledge and folklore
to her delegation and said that the international system should not only favour its preservation but
should also promote its continuity through efficient legal protection.  That would allow legitimateowners to have an effective control over its use, transmission and the obtaining of benefits derived
therefrom.  It was therefore necessary to have an effective means of ensuring positive protection of
innovations based on traditional knowledge and practices of the indigenous population.
247. The representative of the European Communities said that his delegation would continue to
take an open view on issues related to Article 27.3(b) and the relationship between the TRIPS
Agreement and the CBD.  However, he did not agree with the statement made by the Indian
delegation that without legal consequences of not respecting disclosure requirements within the ambitof patent law, the requirements would be an empty shell.  His delegation did not believe that it was in
anyone's interest not to respect disclosure obligation nor that such failure should result in the refusal
to grant the patent.  It would neither be in the in terest of innovation nor those who were expecting to
share in the benefits entailed by a patent.  Therefore, his delegation believed that legal consequences
should be outside the ambit of patent law.  However, that did not mean that Members could not findlegal consequences of another kind that would not have a sufficient deterrent effect on patent
applicants who would not respect disclosure requirement.  He said that sufficiently deterrent legal
consequences to the notion of "non-respect" could be found with a minimum of creativity and hoped
that the Council could continue working on this issue.
248. The Council took note of the statements made under these three agenda items.
H. REVIEW OF IMPLEMENTATION OF THE TRIPS A GREEMENT UNDER ARTICLE 71.1
249. The Chairman recalled that, at the Council's meeting in March 2002, the previous Chairman
had noted that a substantial number of suggestions for topics to be considered under the Article 71.1
review had been made prior to the Doha Minister ial Conference, but some of them had overlapped
with other items on the Council's post-Doha agenda.  In considering how to organize its work, the
Council had invited Members to submit ideas for issues to be taken up under this agenda item by the
Council's meeting in June 2002, without prejudice to the right of Members to submit ideas at a later
stage.  To date, no suggestions had been tabled by any Members.
250. The Council agreed to revert to the matter at its next meeting.
I. IMPLEMENTATION OF ARTICLE 66.2
251. The Chairman recalled that, at Doha, Ministers had instructed the TRIPS Council to put in
place a mechanism for ensuring the monitoring and full implementation of the obligations under
Article 66.2 of the TRIPS Agreement.  The Ministers had also agreed that, to this end, developed
country Members should submit, prior to the end of 2002, detailed reports on the functioning in
practice of the incentives provided to their enterpri ses for transfer of technology in pursuance of the
commitments under that Article.  Given the need for early action to implement the Ministerial
instruction and in light of the suggestions and discussions in the Council and informal consultations,the Chairman had circulated, prior to the Council's meeting in September 2002, an informal note
(JOB(02)/118).  This note suggested a number of elements for the consideration of the Council that
could form the basis of a decision on this matter.  Since delegations had appeared to need more time
to consider these suggestions,  the Council had agreed to revert to these elements at the present
meeting.  In the meantime, developed country Members were requested to make information on theirimplementations of Article 66.2 available for the present meeting.  In doing so, they were invited to
use the guidelines in the Chairman's informal note if they found them useful.IP/C/M/38
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- Reports received from developed country Members
252. The Chairman informed the Council that reports had been received from the following
developed country Members: Canada, New Zeala nd, Australia, Switzerland, Japan, and Norway.
Reverting to this matter later in the course of the m eeting, he said that reports had also been received
from the European Communities and their member States, and the United States.  These reports werebeing circulated in document IP/C/W/388 and addenda.  Given that some of these reports had been
received only very recently and were not yet available in all WTO languages, he intended to provide
delegations the opportunity to comment on them at the Council's next meeting.
253. The representative of the United States said that his delegation had submitted a number of
reports in the past, and he was happy to receive any questions or comments about those previous
reports.  His delegation was endeavouring  to complete the report this year and submit it to the
Council soon.
254. The representative of Norway said that her delegation had submitted a short and self-
explanatory note to the Council, which in essence updated the one introduced in 2001.
255. The representative of Zambia thanked developed country Members for their continuing efforts
to help his delegation understand the way they had implemented Article 66.2.  Since the developed
country Members' reports had been circulated very recently, his and other LDCs' delegations neededtime to reflect on them and make more substantive comments at the Council's next meeting.
256. The Chairman urged those developed country Members that had not yet provided their reports
to do so as soon as possible.  He reiterated his intention to provide Members with an opportunity to
give further comments on the reports already received at the Council's next meeting.
- Implementation of Article 66.2
257. The Chairman recalled the instruction that Ministers had given to the TRIPS Council to put in
place a mechanism for ensuring the monitoring and full implementation of the obligations under
Article 66.2.  He also recalled that he had circulated prior to the Council's meeting in September 2002
an informal note (JOB(02)/118) in which he had su ggested a number of elements for the consideration
of the Council that could form the basis of a decision on this matter.  The Council had received acommunication from Zambia on behalf of the least-developed countries' group on this topic
(IP/C/W/390).  The Chairman said that he had consulted with the delegations most active on this
matter.  In the light of these consultations, he had circulated an informal note (JOB(02)/195), attached
to which there was a draft decision for the Council's consideration.  The draft decision was based on
the elements contained in his previous note as well as on the suggestions made in his recent
consultations.
258. The representative of Zambia said that he had given the Chairman's informal note to the
LDCs group to study.  Since the draft decision attached to the note was on a very important issue, he
said that the LDCs group was not yet in a position to take decision on it.
259. Commenting on the paper submitted by Zambia, the representative of the
European Communities said that he agreed that reports should contain as much information as
possible.  Referring to paragraph 6 of that paper, which suggested that information be submitted
regarding the terms under which technology was being transferred by developed country enterprises,
he believed, however, that a complete examination of transfer of technology undertaken by all
enterprises to all partners in least-developed c ountries was impossible for several reasons.  First,
information was not always available even on licensing terms;  no list of licensing agreements
concluded in the world existed.  Second, transfer of  technology was often informal, especially in the
case of transfer of know-how or transactions betw een different geographic entities of foreign firms.IP/C/M/38
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Finally, a lot of information on transfer of technology was considered as business confidential
information and, therefore, difficult, if not impossible,  to obtain.
260. The Chairman proposed that the Council revert to this matter later in the course of the
meeting in order to provide delegations more time to consider the draft decision.
261. Reverting to the matter, the representative of Zambia, speaking on behalf of the LDCs group,
suggested to divide paragraph 1 of the draft decision into two parts, the first part remaining as
paragraph 1 and the second part becoming paragraph 3.  The decision should provide that initial
reports be submitted by the end of 2002 and reviewed at the Council's first meeting in 2003.  In
addition, he suggested to delete the words  "To this end, they" in paragraph 1 of the draft decision.
262. Regarding paragraph 3(a) of the draft decision, he said that developed country Members must
show exactly what they had done in terms of the law or policy to implement their obligations.  In
other words, it was critical that developed countries would show that they had enacted either aspecific law, identifiable policy or regulation to implement Article 66.2 rather than provide
generalized statements.  He emphasized that international obligations were always implemented by
identifiable laws, regulations or policies, and that Article 66.2 was no exception.  Concerning
paragraph 3(c), he could not see the necessity to keep the words "to the extent available", because, in
his view, it was the obligation for developed countries to gather the information and there was alreadya disclaimer for confidential business information.
263. Finally, regarding paragraph 6 of the draft decision, he believed that, based on the experience
of the reviews under Articles 27.3(b) and 71, it was not enough to merely use "review".  In his view,
the decision must specify what the purpose of th e review would be, namely that the purpose of the
review was to examine how the system had worked in  order to improve it.  In conclusion, he said that
as this decision was important to all LDCs, they needed more time to have further consultations
before taking a decision on it.
264. The representative of Bulgaria said that he was open to the proposals by Zambia and prepared
to join in a consensus on them.  Although he felt uncomfortable with the term "developed country
Members" in the draft decision, he was  prepared to accept it on the understanding that Bulgariawould not be obliged to submit annual reports under it.
265. The representative of the European Communities sa id that the fifth recital of the draft decision
did not actually reflect the mandate adopted at Doha.  Referring to Zambia's remark on the words "to
the extent available" in paragraph 3(c) of the draft decision, he said that these words were
indispensable because the kind of information to which reference had been made in the following
indents was often not available to the authorities of  developed countries.  Information referred to in
the second, fourth and fifth indents of that sub-paragraph was indeed not normally available to theauthorities of the European Communities and their member States.  Therefore, it would be difficult to
subscribe to a commitment which the European Communities could not deliver.
266. The Chairman proposed that the Council revert to the matter at its next meeting and that he
hold consultations prior to that meeting.
267. The Council so agreed.
J. NON-VIOLATION AND SITUATION COMPLAINTS
268. The Chairman recalled that, at Doha, the Ministerial Conference had adopted a Decision on
Implementation-Related Issues and Concerns (WT/MIN(01)/17).  Paragraph 11.1 of the Decision
stated:  "The TRIPS Council is directed to conti nue its examination of the scope and modalities for
complaints of the types provided for under subparagraphs 1(b) and 1(c) of Article XXIII ofIP/C/M/38
Page 59
GATT 1994 and make recommendations to the Fifth Session of the Ministerial Conference.  It is
agreed that, in the meantime, Members will not  initiate such complaints under the TRIPS
Agreement."  Thus, the Council had a time-frame for its work, namely the fifth Ministerial
Conference, to be held in Cancún, Mexico in September 2003.  As requested by the Council at its
meeting in March 2002, the Secretariat had circulated prior to its June meeting in documentIP/C/W/349 a summary note of the points raised in the substantive discussion of this agenda item so
far.  At that time, he had also circulated an annotated agenda in document JOB(02)/66 raising a
number of questions that Members might wish to address.
269. He recalled that the Council had agreed at its last meeting to continue its discussion of the
matter on the basis of the annotated agenda and other material on the table at the present meeting.  It
had also set the first meeting of the Council in 2003 as a target date for the submission of specific
proposals from delegations.  This, however, was not to preclude earlier or later papers in an effort tofind common ground.  He also recalled that, at the Council's previous meeting, Peru had introduced a
joint communication on this matter on behalf of a number of Members.  The final version of this
communication, received after that meeting, had been circulated in document IP/C/W/385.  Since
then, no new communications had been received.
270. The representative of Peru reiterated the need for the fifth Ministerial Conference to reach a
consensus on non-violation and situation complaints with respect to the TRIPS Agreement.  Given the
high level of agreement and support of document IP/C/W/385, she hoped that this goal could be met.
Those who had put forward document IP/C/W/385 fe lt that non-violation and situation complaints
were not compatible with the TRIPS Agreement.  The benefits accruing under the TRIPS Agreement
were described in its preamble, objectives and principles.  If there were to be additional benefits in thecontext of Article XXIII:1(b) of GATT 1994,  compla inants would be receiving more than what they
had paid for.  The application of non-violation and situation complaints to the TRIPS Agreement
would entail serious risks, because such complaints would make the WTO Agreement inconsistent
and adversely affect the balance of rights and obligations under the Agreement.  Furthermore, it
would make it difficult to settle any dispute and  impair the flexibility under the TRIPS Agreement.Therefore, her delegation had proposed that the TRIPS Council recommend to the fifth Ministerial
Conference that non-violation and situation complaints of the type identified in Article XXIII:1(b) and
(c) of GATT 1994 be determined inapplicable to the TRIPS Agreement.  Finally, she said that her and
the other  delegations who had put forward this proposal would be grateful if the Council would
include it in its report to the General Council.
271. The representative of the Slovak Republic said that document IP/W/C/385 was a good basis
for the Council's further discussion on this issue and raised some systemic issues arising from the
application of non-violation and situation complaints to the TRIPS Agreement.  Non-violation and
situation complaints were an extremely delicate and complicated issue.  He shared the view that the
application of non-violation and situation complaints to the TRIPS Agreement would raise
fundamental concerns.  Despite the on-going discussion in the Council, there was still a great deal of
uncertainty as to the nature of benefits that would be addressed by non-violation and situationcomplaints.  The WTO dispute settlement mechanism should be secure, predictable and credible.
However, the application of non-violation and situation complaints would increase legal uncertainty
and threaten the predictability and security that the system guaranteed.  Given the special nature of the
TRIPS Agreement, it would be extremely difficu lt to appropriately transport non-violation and
situation complaints into it.  The nature of be nefits under the TRIPS Agreement was significantly
clearer than under an agreement with specific market-access commitments.  He believed that after
proper consideration, all Members would conclude that the Council should recommend to the TNC
and the Ministerial Conference that non-violation and situation complaints should not apply to the
TRIPS Agreement.  The application of non-violation and situation complaints to the TRIPS
Agreement might lead to a complication rather than a solution.IP/C/M/38
Page 60
272. The representative of Pakistan said that, as a co-sponsor of Peru's paper, his delegation fully
endorsed the views expressed by Peru.  The introduction of non-violation and situation complaints to
the TRIPS Agreement was unnecessary and would create tension with the security and predictability
provided by the multilateral trading system.  In th e light of the concerns raised in the paper, his
delegation fully endorsed the proposal that the TRIPS Council recommended to the fifth MinisterialConference that non-violation and situation comp laints under Article XXIII:1(b) and (c) of GATT
1994 be determined inapplicable to the TRIPS Agreement.
273. The representative of Malaysia, speaking on behalf of the ASEAN countries, said that
ASEAN continued to be of the view that non-violation and situation complaints should not be made
applicable to the TRIPS Agreement.  The applicat ion of non-violation and situation complaints would
introduce legal uncertainty and unpredictability, which should be avoided.  Therefore, her delegation
supported the recommendation that non-violation and situation complaints be made inapplicable tothe TRIPS Agreement.
274. The representative of the United States reiterated his view that non-violation and situation
complaints were entirely appropriate in the co ntext of the TRIPS Agreement.  In the spirit of
compromise, his delegation had agreed in Doha to continue the examination of the scope and
modalities of non-violation and situation complaints, but it had not seen a persuasive proposal forspecific scope and modalities.  Therefore, he expected that, in the absence of any such proposal, the
temporary moratorium agreed at Doha would expire at the fifth Ministerial Conference.
275. The representative of Cuba said that, as a co-sponsor of document IP/C/W/385, her delegation
agreed with the statement by Peru, in particular  with respect to the recommendation to the fifth
Ministerial Conference that non-violation and situation complaints should not be applicable to theTRIPS Agreement.
276. The representative of New Zealand said that, although her delegation was not a co-sponsor of
document IP/C/W/385, in principle it supported the ideas presented in the paper.
277. The representative of Hungary reiterated his delegation's interest in continuing the discussion
on the scope and modalities of non-violation and situation complaints outlined in previous informal or
formal submissions and oral comments, including in document IP/C/W/191 that his delegation had
tabled together with a number of other delegations.  He said that he welcomed and agreed, to a large
extent, with the contents of document IP/C/W/385 tabled by a group of developing countries.  This
was because the document reflected many points that his delegation had made earlier in the
discussion.   Furthermore, he highlighted four points raised in the paper he believed were particularly
important.  First, the TRIPS Agreement was not a market access agreement per se, but an agreement
which set certain minimum standards of intellectual property protection.   Secondly, the availability ofnon-violation and situation complaints under the TRIPS Agreement was not necessary to protect
market access commitments embodied in the GATT.  Thirdly, the nature of benefits under the TRIPS
Agreement was significantly different from the nature of benefits under market access agreements.  In
his view, benefits under the TRIPS Agreement accrued to Members and were adequately described in
the Agreement.  Referring to paragraph 38 of IP/C/W/385, he said that the TRIPS Agreement did notcreate legitimate expectation of benefits that would go beyond the provisions of the Agreement.
Fourthly, the availability of non-violation and situation complaints under the TRIPS Agreement
would certainly undermine regulatory authority.   Replying to the United States delegation's statement
that it had not heard a convincing proposal to defi ne the scope and modalities of non-violation and
situation complaints and, therefore, the moratorium agreed in Doha would expire in Cancún, he saidthat he had not heard any convincing argument in favour of the availability of non-violation and
situation complaints with respect to the TRIPS Agr eement.  Finally, he said that his delegation was
open-minded, but for the time being, it tended to look with great sympathy at the proposal contained
in document IP/C/W/385.IP/C/M/38
Page 61
278. The representative of Peru said that she had not seen any proposal or document to date which
would have made it clear that non-violation and situation complaints should be applied to the TRIPS
Agreement.  Indeed, all the documents her delegation had seen indicated that it would be very
difficult to determine the advantages resulting from such application.  She believed that Article 64.3
of the TRIPS Agreement clearly stated that the Council should consider the scope and modalities ofnon-violation and situation complaints and make a proposal to the Ministerial Conference.  The
proposal had to be approved by consensus.  Until such time, non-violation and situation complaints
were not applicable to the TRIPS Agreement.
279. The representative of India said that, as a co-sponsor of documents IP/C/W/385, his
delegation fully associated itself with what had b een stated by Peru.  In his view, non-violation and
situation complaints had no place in the TRIPS Agreement.
280. The representative of Switzerland said that the TRIPS Council had a mandate to work out the
scope and modalities of non-violation and situation complaints with respect to the TRIPS Agreement.
With the expiration of the five-year transitional period under Article 64.2 of the Agreement, he
believed that the GATT principle of non-violation and situation complaints did apply to the TRIPS
Agreement.  The fact that there had not yet been a solution on the scope and modalities did not mean
that non-violation and situation complaints had been determined to be inapplicable to the TRIPSAgreement.  He suggested, as a compromise, that the moratorium mentioned in paragraph 11 of the
Decision on Implementation-Related Issues and Co ncerns be prolonged so that non-violation and
situation complaints would not be available at this time.  However, he could not go along with the
proposal to determine non-violation and situation comp laints as inapplicable to the TRIPS Agreement.
He thought that there were some merits in the arguments of the United States and Peru.  While he didnot have a strong view on this issue, he believed that the WTO was a rule-based organization, and the
Council could not just delete an issue because it could not find a solution to it.
281. The representative of Egypt said that, as a co-sponsor of Peru's paper, he associated his
delegation with the remarks made by Hungary, Peru and India.
282. The representative of Canada said that she shared a number of points made by other speakers
and that she would come up with some suggestion on how to continue the work at the Council's next
meeting.
283. Associating his delegation with the remarks made by Malaysia, the representative of
Singapore said that, after a few years' debate, it was obvious that there was no agreement on this
issue.  On the one hand, it was argued that non-violation and situation complaints continued to applyunless the Council worked out certain modalities, and, on the other hand, that such complaints did not
apply due to special considerations relating to the TRIPS Agreement.  He suggested as a practical wayto end the debate to have an indefinite extension of the moratorium.
284. The representative of the United States said that the Council needed to work out an
appropriate scope and modalities.  He recalled that the delegation of Australia had made a substantive
contribution to this debate and proposed a specific scope and modalities.  He suggested a return to a
discussion on this concrete proposal in order to move the debate forward.   He was fully prepared toenter into discussion of a specific proposal of the scope and modalities.  It was clearly in the minds of
Members during the Uruguay Round that non-violati on and situation complaints would be available in
the TRIPS  context.  He continued to believe that it was fully appropriate that Members lived up to the
obligations that they had signed up to.  It was in appropriate to have indefinite moratorium simply
because Members were not going to put forward a concrete proposal on scope and modalities.Therefore, he could not agree to the indefinite moratorium.
285. The Chairman encouraged Members to come forward with specific written proposals by the
agreed target date, the first meeting of the Council in 2003.IP/C/M/38
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286. The Council took note of the statements.
K. ELECTRONIC COMMERCE
287. The Chairman informed the Council that no communications on this matter had been received
from Members.  He recalled that, at the Council's meeting in March 2002, the Secretariat had been
requested to update its factual background note on intellectual property and electronic commercecirculated in document IP/C/W/128 in February 1999.  The representative of the Secretariat said that,
although the document had been pending for some time, the Secretariat had not been able to completethis work.
L. O
THER OUTSTANDING IMPLEMENTATION ISSUES (TIRETS  93 A ND 94 A ND PROPOSAL BY
LDCS ON THEIR TRANSITION PERIOD )
288. The Chairman said that the Council had covered most of the outstanding implementation
issues under the previous agenda items and recalled that the remaining outstanding implementation
issues referred to in paragraph 13 of the Doha Decision on Implementation-Related Issues and
Concerns were the following:
- Tiret 93:  The transitional period for developing countries provided for in Article 65.2
shall be extended.
- Proposal by Least-Developed Countries, 22 October 2001:  The General Council
agrees that the transition period for LDCs shall be extended so long as they retain the
status of an LDC.
- Tiret 94:  Articles 7 and 8 of the TRIPS Agreement to be operationalized by
providing for transfer of technology on fair and mutually advantageous terms.
289. The representative of Cuba said that the Council had so far not been able to analyse the
problems and concerns relating to the issues covered by its agenda item L due to the workload under
the Doha work programme.  However, since the issues under item L were still major development
issues with systemic implications for developing countries, it was essential that the Council would
develop and make specific recommendations to the TNC.
290. With respect to Tiret 93, she said that developing countries had made every effort to comply
with all of the WTO Agreements, in particular the TRIPS Agreement.  This had been demonstrated in
developing countries' trade policy review reports and in particular by the national legislation review
and notification process, which were still under way at the Council's meetings.  She further indicated
that the wide-ranging legal, institutional and infrastructure changes which developing countries had
had to make under the TRIPS Agreement had caused them to run into a number of difficulties.  Both
paragraph 12 of the Doha Declaration and the adoption of the Decision on Implementation-Related
Issues and Concerns served as ample proof of these difficulties.  She noted that the basic principleunderlying the issues and concerns covered by the Declaration and the Decision was that the
transitional period granted to developing countries under Article 65.2 had proved inadequate in terms
of allowing these countries to comply in full with  the TRIPS Agreement.  Therefore, she believed that
it was reasonable to accord developing countries a longer transitional period than that stipulated in
Article 65.2.  She recommended that the Council inform the TNC of the need for the transitionalperiod provided for in Article 65.2 to be objectively extended.  She also proposed that the Council
recommend that further work be carried out with a view to developing an appropriate method for
objectively extending this transitional period, in particular in the areas which had aroused the greatest
concern.IP/C/M/38
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291. Regarding Tiret 94, she said that the TRIPS Agreement struck a delicate balance both
between the interests of producers and users of intellectual property rights and between the interests of
developing and industrialized countries.  Many de veloping countries had accepted the adoption of the
Agreement on the basis that it would promote technological innovation and the transfer and
dissemination of technology in a manner conducive to social and economic welfare.  However,whereas the TRIPS Agreement did indeed lay down clear rules on how the interests of developed
countries and producers of technology should be protected, there was very little in the operative part
of the Agreement on how to ensure benefits for users or, in particular, how to cater to the interests of
developing countries as regards technology transfer and industrial development.  This imbalance
became apparent in the operative section of the Agreement where the principles and objectives of
technology transfer were not reflected, except for in brief references in Articles 66.2 and 40.  As a
result, the objectives and principles of the TRIPS Agreement, as endorsed in Articles 7 and 8, hadbeen treated as compliance clauses and had not effectively resulted in or encouraged the promised
technology transfer.  In order to ensure such a transfer, she said that developing countries needed to be
given greater policy space and options which went beyond the flexibility granted to control anti-
competitive terms in licensing contracts.  Articles 7 and 8 should therefore be meaningfully
operationalized to ensure that a balance was stru ck between intellectual property protection and
developmental and technological objectives.  There was a need for these objectives and principles to
be set forth in the operative part of the Agreement to ensure technology transfer in mutually beneficial
terms.  To that effect, she suggested that the Council recommend to the TNC that work be
commenced with a view to developing a more effective framework for technology transfer and
establishing parameters to ensure that this transfer was carried out on mutually beneficial terms.
292. With regard to the transitional period for LDCs, she said that Article 66.1 granted an
automatic transitional period to LDCs for a period of 10 years, with the possibility of extensions.
Therefore, she suggested that the Council recommend to the TNC that the General Council take a
decision to the effect that LDCs should not be required to comply with the TRIPS Agreement for as
long as they had LDC status.
293. The representative of the United States said that, regarding Tiret 93, he opposed amending the
TRIPS Agreement to extend the transitional period for developing countries provided for in Article
65.2.  Two years had passed since the transitional period expired.  Many developing countries, to their
credit, had made significant changes to their laws in order to implement their obligations.   It certainly
would not be fair to those Members to take a decision to extend the transitional period for those
Members who had failed to make that effort.  Members had demonstrated tremendous flexibility and
understanding concerning the effort undertaken by developing countries to meet their obligations.  Hisdelegation was prepared to work cooperatively with developing countries who were having
difficulties in implementing their obligations.  The WTO had not faced a rash of TRIPS dispute
settlement cases although not all developing countries had implemented their obligations.  Therefore,
he thought there was no basis for the request of a further extension of the transitional period.
294. With respect to Tiret 94,  he said that Articles 7 and 8 of the Agreement had already been
"operationalized".  It was not possible to achieve the full objectives of Article 7 until Members had
achieved full implementation of the Agreement.  In addition, results would not be immediate.
Article 8 had also been operationalized since 1995.  Article 8 authorized WTO Members to adopt
measures necessary to achieve identified objectives or needed to prevent anti-competitive practices
related to intellectual property rights, so long as those measures were consistent with their obligationsunder the TRIPS Agreement.  For these reasons, he believed that a general extension of transitional
periods under the Agreement would be unwise and unnecessary.  Means were already available to
address whatever difficulties Members were facing in meeting their particular obligations.  Therefore,
in his view, no further work on these two Tirets was necessary.
295. The representative of Cuba clarified that she was not requesting any amendment to
Article 65.2.  She was requesting the Council to find a manner through which those Members whoIP/C/M/38
Page 64
had not been able to finalize their implementation of the TRIPS Agreement would have more time
and leeway to do so.
296. The Council took note of the statements.
M. REVIEW OF THE APPLICATION OF THE PROVISIONS OF THE SECTION ON GEOGRAPHICAL
INDICATIONS UNDER ARTICLE 24.2
297. The Chairman recalled that, at its meeting in March 2002, the Council had urged those
Members that had not provided responses to the checklist of questions contained in document IP/C/13
and Add.1 to do so before the present meeting, if  possible.  The Secretariat had issued airgram
WTO/AIR/1756 on 26 March 2002 to remind Members of the Council's invitation to provide this
information.  Since the Council's meeting in September 2002, further responses had been received
from Cuba and circulated in addendum 26 to document  IP/C/W/117.  He informed the Council that to
date, responses to the Checklist had been received from 43 Members.  These responses, except for thefive most recent ones, had been summarized in a Secretariat note contained in document IP/C/W/253.
At the Council's last meeting, Canada had introduced its communication JOB(02)/119 that provided
information on the protection of geographical indications in Canada.  Furthermore, he informed the
Council that Australia had just submitted a communication providing a brief overview of the main
features of its domestic regime for the protection of geographical indications (subsequently circulatedas document IP/C/W/392).
298. Introducing its submission, the representative of Australia recalled that his delegation had
made a similar presentation in 1999 in response to a checklist issued by the Secretariat
(IP/C/W/117/Add.19, dated 9 July 1999).  The aim of the document was to give an example of one
national approach to the implementation of the TRIPS provisions dealing with GIs.  The documentalso responded to the questions posed by the European Communities in June 2002.  The document
noted that Article 22 of the Agreement was predominantly implemented via the Trade Practices Act
and via certification trademarks system.  For example, "Ceylon tea", "Stilton", and "Thai Hom Mali
rice" all received protection as certification marks.  The document also pointed out that Australian
wine GIs were protected by Australian Wine a nd Brandy Corporation Act.  This Act provided
protection for both Australian and foreign GIs.  The number of European GIs vastly outweighed the
number of Australian GIs protected under that system.
299. The representative of Canada said that her delegation did not have full answers to the three
questions posed by the European Communities, partly because they were directly connected to their
on-going bilateral relationship concerning wines and spirits.
300. The representative of the European Communities said that his delegation had tried to be
constructive in the debate on this item.  Noting that no new ideas had been contributed to this debate,
he asked the Chairman to reflect on how the Council could conduct a debate on Article 24.2 in a more
efficient way.
301. The Council took note of the statements.IP/C/M/38
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N. TECHNICAL COOPERATION AND CAPACITY -BUILDING
- Annual Updates on Technical Cooperation Activities
302. The Chairman recalled that Members, intergover nmental organizations with observer status in
the Council, and the WTO Secretariat had provided their annual updates of information on their
technical cooperation activities prior to the Council's meeting in September 2002.  Since then, theCouncil had received further information from th e European Communities and the following member
States:  Austria, Finland, Germany, Italy, Portugal, Spain, Sweden and the United Kingdom;  and
from New Zealand and Switzerland.  This information was being circulated in addenda to document
IP/C/W/377.
- Joint Initiative
303. The Chairman recalled that the WIPO and WTO Secretariats had launched a Joint Initiative
on Technical Cooperation for Least-Developed Countries on 14 June 2001.  Since then, the WTO
Secretariat had kept the Council informed a bout the implementation of the Joint Initiative.
304. The representative of the Secretariat confirmed that WIPO and the WTO were going to hold
the second major regional workshop under the Joint Initiative in Dhaka, Bangladesh from
11-14 December 2002.   This workshop was for the least-developed countries in the Asia and Pacific
region.  He expressed his appreciation to the Government of Bangladesh for hosting this event in co-operation with WIPO and the WTO.
305. The representative of WIPO joined the representative of the WTO in thanking the
Government of Bangladesh for hosting the second regional workshop.  She informed the Council that
the Director General of WIPO had received a visit of the Director-General of the WTO on
22 November 2002.  Both of them had confirmed their willingness to continue the co-operation inassisting developing and least-developed countries on IP issues.
306. The Council took note of the statements.
O. INFORMATION ON RELEVANT DEVELOPMENTS ELSEWHERE IN THE WTO
307. The Chairman recalled that, at its meeting of 16 October 2002, the General Council had
approved the accession of the Former Yugoslav Republic of Macedonia to the WTO.  The Protocol of
Accession was now subject to the ratification of the FYR of Macedonia's Parliament.  Thirty days
after the Secretariat would receive an official notification of this ratification, the country would
become a Member of the WTO.  In paragraph 238 of the Report of the Working Party on the
Accession of the FYR of Macedonia (WT/ACC/807/27), the representative of FYR of Macedonia had
confirmed that his Government would apply fully al l the provisions of the TRIPS Agreement from the
date of accession to the WTO, without recourse to any transitional period.  This commitment had been
incorporated in paragraph 2 of the Protocol of Accession of FYR of Macedonia to the WTO(WT/L/494).
P. O
BSERVER STATUS FOR INTERNATIONAL INTERGOVERNMENTAL ORGANIZATIONS
308. The Chairman recalled that, at the Council's meeting in June 2002, he had proposed,
following consultations, that the Council grant observer status to ARIPO, OAPI and the GCC on an
ad hoc basis, i.e. subject to review in the ligh t of any further guidance from the General Council on
the grant of observer status to other intergovernmental organizations.  However, at that time, not all
delegations had been prepared to take a decision on the matter.  Given that this remained the situation
also at the Council's meeting in September, he had indicated that he would hold consultations prior to
the next meeting with a view to finding a solution which would be satisfactory to all delegations.  InIP/C/M/38
Page 66
the light of the consultation he had held on 22 November 2002, it seemed that the situation remained
the same and that, therefore, the Council was not yet in a position to take a decision on this matter.
309. The representative of Egypt, concurring with the Chairman regarding the situation, said that
he did not believe that there had been any change in the Council concerning the matter.
310. The Council took note of  the statements.
Q. ANNUAL REPORT TO THE GENERAL COUNCIL
311. The representative of the Secretariat said that the Secretariat was still working on the draft
annual report, which had to reflect the work done at the present meeting as well as at the previous
meetings.  He said that the draft was along the lines of the annual reports that had been agreed by the
Council in previous years, namely essentially a factual description of the work that had been done, the
items that had been discussed, the documents that had been prepared, the minutes that had been
prepared and so on.
312. The Chairman suggested that the Council adopt the report ad referendum, i.e. that Members
would have a period of time to provide any comments on the draft report once it was circulated by the
Secretariat.
313. The Council so agreed. 6
R. OTHER BUSINESS
(i) Report to the TNC
314. The Chairman recalled that paragraph 12 of the Doha Ministerial Declaration instructed the
Council to report to the TNC on outstanding implementation issues by the end of 2002 for appropriate
action.  He said that, prior to the meeting, he had consulted with Members on how the Council should
report to the TNC.  There seemed to be agreement that a rather brief report might set out clearly thework that had been done in regard to each of the outstanding implementation issues, namely, the way
these issues had been put on the agenda, the meetings at which they had been discussed, the way the
discussion had been organized, the documents that had been submitted and prepared, and references
to the records of the discussions that had taken place.  However, certain Members had expressed their
desire to go further than that as regards two matters among these issues.
315. He informed the Council that it had received, on 26 November 2002, a proposal for inclusion
in the Council's report to the TNC by Bulgaria, Cyprus, the Czech Republic, the European
Communities, Georgia, Hungary, India, Jamaica, Kenya, Liechtenstein, Malta, Mauritius, Pakistan,
Romania, the Slovak Republic, Slovenia, Sri Lanka, Switzerland, Thailand and Turkey
(JOB(02)/194).  These Members proposed that the Council recommend to the TNC to adopt specific
guidelines for the negotiations on the extension of the protection of geographical indications provided
for in Article 23 of the TRIPS Agreement to products other than wines and spirits.  Furthermore, herecalled that a number of delegations had expressed, earlier in the course of the meeting,  their wish
that the Council's report to the TNC would refer to  the proposal made by Brazil, China, Cuba, the
Dominican Republic, Ecuador, India, Pakistan, Thailand, Venezuela, Zambia and Zimbabwe in
paragraph 10 of document IP/C/W/356.  These Members proposed, in relation to the issues of the
relationship between the TRIPS Agreement and the CBD and the protection of traditional knowledge,that the Council recommend to the TNC that it take a decision to the effect that the TRIPS Agreement
should be amended in order to provide that Members should require that an applicant for a patent
                                                     
6 The annual report was subsequently circulated in document in IP/C/27.IP/C/M/38
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relating to biological materials or to traditional knowledge should provide certain additional
information as a condition to acquiring patent rights.
316. The representative of the United States said that his delegation supported the Chairman's
proposal for a brief factual report.  However, if the Chairman's intention would be to include
document JOB(02)/194 in the Council's report, his delegation would submit to the Council a counter-proposal on behalf of a number of Members as following:
"It is proposed that the TRIPS Council convey to the TNC, the following:
(a) Since the Ministerial Conference in Doha, the TRIPS Council has discussed the
issues related to the extension of protection of geographical indications provided for in
Article 23 to products other than wines and spirits.
(b) These discussions have not led to a consensus to recommend initiation of negotiations
regarding such extension.  It is clear from the discussions that a substantial number ofMembers oppose extension negotiations for several reasons, including, but not limited to the
fact that there has been no demonstration that existing protection for geographical indications
under Article 22 of the TRIPS Agreement is not sufficient.  In addition, there are objections to
the burdens that extension would impose on governments, the unwarranted costs to producers
and consumers and the imbalance resulting from the fact that the relevant geographicalindications of a few Members would number in the hundreds, while the majority of the
Members have few, if any, such geographical indications.  Finally, it is not clear that all
Members have fully implemented existing standards of protection under Article 22.
(c) Given that the TRIPS Council has had exhaustive discussion on the issues related to
the extension of geographical indications for products other than wines and spirits, and noconsensus has developed in support of recommending to the Trade Negotiations Committee
that negotiations be undertaken on extension, we recommend that the TRIPS Council advise
the Trade Negotiations Committee that the Council has completed its discussion and that no
further action be taken."
7
317. Regarding the proposed recommendation on the relationship between the TRIPS Agreement
and the CBD, he believed that no consensus had been reached in the Council on that issue.
Furthermore, the Doha Ministerial Declaration did not contain a mandate to provide any
recommendation on the issues referred to in its paragraph 19.  Therefore, he could not support the
inclusion of such a recommendation in the Council's report.  As regards the proposal on Tirets 93 and
94, there was no consensus on continuing the discussion on those issues, which should accurately be
reflected in the Council's report.
318. The representative of Korea said that, in the light of the discussion on the extension of
protection of GIs at the present meeting, it was evident that Members had not been able to bridge the
gap in their views on the matter.  Therefore, he supported the Chairman's proposal to prepare a brief
factual report, focusing on the state of play but refraining from suggesting future courses of action.
319. The representative of Sri Lanka  recalled that Ministers had stated in paragraph 12 of the
Doha Ministerial Declaration that they were de termined to find appropriate solutions to the
implementation-related issues and concerns raised by Members and adopted a Decision on
Implementation-Related Issues and Concerns.  In the area of intellectual property, the Council had a
number of implementation-related issues which had been kept on the Council's agenda for several
                                                     
7 On 29 November 2002, the TRIPS Council received this text in writing from Argentina, Australia,
Canada, Chile, Chinese Taipei, Colombia, the Dominican Republic, El Salvador, Ecuador, Guatemala,Honduras, New Zealand, Panama and the United States  (IP/C/W/395).IP/C/M/38
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years.  Issues relating to the extension of protection of GIs provided for in Article 23 of the TRIPS
Agreement to products other than wines and spirits was an issue to which her delegation attached
great importance.  The relevant bodies were to report to the TNC on the issues covered by paragraph
12(b) of the Declaration by the end of 2002 for appropriate action.  Under the revised time line
suggested by the Chair of the TNC in his statement of 3 October 2002, the relevant bodies were toaddress as a matter of priority, all outstanding implementation issues and submit their reports to the
TNC.  She expected that the Council, within it s mandate, would address all implementation issues,
including the issue of GI extension, as a matter of priority.  This would ensure that the promised
benefits of participation in the multilateral trading system would start to be diverted to developing
countries and existing imbalances in the WTO Agreements effectively redressed; it would also ensure
that the negotiations under the Doha work programm e would comply with the objectives set forth in
paragraph 50 of the Doha Ministerial Declaration.
320. Different positions had been expressed on the mandate of the Council in relation to
implementation issues, including the issue of GI extension.  It was her delegation's view that all
implementation issues contained in the Decision on Implementation-Related Issues and Concerns and
in the compilation of outstanding implementation issues were under negotiation.  In support of her
view, she said, that Ministers had adopted the Decision as the main instrument to addressimplementation issues and concerns.  She also said that the third sentence of paragraph 12 of the
Declaration expressly mandated negotiations on outst anding implementation issues by providing that
"[w]e agree that negotiations on outstanding implementation issues shall be an integral part of the
Work Programme we are establishing […]".  In addition, the political intention in the pre-Doha
process was to initiate negotiations to address these concerns, not just to have discussions.  It waswell-known that negotiations on implementation issues had been an immediate negotiation concession
given to developing countries as a starting-point of the new work programme.  Furthermore, the TNC,
at its first meeting, had adopted the statement by the Chair of the General Council regarding the
structure of the negotiations and a schedule of work.  The Chair's statement had recognized that
implementation issues were under negotiation and subject to the TNC's supervision by providing thatother issues in paragraphs 18 and 19 of the Declaration would be addressed in regular meetings of the
Council on a priority basis.
321. She noted that some Members had argued in the Council that not all implementation issues
were under negotiation because of the existence of the Doha mechanism to address these issues,
which was established under paragraph 12 of the Declaration.  According to this interpretation,  the
issues under paragraph 12(a) were under negotiation, while the issues under paragraph 12(b) were not.
In her view, this interpretation, which was based on the fourth sentence of paragraph 12, was notaccurate.  The words "[i]n this regard, we shall proceed as follows" in the fourth sentence of
paragraph 12 were only procedural and explanator y and had no substantive implications on whether
or not there was to be negotiation within the work programme on implementation issues and concerns.
The existence of the two-track process stood on several factors, including priority over other
negotiating mandates, monitoring requirements by the TNC and timeframes.  She noted that sub-paragraphs 12(a) and (b) could not be de-linked from the negotiating mandate in the third sentence.
The specific procedures set out in sub-paragraph 12 (a) and (b) would have to be read in the light of
the general mandate of the third sentence.  According to paragraph 12(b), outstanding implementation
issues, not covered by a specific negotiating mandate under the Declaration, should be addressed as a
matter of priority within the relevant WTO bodies.  In this sense, it was logical to affirm that the
priority of the work programme was to initiate negotiations and not to simply discuss implementation
issues.  In her view, specific negotiating mandates for the TRIPS Council were included in the
Declaration:  in its paragraph 18 on extension and paragraph 19 on other issues.  She regretted the fact
that, in practice and for political reasons, none of these issues had been fully acknowledged as
negotiating mandates.  Extension of GI protection was, for her delegation, an important issue of adevelopmental nature with systemic implications.IP/C/M/38
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322. She said that the Council's report to the TNC would form the basis for the TNC to take
specific action aimed at finding appropriate solutions to those implementation issues.  Therefore, it
should not only report on the progress, but also contain accurate reflection of the deliberations, as well
as specific and clear recommendations or directions on appropriate solutions to those implementation
issues.  It should, at least, help to identify the elements of the appropriate solution to the issues and
concerns.  Finally, she drew the Council's attention to the proposal presented by Sri Lanka and a
number of other Members in document JOB(02)/194, which proposed that the Council's report
recommend to the TNC the adoption of three guidelines contained therein for the negotiations on the
extension of GIs.
323. The representative of Thailand supported the statement made by Sri Lanka and said that his
delegation believed that the issue of extension was one of the implementation-related issues and
concerns.  Paragraph 12(a) of the Ministerial Declaration provided a specific negotiating mandate, andMembers should engage in a negotiation to find an appropriate solution.
324. The representative of Canada said that it was clear that the Council had not yet reached
agreement on either the extension of the protection of GIs or the need for negotiations under
Article 27.3(b) of the TRIPS Agreement, or the relationship between the TRIPS Agreement and the
CBD.  The debate had been fully exhaustive and the Council remained unconvinced that enhancedprotection of GIs was required.  Similarly, she did not believe that the Council had a negotiating
mandate for Article 27.3(b), or the relationship between the TRIPS Agreement and the CBD.  She did
not believe that negotiations were in order in the areas of Tirets 93 and 94 either, which could be
reflected in the Council's report.  In concluding, she said that a factual report as proposed by the
Chairman was the best way forward.  She also indi cated that if the Council decided to include the
recommendation in document JOB(02)/194 in its report, her delegation would be a co-signatory to the
proposal outlined by the United States.
325. The representative of Colombia said that Colombia had neither practical nor administrative
experience on the issue of extension.  So far Colombia only had a GI for one alcoholic beverage from
a foreign country.  Colombia's experience with trademark protection applied to its agriculturalproducts, the quality of which was well-known at the international level because of the enormous
efforts of producer associations and economic agents.  The discussions on the matter since
March 2002 had led him to conclude that the extensi on of GI protection would be very costly for both
producers and consumers while benefits were not evident.  It was sufficient to give protection to GIs
of products other than wines and spirits through Article 22.  His delegation did not agree with
extending Article 23 to other products.  Therefore, it considered that the TNC should be informed of
the work carried out on this matter and that it was not necessary to take any further action.
326. The representative of Australia said that, in line with the Chairman's proposal, he believed
that the Council's report to the TNC should provide a short factual account of discussions on
implementation issues in the TRIPS Council.  In hi s view, all implementation issues should be treated
in the same way.  The Doha outcome certainly had not established any hierarchy.  The suggestions
from some Members that GIs should be treated differently were completely unacceptable to him.  Hesaid that while he was prepared to deal with GIs in the context of the discussion on outstanding
implementation issues, he had always been confused about how the issue of extension ended up in the
implementation basket.  Extension was all about esta blishing new rights and obligations, and certainly
not about the implementation of existing obligations.  In his view, the proposal by the demandeurs
suggesting that there was already some kind of agreement on negotiations on this issue was not afactual reflection of the Doha outcome.  He associated his delegation with the language that had been
put forward by the United States, which he believed was a much better reflection of the discussions
the Council had had that year.  There remained a number of Members opposed to the extension of the
protection of GIs.  The Council had had detailed and exhaustive discussions, which illustrated that
many costs, burdens and new legal rights would be imposed on Members.  If instead of a brief factualreport the Council wished to go into details, it wo uld be appropriate to reflect in the report that theIP/C/M/38
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Council had completed its discussion on the issue of the extension of the protection of GIs and that no
further action was needed.
327.   The representative of Uruguay fully supported the proposal by the United States, and said
that Uruguay was not in favour of the extension of Article 23 of the TRIPS Agreement.  The Doha
Declaration did not foresee any mandate to negotiate the extension of the protection under Article 23to products other than wines and spirits.  It was very difficult for him to accept the proposal contained
in document JOB(02)/194, because it was exactly the opposite of what his delegation had said in the
Council and did not reflect the real state of the deba te.  He believed that a factual report as proposed
by the United States was most advisable and realistic.
328. The representative of Kenya said that he understood that negotiations on the extension of GIs
had been ongoing and that he was not sure whether those negotiations or discussions had been
completed or not.  In such circumstances, his  delegation would not object to the Chairman's proposalthat a factual report be presented to the TNC.  Such a factual report should include the fact that a
group of countries, including Kenya, had submitted a proposal to the TRIPS Council on this issue.
Furthermore, he said that the Council's report to  the TNC should indicate that traditional knowledge
should be considered as part of prior art when determining patentability.
329. The representative of Turkey associated his delegation with the comments made by
Switzerland and Thailand.  His delegation's view was crystallized in document JOB(02)/194.  In its
view, the extension of the protection of GIs was clearly mandated by the Doha Ministerial Decision,
and it expected that the Council would take appropriate action in line with the Decision.
330. The representative of Guatemala said that he disagreed with the statements made by some
delegations that the Council had held negotiations on the issue of the extension of GIs.  In his view,
the Council had merely discussed this issue.  Therefore, his delegation seconded the proposal
submitted by the United States, Uruguay and certain other Members.
331. The representative of New Zealand said that her delegation shared the concern of Guatemala
about the statements, to the effect that what the Council had been doing on the issue of the extension
of the protection of GIs during the course of the year amounted to a negotiation.  Her delegationstrongly refuted those statements.   She supported the factual approach proposed by the Chairman,
which was the only way to fully respect and preserve the views on both sides on this complicated and
controversial debate, in which Members were miles apart on both substance and form.  Her delegation
was not sure that consensus had been reached on a single point in the Council's discussions in the
course of the year.  As a co-signatory of the proposal read out by the United States, she said that New
Zealand fully subscribed to that proposal.  If the Council's report were to move beyond a factual
approach, she requested that this proposal be included in the Council's report.  She noted that therehad been an unfortunate precedent set in some other committees, where it had been not possible to
agree on a report to the TNC.   Her delegation hoped that the Council could avoid that situation
because it did not feel that it would be representative of the effort and the substantive and constructive
engagement which the Council had had on this issue during the course of this year.
332. The representative of Hungary, a co-sponsor of document JOB(02)/194, noted that the second
sentence of paragraph 12 of the Doha Ministerial Declaration made it possible for the Council to
differentiate in the treatment of the implementation issues.  Responding to Australia, he recalled  that
the second sentence of paragraph 18 of the Doha Ministerial Declaration read as follows:  "We note
that issues related to the extension of the protection of geographical indications provided for in Article
23 to products other than wines and spirits will be addressed in the Council for TRIPS pursuant toparagraph 12 of this Declaration".  He also referred to the third sentence of paragraph 12, stating that
"[w]e agree that negotiations on outstanding implementation issues", including the issue of
geographical indications which was referred to in the second sentence of paragraph 18, "shall be an
integral part of the Work Programme we are establishing […] ".  This wording led him to theIP/C/M/38
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conclusion that Ministers indeed had mandated nego tiations on the issue of extension.  Accordingly,
his delegation thought that the US proposal was not only unacceptable, but also against the letter and
the spirit of the Declaration.  However, his delega tion recognized that there was no agreement as yet
on this issue.
333. Furthermore, his delegation regretted to hear that some major agricultural exporting Members
were not only unable to move forward with the negotiations on extension, but also wanted to stop the
negotiations.  In his view, the negotiations on extension were clearly linked to the agricultural reform
process.  His delegation reminded those Members that, after the end of year deadline for appropriate
action on the issue of extension, deadlines were going to follow in other negotiating areas.  His
delegation's ambition in some of these areas, particul arly in the area of agriculture, would be greatly
influenced by the Council's ability to agree to the proposed recommendations.
334. The representative of Cuba supported Sri Lanka's statement, in particular its interpretation of
paragraph 12 of the Declaration.  She was in favour of including in the Council's report the elements
contained in document JOB(02)/194, the proposal made by Brazil, and the three elements mentioned
by her own delegation earlier in the course of the meeting.
335. The representative of Chile said that he was surprised to hear that some Members believed
that the Council was negotiating the extension of the protection of GIs.  There was an obvious lack of
consensus on the need and the feasibility of initiating negotiations concerning extension.  In his view,
the Chairman's proposal on a factual report was the most appropriate way forward.  Nevertheless, his
delegation supported the US proposal because it properly reflected the reality.  Therefore, if the
Council added document JOB(02)/194 to its repo rt, his delegation, as a co-sponsor of the US
proposal, requested also the addition of that proposal to the report.
336. The representative of the Dominican Republic supported the Chairman's proposal to prepare a
factual report to the TNC.  He also supported the US proposal, which reflected the real state of the
discussion in the Council.  If  the Council were to include the proposal by a group of countries in its
factual report, it should also include the US proposal.
337. The representative of Pakistan said that he was surprised to hear that the issue of extension
was not an implementation-related issue.  He endorsed the statement made by Sri Lanka, which
described his delegation's position on the issue of extension.  He said that the proposal made by a
group of countries, including Pakistan, should be incorporated in the Council's report to the TNC.
338. The representative of Costa Rica  said that the Council had not reached an agreement on the
issue of GI extension.  He could not support the proposal in document JOB(02)/194.  He was in
favour of a factual report along the lines proposed by the Chairman and by the United States.
339.   The representative of the Czech Republic, a co-sponsor of document JOB(02)/194, said that
the reference to "appropriate action" in paragraph 12 of the Declaration did not include the possibility
of doing nothing or not having further action.  The Council's report should, at least, include elements
for appropriate action.  If some Members were not ready to move forward in the area to which her
delegation attached particular importance, they should not be surprised when her delegation might not
have any substantive movement in other topics.  In conclusion, she stressed that the extension of theprotection of GIs was a systemic issue and that al l Members would benefit from extended protection.
340.  The representative of the Slovak Republic, another co-sponsor of document JOB(02)/194,
said that his understanding was that paragraph 12 of the Doha Declaration instructed the Council to
make some efforts to address these issues.  A refusal to do so would not be in line with the spirit of
the Doha Development Agenda.  He supported a constructive and factual report, which, however,
should not suggest to take off the table any topic.IP/C/M/38
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341. The representative of Paraguay, referring to the statements made by Uruguay, Guatemala,
New Zealand and others, said that the Council's report to the TNC should be a factual report reflecting
the debates that the Council had had and any conclusion that it had reached.  The report should not
include any recommendations.  This was not provided for in the Doha Ministerial Declaration, which
stated that "the other outstanding implementation issues shall be addressed as a matter of priority bythe relevant WTO bodies, which shall report to the Trade Negotiations Committee […]  for
appropriate action".  He indicated that the TNC had the responsibility to take decisions.  It was not
this Council to make any recommendations.  He expressed his support to the US proposal on
extension.  He stressed that he objected to annexing any proposal put forward by any Member to the
Council's report  to the TNC.  The report should be just one single document adopted by consensus
and reflecting the Council's discussions.
342. The representative of India said that paragraph 12 of the Doha Declaration made it clear that
outstanding implementation issues were part of the negotiations.  These negotiations were an integral
part of the work programme which had been established at Doha.  Agreements reached at any stage in
these negotiations should be treated in accordance with the provisions of paragraph 47 of the
Declaration, which linked it with the overall balance of the negotiations.  Given the time constraints
and the fact that the majority of the time had been taken by one single most important issue in theCouncil, equal emphasis had not been given to other outstanding implementation issues during this
year.  As far as recommending appropriate action was concerned, there could be certain differences
between various outstanding issues.  The work programme on GIs had progressed to a considerable
extent.   Therefore, he said that more than a factual report was warranted as far as this particular area
was concerned.  With respect to the relationship  between the TRIPS Agreement and the Convention
of Biological Diversity, he said that the Council had been discussing this issue for some time and that
a proposal had been made on this  issue as well.  Therefore, more than a factual report was also
warranted on this issue.
343. The representative of Brazil reiterated its proposal that the Council's report to the TNC
contain recommendations on the continuation of negotiations to amend Article 27.3(b) of the TRIPS
Agreement in order to bring the TRIPS Agreement in  line with the provisions of the Convention on
Biological Diversity.  His delegation agreed fully with India's statement that outstanding
implementation issues were an integral part of the work programme of the Doha development round.
He agreed with Australia's assertion that it was incorrect and not constructive to attempt to treat one
outstanding implementation issue as if it was more important or more of a priority than other
outstanding implementation issues.  With respect to outstanding implementation issues, all demanders
had the right to pursue appropriate work in the framework of a work programme of the Dohadevelopment round.  He disagreed with the statements that the work in the Council on the relationship
between the TRIPS Agreement and the CBD had been exhausted.  He believed that paragraphs 12 and
19 of the Doha Ministerial Declaration provided Members with an appropriate mandate for the pursuit
of negotiations to amend Article 27.3(b) of the TRIPS Agreement.  Moreover, those paragraphs
allowed the presentation of other proposals related to the issue of traditional knowledge and folklore.Brazil would certainly be interested in pursuing work on a regime of positive protection of traditional
knowledge and folklore, and was looking forward to  the presentation of negotiating proposals to that
effect.  In his view, it was incorrect to state that the outstanding implementation issues referred to in
paragraph 12(b) did not have a negotiating mandate.  The Council's report to the TNC should quote
from paragraph 12 of the Declaration and reaffirm the fact that negotiations on outstandingimplementation issues shall be an integral part of the work programme of the Doha development
round.
344. The representative of Panama said that the Council's report to the TNC should be factual.  The
report should clearly reflect the fact that there was no agreement as to whether or not a negotiation
should be begun on the matter of the extension of GI protection.IP/C/M/38
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345. The representative of El Salvador said that he supported the Chairman's proposal on a brief
factual report.  Concerning the extension of the protection of GIs, he supported the US proposal.  The
fact that the Council's discussions on this matter had not led to consensus should be reflected in the
report.  His delegation could not support the proposal in document JOB(02)/194.
346. The representative of China fully associated her delegation with India's and Brazil's
statements on the Council's mandate for negotiations on outstanding implementation issues.
Referring to paragraph 12 of the Doha Declaration, she said that Ministers had declared that Members
agreed that negotiations on outstanding implementation issues should be an integral part of the Work
Programme and that agreements reached at an early stage in these negotiations should be treated in
accordance with the provisions of paragraph 47.  Referring paragraph 19 of the Declaration, she said
that the TRIPS Council should be guided by the objectives and principles set out in Articles 7 and 8 of
the TRIPS Agreement and should take fully into account the development dimension.  In this sense,China thought that negotiations on outstanding implementation issues, especially on the relationship
between the TRIPS Agreement and the CBD, and on Article 27.3(b) of the TRIPS Agreement, were
covered by the mandates.  As regards the report to the TNC, her delegation believed that a
recommendation should be made for an amendment of the TRIPS Agreement in order to resolve the
problems related to the relationship between the TRIPS Agreement and the CBD.
347. The representative of the Philippines said that there was no question that the extension of GI
protection was an outstanding implementation issue.  However, after reflecting on paragraph 12 of the
Declaration and the statements made by other delegations, he was of the opinion that the Council
should make a distinction in the sense that paragraph 12 set out two ways to deal with outstanding
implementation issues.  First, where a specific negotiating mandate had been expressed in theDeclaration, the relevant implementation issue should be addressed under that mandate.  Second,
other outstanding implementation issues should be addressed as a matter of priority by the relevant
WTO bodies which should report to the TNC by the end of 2002.  His delegation did not agree with
the interpretation that a specific negotiating mandate was laid down in paragraph 18 of the
Declaration as far as the extension of the protecti on of GIs was concerned.  In his view, paragraph 18
referred to the issue of the extension of GIs, which only mirrored the language in paragraph 12(b).  In
conclusion, he said that the Council was not in the process of negotiating on the outstanding
implementation issue of the extension of protection of GIs to products other than wines and spirits.
The Council's discussions showed that no conclusion had been reached that the protection provided
for in Article 23 of TRIPS Agreement should apply to all products, as suggested in document
JOB(02)/194.  He supported the proposal by the United States because it was more precise.  He
suggested that the Council keep its report to the TNC factual and report that no conclusion had beenreached so far.
348. The representative of Malta, a co-sponsor of the document JOB(02)/194, said that the
appropriate course of action would be for the Council to recommend to the TNC the adoption of the
guidelines for negotiations contained in document JOB( 02)/194.
349. The representative of the European Communities associated his delegation with the
statements made by Sri Lanka, India, Hungary and others on the extension of GI protection.  In his
view, the Declaration indicated that the issue of GI extension would be under a negotiating mode.
Commenting on the US proposal, he said that if the Council could not reach consensus, it should work
further on this matter.
350. The representative of Argentina supported the Chairman's proposal that the Council's report to
the TNC be factual and brief.  In his view, there was a lack of consensus not only on the topic itself,
but also on whether the extension of GI protection should be a topic for negotiation.  This should be
reflected in the report.  He also expressed his support of the US proposal.   He recalled that his
delegation had presented document WT/MIN(01)/W/8 at Doha, in which it had already expressed its
view that there was no mandate in the Declaration or the TRIPS Agreement to negotiate the extensionIP/C/M/38
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of the additional protection and that this issue could not be treated as an implementation issue.  In his
delegation's view, the most adequate action that the Council could adopt was to prepare a factual
report describing how the questions had been discussed and referring to the minutes of the meetings.
351. The representative of Switzerland said that if the Council could not reach consensus, a
decision would need to be taken by the TNC.  As its co-sponsor, Switzerland was in favour of the
proposal contained in document JOB(02)/194.  He said  that the Council could add to its brief factual
report two paragraphs of identical length summarizing the demandeurs' and opponents' proposals on
extension.  This would at least enable the TNC to know what had been proposed.  His delegation
would trust the TNC to find some creative options which Members could not find in the Council.  In
concluding, he said that his delegation was willing to work on all outstanding implementation issues
in a creative and open-minded way.
352. The representative of South Africa said that, with respect to the issue of the extension of GI
protection, she supported the Chairman's proposal on a brief factual report.
353. The representative of Singapore said that, since differences still remained concerning the
issues of GI extension, Article 27.3(b), and the relationship between the TRIPS Agreement and the
CBD, the Council might prepare a brief factual report  as proposed by the Chairman, combined with a
recommendation to continue work on those issues until September 2003.
354. The representative of Hong Kong, China supported the Chairman's proposal on a factual
report.  There was no consensus to include in the report either of the proposals on extension.
Concerning Singapore's suggestion that the Council should continue its work on this issue until the
Cancún Ministerial Conference, he said that his preliminary view was that it could be left to the TNC
to give guidance to the Council on such a matter.
355. The representative of Brazil supported Switzerland's proposal that the Council include in its
report the recommendations that had been proposed  by both the proponents and the opponents of the
extension of Article 23 protection, as long it also included Brazil's recommendation regarding the
relationship between the TRIPS Agreement and the CBD.
356. The representative of Estonia expressed her delegation's support for a factual report, which
should include the proposal in document JOB(02)/194.
357. The representative of the European Communities said that the TNC should be informed about
the various views expressed in the Council and, th erefore, he could go along with the Swiss proposal
to include in the report two paragraphs of identical length, as long as the factual report was limited to
what had been proposed, not describing the arguments that had been used.
358. The representative of Argentina said that the Council's report should not refer to "proposals",
because the Council had not engaged in a negotiation.  What Members had tabled so far were just
documents containing texts that exposed their views on the relevant topics.  Therefore, the report
should reflect the fact that the Council had discussed these topics on the basis of its agenda and that
different views had been expressed without reaching consensus.
359. The representative of Australia reiterated his view that a short factual report that cross-
referenced the discussions that had taken place would be adequate.  From doing that, Members'
positions on the issue of GI extension would be clear.  It would not be productive to attempt to
characterize these views.
360. The Chairman said that that there did not appear to be agreement on any recommendation that
the Council could make to the TNC.  He wondere d whether Members could agree on his proposal to
prepare a brief factual report that simply described what the state of play was and indicated thatIP/C/M/38
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consensus had not been reached in the relevant areas.  The starting-point had to be such a factual
report, but the question remained whether Members would wish to add anything to that.  One option
would be to refer to the two text s the Council had received on the extension of GI protection in two
paragraphs of equal length.  The report could also refer to the text on the disclosure requirement by
some developing countries, again with a paragraph setting out the other views.  In response to aquestion by India, he further clarified that the report would cover all outstanding implementation
issues.
361. The representative of Paraguay said that it was adequate that a factual report would refer to
the diverse views, but no documents should be annexed to it.  The Council had discussed matters such
as the cost of extension and products that would be affected, but it had not discussed the proposal in
document JOB(02)/194 in the course of its meetings.   The report should not include a reference to a
document that had not been adopted by consensus in the Council.  In response, the representative ofHungary referred the representative of Paraguay to paragraph 41 of document IP/C/W/353, which had
been discussed extensively in the Council.
362. The representative of Canada supported the Chairman's proposal.
363. The Chairman suggested that he prepare a draft report for the Council's consideration later in
the course of the meeting.
364. Reverting to the matter at a later stage, he noted that a draft report to the TNC on the
Council's work on outstanding implementation issues  had been circulated in document JOB(02)/199.
365. The representative of Bulgaria wondered whether the draft report could be adopted under
agenda item "Other Business".  While noting that the draft report was a good factual reflection of
what had happened in the TRIPS Council, it did not fulfil the Council's mandate given by the Doha
Ministerial Declaration, specifically its paragraph 12, which required the Council to present a report
for action.  A report for action was different from a factual report.  This was the reason why his
delegation could not accept the draft report.
366. The representative of Australia supported the draft report which he found to be a balanced and
impartial record of what had transpired in the TRIPS Council.
367. The representative of Chile agreed with Bulgaria that the report was for action, but this did
not mean that the Council had to agree on the action.  It could be left to the TNC to take appropriate
action.
368. The representative of Canada shared the view presented by the representative of Chile.  In
case the Council could not agree on the report, she wondered whether the Chairman could, under his
own responsibility, give the TNC a sense of what had transpired in the Council.  The representative of
Switzerland said that, if the draft could be considered as the Chairman's report, it would be quite
natural to forward it to the TNC for information.  The Chairman said that the Doha Declaration
mandated the Council to report to the TNC.  Ho wever, he was ready to submit a report on his own
responsibility if the Council would so decide.
369. The representative of India agreed with the Chai rman's interpretation that the report had to be
agreed upon by the Council.   Regarding the issue of appropriate action, he referred to paragraph 12 of
the Doha Declaration, which stated that other outstanding implementation issues shall be addressed as
a matter of priority by the relevant WTO bodies, which shall report to the TNC by the end of 2002 for
appropriate action.  His understanding of paragraph 12 was that appropriate action should be taken by
the TNC.IP/C/M/38
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370. The representative of the United States reiterat ed that it was up to the TNC, not the Council,
to decide on appropriate action.  The Council's responsibility was to make a report to the TNC about
its activities.  Therefore, he believed that the Ch airman's suggestion that the Council provide the TNC
with a factual report of its activities had always  been the best and most balanced way forward.
371. The Chairman asked whether the Council could agree to send the draft report in JOB(02)/199
to the TNC and leave it to the TNC to decide on appropriate action.
372. The representative of the European Communities recalled that several communications had
recently been addressed to the Council, including one from the proponents of the debate and
negotiations on the issue of GI extension (JOB(02)/194) and another in document IP/C/W/395.  The
latter document contained a statement in which its co-sponsors "recommend that the TRIPS Council
advise the Trade Negotiations Committee that the Council has completed its discussion and that no
further action be taken".  This statement was in contradiction with the previous letter addressed to theCouncil by the proponents.  He asked whether th e item on the extension of GI protection would be
automatically on the agenda of the next TRIPS Council meeting irrespective of what would be
reported by the Council to the TNC and what the TNC might decide.  The Chairman said that his
understanding was that it would depend on the decision by the TNC on appropriate action.  Therepresentative of the European Communities said that, if that was the case, the contents of the draft
report fell short of what was expected of the Council.
373. The representative of Hungary said that it would be easier for the TNC to decide on
appropriate action if the documents containing the two communications on extension where not
merely referred to but the views were also clearly explained in the report in equal length and form.
374. The Chairman concluded that, given the situation in the Council, he would have to inform the
TNC that the Council had not agreed on a report to the TNC on its work on outstanding
implementation issues.
(ii) Date for the Council's Future Meeting
375. The Chairman said that the Secretariat had tentatively scheduled the following dates for
meetings of the Council in 2003:
- Tuesday to Thursday, 18-20 February;
- Tuesday to Thursday, 3-5 June;
- Tuesday to Friday, 18-21 November.
376. He also said that the Council might need to make adjustments to its schedule of meetings or
organize additional meetings, including informal meetings, in the light of the continued work on the
implementation of paragraph 6 of the Declaration on the TRIPS Agreement and Public Health as well
as preparations of the Ministerial Conference in Cancún, Mexico scheduled for 10-14 September.
377. The Council so agreed.
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