RESTRICTEDWORLD TRADE
ORGANIZATIONTN/IP/M/4
6 February 2003
(03-0786)
Council for Trade-Related Aspects
of Intellectual Property Rights
Special Session
MINUTES OF MEETING
Held in the Centre William Rappard
on 28 November 2002
Chairperson:  Ambassador Eui-yong Chung (Korea)
Subjects discussed: Para. Nos.
A. A DOPTION OF AGENDA 1-5
B. O BSERVER STATUS FOR INTERGOVERNMENTAL ORGANIZATIONS 6-7
C. N EGOTIATION OF THE ESTABLISHMENT OF A MULTILATERAL
SYSTEM OF NOTIFICATION AND REGISTRATION OF GEOGRAPHICAL
INDICATIONS FOR WINES AND SPIRITS8-136
D. O THER BUSINESS 137-145
_______________
A. ADOPTION OF AGENDA
1.  The fourth Special Session agreed to adopt the agenda as set out in WTO/AIR/1968.
2.  The Chairperson proposed to address first the issue of observer status for intergovernmental
organizations.
3.  It was so agreed.
4.  Before addressing the issue of observer status for intergovernmental organizations, the
Chairperson recalled that the Special Session had agreed at the September meeting to invite the
International Bureau of WIPO to attend, in an expert capacity, the part under the agenda item
dedicated to the third set of issues, including the i ssue of "mechanics", that is to say the procedures of
notification and registration, issues of costs and the possible role of the Secretariat.  He also recalled
that the International Bureau of the WIPO had assisted the WTO Secretariat in the preparation of its
note on "Multilateral Systems of Notification and Registration" (TN/IP/W/4).  The participation of the
International Bureau had proved helpful:  it had been able to respond to some technical queries made
by delegations.  However, the Special Session had not been able to discuss in detail documentTN/IP/W/4.  In his view, participants would benefit considerably in inviting the International Bureau
of WIPO to attend again, in the same mode as last time, the discussions on the "mechanics".  He
emphasized that the acceptance of his suggestion to invite WIPO was without prejudice to theirTN/IP/M/4
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positions regarding the question of observer status for intergovernmental organizations, and neither
should it prejudge anything concerning the kind of system to be negotiated in the WTO.
5.  It was so agreed.
B. OBSERVER STATUS FOR INTERGOVERNMENTAL ORGANIZATIONS
6.  The Chairperson said that there had been no new development.  Therefore, he proposed to
revert to this matter once again at the next meeting in 2003 in the light of any decision by the TNC or
the General Council.
7.  It was so agreed.
C. NEGOTIATION OF THE ESTABLISHMENT OF A MULTILATERAL SYSTEM OF NOTIFICATION AND
REGISTRATION OF GEOGRAPHICAL INDICATIONS FOR WINES AND SPIRITS
8.  The Chairperson recalled that at the end of the September meeting participants had agreed
that  the Secretariat would prepare a compilation of the issues and points raised by delegations during
previous meetings.  The compilation should have been circulated by the end of October, but was not
available for various reasons.
9.  The representative of the WTO Secretariat informed the Council that the paper was not ready
for the reasons given during the regular session of the TRIPS Council, at which most participants
were present.  He further assured Members that the Secretariat would make every effort to complete itfor the next meeting of the Special Session in 2003.  He was, however, unable to give an exact date
because that would depend on various factors, e.g., on the extent to which other priorities continued to
take up the Secretariat's capacities.
10.  The Chairperson was sympathetic to the situation faced by the Secretariat.  He added that at
the September meeting participants had not had time to discuss further the last set of issues namely,
"Participation".  Neither had they exhausted the first round of discussions on the four sets.  He
therefore suggested that what had been raised during this Special Session should be incorporated in
the compilation in order to have a comprehensive picture of all the points and issues raised.
1. Proposals by participants
11.  The Chairperson noted that no delegation was planning to submit any new or revised proposal
during the present meeting.  He recalled that the Special Session had earlier agreed to a "mental
benchmark" for the submission of proposals, namely by the September meeting of the Special
Session, although, as indicated in previous meetings, delegations were free to submit proposals at any
time.  However, due to the timetable agreed by Mi nisters, the focus should be on moving forward to
the second phase of the negotiations, the real negotiating phase.  Delegations planning to submit new
or revised proposals were encouraged to do so as soon as possible.  They were also invited to come
forward, in the course of the discussions, with innov ative or helpful suggestions, even if they did not
have a new or revised proposal.
2. Organization of work
12. Regarding the organization of work, the Chairperson recalled that, at the last meeting, the
Special Session had had a rich discussion on the third set of issues, the meaning of notification and
registration procedures and the issue of "mechanics", including such matters as procedures fornotification, opposition, registration and modification as well as issues of costs and the possible role
of the Secretariat.  The Council had also dealt with the definition of GIs and their eligibility for andTN/IP/M/4
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the purpose of their inclusion in the system but was unable to address the issue of participation due to
time constraints.  He therefore suggested proceeding with the discussions in the reverse order:  i.e.,
participation;  the meaning of a "system of notification and registration" and the issue of "mechanics";
the purpose of the system;  and issues related to the definition of GIs and their eligibility for inclusion
in the system.  He hoped that, in discussing the areas already touched upon, Members would notrepeat their positions, but would instead strive to find areas where convergence could be reached,
especially on the issue of "mechanics".  He asked delegations to be more concrete and specific in their
contributions with regard to the latter.  He hoped that, in the process of discussing "mechanics",
delegations might discover possibilities for bridging some of the areas where there was still a wide
difference of views, such as with respect to purpose.  In that regard, he believed that the Secretariat
notes on the multilateral notification and registration systems (TN/IP/W/4 and TN/IP/W/4/Add.1)
could provide some practical ideas for Members to construct their own system.
13.  It was so agreed.
3. Discussion of the four categories of issues
(a) Participation
14.  The Chairperson recalled that there had been some discussion on this set of issues at the June
meeting but not at the September meeting.
15.  The representative of Guatemala said that the system proposed by certain countries presented
some similarities to the system created by the Lisbon Agreement, to which only a small number of
countries were party.  He supported the statement made by Canada at the September meeting with
respect to document TN/IP/W/5.  It was important to make it clear that participation in this system of
notification and registration of wines and spirits was voluntary.  This was a way to apply special anddifferential (S&D) treatment:  as a direct consequence of voluntary participation, Members who did
not wish to participate in the system would not find themselves facing the same obligations as those
Members who did participate in the system.  Ot herwise, the system would be unfair for non-
participating Members, who would be affected without having any right to decision-making.  There
could be a number of different reasons for not particip ating, e.g., cost to the government for reviewing
the use of some geographical indications.  Members not wishing to participate in the system should
not find themselves directly or indirectly affected by what other Members notified and registered.  He
further said that document TN/IP/W/6 had helped his delegation to understand the different systems
presented in the TRIPS Council.
16.  The representative of Canada said that the language of Article 23.4 was clear on the nature of
the system to be implemented as a result of the current negotiations.  It was simply for wines eligible
for protection in those Members participating in the system.  This wording clearly implied that it was
not the intention of negotiators to have a mandatory registration system.  Her delegation simply did
not envisage how any other interpretation could be given to Article 23.4.  The voluntary nature of the
system was a crucial element of a future system of notification and registration.  While the systems
described in the Secretariat's note of September 2002 (TN/IP/W/4) could not come into force in the
territory of a WIPO member until that member had d ecided to ratify them, that characteristic would
not apply in the context of the WTO since TRIPS ob ligations applied to the entire WTO membership.
Besides, non-wine producing Members did not stand to gain anything from a system of notification
and registration for wines and spirits.  It would be unfair and unacceptable to impose mandatory
substantial new obligations and costs on them, which the system proposed by the demandeurs would
do.  Such a danger stemmed from the legal prescription introduced in the system proposed by thedemandeurs on the use of Articles 22.1, 24.4 and 24.6:  if a Member did not use these exceptions
within the first 18 months following the notificati on of the name, it would forever be foreclosed from
doing so.  As a result, if a Member for any reason of its own did not oppose the registration of namesTN/IP/M/4
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that were generic in their territories within 18 months following the initial notification, the notifying
Member would then be able to register its GIs and producers of other Members would not be allowed
to raise the exceptions in Articles 22.1, 24.4 and 24.6.  Non-participating Members who considered
those names to be generic would be precluded from trading the good under its rightful name with
those other Members who had always considered the name to be generic.  The end result would be apossibility of an undue disruption in the normal trade relations of two Members and consequently
trade distortion.  Her delegation believed that such results were certainly not those intended by the
Uruguay Round negotiators when they drafted Article 23.4.
17.  The representative of Japan said that, as one of the co-sponsors of the proposal contained in
TN/IP/W/5, his delegation's position on the multilateral notification and registration system was clear:
it should be a less burdensome and legally non-binding system.  The position of his delegation with
respect to the participation was also equally clear:  it should be voluntary.  With respect to the issue oftranslation, he said that according to Article 23, GIs for wines and spirits should be protected, even
where the GIs were used in translation.  He was concerned that under the legally binding system, as
proposed by the demandeurs, the requirement to notify GIs in the three WTO working languages,
English, French and Spanish, would not be sufficient for giving the legal effect to such GIs in Japan.
The reason was that the notified GI would itself be the subject-matter to be registered and protected inevery Member of the WTO.  In other words, it was necessary for the relevant authorities to make
available to the Japanese nationals the official notification in Japanese, in addition to the three WTO
languages, in order to secure additional protection.  He wondered whether under the legally binding
system such a situation might take place in a Member whose first working language or official
language was not one of the WTO working languages.  Even under the non-legally binding system,translation into Japanese or a notifying Member's own language might be required in order to
"facilitate" the protection of GIs for wines and spirits.  For his delegation, the meaning and the burden
of translating GIs under the two systems were different.  Under the legally binding system, GIs
notified were themselves the subject-matter to be registered and protected in all WTO Members,
while under the non-legally binding system the GIs notified were not the subject-matter to beprotected but were information which could be used as reference.  The burden of translation would
therefore be much heavier for almost every WTO Member with the establishment of a legally binding
system which would involve all WTO Members as participants.
18.  The representative of Australia said that "participation" under the system proposed by his
delegation and other countries was simple:  it was entirely voluntary.  A Member could decide to
participate or cease to participate in the system at any time.  Members who chose not to participate in
the system would not be bound by it and would not find themselves subject to any additionalobligations, although they might refer to the syst em when making decisions to protect GIs at the
national level.  They would therefore not bear the cost of establishing or maintaining that system.
While non-participating Members would not benefit from the facilitation of protection that the system
would confer, they could choose to avoid any additional costs or obligations that a multilateral system
would entail.  In that way, the proposal by his delegation provided a self-regulating S&D treatment
mechanism.  His delegation was surprised at statements made by some Members who supported the
EC proposal, indicating that even Members who chose not to participate in the multilateral system
would incur obligations under it.  He asked why non-participating Members should bear any
obligations.
19.  The representative of New Zealand recalled that her delegation had posed a question to the
EC delegation in the June meeting (document TN/I P/M/2, paragraph 127).  Would the EC individual
member States make separate notifications to the register or would participation from the EC member
States be done in a "holistic" manner by the EC?
20.  The representative of the European Communities said that the answer to the question raised
by the delegation of New Zealand remained to be decided since all EC member States were WTOTN/IP/M/4
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Members.  Theoretically, all Member States were entitled to notify although there was a case for
trying to do it in the most simple and streamlined way in order to facilitate the functioning of the
system.  However, no final decision had been taken on that and he could not therefore provide a final
answer to that question.  With respect to New Zealand's question at the June meeting on the least-
developed countries' situation, he said that the EC was ready to explore possibilities to allow least-developed countries (LDCs) to be subject to the register only once they were subject to the general
implementation obligations of the TRIPS Agreement.  It seemed illogical to subject LDCs to any
obligation if they had not yet implemented, or were under no obligation to implement, protection until
2006.
21.  On the general issue of the effects on non-participating Members, his delegation remained
unconvinced by the arguments advanced by the delegations having a different interpretation.  It still
considered that if the system was termed a "multilateral" one in the WTO context, that would be for asimple reason:  a multilateral system was a system that somehow should concern all Members.  Where
systems and treaties in other areas of the WTO did not concern all WTO Members, they were termed
"pluritateral", such as the Agreement on Government Procurement.  In his delegation's view, that was
not just a purely theoretical interpretation.
22.  Turning to comments made on the Lisbon Agreement, he said that that Agreement, which set
up a strictly voluntary system, already existed before 1994.  Article 23.4 had been included, during
the Uruguay Round, in the TRIPS Agreement at the request of his delegation, which had thought that
the Lisbon Agreement had not been a successful instrument due to its voluntary nature, and sought to
have a multilateral system in the GATT/WTO.  If the EC were looking for a voluntary system, there
was one already and there would be no point in having another one.  Arguments that had been madeby a number of delegations on the use of the term "multilateral" in Article 23.4 were therefore not
persuasive.  In this regard, he recalled one argument that had been made at the September meeting of
the Special Session that Article 23.4 used the term "multilateral system" because  negotiations were to
take place in a multilateral forum like the WTO and the TRIPS Council.  For his delegation, Article
23.4 stated explicitly that negotiations must be undertaken in the TRIPS Council.  The EC remainedunconvinced that it should be reiterated that negotiations should take place in a multilateral forum.
All Members were aware that panels and the Appellate Body held consistently that the interpretation
of the TRIPS Agreement should be made in such a way that all terms were given appropriate
meaning, that is without nullifying the meaning of individual terms of an agreement.  If Article 23.4
already indicated explicitly that negotiations must be undertaken in the Council for TRIPS, that meant
that the word "multilateral" must have another mean ing.  The second argument was that "multilateral"
in Article 23.4 actually referred to a "multilateral mandate", which was a fairly new notion as far ashis delegation was concerned.  A multilateral mandate was a "mandate that [bound] all Members" or a
"mandate that [required] the participation of all Members".  Yet, the understanding of some
delegations was that the multilateral nature of the mandate did not stem directly from the inclusion of
the word "multilateral" but rather from the very fact that Article 23.4 stated that the negotiations must
be undertaken in the TRIPS Council.  Reference to the fact that the negotiations would take place inthe TRIPS Council was what made the mandate a multilateral one and not because the system was
termed "a multilateral system".  A third argument put forward by some delegations was that "a
multilateral system" meant a "system to be administ ered by a multilateral body", the WTO.  His
delegation held the view that such interpretation went well beyond what drafters of the TRIPS
Agreement had in mind;  he did not believe that the drafters had in mind that the WTO Secretariatwould necessarily have to administer the system.  His delegation was open to the possibility that other
international organizations would administer the system.  As a matter of fact, the interpretation
advanced would preclude, for example, that the "multilateral register" be entrusted to national
administrations on a voluntary or rotational basis.  None of these possibilities was precluded by
Article 23.4 and neither were they determined by the fact that the system was termed "multilateral".He referred to Australia's interpretation of the term "multilateral" as contained in the minutes of the
June meeting (TN/IP/M/2, paragraph 122) and said that his delegation took the arguments set outTN/IP/M/4
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therein seriously.  The EC remained unconvinced and, as far as it was concerned and from a historical
perspective, "multilateral" could only be interpreted as a system that concerned all WTO Members, at
least to a certain extent.  It could not therefore accept the interpretation by some delegations that the
system must be purely and strictly voluntary.
23.   The representative of Singapore noted the EC's argument that reference to the term
"multilateral" as compared to the term "plurilateral"  must simply mean that it was intended to apply to
all Members.  His delegation's understanding in this regard was that the word "multilateral" must be
seen as opposite in meaning to "b ilateral" (between two countries) and "regional" (among countries of
a region).  The term "multilateral" was wider and co uld cover two or more countries.  He therefore
wondered whether the word "multilateral" must cover all Members.  In his view, it was not
necessarily so because the term could cover two or more countries.  The intention was to set up a new
system.  All Members would participate in setting up the system so that as and when they decided tobecome part of it, they would know what was required, and because their inputs would have been
integrated into the system, implementation would b ecome an easier process.  With regard to the
question of GIs "eligible for protection in those Members participating in the system", he said that the
EC had unfortunately not given any response.  "Participation" meant that a Member could decide to
join the system immediately after it had been establis hed or some time later.  In that context, words
should be given their simple meaning and arrangement of work in the Council should be in
accordance with this understanding.
24.  The representative of the United States sa id that he too remained unconvinced by the
statement made by the EC representative.  His delegation did not consider that the use of the word
"multilateral" as opposed to "plurilateral" by the drafters of the TRIPS Agreement in the UruguayRound could in any way be construed to override the clear intent of the words "those Members
participating in the system".  That was clearly an indication that the negotiators in the Uruguay Round
intended that the system be voluntary.  Probably, the drafters at that time were unable to establish how
many countries would participate in the system, so it was not wrong of them to use the term
"multilateral".  Moreover, there was certainly a possibility that all Members would choose toparticipate in the system, although there was nothing in the text that would require all Members to do
so.  He expected that, if Members were discussing a multilateral system to establish a certification
mark procedure that provided for national treatm ent to all Members' GIs, the EC would read the
relationship between "multilateral" and "participatin g in the system" in just the way his delegation
did.
25.  The representative of Argentina shared the views expressed by the delegations of the
United States and Singapore.  She agreed with Singapore that "multilateral" should rather be
compared to "bilateral" and said that Members sh ould also think about what the term "plurilateral"
meant.  Referring to document TN/IP/W/6, co-sponsored by her delegation, she said that it was clear
from that that the concept of "multilateral" should not be linked to the question of the scope or the
nature of the register.  It also seemed clear from Article 23.4 that the register should be open to those
Members who "participate" in the system on a voluntary basis.  There was no reference or link inArticle 23 that imposed obligations on non-participating Members.  As stated by other delegations, it
was not necessary to consider S&D treatment for certain countries:  document TN/IP/W/6 made it
clear that participation would be voluntary.  In light of Article 23.4 and the mandate on negotiations,
there was no need to make a distinction between categories of countries.  Guaranteeing a voluntary
system with no legal obligations on non-participa ting Members would protect the interests all WTO
Members.  In her view, the system should not be one that would confer advantages or disadvantages
upon Members who did not currently have national systems of protection, but might decide to do so in
the future.  Regarding the Lisbon Agreement, she made three points.  Firstly, not all of those Members
who wanted a mandatory system were signatories of the Lisbon Agreement;  therefore, the argument
that the WTO system should be mandatory did not seem to be valid.  Secondly, the Lisbon Agreementdid not have a dispute settlement mechanism which, in her view, was a fundamental consideration toTN/IP/M/4
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those delegations who had raised the matter within the WTO.  Thirdly, the Lisbon Agreement being
voluntary in nature involved ratification on a voluntary basis;  its legal effects were therefore very
different from those resulting from proposals presented by some countries.  Under the Lisbon
Agreement, contracting parties should take action under their domestic legislation.  This Agreement
also set a deadline within which a Member coul d oppose the protection of a GI within its own
territory without having to give the grounds for such an opposition and without that GI having an
effect in the territory of the signatory.  In her view, there was no need to compare the Lisbon
Agreement with matters under discussion in the Spec ial Session.  With respect to the proposal that the
system be administered on a rotational basis by national administrations, she did not know how many
national administrations for GIs existed in WTO Members, and therefore, how such a system of
rotation would work .  In her view, such a system would be a burden for Members and might distort
the concept of a "multilateral agreement", beca use such concept did not involve any national
administration.  There were no national administrations involved in the management of the WTO
agreements.
26.  The representative of Hungary said that Article 23.4 called for the "establishment of a
multilateral system of notification and registration for geographical indications eligible for protection
in those Members participating in the system".  Further, Members had agreed to the wording in
paragraph 18 of the Doha Declaration, which called for the TRIPS Council "to negotiate the
establishment of a multilateral system of notification and registration of geographical indications for
wines and spirits by the Fifth Session of the Ministerial Conference".  In this regard, his delegation's
view was that Ministers expressed the common wish of all WTO Members to participate in the
system.  To date, no delegation had indicated its intention not to establish a register.  The situation tosome extent made the discussion on participation academic.  In fact, Members' activities and
proposals clearly indicated their intention to participate in the multilateral register.  He reiterated that
his delegation had a strong preference for a system with the participation of all WTO Members as the
best way of solving the perceived tension between  the two concepts in the Article 23.4 mandate.
Regarding a point made by Guatemala that volunt ary participation in the system would adequately
provide S&D treatment, he asked whether the delegate of Guatemala meant that only developing
countries should be allowed to opt out from the system, since S&D treatment provisions of the WTO
agreements were only available to developing countries.  With respect to the point made by Japan that
the system should be legally non-binding for participants, his delegation held the opposite view.
Regarding the statement made by Australia that, under the proposal it was co-sponsoring, there would
be an opportunity to leave the system any time, he said that from the viewpoint of facilitating
protection under Article 23, that particular possibility would not make much difference since thedatabase system made no difference between participating and non-participating Members.
27. The representative of Thailand said that the terms "in order to facilitate" in Article 23.4
should be interpreted in such a way as not to obligate but to facilitate the participating Members' task
of administering the protection and enforcement of GIs at the national level.  Thailand was seeking a
system that would not cause undue burden and additional costs to WTO Members.  In other words,Thailand preferred the establishment of a voluntary system aimed at increasing transparency and
facilitating information related to GI protection under national legislation.  Furthermore, the system
should not have any legal effect on either a participating or non-participating Member of the WTO.
The WTO Secretariat or the International Bureau of WIPO could take the responsibility of collecting
data or updating the proposed system.  On the issue of participation, it was clear that all, andespecially those WTO Members with GI products and acceding governments, should be eligible to
participate in the system.  However, those Members with no GI products for protection might opt out
or decide not to participate in the system.  The multilateral system would make more sense if all
Members had the opportunity to participate from the outset when the negotiating process of the
establishment of the system took place.TN/IP/M/4
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28.  The representative of Switzerland said that the requirement of "the establishment of a
multilateral system of notification and registration" in Article 23.4 on the one hand, and a reference to
"geographical indications for wines eligible for protection in those Members participating in the
system" on the other hand, seemed at first contradictory.  However, that was not the case if closely
examined.  She agreed with the EC that these two expressions needed to be dealt with first before
addressing the question about the kind of system that might be agreed upon.  The meaning of the term
"multilateral" could only be determined by compar ing it with the term "plurilateral".  In the WTO
context, while "plurilateral" was understood to refer to a system in which participation was fully
voluntary, for instance, the Agreement on Government Procurement, "multilateral systems" were
instruments which bound all WTO Members.  Contrary to the understanding of another delegation,
the terms used in Article 23.4 were not chosen lightly.  The expression "eligible for protection in
those Members participating in the system" suggested that Members could choose whether or not toparticipate in the system of notification and registration of their GIs.  In that case, the system would
be "voluntary".  Given that it had been stated that the future system should not create new rights and
obligations even if the negotiations entailed legal effects and that the purpose of the system was to
facilitate protection without enhancing it, it would be logical that these legal effects apply to all WTO
Members.  She pointed out that these rights already existed without registration under Article 23 andbound all Members.  If Members wanted to have a meaningful system facilitating the protection of
GIs, it would be logical for the system to have a knock-on effect on all WTO Members.  Such an
effect was not disproportionate since the regulation would only create a presumption of the existence
to a registered and non-challenged GI and not create any new rights.
29. The representative of the Czech Republic reiterated her delegation's support for the
establishment of such a system which would meet the purpose as provided by Article 23.4 of the
TRIPS Agreement, i.e., to facilitate the protection of GIs.  Her delegation was convinced that only a
system with legal effects for Members could facilitate or ensure more effective protection of GIs.  It
was clear that the purpose of the system closely related to all elements that had been discussed.  What
did this mean for "participation"?  In her view, ensuring proper protection of GIs required allMembers to respect the rights of owners of GIs registered under the system.  At the same time, all
Members should be authorized to challenge any proposed registration of GIs in the course of a
specified time-period.  Members who would not challenge registration would be obliged to respect
that particular GI with all the legal consequences.  Nonetheless, Members could avail of the benefits,
i.e., higher legal certainty and eventually high economic revenue, flowing from registered GIs under
the system.  Legal certainty would lead to a decrease of long judicial disputes and would avoid the
burden of proving an act of unfair competition and damage to right holders.  Subsequently, that couldlead to lower costs for participating Members, and thus facilitate the protection of GIs.  It was
unfortunate that some Members were proposing a voluntary system with no legal effect and
constituting a mere list of GIs.  It was still not clear to her delegation how such a list could "facilitate"
the protection of GIs.
30.  The representative of the European Communitie s said that the delegation of Argentina had
misinterpreted his comment concerning the administration of the multilateral system by national
authorities.  He had not proposed that the system should be managed by national administrations in a
rotational way.  Rather, he had pointed out that Article 23.4 did not preclude that possibility.  His
delegation did not say that administration by national authorities was preferable or more
advantageous.  Regarding Argentina's statement that the exceptions under the TRIPS Agreement
would be available after registration under the Lisbon Agreement at WIPO, i.e., that they could be
invoked before national courts, he said that this interpretation was not correct.  Article 6 of the Lisbon
Agreement indicated, for instance, that once a name was registered, it could no longer become
generic;  under that agreement, some exceptions as those under the TRIPS Agreement did not remain
available once a GI was registered.  He further added that the EC had not proposed that exceptionslike prior trademarks or prior use would have to be phased out in any way as a result of registration;
these exceptions could be freely invoked at the national level at any time before national orTN/IP/M/4
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international registration.  With regard to the st atement made by the Swiss delegation on protection
under Section 3, Part II of the TRIPS Agreement, he said that the comment was relevant.  Protection
under the entire Section 3 on geographical indications was a multilateral protection that was supposed
to be available to all WTO Members and the register should not create any new obligations.  It
seemed logical that Members should have no problem in agreeing to a system that concerned allMembers of the WTO.  With regard to the point made by the representative of the United States, he
wondered what the reaction would be if a multilateral system of certification marks was proposed.  As
was well known by the United States, the European system for the protection of certification marks
was open to absolutely everyone.  He pointed out that during the Uruguay Round negotiators had
known, when drafting the provisions of Article 23.4, that the proposed system would not entail a
meaningless database, which would not help or benefit anyone.  While his delegation could
understand that some Members might not have trade interests in a multilateral register, it held theview that it was necessary to avoid negotiating a system that had no impact on real life.  Lastly, he
reiterated that his delegation interpreted the term "multilateral" within the WTO context as meaning a
multilateral forum for discussions and negotiations - the TRIPS Council - in which every Member was
entitled to participate.  Any decision taken in th at body would bind all Members, including those that
had not made interventions.
31.  The representative of El Salvador said that participation should be voluntary, as clearly
provided by the TRIPS Agreement, and create ob ligations only for participants in the system.
32.  The representative of Guatemala, referring to the discussions on S&D treatment, pointed out
that not only developing countries but also developed countries might not wish to participate in the
system.  That was not incompatible with what he had said in earlier statements:  if a developingcountry did not feel that it was appropriate for it to take part in the system, it had every right not to
participate.  However, the point his delegation was trying to highlight was that it did not seem logical
for a non-participating Member to be affected by the system ("no taxation without representation").
33.  The representative of Malaysia associated her delegation with the statements made by
Singapore, Thailand and Australia that participation in the system should be voluntary, as clearly
provided for under Article 23.4.  The wording of that Article suggested that some Members would
participate and others would not.  Many Members, including Malaysia, did not have GIs eligible for
protection and would therefore not be able to participate in the notification and registration system as
such.  In terms of cost-sharing for running the system, she agreed with statements made that Members
not participating should not be required to contribute to such costs.  However, if Members with GIs
eligible for protection were to seek such protection in other Members as was currently possible under
the TRIPS Agreement, that would, in the normal course of administering the protection, not precludethe use of the system as a reference.  However, that would depend on the outcome of the negotiations
on the requirements of the system, which should be without legal and financial obligations for a non-
participating Member.  With respect to the multilateral character of the system under negotiation, she
noted the comments made by the delegation of Singapore.  She added that the multilateral character of
a system depended not only on the numbers but also  on whether the system was open or not to all
Members during the negotiating process, to all Members from different regions and whether it was
negotiated under the auspices of a multilateral forum, which in this case was the WTO.
34.  The representative of New Zealand thanked th e EC delegation for providing some answers to
questions that had been raised by her delegation earlier.  She appreciated the EC's response that a
decision had not yet been taken regarding the question of whether participation would be fromindividual member States or the EC.  She hoped that the TRIPS Council would be kept updated on
any decision reached on this matter.  Regarding he r question on LDCs' participation in the register
given the fact that they were currently not required to be TRIPS compliant with Section 3, she noted
that the EC had indicated that they would be inclined to explore the idea of LDCs being subject only
to the register once they had brought themselves up to TRIPS compliance.  She asked whether thatTN/IP/M/4
Page 10
meant that once LDCs had become TRIPS compliant with Section 3, even if they did not decide to
participate in the system, they would nevertheless have additional legal obligations flowing from the
register proposed by the EC.  She was aware that developed countries who attempted to make points
or ask questions on behalf of developing countries and LDCs were facing criticism.  She pointed out
however that there were a number of such countries in the same region of the world as her countrythat could not be represented at the current meeting of the Special Session but were likely to have a
considerable interest in the answers to these questions.  In response to Hungary's statement that the
mandate of paragraph 18 of the Doha Ministerial Declaration meant that everyone had committed or
showed willingness to participate in the system, she pointed out that paragraph 18 of the Doha
Declaration still referred to the "implementation" of  Article 23.4 of the TRIPS Agreement.  In other
words, the Doha mandate did not in any way override the fact that Article 23.4 in the TRIPS
Agreement clearly provided for a voluntary system.  Referring to the statement made by Hungary thatno Member had yet said that it wanted to opt out of the system, she pointed out that most Members
were probably waiting to see what the final form of the system would be before determining whether
to participate or not.  It would not be wise at this stage to take silence as meaning acquiescence.
Turning to the EC argumentation about the dist inction between the terms "plurilateral" and
"multilateral", she said that her delegation remained unconvinced by those arguments.  At the Junemeeting, her delegation had raised the issue of the definition of multilateral agreements that had been
agreed upon in a number of other fora, i.e., that a multilateral agreement was open to accession by all
countries (TN/IP/M/2, para. 126).  New Zealand w ould continue to stand by that definition.  A
parallel could be drawn between the WTO Agreement and the treaties in the framework of the United
Nations such as Multilateral Environment Agreements (MEAs).  A number of these treaties did nothave participation by every member of the UN but were still considered to be multilateral.  If one
were to use the EC argumentation and extrapolate it to the UN system, it could mean that the UN
treaties were not multilateral and could only be considered so if their obligations flowed to every
country in the UN system, regardless of their participation in the treaties.  Such an interpretation
would raise problems, for example, for those countries who were not party to certain MEAs and wereconcerned by trade measures or other obligations being applied to them regardless of whether or not
they were  participants in such MEAs.
35.  The representative of Argentina said that the representative of the EC had misunderstood her
statement relating to the TRIPS Agreement and the Lisbon Agreement.  According to her
understanding, countries party to the Lisbon Agreement maintained the ability to challenge or protect
a geographical indication.  It was sufficient to refer to document TN/IP/W/4, which stated on page 7
that "each such contracting party may, within one year, notify, together with an indication of theground, the International Bureau that they cannot ensure the protection of the registered appellation".
Furthermore, it had been stated on page 7 of document TN/IP/M/4, under the title "Legal effect", that
"except where such a declaration has been made, all contracting parties must protect the name as long
as it continued to be protected in the contracting country of origin".  In her view, the discussion
showed an emerging consensus that the system would be voluntary;  the main difference would be inthe legal effects of the system.  In this regard, she recalled that the Swiss delegation had stated that
participation would be voluntary but the legal effect s would affect all Members.  She pointed out that,
while the discussions seemed to involve only a few delegations, there were more delegations who did
not necessarily have a specific interest in wines and spirits who were intervening.  It was therefore
important to know the positions of those delegations about a system which would affect all Members.She reiterated that the system proposed by her delegation and others was precisely aimed at protecting
the rights of those delegations that did not have an interest in, or the capacity of participating in, the
future system.  In her view, if there were to be a challenge phase as suggested, very few countries
would be able to keep up with the cost and burden of analysing all the notified GIs and to challenge
them.  If those Members participating on a voluntary basis were faced with difficulties of bearing boththe implications of their obligations and the resp onsibility of analysing all these GIs, she wondered
then how much more difficult it would be for non- participating Members.  Even though that would beTN/IP/M/4
Page 11
a secondary issue for non-participating Members, there would be indirect repercussions for those
Members.
36.  The representative of Hungary did not agree wi th the comments made by the representative of
New Zealand that paragraph 18 of the Doha Ministerial Declaration did not adjust the Article 23.4
mandate.  Paragraph 18 not only added "spirits";  Ministers, by agreeing to the wording ofparagraph 18, had also expressed the common wish of all WTO Members to participate in the system.
Referring to the comments made by the delegation of Argentina that it was difficult, if not impossible,
for all WTO Members to scrutinize all notifications that would be notified and challenged, he said that
it was therefore important for successful challenges in the appropriate cases to have an erga omnes
effect.  The proposal tabled by his delega tion (IP/C/W/234 and 255) provided for an erga omnes
effect in the case of certain challenges:  if one Member challenged and the challenge was justified,
then the effect would be for all WTO Members.  It would basically save effort and time for all other
WTO Members.
37.  The representative of Chinese Taipei said that as one of the co-sponsors of document
TN/IP/W/5, his delegation supported a system wh ich was voluntary, non-binding, non-burdensome
and on a non-prejudicial basis.  His delegation noted that there were several different views on the
difference between "multilateral" and "plurilateral" trade agreements.  Doubts had been expressed,especially with respect to the legal effects of the system.  In this regard, his delegation would
appreciate it if the basis, nature and scope of obligations under the future system could be considered
in accordance with Article 1.1 of the TRIPS Ag reement, and this would include providing for a
"plurilateral" system.
38.  The representative of Colombia shared New Zealand's concerns with respect to Hungary's
statement concerning paragraph 18.  It was precisely for purposes of fulfilling the mandate of
paragraph 18 that her delegation was participating in the negotiations.  However, the fact that
Members like her country were participating in the negotiations and had co-sponsored document
TN/IP/W/5 did not imply that they had already accepted participation in the future multilateral
system.  For this reason, her delegation supported the statement made by the delegation of Guatemalathat participation in the system must be voluntary.  It would participate in the negotiations in
accordance with Article 23.4, although her country did not have wines like the European Union.
Colombia had only about ten different types of wines, and not more than 10 or 15 types of spirits.
That obviously was an imbalance, which implied that if Colombia were to take part in a system such
as that suggested by the European Union, it would in fact be taking upon itself a burden of costs not
commensurate with its production of wines and spirits.
39.  The representative of Chile subscribed to the comments made by several delegations with
respect to Singapore's statement.  In her view, that clearly set out the background which could help
Members interpret those words which were differently interpreted.  She reiterated her country's
position as contained in document TN/IP/W/5 that participation should be on a voluntary basis.  With
respect to the meaning of the word "facilitate", she said that word meant the opposite of the word
"complicate", which would perhaps be the case if Members were to adopt a system which had legalimpact affecting all Members, including non-particip ating ones;  some Members might not participate
for reasons of cost, appropriateness or interest.  Finally, she noted that some Members were referring
to a system of registration for GIs in general while the Special Session was currently negotiating a
system for GIs only for wines and spirits.
40.  The representative of Uruguay said that her delegation fully subscribed to document
TN/IP/W/5 introduced by Canada at the last sessi on and gave support to a voluntary system which did
not generate any type of legal impact for non-participating Members.TN/IP/M/4
Page 12
41.  The representative of Australia supported Chile in that what was being discussed was only a
register for wines and spirits.  He said that it was unfortunate that some delegations interested in GI
extension in the regular session of the TRIPS Council did not listen to the discussion in the Special
Session.  Members should bear in mind and not forget that what the demandeurs in the Special
Session wanted was that whatever would be agreed upon on wines and spirits should be automaticallyextended to all other products.  For this reason, discussions in the Special Session were important
because once the register was established, there would be inevitable complaints from certain Members
that there was an imbalance in having a register for wines and spirits and not for other products.  He
also noted that there were, however, some demandeurs in the area of GI extension who did not
automatically accept the idea that the register would be applicable to products covered by the
extension.
42.  Turning to the erga omnes  effect of the challenges as described by Hungary, he took the
example of "Tokay" in order to get a better understanding of what that meant.  Under the demandeurs'
proposal, Members would immediately be faced with the question of Tokay.  The Oxford Companion
to Wine defined Tokay as a traditional name for the grape Tokay wine of Hungary and Australian
name for the Muscatel grape.  The Oxford Companion to Wine also mentioned a product called
"Tokay d'Alsace", defined as Tokay d'Alsace or simply Tokay, which was for long time the Alsacename for "Pinot gris".  That variety had probably been taken to Hungary in the 14
th Century.  Europe's
law-makers had proposed "Tokay Pinot gris" as an intermediate stage towards the eventual
elimination of the word "Tokay" from Alsace.  However, in the same Oxford Companion to Wine,
liquor "Tokay" was described as one of Australia's great gifts to the world, namely from Muscatel,
traditionally known as "Tokay" in Australia.  He pointed out that, according to his understanding,"Tokay Pinot gris" was listed in Annex 2 of the EC Regulation 753/2002 as a variety  "that include[d]
a geographical indication".  "Tokay" had long been used in Australia as a synonym for Muscatel;  it
was currently on the Australian wine register as an Australian name to be used only in relation to
fortified wines.  He presumed that "Tokay" was also used in the Slovak Republic.  The day that the
multilateral register got established, he foresaw a situation where Australia, Hungary, the SlovakRepublic and maybe one or two others might notify  the term "Tokay".  What would happen then?
Those Members would spend the next years, or whatever the period was under the EU's system,
comparing, arguing and disagreeing, would have to go to some arbitration panel and would spend the
next two years deciding who should be on the arbitration panel because of the difficulties of ensuring
that the panel was composed of independent persons.  Another two years would then be spent
mobilizing all the information that was needed, carrying out lengthy and expensive public opinion
surveys, etc.  The arbitrators might reach the conclusion that it was a generic term.  Such decisionwould have an erga omnes  effect:  in other words, no country had to protect it.  He wondered what the
benefit would be of a system where some Members would spend the WTO's time and money and
apparently, the money of those Members who did not wa nt to participate in the system.  In his view,
that was going from one extreme to another.  Clearly, the provisions of Article 23.4 called for a
voluntary system, as Argentina had pointed out, and the real issue was whether it had a legal effect onall Members.  He was convinced that many countries did not want to participate in this system
because they did not have an interest therein and should therefore not incur costs or have the burden
of a big Secretariat who would have to administer the system.
43.  The representative of the European Communities said, with regard to the points made by
Argentina and Australia concerning the obligations and administrative burden which would result
from the register, that it might be interesting for those countries supporting the proposal contained in
document TN/IP/W/5 to hear from the members of  the Lisbon Union what great administrative
resources and costs had been incurred under the Lisbon Agreement.  He also wondered whether the
International Bureau of WIPO could inform the Special Session about the resources devoted to
administering the Lisbon system.  Sharing the EU's experience regarding the registration of GIs for
products other than wines and spirits, he said that it was a more complex system, implying the
registration of GIs for the first time and therefore necessitating a detailed substantive analysis;  inTN/IP/M/4
Page 13
contrast, the system being proposed in the Special Session in the area of wines and spirits would not
involve such a substantive analysis and would perhaps be more straightforward.  In the European
Union system for products other than wines and spirits, there were some 600 names registered;  the
system was maintained by a full time eight-person staff, and concerned a market of 360 million
consumers. That was the kind of task involved in a fairly significant analytical operation that wouldnot have to be done for the proposed WTO multilateral system.  In the light of the EU's experience, it
did not seem that the administrative costs and burden would be all that significant.  He also recalled
that his delegation had said on a number of occasions that it was disposed to consider mechanisms
which would allow the burden and costs necessary for administering the system to be borne by those
countries that benefitted from it, i.e., the notifying countries.  He suggested that at this stage of debate,
rather than discussing how much the register was the "devil incarnate" and how huge the costs would
be, participants should concentrate on discussing exactly what costs would be involved and whetheror not the countries who would benefit the most from the system should meet the greater proportion of
the costs.
44.  The representative of Panama said that Article 23.4 clearly establish that there must be
negotiations "in the Council for TRIPS concerning the establishment of a multilateral system of
notification and registration of geographical indications for wines eligible for protection in thoseMembers participating in the system".  The word s "Members participating in the system" did not
seem in any way to indicate that the system was mandatory for all Members.  His delegation therefore
considered that the system should be a voluntary one.  Paragraph 18 of the Doha Declaration also
mentioned Article 23.4;  it was therefore impossible to separate the two texts.  A system the purpose
of which was to "facilitate" should not entail burdens or additional obligations for non-participatingMembers.
45.  The representative of Hungary noted that many points raised under the category of
"participation" did not really deal with "participation", but rather related to the issue of "purpose".  He
added that unfortunately some statements made had a more wide-ranging character.  For example, the
representative of Australia had repeatedly used the example of the Hungarian origin wine name"Tokay" to demonstrate certain views, such as the supposed link of the negotiations on the registry
with the extension of GIs, an issue which was not part of the negotiations under the Special Session.
With respect to the discussion on a registry, he recalled that his delegation had always proposed
having a registry which was "extendable" to other products.  There was however no automatic link;
that was a question of further negotiations and certainly very difficult ones.  He was particularly
concerned about the current backtracking of the debate to the supposed danger of extension to
products other than wines and spirits.  The Special Session was facing a situation where the opponentsdid not want to see any meaningful outcome in spite of the clear mandate of Article 23.4 and
paragraph 18 of the Doha Declaration.  His delegation was also aware about the links between various
negotiating issues but believed it was extremely regrettable if this kind of political link was used as an
argument for actually blocking results in the Special Session.
46.  Turning to the example of "Tokay", used by th e delegation of Australia, he said that Hungary
was aware of the fact that some EU members still used the name "Tokay" for certain types of wine.
However, there was an agreement with the EU under which the use by those countries would be
stopped from the year 2007.  In the case of the example of "Tokay d'Alsace", the term currently used
was "Pinot gris d'Alsace".  So, the use of the name "Tokay" had been gradually phased out.  His
delegation said that the example used by Australia was a good one.  Hungary would also be interested
in a set deadline for the phasing out of the name "Tokay" by any other countries as well.  Regarding
the "Tokay" produced in the Slovak Republic, he indicated that there were on-going negotiations
between the Slovak Republic and Hungary on this issue.  The area of Tokay historically extended to
some parts of the Slovak Republic and was mentioned in a law on the registration of wines in the 19th
century.  That was the basis for the use of this name.  He was not aware of any similar historical basisfor any region called Tokay in Australia or any other part of the world.  He said that this kind ofTN/IP/M/4
Page 14
situation need not be resolved at this stage.  He recalled that Hungary had proposed that in the event
of such disputes parties could go into arbitration. Although arbitration might take some effort and
time, the issue would be resolved once and for all and if, according to Australia, "Tokay" was
considered as a generic term and the arbitrators agreed with that finding, then Hungary would accept
it.  However, if that were not the arbitrator's decision, the national procedures would have to respectthat decision.  Comparing Hungary's proposal for arbitration with WTO dispute settlement, he
expressed his surprise that the same countries did not have the same concerns about costs, lengthy
arbitration, or lengthy dispute settlement, when it came to the protection of intellectual property in
other areas, be it pharmaceuticals or industrial products.  In his view, a dispute settlement system
specifically aimed at providing the necessary solution to solve problems caused by usurpation of
names was required, even if it clearly involved costs.   Therefore, his delegation did not think that the
question of possible litigation was a valid basis for trying to block the adoption of a registry.
47. With regard to other issues under discussion, the representative of Hungary noted that the
delegation of Chile had defined the word "to facilitate" as the contrary of "to complicate".  If that
were to mean doing nothing, then he wondered what the objective of Article 23.4 and paragraph 18 of
the Doha Ministerial Declaration was.  With respect to the intervention by the representative of
Australia regarding the erga omnes  effect of the arbitration system proposed by Hungary, he referred
to document IP/C/W/255, paragraphs 3 and 4, and confirmed that the effect of the arbitrator's decision
in case of challenges made on the basis of Article 22.1 and Article 24.9 would be of an erga omnes
nature.  In other words, should the arbitrator find th at a notified GI did not fit the definition or was not
under protection in the country of origin, it would not be entered into the register.  He reiterated that
the erga omnes  effect was important because it would save time and effort for the participants in the
system, since a single successful challenge would prevent the registration of notified names not fitting
the definition or not under protection in the country of origin;  they would have no effect in any WTO
Member.  Members should have the opportunity to also challenge the multilateral registration of
notified GIs on the basis of the exceptions in Articles 24.4, 24.5 and 24.6 (i.e., prior use, good faith,
prior trademark application and generic names).  In the event of a successful challenge, the notifiedGI would be registered without effect on the successful challenger.  The reason for not having an erga
omnes  effect in the case of these challenges would be that the applicability of the exceptions in
Article 24 could only be determined on a case-by-case basis.
48. The representative of Australia said that the discussion on participation was a fundamental
issue.  His perception about the principal demandeurs was that they had taken their "sheep's clothes
off" and indicated that they wanted, whatever was agreed upon in the Special Session, the multilateral
register to apply to all other products.  In light of that, one could not easily separate the two issues nor
accuse the Australian delegation of trying to distract the negotiations by referring to the issues.  In his
view, the current debate was all about "capturing the hearts" of the majority of WTO Members who
would not wish to participate in the system for wines and spirits because they did not have an interest
in wines and spirits.  Therefore, the objective pursued by both sides was to try and convince the rest of
the membership about the sort of register they might be interested in and whether or not this registershould be such that they would be obliged to join.  The example of "Tokay" was meant to be an
example of one issue in the wines area that could lead to considerable discussion between some dozen
delegations.  The reason why he had come up with such questions was because he had in mind certain
regions of the world like Asia, where for instance China, Korea and Japan were using terms which
sometimes were similar, or Latin America, where some terms used were identical or similar.Therefore, the "Tokay" example was only one which could be repeated many times over, not only in
the discussions on wines and spirits, but also in discussions on handicrafts, foods and other products.
For this reason, it was important to discuss participation because in the area of wines and spirits, it
was easier.
49.  Turning to the EC statement on costs in rela tion to the Lisbon Agreement, he wondered how
the Special Session should take account of an agreement which had only 20 contracting parties out ofTN/IP/M/4
Page 15
a total of 179 members.  He reminded delegations that 94.3% of the registrations of appellations of
origin had come from the EU or countries applying for accession to the EU.  In other words, the EU
had a very regulated centralized system of GIs and appellations of origin, which it tried to extend as a
model to the rest of the world.  It was not surprising that the costs of registration under the Lisbon
Agreement were small because 94.3% of the registrations came from countries who worked with thatmodel every day.  WTO Members should not be deceived when it came to a multilateral register of
wines and spirits, foods, handicrafts and manufactured products, because the cost for all of those
Members who were contemplating joining the system would be more significant.
50.  The representative of Paraguay supported the view that participation in a register must be
voluntary for all Members of the WTO.  He also fully subscribed to document TN/IP/W/5.
51.  The representative of South Africa recalled that in the regular session Members had discussed
a document which clearly stated that the proponents of GI extension wanted this register to be
extended to all products as soon as it was so agreed.  In her delegation's view, all linkages with other
work, including in other WTO areas, should be kept as invisible as possible because they complicated
matters.
52.   The representative of Botswana associated her delegation with document TN/IP/W/5 and the
points made by Singapore and others that participation should be on a voluntary basis.  Her country
was not a wine producer and had no intention of becoming one due to climatic conditions.  It was
therefore inclined to agree to a system that would not be burdensome either financially or otherwise.
53.  The representative of the European Communitie s wished to correct the impression that the EC
was trying to transfer mutatis mutandis  its system or internal domestic policy on GIs at the
multilateral level.  He assured the Special Session that that was not the case.  He recalled that hisdelegation had repeatedly given explanations of the great differences between the EC system of
registration and domestic policy concerning GIs on one side and the EC proposal in the Special
Session on the other.  These differences had also been underlined in a panel held in the WTO in
May 2002.
54.  The representative of Chile supported the point made by the representative of Australia that
there were many GIs "shared" by Chile and other countries of Latin America.  Her delegation
believed that the costs of an opposition system as had been suggested by the EC would be very heavy.
As shown by the WTO dispute settlement system, not only were the costs high for governments but
there were many costs for producers and exporters.  Furthermore, Members would live in a state of
uncertainty as regards their future as exporters or producers because of the length of the opposition
procedure.  While her delegation was not questioning the obligations in Article 23.4, it believed that
the system as put forward by the EC and others would add to the existing obligations under the TRIPSAgreement.
55.  The representative of Hungary said that he was not surprised, when it came to wines for
instance, by the percentage of registrations under the Lisbon Agreement which had been mentioned
by the representative of Australia.  The large majority of names came from European countries.  That
was exactly why the Lisbon Agreement had rather limited participation.  It did not cover a number ofcountries where important producers had continued or had just begun to use European GIs.  If there
were a larger number of registrations coming from those countries, that would show that usurpation
was very large in this area.  His delegation was not aware that there were geographical names from
non-European countries that were being used in Europe.  If that were the case, it would then tend to
think that there was need for an urgent solution.  Regarding the linkage between various negotiations,
he noted that there were two possible way of making linkages.  A positive way would be to say that
Members were ready to have a substantial outcome in the agriculture negotiations.  A negative way,
which was the case in the Special Session, would consist of saying that there should not be anyTN/IP/M/4
Page 16
substantial outcome of agriculture negotiations because it would prejudge a possible outcome on the
negotiations on extension.  In his view, the purpose and outcome of these kinds of linkage were quite
different.
56.  The Chairperson said that the exchange of views on "participation" had been useful although
positions remained apart, including on the issue of the obligations of non-participating Members.  He
hoped that delegations would think more creatively about how to reconcile the differences in this area.
(b) What is meant by a "system of notification and registration"
57.  The Chairperson informed the Special Session that the Secretariat had made available
document TN/IP/W/4/Add.1, supplementing the info rmation contained in document TN/IP/W/4,
paragraphs 3-4, and in annexes 1 and 2 of that document by providing information on the WTO
Central Registry of Notifications (CRN).
58.  He suggested structuring the discussion according to the same subdivisions as at the last
meeting:  i.e., procedures, costs and the possible ro le of the Secretariat.  He also suggested that, in
dealing with these points, delegations should feel free to address the Secretariat note on multilateral
notification and registration systems.  Although the note was not intended to give any "recipe" for the
problems the Special Session was addressing, he believed that it might give delegations some
practical ideas.  Also, the Special Session could take advantage of the presence of the representativesof the International Bureau of WIPO as experts to  ask for clarification and further information.  He
underlined that, by discussing the various existing systems at the multilateral level, delegations were
not at all prejudging the outcome of the discussions or their positions on the future system.
59.  The representative of the European Communities clarified a point that had raised some
confusion at the last meeting concerning documentation to be provided together with the notified GI.
Paragraph B.3 of the EC proposal stated that "notification to the Secretariat shall be accompanied by
copies of national legislative, administrative or judicial decisions and, if necessary, bilateral, regional
or multilateral agreements indicating the date on which each geographical indication first received
protection in the country of origin".  Certain Memb ers had argued that this would imply an excessive
cost because voluminous bilateral agreements would have to be included in the notification, and thattranslation of those agreements would be very costly for the WTO Secretariat.  Regarding copies of
national legislation, he said that the requirement of giving a reference to, or a copy of, the relevant
legislation could largely be met since such legislation had already been notified as part of the TRIPS
review of national legislation and was in principle available to all Members.  The necessity to add
copies of national legislation could therefore be substituted by a cross-reference to the document in
which such legislation had been notified to the TRIPS Council.  On the question of bilateral, regional
and multilateral agreements, the EC proposal had largely been misunderstood and misinterpreted:  theEC's intention was to cover cases where GIs were not protected under national law but where the
basis for the protection in the country of origin was actually a regional agreement.  A good example of
that was the Bangui Agreement, under which titles of protection for GIs protected in the country of
origin had effect in all the countries party to that agreement.  It was that type of international
agreement that his delegation thought should be part of the notification or at least cross-referenced inthe notification.  It was not the EC's intention to request countries to notify voluminous bilateral
agreements if those agreements were not the basis for protection of a GI in the country of origin.
60.  With respect to the issue of opposition raised by Japan, he said that under the EC proposal,
Members might, during the 18-month period following notification, examine the notified GIs and file
a challenge prior to the expiry of that period.  In response to certain delegations which hadcomplained that 18 months was too short a period to gather sufficient information to determine, for
instance, whether a name or a term was generic, he said that during the 18-month period and for
purposes of notification, Members did not need to make a final determination on whether a name wasTN/IP/M/4
Page 17
generic or not.  What his delegation had proposed was that Members gather prima facie evidence on
whether a name might have become generic.  That did not mean that all possible lines of defence and
pieces of evidence had to be provided, but that at least the opposition should be initially founded and
there should be some evidence that the name might have become generic.  Afterwards and in the
course of the negotiations that both Members might establish following the opposition, the situationmight be clarified.
61.  Regarding translations, his delegation believed that the notification of a GI, (i.e., term or
terms that were part of the GI) should be done in the language of the country of origin.  The rest of the
information regarding the notification such as the law under which the term was first protected and
any relevant bilateral or regional agreements should be notified in one of the three official languages
of the WTO (English, French or Spanish). The EU 's experience had shown that this type of
notification should not be any longer than one or  two A4 pages as most of the information was
already available in the WTO.  The information notified in one of the WTO languages would have to
be translated into the other two official languages and then distributed to the rest of the WTO
Members.  The notifications that would be distributed to WTO Members might prompt national
administrations to examine whether any of the exceptions, for example regarding generics, would
apply.  For that purpose, they might be interested in determining what the translation of the notifiedterm in their own language was in order to determine whether the name in that translation had been
used as a generic.  His delegation believed that the responsibility to determine what the translation of
the notified term was lay with the national administration concerned, because it was a matter of
sovereignty.  For example, determination of the appropriate translation of a notified term like "Tokay"
into Chinese would be done by the Chinese administration.  It seemed to his delegation that theburden on national administrations in relation to the question of translations would be limited to the
translation of a specific term for which protection was sought.  In other words, the costs to the
Chinese administration regarding the protection of the name "Tokay" would be to translate a single
word, "Tokay", into Chinese.  Therefore, the burden of translating a single word or two words at
maximum per translation did not seem too great.
62.  The representative of Australia encouraged delegations to take note of the words "a single
word or two words at maximum" and "one or two A4 pages" mentioned  by the EC delegation.  He
also recalled that it had been proposed that there be a summary examination as to form conducted by
the Secretariat at the notification stage.  His delegation did not think that there was any need for such
an examination since Members would be notifying GIs that were recognized as eligible for protection
domestically, that is GIs that met the TRIPS definition as transposed into domestic legislation.  If
there were to be any challenge as to whether a GI met the definition, that should be made and decidedat the national level.  The Swiss delegation had suggested at the last meeting that if the Secretariat
considered that a notified GI clearly did not meet the basic conditions, then the notifying authority
would be informed by the Secretariat.  Leaving aside the practical question of how the Secretariat
could make such a determination, suggesting that th e Secretariat play a role in reviewing decisions
made at the domestic level concerning what was a protected term within a Member's borders seemedto go considerably beyond the mandate of Article 23.4.  The question of translation in his view
required greater discussion in the Special Session.  Under the model proposed by his delegation and
others (TN/IP/W/5), registration did not trigger a direct legal effect in a domestic jurisdiction.  The
issue of language and translation therefore was much less significant than under the European model,
where Members were required to protect a registered GI domestically.  Given that Article 23.1protected GIs in translated form, participating Members would need to know what exactly they were
supposed to be protecting.  He wondered what it  would mean for countries like Japan, Korea, China
or Indonesia to be faced with up to 10,000 wine GIs notified by the EC.  If each of these countries
were to have each GI translated into its own langua ge at its own cost in order to find out exactly what
was being protected, then the cost of translation would indeed be significant.TN/IP/M/4
Page 18
(i) Procedures
63.  The representative of Canada reverted to the example of "Cheddar cheese".  If that name were
on a registration list and Canada challenged it on the ground that it was generic, would a labelling
such as "Canadian Cheddar cheese" be sufficient?
64.  The representative of Hungary recalled that his delegation had made extensive comments on
procedures at the last Special Session.  He supported the EC's constructive suggestion that instead of
providing new copies of already notified legislation, the notification of names to be registered should
contain cross-references to existing WTO notifications.  He recalled that his delegation had raised a
number of questions at the last Special Session, as  reflected in paragraph 65 of document TN/IP/M/3.
He said that no answers had been given to those qu estions yet.  In his view, answers to those questions
could help shed light on what kind of opposition procedure was needed in the multilateral register.  As
was well known by Members and shown by the Article 24.2 review, Members had implemented theirobligations in a variety of ways.  Some had national registries, others protected GIs through
certification marks or through their competition le gislation, passing-off, etc., or a combination of
these systems.  The Article 23.4 mandate made it clear that the system to be set up was for GIs that
were eligible for protection.  At the last Special Session, his delegation had attempted to ask what
procedure was available to Members that did not have national registries to be able to identify nameseligible for protection in their territories.  He wondered whether Members that did not have national
registers, for at least wines and spirits, had examined conformity of a term with the relevant
provisions of Section 3, including Article 22.1 definition, e.g., that a given quality, reputation or other
characteristics of a good was essentially attributable to its geographical origin.  In the case of
certification marks, his delegation wished to know whether or not trademark examiners establishedconformity with the Article 22.1 definition and other relevant provisions of the TRIPS Agreement
when examining trademark applications.  How would other Members establish a list of names eligible
for protection which they wished to notify under the system?  Was there or would there be any
challenge or opposition procedure in the process of establishing conformity with the relevant
provisions of the TRIPS Agreement?  Would the WTO Member in question establish which termswere eligible for protection and decide which term s it wished to notify?  For instance, in document
IP/C/W/392, submitted by Australia to the regular session, it seemed clear from Australia's system
that the 97 GIs in the wine registry would be noti fied.  However, his delegation did not know how that
would be done with respect to spirits, because they did not know which GIs for spirit were eligible for
protection in Australia under the Australian Food Standards Code Spirits Standard.  His delegation
therefore wanted to learn more from Australia an d other Members who did not have the same system
as Hungary about how that would be done and whethe r there were or would be possibilities at the
national level to challenge the examination of conformity with the Section 3 obligations of the TRIPS
Agreement.  He pointed out that his country had a registry which contained names for wines and
spirits and the way Hungary would establish the list  of names to notify would be straightforward.
65.  The representative of Switzerland recalled that her delegation had described at the last
meeting the various phases and elements of the procedure, (TN/IP/M/3 paragraphs 27 et seq.).
Certain proposals, including that of Canada and other Members (TN/IP/W/5), seemed to have taken
for granted that the system to be established would have to facilitate the protection of GIs as
prescribed by Article 23.4 of the TRIPS Agreement.  As indicated by Canada, "to facilitate" GIs
meant "to make GIs known", which was undeniable.  However, for her delegation, that only
concerned the first part of the process of actual facilitation;  by itself, it was not sufficient.  To"facilitate", in general terms, meant to make it less difficult.  One might well ask therefore how a
register could provide less difficult protection and why it was necessary to establish such a register.  If
one examined why registers were created, one woul d note a common feature that the owners of the
registered names could get a concrete advantage from these registrations in law courts for example.  If
in the framework of a national register, the inscription gave rise to a right, it would seem legitimatethat in the multilateral framework and in view of the history and traditions of each Member, the legalTN/IP/M/4
Page 19
effect of the registration of a GI existed as foreseen by various systems of international registration.
However, in the case of the future multilateral system, this effect should obviously be less far-
reaching than at the national level.  In the opinion of her delegation, it was important to attach a legal
effect to these registrations;  failing to do so would call into question the very purpose of facilitating
the protection of GIs.  The most appropriate effect was to attach to registration a presumption ofvalidity.  Her delegation failed to understand how the proposal in document TN/IP/W/5 intended to
facilitate the protection of GIs without attaching legal effects to a registration.  Document TN/IP/W/5
indicated that it would be enough to have a database or a simple source of information.  However, in
paragraphs 2 and 3 of page 6 of that paper, the possibility of raising an objection to that registration
had been mentioned.  She asked what the reason was for such opposition if all that was intended was
to have a simple database without legal effect.  Why refer only to the law of the notifying Member?
Why should it necessarily mean the cancellation of the challenged GI?  To provide such an oppositionseemed to ignore the very scope of the exceptions in Article 24, which in most cases, aimed at
covering the specific situations in the country of protection and not in the country of origin.  Most of
the grounds for opposition have an inter partes  effect rather than an erga omnes  one.  She asked the
sponsors of document TN/IP/W/5 to provide additional information on the intricacies of the
opposition procedure.
66.  The representative of Japan said that, according to his understanding, the EC had mentioned
three categories of languages:  first, the language of the country of origin;  second, the WTO working
languages, English, French and Spanish;  and thir d, the languages of countries where the GI would be
protected.  He did not think that it was an easy task to make accurate translations encompassing these
three categories of languages.  For example, translating a term from the language of the country oforigin into Japanese, through English, French or Spanish, seemed a difficult task.  With respect to the
legally binding system as proposed by the EC, the same notification of GIs would directly trigger the
legal effect in every WTO Member, so the translation of GIs should be done very carefully because
the translation of the GIs would also form the legal basis for procedures.  As regards GIs from
countries whose languages were less familiar in terms of pronunciation, the translation of the GI itselfwould not be sufficient for the different purposes of the trademark examination process.  If the
trademark examiners had to prepare the translation of data concerning the name of the region of
production and also the product covered by the GI, then translation would be a great problem for
Japan.
67.  The representative of the European Communities said, with respect to the question asked by
the delegation of Canada concerning the evidence or the elements to be provided as part of the
opposition procedure under the EC proposal, that the Canadian delegation was right in stating thatfiling an opposition should not be an onerous procedure and that the type of evidence to be provided
by the opposing party should be determined accord ing to the national law, e.g., how the notion of
generic had been interpreted in national law.  In other words, if Canada had interpreted and
implemented the notion of generic in a certain way, Canadian law would be the legal rule under which
the determination of prima facie evidence and the preliminary elements for determining whether for
example "Cheddar" was generic or not would be done.  If under Canadian law the pre-existence of
labels using the term "Cheddar" with the name of a country was sufficient as preliminary evidence,
that would also be sufficient for filing an opposition.   With respect to the point made by the delegation
of Canada that under the EC proposal there was no panel phase, he said that if there was any
opposition, the only thing that would happen subs equent to the opposition was that the opposing
country and the notifying country would be prompted to enter into a dialogue with the view to find a
mutually agreeable solution.  There would be no panel situation or dispute settlement of any kind.  In
other words, there was no dispute settlement associated with the opposition or notification made by
another country.  Regarding the issue of translations, he noted Australia's insistence that the 10,000
EU geographical indications would be an extremely heavy burden.  That was on the assumption thatthe EC would notify this number of GIs which, to th e best of his knowledge, had never been stated by
his delegation.  On the contrary, his delegation had stated that it was prepared to explore ways andTN/IP/M/4
Page 20
means to establish mechanisms that would ensure that the system could work swiftly, properly and
without being excessively burdened by a large number of notifications.  In document IP/C/W/392,
submitted by Australia in the regular session, it had been indicated that Australia was protecting 4,500
EU geographical indications.  He pointed out that 4,500 names put together in a Word document was
about five A4 pages, which did not seem someth ing completely impossible to assume by countries
which would want to translate those names.  Moreover, since certain countries like Australia were
currently protecting the 4,500 GIs, they would not have to make any translations.  His delegation
therefore failed to understand such fears or comments from certain countries that were already
protecting this number of GIs.
68.  The representative of New Zealand said that she agreed with at least part of the last
intervention by Hungary.  In her view, Hungary ha d raised interesting questions with respect to how
countries which were not currently implementing national registration systems for GIs wouldparticipate in a multilateral register.  She also noted that the EC had pointed out very clearly and
forcefully during the latest Council's discussions on extension that a national registration system was
currently not a requirement of the TRIPS Agreement.   Her delegation agreed with that interpretation.
Accordingly, it was giving the issues raised by Hungary careful consideration and would be most
concerned that any register negotiated could prejudice the continued right of Members participating inthe register not to establish a national registration system.  To do otherwise would seem to imply quite
a significant change to existing Members' rights and obligations under Article 23.  It would also entail
considerable new administrative costs and changes for some WTO Members in introducing such a
national registration system.  Furthermore, it would confirm her delegation's belief that what was
being negotiated would only have effect in a very small number of WTO Members, even within thekey group of beneficiaries, i.e., the wine and spirit producer countries.
69.  The representative of Canada asked whether the EC's comment regarding the question she had
posed essentially meant that the opposition by another country to a term claimed by Canada was in
fact challenging Canada's national approach to a generic term.
70.  The representative of the European Communities said, in response to the question raised by
the delegation of Canada, that there would be no fo rmal dispute settlement or binding arbitration or
any such mechanism to determine whether a country's approach to a generic term was valid or not
under the register.  It would be up to the country's national law to implement Article 24.6 and to
determine whether a term was generic or not.  If the Canadian law interpreted Article 24.6 in a
manner different from the Australian, EC or any other law, that was legitimate as well.  What would
happen following an opposition was that the two countries would enter into dialogue to clarify
whether the term was generic under Canadian law because the time-limit of 18 months for examplehad not been sufficient to provide for some prima facie evidence.  That was the gist of the proposal by
his delegation.
71.  The representative of Morocco recalled that, well before the Doha Ministerial Conference, his
delegation had on several occasions expressed its wish to see the system expanded to products other
than wines and spirits.  With regard to the discussion on the multilateral system, his delegation wouldendorse a two-stage system where notification was equivalent to filing an application.  The duration
of this procedure should be long enough for Members, including developing countries, to examine all
notifications in the context of the multilateral system.  This first stage should therefore precede
registration, which would correspond to the moment  from which Members had to ensure in their
territory the effective protection of the registered GI.
72.  The representative of the United States associated his delegation with the comments made by
the representatives of New Zealand and Canada.  Regarding Hungary's question, his delegation
strongly felt that these discussions should not prejudice the right of Members as to whether or not they
should have to adopt any type of register for wines and spirits.  Article 1.1 of the TRIPS AgreementTN/IP/M/4
Page 21
left open to Members how they implemented their obligations.  Any suggestion that the joint proposal
did not provide a means for resolving disputes wa s simply incorrect.  The proposed system would
resolve disputes in the same way as disputes concerning the patentability of inventions or the
registrability of marks.  Rather than creating an expensive opposition procedure within the WTO, the
joint proposal specified that disputes would be resolved solely under the national laws of Members.That was currently the state under the existing international notification and registration systems cited
by the Secretariat in document TN/IP/W/4, namely the Madrid system for trademarks, the Hague
system for industrial designs and the Patent Cooperation Treaty.  In each of those cases,
determinations were made solely with respect to national law without any requirement for
consultations or any further complicated procedures.  Only the Lisbon Agreement for the Protection
of Appellations of Origin and the Stresa Agreement on cheeses, cited in the Secretariat's document,
did not solely apply national law in determining whether protection should be extended or not.  As
noted at the last meeting, these two treaties were not broadly accepted.  Only 20 of WIPO's 179
member States adhered to the Lisbon Agreement and the Stresa Agreement had only seven member
States.  In response to those delegations that characterized the joint proposal (TN/IP/W/5) as useless
and meaningless, he recalled that at the previous Special Session detailed discussions had been held
on the benefits that would flow from the joint proposal, and a representative from the United StatesFederal Bureau of Alcohol, Tobacco and Firearms had made a detailed intervention on this point.
With regard to the suggestion that the system would not be voluntary because a voluntary system
already existed, namely the Lisbon Agreement, his delegation expressed its surprise that the Ministers
did not have this agreement  in mind.  A system with only 20 member States could hardly be viewed
as a successful voluntary system.  It therefore reiterated that the joint proposal for a voluntary systemwould have significant benefits and would perhaps attract a larger membership.
73.  The representative of Australia fully agreed with the comments made by the delegation of the
United States.  He was aware that in the EC's original proposal tabled some years ago there had been
no heavy-handed dispute settlement system, but just a system of consultation.  Hungary had put
forward an amendment which involved this arbitrat ion system and the EC had endorsed that position.
He asked the EC delegation to clarify its position regarding this point.
74.  The representative of Hungary assured the delegations of New Zealand and the United States
that his delegation did not wish to call into question Members' rights under Article 1.1 of the TRIPS
Agreement.  He had raised the questions with a view to better understanding how, under the currently
functioning systems, Members would and could establish eligibility for protection in conformity with
the relevant provisions under Section 3.  His delegation believed that such an understanding was
needed for Members to have a clearer view of what kind of opposition system was needed at themultilateral level to filter out GIs that did not fit the provisions of Section 3.
75.  The representative of the European Communities, responding to the delegation of Australia,
said that his delegation had not accepted the proposal made by Hungary.  The EC proposal did not
provide for a dispute settlement or arbitration system.  However, if delegations felt that the arbitration
system should be part of the multilateral register, his delegation was ready to explore that.   Herecalled that his delegation had tabled a comparative table with three different columns (IP/C/W/259),
clearly indicating in the first column the proposal tabled by the United States, Chile, Canada and
Japan (IP/C/W/133/Rev.1), in the second column the proposal by his dele gation (IP/C/W/107/Rev.1)
and in the third column Hungary's proposal (IP/C/W/255 ).  He further said that the representative of
the United States had made a valid point that under the joint proposal disputes would be settled at thenational level under national law in the same way as under the PCT or the Madrid Protocol.  To
follow the example given by Canada, if the EC failed to reach an agreement with the Canadians on
whether or not "Cheddar" was generic, the EC c ould not prevent a producer from going to a Canadian
court and trying to litigate decisions with the Canadian authorities under the Canadian law.  He
pointed out that was nothing new:  it was already possible and would be likely to be the case, with orTN/IP/M/4
Page 22
without the register.  In that respect, the EC pr oposal was identical to what was now reality under the
PCT or the Madrid Protocol.
76.  The representative of the United States, referring to the questions posed by Hungary, recalled
that his delegation had indicated at the last meeting that they would undertake some review procedure
for determining what and how to notify under the joint proposal.  Like the EC delegation, who had
indicated that the EC had not taken any decision on how they would notify GIs under their proposal,
the United States had not taken any final decision on how they would proceed.  In response to the
latest comments made by the EC representative on disputes, he said that disputes would be handled at
the national level under national law.  However, the important  point he wanted to make was that there
should not be any requirement for consultations.  It should also be noted that the costs involved in
litigating these disputes or in examining GIs in all of the systems were borne solely by the applicant.
77.  The representative of Argentina said that the EC's clarification of their position regarding the
Hungarian proposal was important because it had not been very clear previously.  Under the EC
proposal, once a GI was notified and published, another Member could oppose it within a time limit.
It would appear that, despite opposition, the GI would be recorded and would have effects in those
Members who had not opposed it.  She raised the following questions:  how would the bilateral
negotiations unfold?  Would they last one year, ten or 20 years?  What was the role of the nationallegislation of the parties involved?  In her view, nothing in the course of these negotiations would
prevent the party whose rights were affected to have, in parallel to these negotiations, recourse to the
judicial avenues in one of the two countries.  A second question was whether once a GI was opposed
and registered, the use of that GI could be continued or not.  For instance, if a notified term had been
opposed on the ground that it was generic in the opposing country, could that country continue to useit because according to its legislation the term was generic?
78.  The representative of the European Communities, responding to Argentina's first question
about the bilateral consultations, said that it could last from five minutes to five years.  In other words,
it depended on the goodwill of the parties in trying  to reach a settlement or solution to improve
protection.  He added that negotiations undertaken outside the WTO depended on the goodwill ofboth parties.  With respect to Argentina's second question on the effects of an opposition, he said that
the country which opposed the notification, for example on the ground that the term was generic,
could continue, during and after consultations and in the absence of any settlement, to use the generic
name, if that were the situation under the opposing country's legislation.
79.  The representative of Australia explained how he saw the situation under the EC proposal by
taking an example.  If the EC notified a GI for product "X" and Argentina opposed that notification on
the ground that it was generic in Argentina, Australia would seek opposition too.  Product "X" wasimported from the EC and Argentina into Japan.  Japan, who was not interested in the products or did
not produce them, would under the EC proposal have to protect the GI for "X" if it had not opposed it
within the 18-month time limit.  Argentina would in such a scenario lose its right to sell its product
"X" and would have to re-label and re-market it.  In sum, the issue was not limited to a problem
between two countries but would also affect the op posing country's interests in the markets of third
countries who did not produce wines and spirits.
80.  The representative of the European Communities said that the possibility of making
oppositions was certainly not limited to countries producing a product under a generic name but to
any country where the name was generic.  That was the reality of the principle of territoriality which
prevailed for all intellectual property rights.  It was up to every country to decide whether a name wasa generic or not.  This was a matter of each WTO Member's sovereignty.
81.  The representative of Argentina, following on from the reasoning used by the delegation of
Australia, said that she did not think that, during the negotiation stage, the rights of producers of eitherTN/IP/M/4
Page 23
of the two countries should be undermined.  It was understood to some extent that both sides had the
right to make claims after the final results of the negotiations.  However, the point she wanted to make
was that the automatic registration of a GI that was challenged led to the situation described by the
representative of Australia.  In the final analysis, the country who had made the registration
crystalized its position because the GI would automatically have to be protected in the other WTOMembers.  That would imply undermining rights, if any, held by the challenging party, e.g., right
deriving from use in good faith or prior trademark.  The fact that opposition had to be made just to
trigger negotiations would already be an "automatic" concession and would indirectly nullify the
rights of any person on behalf of whom a Member made the opposition
82.  The representative of the European Communities, responding to the concerns expressed by
other delegations that the rights of countries which produced goods using a term which was protected
as a GI in another country could be undermined, said that there was no additional obligation nor wasany right undermined.  If in a given country a GI was not generic and was considered as a GI
deserving protection, that protection was already enforced in that country.  The registration just
brought to light an existing protection.
83.  The representative of Argentina concurred with the EC's comment that obviously no new
rights were created.  The point she had made was that the EC was putting a right as an "absolute" one,
ahead of any other right, intellectual property ones or exceptions negotiated in relation to the
protection of these rights.  Anyone in a WTO Member had the right to go on using a name which was
protected as a GI in other Members if for example that name had been used in good faith before 1994.
For example, if a term was registered as a trademark, it would be legitimate that the person continued
using it, in accordance with the results of the Uruguay Round.  It should be kept in mind that thesystem proposed was only one adopted by some Members and others might have different ones.
84.  The representative of the European Communities,  in response to Argentina's statement, said
that according to the EC proposal, if a name was registered as a GI and there was a prior trademark or
a trademark used in good faith as provided in Article 24.4 or 24.5, these uses would be grounds for
opposition.  In spite of the registration, these exceptions could be used and could have the result thatthe term would not be registered, albeit at the national level.  In other words, the exceptions under
Articles 24.4 and 24.5 did not disappear;  they only operated at the national level.
(ii) Costs
85.  The representative of Canada said that the system advocated by the EC would create high and
unnecessary costs.  As had been raised by Japan, one set of costs that would be incurred in the
establishment and maintenance of the system of registration concerned translation requirements.
Indeed every Member would be obligated to examine every application in order not to waiveprematurely any of the exceptions of Article 24 and the right they had to contest the names under
Article 22.1.  Depending on the linguistic ability of the individual examiner in each country, complete
translation of the notification would be required before the task could even begin.  National
examination of notified names was likely also to be time-consuming and costly.  In Canada for
instance, a number of procedural matters had to be undertaken:  for example, a file must be opened foreach individual GI;  the accompanying information must  be translated into both official languages,
English and French;  and the information must be made available to the public for consultation.
Given that the number of applications under the proposed EC system might grow exponentially, these
costs would already be substantial.  However, by adding other complexities as proposed by the EC,
the costs would no doubt "sky rocket".  Indeed, determining whether a term fell under the exceptionsof Article 24.4 or 24.6, or determining whether the term was a GI under Article 22.1 would require
serious investigations.  It would not be sufficient to verify whether the term notified was already
registered as a trademark.  In numerous countries which protected unregistered trademarks, this would
involve public consultation.  In some cases, national administrations would not be capable ofTN/IP/M/4
Page 24
completing such an amount of work within the prescribed 18 months.  The best solution available for
these countries might well be to file automatically an  opposition in order to preserve their rights and
"buy some time".  Finally, given that the system proposed by the EC might force Members to examine
requests for GIs for which the applicant had no commercial interest in the territories undergoing
examination, she wondered how a system of notification and registration crafted on the basis of theEC specifications could be considered cost-effe ctive.  More importantly, her delegation wondered
how it could be considered at all in the Doha Development Round.
86.  The representative of the United States associated his delegation with the remarks made by
the representative of Canada.  His delegation believed that the system proposed by some Members
would create extraordinary costs and it was not clear how those costs would be borne.  His delegation
had made a preliminary review of the cost of examination in various WTO Members:  they ranged
from a few hundred US dollars to over US$ 1,000 for the examination of a mark, whether it was atrademark or a certification mark.  As Canada had stated, each of those notified GIs would have to be
examined in each WTO Member in order for it to be able to lodge an objection in a timely manner.
There were doubts expressed about whether that was feasible in all Members, given their
administrative infrastructures and other factors.  A rough estimate of the cost of examination of a
single GI in all WTO Members would approach some US$ 50,000, so the system proposed by the ECentailed significant costs.  Aside from the costs to the Secretariat for operating the system, the
examination and translation costs in Members were th e significant costs that would be entailed in the
consultation mechanism proposed by the EC.  Such costs would not be borne by the applicant but
would be directly imposed on governments.  Gi ven the significant workload in the WTO, his
delegation wondered whether that was a workable proposal.
87.  The representative of the European Communities said that his delegation was puzzled by the
estimates made by the United States delegation.  It seemed to his delegation, at least for the
registrations under the Lisbon Agreement, that the figures were much lower.  The EC delegation had
never claimed that there would not be any cost or that registration system should be an effortless
system.   It fully acknowledged the need for examin ing notifications according to national procedures.
It would only urge delegations to work together to wards finding the ways and means of getting these
costs borne in a proportionate manner by those that benefited most from the system.
88.  The representative of Canada agreed that it would be up to the Special Session to find a
registration system where the costs had to be factored in, and it was difficult to estimate what the
actual costs might be without any real information on the actual volume of registrations.  Referring to
the bilateral negotiations on wines that Canada was having with the EC, she said that there were some
120 pages of single lines of names, which woul d amount to some 10,000 names, out of which only 28
to 40 were of commercial interest.  She observed that a system that ended up with 28 to 40 names was
very different from a system with 10,000 names.
89.  The representative of Malaysia said that the issue of cost was important and recalled that her
delegation had already raised it at the last meeting.  Regarding translation costs which had been raised
by many participants, her delegation suggested that the Member notifying the GI provide thenotification in all three WTO languages in order to save costs for the WTO.  However, that would not
solve the problem for the countries that had to examine the GIs at the national level.  For example,
with regard to Malaysia, some parts of the notification would have to be translated into Malay.  Her
delegation suggested that the notifying country also provide the notification in Malay.  That could be
another possibility although it might incur great costs for the notifying country.  Her delegation notedthat most of the systems administered by WIPO provided for some fees.  It therefore suggested
considering charging a fee to enable the running of the notification system.  These possibilities would
minimize the costs to Members who did not participate and would perhaps make the multilateral
system more acceptable.TN/IP/M/4
Page 25
90.  The representative of the European Communities wondered whether the joint proposal for an
on-line database implied that national authorities would be obliged to refer to the database when they
made a determination under their national laws, and whether the name on the database would have to
be translated into the official national language, e.g., Malay.  It seemed to his delegation that
translation into national languages was an issue common to all the proposals tabled.
91.  The representative of Argentina reiterated that the more complex the system was, the higher
the cost would be.  She also repeated that no addi tional costs should be involved for the WTO, the
Members or the producers.  If the system was to be based on fees, it would be even more onerous for
developing countries;  that might be one element which could make it difficult for developing
countries to participate in the system.  From an economic point of view, the advantage would be
greater for the developed countries which would be able to register more GIs than developing
countries;  the latter would have to consider the financial implications involved and would think much
more about the desirability of registering GIs or participating in the system.
92.  The representative of Hungary said that, as far as the examination cost was concerned, his
country intended to notify less than 50 names under the future system.  That information might ease
some of the concerns expressed.  With regard to translation costs, he said that, like the EC, Hungary
found it difficult to understand why the EC approach was controversial.  The joint proposal suggestedthe establishment of a database and would create, if not an obligation, an encouragement for national
authorities to refer to the database.  Since Article 23.1 basically prohibited the use of GIs, even in
translation, it would seem that from the point of view  of translation costs, the two approaches did not
seem to be substantially different, provided that the relevant authorities indeed referred to the
database.
93.  With regard to costs to the WTO Secretaria t and to the Members, he recalled that his
delegation had tabled a proposal, before the Seattle Ministerial Conference, regarding the possibility
of requesting the WIPO Secretariat to administer the future system.  He pointed out that, although
Australia and other Members had repeatedly expressed concerns about the cost of running and setting
up of the system, there had not been any reaction from these Members to that practical idea.
94.  The representative of Switzerland said that, as had been pointed out by other delegations, the
setting up and use of a system of notification and registration of geographical indications should not
involve excessive costs or burdens.  This was a concern that all delegations should bear in mind when
discussing the characteristics of the system.  Regarding costs, she said that they should always be
examined in relation to the benefits that were ex pected.  From that perspective, it seemed that a
register with legal effects, e.g., with a presumption, would make it possible to considerably reduce the
cost linked with the protection of GIs for the produc er of products bearing such GIs.  Producers would
not feel compelled to seek protection of their GIs by way of prevention in each Member.  Moreover,
in case of litigation, the register would prove to be a tool for these producers which would facilitate
the protection of their GIs by reversing the burden of  proof.  Members' authorities would also benefit
from the system because they would also have a re ference tool to determine which GIs they would
have to protect.  If these GIs had not been challenged, it would seem that notification at themultilateral level would make it possible to obtain those advantages, provided a legal effect was
attached to registration.  Such an effect could be particularly useful for producers in developing
countries, which might not have the means to take preventive action in all the markets where they
would intend to market their products.  The fact of simply establishing a database without legal effect
did not make it possible to make such "savings" because the entry into this database would just be onesource of information among many other sources.  Regarding the cost-benefit aspect, the various
proposals put forward to date provided that Members wishing to benefit from the effects of the system
must in all cases notify their GIs, which would imply a certain amount of work for them.  A simple
database which was without legal effect and which was only a source of information would benefit
those producers very little since there was not even a reversal of the burden of proof.  In contrast, withTN/IP/M/4
Page 26
a register which created a presumption of validity, the burden of proof would no longer fall on the
legitimate producers but on the other party, and that would facilitate the protection of GIs.  The
notification, examination and opposition phases should therefore be considered as an investment for
the usefulness and viability of the system;  the costs involved would be off-set by the benefit derived
from a real facilitated protection.  Concerning comments made on the role which could be played bythe administrating body, she recalled that her delegation had indicated at the last meeting that that
body should carry out a brief examination to determine whether the notification and opposition
fulfilled the formal requirements.  This idea should be further examined because the formal
examination could alleviate the work of Members in the examination phase.  She confirmed that in
her delegations' view, it would not be up to the administrating body to say whether or not a notified
name was a GI.
95.  Referring to a statement made by her delegation at the last meeting (TN/IP/M/3,
paragraph 70), she added that, on the question of who would specifically bear the financial costs of
the system, one solution would be to charge fees on the basis of the number of notifications made.
That was the solution retained in the Lisbon Agreement (TN/IP/W/4, page 7).  It would be logical that
it should be the Members using the system and benefiting from its advantages who should bear the
costs.  Members would be free to determine at the national level who should actually contribute to the
payment of the fees, i.e., governments or the producers.  That would depend on their systems of
protection of GIs.  In order to ensure as broad as possible a participation in the system, it might be
useful to find solutions to ensure that these fees did not prevent certain Members from proceeding to
the notification of their GIs.  One could, for exampl e, imagine a financing in favour of these Members
through technical cooperation activities or offering that certain notifications and registrations be freeof charge.
96.  The representative of the European Communitie s reverted to the suggestions made by the
representative of Malaysia which required the notifying country to provide the GI in all three official
languages of the WTO, and possibly in the language of the country that had to examine the name.  He
said that, if this could facilitate the task of examining authorities in developing countries, hisdelegation would certainly explore and consider it, and would also invite other delegations to do the
same.
97.  The representative of Australia said that all participants understood that the cost issue was
relevant to the negotiations, and that both systems involved costs.  The main difference was that one
(the EC proposal) was far more costly than the other (the joint proposal).  The other point he wanted
to make related to the assurances Hungary and the EC kept giving that they would only notify a few
names.  The fact was that delegations could not negotiate based on how countries might use thesystem but rather on how they could use the system.  As had been said on previous occasions, his
delegation was concerned that the EC had recently introduced a wine regulation that they wanted to
implement in January 2003;  the EC had sought to "clothe" under the TRIPS Agreement regulations
that would be quite significantly burdensome and restrictive to many exporters.  His delegation
appreciated the fact that the EC had decided to defer the implementation of the regulation because anumber of WTO Members had raised great objections.  The reality was that the EC's decision to come
forward with the regulations had tarnished the situation and create concerns about how the register
and the issue of extension might be used in a protectionist way.
98.  The representative of Malaysia said that Argentina had expressed a valid concern regarding
what the impact would be on developing countries.  She added that her delegation also liked the ideas
of Switzerland to mitigate the impact through some technical assistance or some S&D treatment, e.g.,
an exemption or "waiver" from fees for developing countries.TN/IP/M/4
Page 27
99.  The representative of New Zealand fully supported the intervention made by the delegation of
Australia.  Her delegation's views had been tarnished by fears that the future register could be used for
protectionist purposes.
100. The representative of Argentina said that one of the greatest concerns of Argentina did not
really have to do with the costs of registering one or two GIs but rather with the costs of analysing and
assessing the history of GIs of certain countries which had been registered for a long time.  As a
country which was new to the system, Argentina could easily imagine the workload and the
tremendous cost of registration.
101. The representative of the European Communities said that his delegation had not yet made
any decision on the number of GIs to be notified.  He stressed again that his delegation had always
been prepared to find ways and means to ensure that the system work swiftly without causing any
major disruption or any unbearable cost to developing countries.   His delegation urged delegations tocome up with proposals on ways and means of setting up a system that could work to the benefit of all
Members.
102. The representative of Australia said that the multilateral system should not be unduly
burdensome for Members from an administrative point of view.  The greater the procedural
complexity involved in particip ating in the system, the greater the administrative burdens for the
Secretariat.  He also pointed out that costs would not be the same for a developing country which was
not a producer of wines and spirits as for a developing country which produced wines and spirits.
That point should be borne in mind.
103. The Chairperson said that there had been another round of useful discussion on the sub-item
of costs, and that some ideas might warrant further consideration.
(iii) Possible role of the Secretariat
104. The representative of Australia said that under the joint proposal the role of the Secretariat
would include the following:  receiving the information notified by each Member and placing it on a
readily accessible and searchable register;  distributing the information to Members concerning
changes either by notifications or withdrawals;  ensuring that the register was maintained as anaccessible searchable and discrete source of information; and providing basic information to Members
on procedural aspects of notifications and withdrawals.  These were the functions of the Secretariat
that would be involved in the joint proposal.  Howe ver, it would be up to Members to ensure that the
information they had notified to the system had been accurately recorded and was kept up-to-date.
So, there would be a role for the Secretariat, but, as had been stressed at the meetings, the register
must be kept as least burdensome as possible.
105. The representative of the European Communities asked whether the Secretariat was supposed,
under the joint proposal, to include in the register any name that obviously was not a GI.  In other
words, would there be some sort of "sanity check" or  would anything be inscribed in the registry and
thereafter bind the national authorities?  He further asked whether under the joint proposal the WTO
Secretariat was supposed to translate such na mes into the three WTO languages for example.
106. The representative of Argentina asked whether the registration model proposed by the EC
meant delegating to the Secretariat faculties that national authorities had to date;  in other words, the
Secretariat would be the one that would apply the definition of GI and would interfere in a process
involving what a Member had legitimately notified to the WTO as a name protected on its territory.
107. The representative of the United States said that, like other participants, his delegation would
expect Members to take the procedure seriously and not notify terms that were obviously notTN/IP/M/4
Page 28
geographical terms.  It would foresee a very small ro le of the Secretariat with regard to checking such
notifications.  Recalling that a Member had earlier mentioned that 120 pages of terms had been
notified to its authorities in the framework of negotiations for a bilateral agreement, his delegation
would not expect the Secretariat to perform any type of examination function with regard to such
notifications.  The joint proposal made by the United States and other countries foresaw that theexaminations would be undertaken solely with regard to, and under, national law.
108. The representative of Australia said that it was conceivable that countries would not take their
responsibility so genuinely and they might start notifying terms whose association with a GI was
questionable.  These were precisely the sort of circumstances that he had referred to earlier in the
discussions, i.e., when terms like "tawny" or "ruby" or other traditional expressions had been listed by
the EC in a wine regulation.  He recalled that the EC had on occasions given the impression that
traditional expressions might fall within the definition of GIs.  If such expressions were notified bythe EC, the onus would be on Australia for example to get involved in a lengthy dialogue on whether
such expressions met the definition of a GI.  That was precisely the sort of dialogue that Members had
been engaged in with the EC at a bilateral level and in the discussions on the wine regulation in the
TBT Committee.  His delegation wanted to avoid such lengthy and costly discussions about
interpretation of what a GI was because, under the TRIPS Agreement and under the joint proposal,this would be for national authorities to do.  His delegation could not envisage the Secretariat having
this role of trying to interpret whether a term either fitted the definition or was inconsistent with one
of the exceptions.  He reiterated that the system proposed by the joint proposal was preferable, would
have fewer implications for the Secretariat and be more consistent with the current TRIPS Agreement.
109. The representative of Switzerland said that the Secretariat should play a role as intermediary
between Members.  Members should notify to the Se cretariat their wish to participate in the system
and send all the GIs that they wished to protect.  In addition to the task of publishing the GIs notified
and informing the Members, it could also be envisaged that the Secretariat proceed with a brief
examination as to form of the notification and of opposition as well.  In the Swiss delegation's view,
this would avoid a paralysis of the system caused by an "avalanche" of unfounded notifications oroppositions.  This would not mean that the Secretaria t would substitute itself for Members;  it went
without saying that Members would make the determination as to substance on the basis of national
laws and the TRIPS Agreement. The Secretariat should also have the task of publishing the
notifications recorded and updating the registry w ith new GIs or any modification or cancellation of
GIs already registered.   She said that her delegation was open to proposals regarding the question of
whether this role should be fulfilled by the WTO Secretariat, whether it would be preferable to set up
a special body to take care of the register, or transfer this task to another organization which wouldhave the technical skill in the area.
110. The representative of the United States said that his delegation had some scepticism with
regard to the role of the Secretariat as envision ed under the EC proposal and outlined by the Swiss
delegation.  Assurances had been given that Article 24 exceptions would be considered under the
Members' national laws.  He asked whether that would mean that the Secretariat would have tobecome familiar with the national systems of all WTO Members.  If that were the case, his delegation
would not think that would not be a workable system, and reiterated that the joint proposal was
preferable.
111. The representative of Australia recalled that there was a long tradition in the GATT and the
WTO, according to which the Secretariat should never comment on legal matters nor be placed in a
position of having to take such responsibility.  He recalled a particular case where the Secretariat had
inadvertently changed a paper, leading to quite a si gnificant controversial debate.  It would therefore
be highly inappropriate to place the Secretariat in a position where it must be involved in a discussion
as to whether a notification was consistent with the definition of a GI or otherwise fell within one of
the Article 24 exceptions.TN/IP/M/4
Page 29
112. The representative of Switzerland said that her last intervention had been misunderstood.  She
did not say that it was the Secretariat's task to examine whether or not each notified GI respected the
national legislation of the country which had notified it or the TRIPS Agreement.  It was just a brief
examination as to form to ensure that there was so me basis for the notification.  She recalled that the
last interventions made by Canada mentioned that there were documents to be supplied with theindications provided.  That was where the examination should take place, not at another level.
113. The representative of the European Communities said that the first point he wanted to make
had been clarified by the Swiss delegation.  There were many examples of instances in which the
WTO Secretariat, without putting in jeopardy its well-known neutrality, could do a "sanity check" on
the applications.  One simple case would, for example, concern applications received relating to a GI
for services, which was clearly outside the scope of the definition.  For this type of instance, before
translations were done and information was distributed, the Secretariat could act as a "formal filter".His delegation regretted that the question of traditional expressions like "ruby" and "tawny" continued
to be mentioned.  He recalled that at a previous se ssion the EC delegation had clarified this issue in a
very clear manner.  In document TN/IP/M/3, paragraph 122, the EC had said that traditional
expressions were not protected as geographical indications in the European Union and accordingly
pursuant to Article 24.9 of the TRIPS Agreement they were not eligible for protection as GIs at theinternational level.  They could not therefore be subject to notification under the multilateral system
and could never be in the multilateral register.
114. The representative of Hungary said that the US delegation had stated in response to the
question by his delegation that they had not yet made any decision on the procedure or how to
establish which names were eligible for protection or would be notified.  He had not been aware thatthere was yet a procedure in place in the US for establishing conformity with Section 3 obligations .
115. The representative of the Czech Republic said that the role of the WTO Secretariat depended
on the rules established for notification, opposition and registration procedures.  From her delegation's
view point, there should be a body which served as a notification and registration point.  It could
either be the Secretariat or a body established for that purpose.  The role of that body should includesome basic elements.  Regarding notification, it meant in practice that it should take note of the
notification of GIs made by Members.  It should examine all the formal requirements of the
notification, publish the notified GIs and ensure that Members were informed about those GIs.
Regarding registration, it meant that it should administer the register, enter GIs into the register,
publish registered GIs periodically in a transparent manner, and decide on possible cancellation of
registrations under clearly set conditions.  During a specified time-period, it should take evidence of
all challenges made by Members as well as of the results of such challenges.
116. The representative of Argentina shared the same concerns as Australia with regard to the role
of the Secretariat and fully endorsed the suggestions made by Australia regarding the task for the
Secretariat.  She further said that she was concerned about the proposal to examine the formalities of
the notification, notably to avoid an "avalanche" of unfounded notifications and oppositions.  The
Secretariat should not have such tasks.  Moreover, that would constitute an additional requirementcompared to the EC proposal.  What was suggested amounted to having, instead of two phases
(notification and registration), three stages:  pre-notification, notification and registration.  It would
appear that, if the Secretariat felt that the term notified by a Member did not comply with certain
requirements, that notification would be rejected.  To the best of her knowledge, there was no
precedent in the WTO which allowed the Secretariat to decide whether a notification could becommunicated to Members.  In her delegation's view, Members could notify as they saw fit,
complying with the formalities and other Members could judge whether there was compliance or not
in the notification.TN/IP/M/4
Page 30
117. The Chairperson said that it might be useful to hear the view of the Secretariat with regard to
the current practice of the Secretariat regarding notifications.
118. The representative of the Secretariat pointed out that there were a large number of notification
procedures in the WTO.  The Secretariat quite often received notifications which for instance were in
some way incomplete or apparently not in accordance with the procedures.   What it did was to enterinto contact with the notifying country to discuss the matter.  Invariably, the notifying country
welcomed questions of that kind being brought to its attention and often amended the notification in
consequence.  He pointed out, however, that ultimately it was the notifying country which decided
what it would notify and, once it had decided to proceed with its notification, the Secretariat would
issue the notification as forwarded.
(c) Purpose
119. The Chairperson recalled that the Council had had a rich discussion on this set of issues at the
June 2002 meeting, and had addressed some of them at the September 2002 meeting. He welcomed
any new idea or argument from delegations.
120. The representative of the European Commun ities said, in relation to the June meeting
discussions on the type of protection to be "facilitated" by the multilateral system of notification and
registration, that his delegation maintained that the type of protection that a notified single GI would
enjoy under TRIPS was a combination of protection under Articles 22 and 23, minus Article 24.  For
this reason, the EC proposal provided for opposition on the basis of certain exceptions;  other
exceptions would continue to apply at the national level.  His delegation also believed that under
national law the protection of both Articles 22 and 23 should apply.  The argument that Article 23 was
a lex specialis  and Article 22 would therefore not apply did not hold true under the TRIPS Agreement.
The understanding of both Articles 22 and 23 by his delegation was that they provided for different
types of protection that were supposed to be available to GIs for wines and spirits at the national level.
Therefore, the protection to be facilitated should be that of both provisions.
121. The representative of the United States stressed that the purpose of the multilateral system
was not to create new substantive obligations under the TRIPS Agreement.  The system under the
joint proposal went further than simply compiling information from national systems.  Members
choosing to participate in the system would refer to the WTO registrations when making decisions
regarding GIs.  Those decisions would, however, be based on Members' national laws.  In other
words, the fact that a particular GI was registered  in the register would not automatically obligate a
Member to protect that GI, if it was not entitled to such protection under that Member's TRIPS
consistent national law because of the exce ptions under Article 24 or other impediments.
122. The representative of Australia said that, as far as his delegation was concerned, it was clear
that the purpose of the system was to "facilitate" the protection of GIs for wines and spirits.  His
delegation could not agree that the EC system, which presumed protection unless a successful
challenge was made, did not involve substantive new obligations.  There were a number of aspects
where the EC proposal went beyond TRIPS:  under the TRIPS Agreement, there was no time limit on
the exercise of exceptions contained in Article 24;  Members were not required to have a domesticexamination structure in place;  and they were not exposed to a potentially costly dispute resolution
mechanism for the determination of individual GIs.
123. The representative of the European Communities said that, under his delegation's proposal,
there were no successful or unsuccessful challenges because there was no dispute settlement attached
to a challenge or to an opposition.  If an opposition was filed, consultations would start and that wasthe end of it.  In other words, all challenges would be "successful".TN/IP/M/4
Page 31
124. The representative of Australia said that, since the EC delegation seemed to have distanced
itself from the Hungarian proposal, he should have sa id that the EC system, if amended by Hungary,
would expose Members to a potentially costly  international dispute resolution mechanism.
125. The representative of Switzerland maintained that the objective of the system was to
"facilitate" the protection of GIs.  She added that the protection Switzerland was considering was the
one under Articles 22 et seq.  There was therefore no question of the system creating new rights or
obligations for the Members.   She reiterated that "to facilitate" meant that there were legal effects in
the registration, that is the creation of a presumption which would have the advantage of reversing the
burden of proof for Members who asked for the protection of GIs.  It went without saying that in case
of opposition, the issue would in most cases be de termined according to the national law of the
country where protection was being sought.
126. The representative of the United States associated his delegation with the remarks made by
Australia with regard to the fact that the proposals made by the EC and other delegations in many
respects did impose additional obligations despite their assurances, for example the time-limit for
opposition as well as the reversal of the burden of proof mentioned by the Swiss delegation.
127. The representative of Canada associated herself with the comments made by Australia.
According to her understanding, the EC's last in tervention on its proposal seemed to suggest that
Members who registered an identical name would decide that there was a problem, hold consultations,
discuss the matter, and if there was no agreement, each Member would go his separate way.  She said
she failed to understand the purpose of the system.
128. The representative of the European Communitie s, in response to the comments made by
Canada, said that, if a country notified certain terms and another country opposed them, consultations
would start.  Furthermore, if there was no mutually agreeable solution, the country that had opposed
would not have to protect the GI and the effects of the registration would not take place in that
country.  He recalled that at the June 2002 meeting certain delegations believed that, as a consequence
of notification and registration, they would have to protect the registered names if they had not
opposed it.  Certain delegations believed that protecting a GI that had been registered meant policingthe respect of that GI, by sending inspectors into supermarkets to check whether anyone was using
that protected GI, etc.  That in his view would indeed go well beyond the TRIPS Agreement.  That
was not the effect of registration under the system proposed by his delegation:  there was no
obligation on government enforcement for registered names via the presumption of validity, which
was the main legal effect of the EC approach.  It remained the responsibility of the right holders rather
than governments to enforce the protection of GIs.  That protection was simply "facilitated".
129. The representative of Australia said that, in the case instanced by the Canadian delegation,
Canada would not have to protect the term in question, while all other Members who did not
challenge would.  Canada would therefore lose its rights in the markets of all those Members.
130. The representative of the European Communities recalled an earlier statement made by his
delegation that Members had the sovereign right of deciding whether a name should be protected in
their territory.  If Canada opposed a notified name, then the registered name would not benefit fromany facilitated protection in Canada's territory and if other countries did not oppose, it would be
because they had come to the conclusion that the GI deserved protection under the TRIPS Agreement
in their territory.  He was perplexed by the statement on the rights of Canadian producers in other
countries without the protection being endorsed by the authorities of those countries.
131. The representative of Australia, taking the example of "Tokay", said that immediately after
the register was opened Australia and Hungary would both be racing to get in the first notification of
"Tokay".  If Hungary registered that name first, Australia would object to that.  However, if otherTN/IP/M/4
Page 32
Members where Australian "Tokay" was distributed did not challenge the notification by Hungary,
they would have to accept the notification of Hungary's "Tokay".  In his view, the question of a
Member losing its rights in third markets was a serious one.
132. The representative of Hungary said that Cana da had raised two valid points which Hungary
had covered in its own proposal:  the situation where there was no agreement at the end of
consultations under the system proposed by the EC;  and the question of the size of the parties in the
consultation and their economic power.  In a situation where one of the parties to the dispute was
much smaller and where there was no settlement at the end of the bilateral consultation process, a
multilateral possibility should be provided to settle the dispute.  His delegation had also suggested that
in appropriate cases the effect of a successful challenge should be erga omnes  in order to take account
of the kind of problem that Canada and Australia mentioned with respect to third markets.  In light of
the above, he asked delegations to examine the Hungarian proposal (IP/C/W/234 and 255).  Thearbitration system proposed by his delegation wo uld not increase the level of protection under
Article 23 of the TRIPS Agreement and would not create substantive new obligations.  Registration
under the system his delegation supported would result  in a rebuttable presumption of eligibility for
protection, which meant that the burden of proof before national courts would be reversed.  It went
without saying that the ultimate decision on whether a term was eligible for protection would remainat the national level.
133. The representative of the European Communities said that, according to his understanding of
Australia's comments, the term "Tokay" had been used for some time by Australian wine growers.  He
was not aware of whether or not "Tokay" was a protected GI in Australia and there was a place named
"Tokay" in Australia.   He recalled that paragraph D.2 of the EC proposal provided that homonymousGIs could be registered.
134. The representative of Hungary recalled that the Australian delegation had already said in a
previous Special Session that it had no intention of notifying "Tokay" as a protected GI (TN/IP/M/2,
para. 98).  He hoped that the Australian government would maintain that position.
135. The representative of Australia said that he did not think his country would notify "Tokay" as
a GI.  The point he wanted to make related to the issue of definition:  as long as the EC's
understanding was that traditional expressions coul d never be contemplated as GIs, his delegation
would feel reassured.  Nonetheless, he said that his example given earlier was still relevant for other
countries.  For example, if two countries in South America had the same GI and only one of them
notified it, and the other forgot to raise any objection, then the first country would "have a jump" on
the second.  These were the sort of problems he was thinking of, particularly with a system based on
the Hungarian dispute resolution system.
(d) Definition
136. The Chairperson said that the Special Session had had a rich discussion on this category of
issues at the June 2002 meeting and had touched upon them at the September 2002 meeting.  He noted
that there was no request for the floor.
D. OTHER BUSINESS
1. Meetings in 2003
137. The Chairperson proposed, with regard to dates of meetings in 2003, to hold three formal
meetings:  one in February, one in April, and one in late June or early July.  He had been informed by
the Secretariat that it was not yet in a position to pencil in any dates due to problems of meeting
scheduling, in particular in light of the dates to be first decided for the meetings of the GeneralTN/IP/M/4
Page 33
Council and the TNC. If it appeared necessary, the Council could hold intersessional informal
meetings (open-ended) together with bilateral or smaller group consultations.  He reiterated his
invitation to all delegations to hold consultations with him at any time.  Every effort would be made to
make the timing of meetings convenient for delegations, especially considering there were many non-
Geneva based officials who would like to participate.  However, given that the Council was operatingunder different timing constraints, it might have to break with its past practice of holding the Special
Sessions back-to-back with the regular sessions of  the TRIPS Council.  It had also been suggested by
some delegations during his informal consultations with groups of Members that the convening of
meetings could usefully be synchronized with th e tenth meeting of the WIPO Standing Committee on
the Law of Trademarks, Industrial Designs and Geog raphical Indications (28 April – 2 May 2003), so
as to take advantage of the presence of experts.  The Secretariat would do its utmost to take account of
this useful suggestion.
2. Roadmap
138. Turning to the roadmap, the Chairperson said that he could see the discussions as evolving in
three phases.  Assuming that the Secretariat comp ilation paper were available early in 2003, he would
ask Members to study it carefully.  He believed that it could be a good basis for the Council's future
work.  In particular, delegations could imagine holding an open-ended informal meeting to discuss thecontents laid out in the compilation before the first formal session in 2003.  That discussion would
hopefully lead to providing participants with some useful thoughts about the future course of action.
From the discussions, he would informally and orally share with the Members an outline  of what he
viewed as potential elements for the next step of the Council's work.  He would anticipate that
delegations could exchange their views on the outline of issues, trying as much as possible to findareas where there was some degree of commonality.  Progress on this could serve as the foundation
for a paper aimed at serving as a common basis for the Council's future negotiations. This paper,
which he envisaged for the second meeting, might contain suggestions for common language where
there was some general understanding, together wi th options where a divergence of views remained.
While he was still open to the possibility of a group of Members preparing such a paper, it seemedincreasingly unlikely that that would happen.  Any paper he would prepare would be on his own
responsibility, without prejudice to the positions of Members and without prejudging the outcome of
the negotiations. As related to the timing of the introduction of that paper, while he understood the
concerns about introducing the Chair’s text prematurely, he said that delegations should also be aware
of the mandated deadline for the negotiations.  In this regard, it would seem that the latest that the
paper could be introduced would be before the second meeting in April.  As had been seen in previous
negotiating processes, serious discussions only really began when there was a common basis fornegotiations.  If the Members were to fulfil their mandate by the deadline, they would need an
adequate amount of time to do so.
139. The representative of the European Communitie s thanked the Chairperson for his suggestion.
However, his delegation had a serious concern about meeting the Cancún deadline and that real work
would not start, as the Chair had indicated, before the second meeting, which was likely to be held inApril.  His delegation feared that if there was no text until then, the Council would be running a
serious risk of not having an agreement and there would a "log jam" at the Cancún Ministerial
Conference.  His delegation felt that discussions to study the issues, which had started in 1997, were
exhausted at this stage.  It thought that it would be preferable to bring forward the date at which the
Chairperson might be able to offer his contribution to participants in the negotiations.
140. The representative of Australia did not share the EC delegation's pessimism.  He said that the
Council had made good progress since there was one good proposal on the table and a couple of other
related proposals. Therefore, coming up with a pr emature paper might send the Council backward and
not forward.TN/IP/M/4
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141. The representative of Hungary said that his delegation was generally supportive of the
number of meetings and of the format of meetings that the Chairperson had mentioned.  His
delegation also shared the Chairperson's sense of urgency and held the view that the commencement
of serious negotiations towards points of convergence could only be expected once a text from a
neutral source was tabled.  He shared the views expressed by the EC delegation that a text by theChair in April would be too late:  that would only give delegations four working months to arrive at a
solution on a complex issue which they had not been able to solve in the past years.  He was surprised
to hear the optimistic statement by the delegation of Australia, who seemed to argue on a different
issue that nine months would not be enough for an amendment.  He strongly urged the Chairperson to
present the paper as early as possible, because he believed that, unless the paper was tabled,
delegations would only be repeating positions.  His delegation wished to have the Chair's paper as
early as February so that it could be discussed in the first formal meeting.  However, if that were notpossible, it could be made available before the second meeting.  In the latter case, he suggested that
the date of the second meeting be moved forward from April to March.
142. The representative of Switzerland said that 2002 had given delegations an opportunity to have
an interesting discussion on the various characteristics of the system to be established.  Numerous
ideas had been exchanged and suggested by the Chairperson.  The first phase of the Council's workwas concluded with the November session and it should move on to the next phase.  In her view, it
would be useful to take advantage of a first draft text rather than work on the basis of the steps
suggested by the Chairperson.  Ideally, that text should be distributed by the first formal meeting in
February.  Otherwise, her delegation feared that the Council would not be able to make sufficient
progress in its work.
143. The representative of the United States said that his delegation generally agreed with the
Chair's suggestion.  However, it shared the concerns expressed by the delegation of Australia that the
Chairperson should not come forward with a text prematurely, given that it might move delegations
further apart.  Given that the deadline of Cancún was September 2003, he was not convinced that
delegations would only have four working months after April and thought that they might have towork in August.
144. The representative of the European Communities recalled that in March 2002 delegations
seemed to have agreed upon an initial study phase lasting until the end of 2002 and a negotiating
phase at the beginning of 2003.  In his view, the Chairperson's proposal to continue studying a
compilation or comparative paper might merely prolong the study phase rather than bringing the
discussions to the negotiating phase.
145. The Chairperson thanked participants for their useful and constructive discussions and said
that the Special Session work should in the future be more focused on finding the middle ground or
compromises regarding the issues where there remained divergences of views.
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