WORLD TRADE
ORGANIZATIONTN/IP/W/7
18 February 2003
(03-1021)
Council for Trade-Related Aspects
of Intellectual Property Rights
Special Session
DISCUSSIONS ON THE ESTABLISHMENT OF A MULTILATERAL SYSTEM OF
NOTIFICATION AND REGISTRATION OF GEOGRAPHICAL INDICATIONS
FOR WINES AND SPIRITS:  COMPILATION OF ISSUES AND POINTS
Note by the Secretariat
Introduction................................................................................................................... .........................2
General........................................................................................................................ ............................2
I. DEFINITION OF THE TERM "GEOGRAPHICAL INDICATIONS" AND
ELIGIBILITY OF GEOGRAPHICAL INDICATIONS FOR INCLUSION IN
THE SYSTEM..................................................................................................................... ......4
II. THE PURPOSE OF THE NOTIFICAT ION AND REGISTRAT ION SYSTEM ............10
III. WHAT IS MEANT BY A "SYSTEM OF NOTIFICATION AND
REGISTRAT ION" .................................................................................................................1 6
A. PROCEDURES .............................................................................................................................16
1. Notifi cation ................................................................................................................. .............18
2. Opposition................................................................................................................... .............23
3. Registration ................................................................................................................. ............27
4. Updates and modifications.................................................................................................... .29
5. Review/monitoring of the system...........................................................................................29
6. Contact point at Members' level............................................................................................29
B. COSTS ............................................................................................................................... .........30
1. Costs to governments......................................................................................................... .....30
2. Costs to producers ........................................................................................................... .......32
3. Costs to consumers........................................................................................................... .......34
4. Costs to the admi nistering body ............................................................................................34
C. POSSIBLE ROLE OF THE SECRETARIAT .......................................................................................35
IV. PARTICIP ATION ............................................................................................................... ...36
ANNEX 1 – LIST OF DOCUMENTS OF THE COUNCIL FOR TR IPS (1997-2003).................40
ANNEX 2 – PROPOSALS FR OM DELEGA TIONS.......................................................................44TN/IP/W/7
Page 2
Introduction
1. The third Special Session of the Council for TRIPS, held on 20 September 2002, agreed to
ask the WTO Secretariat to prepare a factual compilation of points made under the four categories of
issues identified in the Chairperson's informal note of June 2002 (JOB(02)/49).1  The compilation
would be made on the basis of the written communications and interventions made by delegations on
the subject of the establishment of a multilateral system of notification and registration of
geographical indications (GIs) for wines and spirits.
2. This note attempts to respond to the above-mentioned request.  It follows the structure of the
Chairperson's informal note (JOB(02)/49) by subdivi ding the points and issues according to the four
main categories listed by the Chair:
- definition of the term "geographical indications" and eligibility of geographical
indications for inclusion in the system;
- the purpose of the notification and registration system;
- what is meant by a "system of notification and registration";
- and participation.
3. Being a summary compilation, this note cannot, by its very nature, include a full reflection of
all the documents submitted and interventions made since 1997.  For a full appreciation of the
position of a particular Member, the original documents submitted by that Member and records of itsstatements in the Council's minutes should be consulted.  For this purpose, a list of documents issued
since 1997 is contained in Annex 1 to this note.
4. This document is based on papers submitted to, and the minutes of, the Special Session of the
Council for TRIPS together with the previous documents submitted to the Council for TRIPS to
which delegations have referred to in the meetings of the Special Session.
5. The first Special Session (8 March 2002) was to a large extent devoted to organizational
matters.  The second, third and fourth meetings (28 June, 20 September and 28 November 2002) dealt
with points and issues as identified by the Chairperson in his informal note (JOB(02)/49).
6. In this paper, the terms "multilateral system" or  "system" are used in the interest of brevity
and relate to the multilateral system of notification and registration of GIs for wines and spirits as
mentioned in paragraph 18 of the Doha Declaration.
General
Scope of the mandate
7. At the second meeting, as well as in TN/IP/ W/5 ("Proposal for a Multilateral System for
Notification and Registration of Geographical Indications for Wines and Spirits Based on Article 23.4
of the TRIPS Agreement") and TN/IP/W/6 ("Multilat eral System of Notification and Registration of
Geographical Indications for Wines (and Spirits)"), the scope of the mandate in Article 23.4 and of thenegotiations has been addressed.  Two issues have been addressed:  the first is whether the mandate in
Article 23.4 and of the Doha Declaration covers GIs for spirits;  the second relates to clarifications
                                                     
1 TN/IP/M/3, para. 110.TN/IP/W/7
Page 3
concerning whether or not a communication made by a group of Members (TN/IP/W/3) is meant to
cover GIs for products other than wines and spirits.
Spirits
8. With regard to the question of the inclusion of spirits in the mandate, the following points
have been made:
- The mandate under Article 23.4 does not cover spirits.  The Singapore Ministerial
Declaration only included "spirits" in the scope of preliminary work to be carried out
relevant to the negotiations specified in Article 23.4.  The reference in paragraph 18
of the Doha Declaration to the TRIPS Council " completing the work started...on the
implementation of Article 23.4… " confirms the intention of Ministers that, with the
exception of geographical indications for spirits, the multilateral system be otherwise
established in accordance with the mandate provided in Article 23.4.2
- Members should therefore see, in the negotiating process, how to include a specific
obligation related to GIs for spirits so as to create a legal obligation under the TRIPS
Agreement.  To reflect the current limitation of the mandate in Article 23.4 to wines,
the term "and spirits" should appear in square brackets in documents.3
9. In reply, the followings point has been made:
- Paragraph 18 of the Doha Declaration clearly mandates that spirits, in addition to
wines are to be covered by the system.4
Products other than wines and spirits
10. TN/IP/W/3 ("Negotiations Relating to the Establishment of a Multilateral System of
Notification and Registration of Geographical Indications") states in paragraph 1 that "[p]ursuant to
Article 23.4 of the TRIPS Agreement, WTO Members shall negotiate in the TRIPS Council, the
establishment of a multilateral system of notification and registration of geographical indications".
This communication has raised concerns that the l ack of an explicit mention of wines and spirits
might give the impression that the proposed system would also cover other products.5  In this regard,
the point has been made that there is no mandate for such a system to cover any other product nor any
interest in it being extended thereto.6  The inclusion of other irrelevant issues would delay or impede
progress in the negotiations regarding the multilateral system for wines and spirits.7  In reaction to
these concerns, a point has been made that the system should be open to all GIs alike.8
11. The Chairperson has said that Members have a very clear mandate to negotiate the
establishment of a multilateral system of notification and registration of geographical indications for
wines and spirits by the Fifth Session of the Ministerial Conference.  He said that the Special Sessionis required to fulfil the mandate in its entirety and not to go beyond the mandate.
9
                                                     
2 TN/IP/W/5, page 2, section A;  TN/IP/M/2, para. 18;  see also IP/C/W/189, footnote 1.
3 TN/IP/M/2, para. 18.
4 TN/IP/M/2, paras. 19, 25, 27, 30, 32;  TN/IP/M/3, para. 12.
5 TN/IP/M/1, para. 17;  TN/IP/M/2, paras. 14, 17, 18, 19, [21], 30.
6 JOB(02)/94, page 2;  TN/IP/M/2, paras. 14, 55.
7 TN/IP/M/2, paras. 14, 18, 30, 55.
8 TN/IP/M/2, para. 24.
9 TN/IP/M/2, paras. 20, 137.TN/IP/W/7
Page 4
I. DEFINITION OF THE TERM "GEOGRAPHICAL INDICATIONS" AND
ELIGIBILITY OF GEOGRAPHICAL INDICATIONS FOR INCLUSION IN THE
SYSTEM
12. In the List of Points and Issues for Discus sion at the June 2002 meeting circulated by the
Chairperson (JOB(02)/49, paragraph 4), he identified the following points and issues on this subject:
Delegations may wish to comment on the definition of the term "geographical
indications" for wines and spirits for the purposes of the Special Session's work,
including on whether it is accepted that the operative definition is that contained in
Article 22.1 of the TRIPS Agreement.  As regards possible differences of view about
whether a given term may or may not fall within the definition of Article 22.1, the
question that arises is whether this is a matter which should be addressed in the work
of the Special Session or whether this is a matter best left to be handled on acase-by-case basis in the implementation of the notification and registration system
once it is negotiated and in force.  Under this item, delegations could also take up
other issues relating to the eligibility of geographical indications for inclusion in the
system.
13. With regard to the applicability of the definition of geographical indications contained in
Article 22.1  of the TRIPS Agreement, the Chairperson in his concluding remarks at the June 2002
meeting of the Special Session said that he:
"…did not detect any delegation questioning that the definition of geographical
indications that should be used was that contained in Article 22.1 of the TRIPS
Agreement."
10
14. With regard to the requirement that a geographical indication must be protected in its country
of origin and the applicability of Article 24.9 of the TRIPS Agreement  and with regard to the
applicability of the exceptions to protection provided for in Article 24 , the Chairperson in his
concluding remarks at the June 2002 meeting of the Special Session said that he did not:
"…detect any disagreement with the proposition that, in determining eligibility, the
exceptions provisions of Article 24 would be relevant.  That included the notion that,
to be eligible for inclusion in the multilateral notification and registration system, a
geographical indication should be protected in its country of origin."11
15. As regards the issue of whether the Special Session needs to clarify in advance the
definition contained in Article 22.1 , the following main views have been expressed:
- One view has been that it is necessary to reach a greater measure of common
understanding of the scope and operation of the definition in Article 22.1 andtherefore what would be covered by a notification and registration system for wines
and spirits.
12
                                                     
10 TN/IP/M/2, para. 138.
11 TN/IP/M/2, para. 138.
12 JOB(02)/94, page 2;  TN/IP/M/2, paras.  33, 36, 43, 48, 53;  TN/IP/M/3, para. 54.TN/IP/W/7
Page 5
- Another view has been that, since the definition in Article 22.1 has to be taken as it is,
such an exercise is not necessary and, indeed, does not fall within the mandate of the
Special Session.13
16. The following points have been made in support of the view that a greater measure of
common understanding of what would be covered by the definition in Article 22.1 is necessary:
- The need for greater clarity arises from some countries who have different
interpretations or a far-reaching and expansive approach to the definition under
Article 22.1.14  It would shed light on what is to be "facilitated" by the system15 and
on how Members might expect others to interpret the definition of a GI.16  I t  w a s
difficult to take a view on the possible elements of a system, particularly the question
of legal effect, without greater clarity on what might be covered.17
- Leaving the issue of whether a particular geographical indication for a wine or a spirit
is covered by the system to be determined on a case-by-case basis in the operation of
the system would be a recipe for unnecessary difficulties and disputes under the
system and might pose a particular burden on smaller countries, especially given the
sheer number of terms that may be registered.18
- It would be a mistake to assume that all disagreements over specific terms could
easily be resolved on a case-by-case basis after the multilateral system had been
negotiated, particularly in accordance with a cumbersome, highly regulatory and
costly arbitration system suggested by a Member.19
17. Those holding the view that an effort to reach a greater measure of common understanding of
what is covered by Article 22.1 is not called for have made the following points in support of their
view20:
- Such an exercise would not be in accordance with the mandate given to the Special
Session by the Doha Ministerial Conference and the terms of Article 23.4.  The
mandate does not call for any such clarifications.21
- The establishment of a multilateral system would have no implications for the
definition under Article 22.1;  therefore, no Member would have to make changes to
the definition.22
18. The issue has been discussed of how it could be ensured that terms that do not meet the
provisions of Articles 22.1 or 24.9 or fall under one of the exceptions provided for in Article 24
are not made inappropriately eligible for protection under the system .  In this regard, two main
views have been expressed:
                                                     
13 TN/IP/M/2, para. 57.
14 JOB(02)/94, page 2;  TN/IP/M/2, paras. 36, 43, 48.
15 JOB(02)/94, page 2;  TN/IP/M2, para. 36.
16 TN/IP/M/2, paras. 48, 53.
17 TN/IP/M/2, para. 43.
18 TN/IP/M/2, para. 43.
19 JOB(02)/94, page 2;  TN/IP/M/2, paras. 36, 48.
20 TN/IP/M/2, paras. 28, 34, 57.
21 TN/IP/M/2, paras. 34, 57.
22 TN/IP/M/2, paras. 28, 34.TN/IP/W/7
Page 6
- One view is that a "challenge" or "opposition" mechanism  should be provided in
order to filter out such terms on a case-by-case basis.23  A number of ways in which
this could be done have been suggested:
- One is that, under an opposition mechanism, a challenge should remain valid
until the disagreement has been settled through bilateral negotiations.  WTOMembers would be free to challenge those names that, prima facie , do not
meet the requirements of Article 22.1 of the TRIPS Agreement or have
become "the term customary in common language as the common name for
such goods or services".
24
- Another is that, under an opposition mechanism, if bilateral consultations do
not settle the disagreement, there should be provision for a multilateral
possibility to settle the dispute, possibly in the form of a specific arbitrationsystem.
25  The effect of an arbitration decision in the case of challenges in
relation to Articles 22.1 and 24.9 should be of an erga omnes  nature, meaning
that the term would not be entered onto the register.  This would save time
and effort for all participants and protect the interests of those Members who
had not challenged a notification.  In the case of successful challenges basedon Article 24.4, 24.5 and 24.6, the registration would not be applicable in the
territory of the successful challenger.
26
- It has also been suggested that other options could be envisaged, such as
independent verification by experts, the WTO Secretariat or another ad hoc
body.27
- Another view is that disputes over the eligibility of a particular term notified by a
Member should be resolved under the national law , rather than through an
opposition procedure managed under the auspices of the WTO.  In this regard, the
following points have been made:
- The national legislation of each WTO Member defines the scope and the
eligibility criteria to establish the link between the product and the
geographical origin.  The protection of the geographical indications is granted
according to the criteria established in Members' national laws.
Discrepancies regarding whether or not certain indications meet the definition
of Article 22.1 should not be resolved in the context of the multilateral
system of notification and registration but by each individual Member, in
accordance with its national legal system.28
- It is important to bear in mind that geographical indications are territorial
rights;  therefore, the conditions for granting and exercising them are
established in the national legislation of WTO Members.29  The territorial
nature of GIs is reflected in the use, particularly in connection with
                                                     
23 TN/IP/M/2, paras. 29, 34.
24 JOB(02)/70, para. 14.
25 IP/C/W/234 and 255;  TN/IP/M/2, para. 35;  TN/IP/M/3, paras. 29, 42.
26 TN/IP/M/2, para. 35.
27 TN/IP/M/2, para. 29.
28 TN/IP/W/6, para. 7;  TN/I P/M/2, paras. 42, 54, 59, 61.
29 TN/IP/W/6, para. 9;  JOB(02)/94, pages 3-4;  TN/IP/M/2, paras. 41, 54, 56, 59.TN/IP/W/7
Page 7
exceptions under Article 24, paragraphs 4 to 8, of the phrases "in the territory
of that Member" and "in that Member".30
- Further, it had to be recalled that, pursuant to Article 1.1 of the TRIPS
Agreement, Members are free to establish in their national systems their own
criteria for determining eligibility for protection of GIs, within the parameters
of Section 3, Part II of the TRIPS Agreement.31
- In the first instance, the best means of resolving a dispute over a notification
might be through recourse by any interested party under the national law of
the notifying Member.  If that were successful, the Member would have to
withdraw the notification.  If unsuccessful and the term kept on the
multilateral register, its eligibility for protection should depend on the
national law of each other WTO Member where protection is sought, giventhe territorial nature of the protection of geographical indications, like that of
other intellectual property rights.
32  The point has also been made that all the
existing multilateral systems of registration (e.g., for patents and trademarks)
rely ultimately on determinations under domestic law to ascertain eligibility
and protection.33
19. The view has been expressed that, while the opposition mechanisms proposed in
IP/C/W/107/Rev.1 and IP/C/W/255 provide a way of ensuring that registrations did not improperly
affect countries, the proposal contained in TN/IP/W/5 seems to allow for the notification of GIs that
do not meet the requirements of Article 22.1 of the TRIPS Agreement and still require national
authorities to refer to it.34  In response, it has been said that it should be noted that Article 23.4 refers
to "...geographical indications for wines eligible fo r protection in those Members participating in the
system".  It does not refer to "geographical indications for wines protected in those Members
participating in the system".  This provision recognizes that a geographical indication protected in
accordance with national legislation by a WTO Member participating in the system can appear on the
register even though another WTO Member participating in the system does not consider that samegeographical indication for wine (and spirit) as eligible in its territory.
35
20. In concluding the discussion at the June 2002 meeting, the Chairperson said that:
"…even on the question of how to deal with differences of view about what might
qualify for protection as a geographical indication, he believed that there might be a
common view that it was ultimately a matter for national authorities to determine
whether a given term met the criteria of national legislation – which should, of
course, be consistent with the requirements of the TRIPS Agreement."36
21. The point has been made that, if a Member accepts certain terms notified by another Member
as being eligible for inclusion in the system, the sa me criteria for eligibility should be applied to the
other WTO Members on a non-discriminatory basis .37
                                                     
30 TN/IP/M/2, para. 56.
31 TN/IP/W/6, paras. 1-2;  TN/IP/M/3, para. 45.
32 TN/IP/M/2, paras. 55-56.
33 JOB(02)/94, page 5;  TN/IP/M/2, paras. 71-72.
34 JOB(02)/70, para. 15.
35 TN/IP/W/6, para. 10.
36 TN/IP/M/2, para. 140.
37 TN/IP/M/3, para. 125.TN/IP/W/7
Page 8
22. The point has been made that the provisions of the TRIPS Agreement relating to geographical
indications concern only goods , and do not cover services, concepts or symbols.38  The view has also
been expressed that the system should cover not only names but also signs or representations  that
evoke a geographical origin or place in relation to a product and meets the requirements of the
definition under Article 22.1, in particular the link between the quality, reputation or othercharacteristics of that product and its geographical indication.
39
23. In regard to non-geographical names  (i.e., terms that are not names of a locality, a region,
etc.), doubts have been expressed as to whether they would qualify under the definition contained in
Article 22.1 and thereby be eligible for notification and registration.40  In response, it has been said
that nothing prevents non-geographical names from being protected as GIs if they correspond to the
definition of Article 22.1;  that is, as long as the link of the product with a quality, reputation and
other characteristic is proven.  There have been some precedents (e.g., "Vinho verde", "Cava","Cachaça").
41
24. Concern has been expressed that some Members might seek to notify and register
"traditional expressions" , such as "vintage", "quality liqueur wine", "ruby", "tawny" or "château",
under the multilateral system.  The view has been expressed that it would be unacceptable that
common language terms such as these be capable of meeting the definition in Article 22.1.42  T h e
concern has also been expressed that some Members might seek to reserve such generic production-
related terms or descriptive terms to certain individual geographical indications, thereby extending to
such terms the benefits of the legal effects flowing from the register.  Similar concerns have also been
expressed in regard to efforts to reserve certain packaging configurations to certain individual
geographical indications.43  The point has been made that this issue needed to be examined in the
Special Session and clarifications provided so as to  facilitate the work and avoid disagreements in the
future.  A footnote clarifying that a traditiona l expression was not a GI should be provided.44  It has
been said that, if such terms were to find their way,  de facto or otherwise, onto the register proposed
in IP/C/W/107/Rev.1, other Members would be deprived of using such generic terms, processes and
labels in the market of any country which had failed to lodge an opposition in time.45
25. In response, the point has been made that traditional expressions are attached to a wine
bearing a geographical indication and there was therefore a distinction between a "traditional
expression" and a "geographical indication".  Since traditional expressions were not protected as
geographical indications in their country of origi n, in accordance with Article 24.9, they would not be
eligible for notification and registration as GIs under the multilateral system.46
26. The view has been expressed that the TRIPS Agreement clearly provides for country names
to be capable of constituting a geographical indication.47  It would not be legitimate to limit the size or
type of geographical unit that could be considered a GI.48  Hence, country names should be accepted
as GIs.49  The point has been made that, notwithstanding this, Members have had difficulty, in some
                                                     
38 TN/IP/M/2, para. 33.
39 TN/IP/M/2, para. 28.
40 TN/IP/M/2, paras. 33, 44.
41 TN/IP/M/2, para. 63;  TN/IP/M/3, paras. 118, 129.
42 TN/IP/W/6, para. 8;  JOB(02)/94, pages 2-3;  TN/IP/M/2, paras. 37, 45, 52, 54, 60, 62;  TN/IP/M/4,
para. 108.
43 TN/IP/M/2, para. 45.
44 JOB(02)/94, page 3;  TN/IP/M/2,  para. 37;  TN/IP/M/3, para. 117.
45 TN/IP/M/2, para. 45.
46 TN/IP/M/2, para. 63;  TN/IP/M/3, para. 122;  TN/IP/M/4, para. 113.
47 TN/IP/M/2, paras. 28, 46, 49, 59, 61.
48 JOB(02)/94, page 3;  TN/IP/M/2, para. 38.
49 TN/IP/M/2, paras. 46, 49, 59;  TN/IP/M/3, paras. 119, 126.TN/IP/W/7
Page 9
instances, in securing acceptance by some other Members of their country names as GIs.50  Members
who are interested in having their country names registered as GIs should bear this in mind, especially
since the final decision on whether a name would be accepted as a GI would be made by the country
where protection is sought.51  There is need for confirmation of the right to use a country name as a
geographical indication and to have it accepted by the notification and registration system.52
27. In response, the view has been expressed that Article 22.1 does not contain any limitation
regarding the use of a country name as a geographical indication.  Any country name could be
protectable as a GI as long as the quality, reputation and characteristics of the product are essentially
attributable to the geographical origin designated by the GI.53  This means that it cannot be automatic
that a country name fits the definition of Article 22.1.54  For example, if a country has various GIs for
a product (e.g., wines) with various qualities, it would be difficult to create an "umbrella" GI which
would have one unique homogeneous quality.  The decision of whether a Member's name would meetthe definition of a GI is a question of evidence to be assessed by the national authorities of that
Member.
55
28. Concerns have been raised about how to prove the linkage between the quality, reputation
or other characteristic of a product and the geographical origin .56  It has been suggested that this
could only be done on a case-by-case basis, taking into account all the relevant specifics of individualsituations.
57  Another view is that it is necessary to have a collective understanding about the kind of
information to be included.58
29. Two questions have been raised in relation to process or production methods .  One
concerns whether a replicable production process can have an inherent link to a geographical
indication and be thus capable of constituting a geographical indication.59  The second question
concerns how much, or which stages, of the process in producing a good needs to be conducted in the
geographical location in question in order for that product to be able to use the geographical
indication referring to that area.60  In response to the second question, the point has been made that the
answer may vary depending on the product and the process involved (e.g., in the case of wines,
transportation may impact on the quality).61  The general point has been made that IP/C/W/107/Rev.1
does not touch upon the question of oenological practices or manufacturing specifications.62
30. The point has been made that indications of origin or indications of source  would not fall
within the definition of GIs provided for in Article 22.1 because they only refer to the place from
which a product originates and by themselves do not provide for the necessary link between the origin
of the product and its quality, reputation or other characteristic.63
                                                     
50 TN/IP/M/2, para. 49;  TN/IP/M/3, paras. 116, 124.
51 TN/IP/M/2, para. 61.
52 TN/IP/M/2, para. 46.
53 TN/IP/M/2, para. 63;  TN/IP/M/3, paras. 119, 126.
54 TN/IP/M/2, paras. 34, 63, 64.
55 TN/IP/M/2, para. 63;  TN/IP/M/3, para. 121.
56 JOB(02)/94, page 3;  TN/IP/M/2, paras. 33, 40, 50, 54.
57 TN/IP/M/2, paras. 34, 63.
58 TN/IP/M/2, para. 40.
59 TN/IP/M/2, para. 45.
60 JOB(02)/94, page 3;  TN/IP/M/2, paras. 39, 51.
61 TN/IP/M/2, para. 63.
62 TN/IP/M/1, para. 36.
63 TN/IP/W/6, para. 8;  TN/IP/M/2, para. 54.TN/IP/W/7
Page 10
31. Proposals have been made concerning homonymous GIs :
- Under TN/IP/W/5, it is stated that "the same or similar [GI] … may be submitted by
more than one WTO Member, provided that the [GI] is recognized by each notifying
WTO Member in accordance with its national regime for protecting [GIs] …".64
- Under IP/C/W/107/Rev.1, it has been proposed that "[I]n the case of homonymous
[GIs], each indication shall be registered subject to the provisions of Article 22,
paragraph 4 of the TRIPS Agreement".65
32. It has been said that it is not clear, under IP /C/W/107/Rev.1, what would happen if there is no
opposition to the notification of two homonymous;  presumably, all other WTO Members would have
to protect both geographical indications.66
II. THE PURPOSE OF THE NOTIFICATION AND REGISTRATION SYSTEM
33. The List of Points and Issues for Discussion at the June 2002 meeting, circulated by the
Chairperson (JOB(02)/49, paragraph 5), identifies the following points and issues on this subject:
Delegations may wish to comment on this matter, including on the meaning of the
words "in order to facilitate the protection of" in Article 23.4.  A basic question that
arises is whether the purpose of the work is to facilitate, through appropriate
procedures, the obtaining of the level of protection that already has to be given togeographical indications for wines and spirits pursuant to the TRIPS Agreement, not
to enhance that level of protection.  In this connection, delegations may wish to
comment on the way in which the provisions of Article 24 should be taken into
account.
34. The point has been made that the purpose of the multilateral system of notification and
registration of geographical indications should be to facilitate the implementation of the level of
protection already provided for in the TRIPS Agreement for geographical indications for wines
and spirits, i.e. the implementation of existi ng obligations, not to enhance that level of
protection .
67  It was said that this flows from the fact that the obligation to protect geographical
indications was derived from the TRIPS Agreement itself and not from the register.68  The view has
been expressed that there is an important difference between Article 23.4 which refers to facilitation
and Article 24.1 which refers to increasing protection under Article 23 and that, for this reason,
Article 24.1 is not linked to the current negotiations.69
35. In his concluding remarks at the June 2002 meeting of the Special Session, the Chairperson
said that:
"…delegations who had spoken on the issue had said that the purpose of the
multilateral system should not be to increase the level of protection for geographicalindications for wines and spirits provid ed for in the TRIPS Agreement, but to
facilitate the obtaining of that level of protection."
70
                                                     
64 TN/IP/W/5, page 5, section 2.
65 IP/C/W/107/Rev.1, D.2.
66 TN/IP/W/1, page 2.
67 TN/IP/W/6, para. 11;  JOB(02)/70, para. 17;  TN/IP/M/2, paras. 68, 70, 71, 76, 79, 80.
68 TN/IP/M/2, para. 80.
69 TN/IP/M/2, paras. 70, 77.
70 TN/IP/M/2, para. 141.TN/IP/W/7
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36. A number of views have been expressed on how the term "to facilitate"  as contained in
Article 23.4 of the TRIPS Agreement should be understood .  These include:
- the making available of the means of identifying which geographical indications
Members have to protect71;
- the establishment of a register where participating Members would make known, in
the framework of the WTO, geographical indications that are protected in their
territories and, in that way, make it "easier" for countries to obtain protection for GIs
identifying wines and spirits72;
- to "facilitate" the legal protection, a multilateral system should help administering
bodies to implement, and producers and consumers to avail themselves of, the legal
protection73;
- connoting movement forwards, along a horizontal pathway, towards a defined goal.
Its meaning is thus clearly distinct from the concepts of enhancing or increasing,
which would involve an upwards trajectory74;
- to simplify the process of protecting national interests75;
- not to imply that the system of notifica tion and registration is aimed at guaranteeing
protection of particular geographical indications for wines and spirits;  it does notmean "make mandatory".
76
37. Views have been expressed on a number of aspects of what is the protection that should be
facilitated by  the multilateral system of notification and registration.  In regard to the exceptions  to
protection provided under Article 24 of the TRIPS Agreement, the point has been made that, given
that the system does not foresee any increase in ex isting levels of protection, it is clear that all the
exceptions set out in Article 24, in particular the grandfather clause for geographical indications for
wines and spirits (Article 24.4), the trademar k exception (Article 24.5) and the exception for
customary use (Article 24.6), must continue to apply.77  The point has also been made that, in order to
enable these exceptions to continue to apply, provision has been made in one of the proposals on the
table for their exercise via an opposition procedure.78
38. In his concluding remarks at the end of the June 2002 meeting, the Chairperson said that he:
"…understood all delegations to recognize that…the exceptions provided in
Article 24 should remain valid" [under the multilateral system].79
39. The question of whether the protection that should be facilitated is only that provided for in
Article 23 (in conjunction with Article 24) or also that provided for in Article 22  has been discussed.
In this regard, the following views have been expressed:
                                                     
71 TN/IP/M/2, para. 66.
72 TN/IP/M/2, para. 76.
73 JOB(02)/70, para. 18;  TN/IP/M/2, paras. 68, 81.
74 JOB(02)/94, page 4;  TN/IP/M/2, para. 70.
75 TN/IP/M/2, para. 79.
76 TN/IP/M/2, para. 78;  TN/IP/M/3, para. 131.
77 TN/IP/M/2, paras. 72, 77, 80.
78 TN/IP/M/2, para. 82.
79 TN/IP/M/2, para. 141.TN/IP/W/7
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- that the multilateral system does not need to facilitate the protection under Article 22,
given that Article 23 is a lex specialis which takes precedence over the general rule
for the protection of geographical indications set out in Article 2280;
- wines and spirits benefit from protection under both Articles 22 and 23.  Article 23
prohibits the use of a geographical indication of a specific wine on another wine, orof a specific spirit on another spirit.  Use of such GIs on other products would not be
covered by Article 23 but could be covered by Article 22.
81  The protection be
facilitated should be that under both Articles.82
40. The question of whether the establishment of a mult ilateral system should entail new
obligations  for WTO Members has been discussed.  In this regard, the following views have been
expressed:
- the system should not create any obligations additional to those already set out in the
Agreement, including new administrative burdens, nor diminish in any way the rights
contained in Article 2383;
- the system should not create new substantive obligations in the sense that the level of
protection provided for geographical indications for wines and spirits would not be
raised under the system.84  However, this does not mean that there would be no new
burdens:  notification is itself a new burden and it is not clear how Members can
establish a system without creating some new burdens.85
41. Different views have been expressed about whether a system with legal effects at the
national level is necessary  if it is to facilitate protection.  One view is that the systems proposed in
IP/C/W/107/Rev.1 and IP/C/W/255 would make GI protection easier to implement by providing that
registered GIs should benefit from a presumption of eligibility for protection.  Asking those using
names notified by other countries to defend their case first before local courts would discourage
piracy and would benefit the entire spectrum of interested parties:  producers, consumers and
administrations:
- Producers intending to conduct a policy of international expansion would be able to
make cost savings when defending their names around the world.  Occasional
free-riding on notified names would be discouraged as producers using GIs notified
by other countries would have to prove their case before domestic courts first (and
incur the associated litigation costs) if asked to do so.86  Without a presumption of
eligibility, in most cases it would be difficult, if not impossible, for the average right
holder of a geographical indication, for example a wine grower in a small village, to
enforce his rights under Article 23, because he would have to build a case fromscratch before local courts, in certain cases thousands of kilometres from home and
under completely different legal systems.  This would threaten to defeat the clear
intention of WTO Members to provide Article 23-level protection to geographical
indications for wines and spirits.
87
                                                     
80 JOB(02)/94, pages 4-5;  TN/IP/M/2, paras. 70, 84.
81 TN/IP/M/2, paras. 82, 90.
82 TN/IP/M/4, paras., 120, 125.
83 TN/IP/W/6, para. 11;  JOB(02)/94, pa ge 5;  TN/IP/M/2, paras. 71, 79.
84 TN/IP/M/2, para. 68.
85 JOB(02)/70, para. 19;  TN/IP/M/2, para. 89.
86 JOB(02)/70, para. 20;  TN/IP/M/2, para. 69.
87 TN/IP/M/2, para. 73.TN/IP/W/7
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- Consumer associations with less resources than producers and yet willing to prevent
consumer deception could more easily defend their interests against those who market
products using names notified by others to the WTO.88
- Usurpation would diminish and, in turn, litigation and administration costs would
decrease.  Public administrations would have timely information that will allow them,for example, to not register trademarks containing GIs as prescribed by Article 23.2
of the TRIPS Agreement.
89
42. In response, concern has been expressed about such a system on the following counts:
- it would create new burdensome obligations for Members and add to the level of
protection for GIs for wines and spirits that presently exists under the TRIPS
Agreement;
- it would not be consistent with the principle of the territoriality of intellectual
property rights and the national freedom for determining ways of implementing the
TRIPS Agreement, including in the areas of GIs, as recognized in its Article 1.1.
43. On the first of these points, the claim that the proposed system would create new
burdensome obligations and add to the existing level of protection , the following arguments have
been advanced in support of this view:
- Whereas under the TRIPS Agreement there was no time-limit on the exercise of
exceptions contained in Article 24, Memb ers would loose under the proposals in
IP/C/W/107/Rev.1 and IP/C/W/255 their right to use certain exceptions if they were
not the subject of an opposition lodged within 18 months of the notification.90
- As a result, all Members would have to review a considerable number of notifications
of geographical indications and possibly oppose them, thus creating a new and
burdensome obligation.91  The proposals might also require Members to put in place a
domestic examination structure, something which is not a requirement under the
TRIPS Agreement.92
- Members might also be required to handle oppositions through a potentially costly
mechanism in Geneva rather than under national law, as the TRIPS Agreement was
currently drafted.93  Nothing in the TRIPS Agreement presently obliges a Member to
enter into an arbitration proceeding requested by another Member.94
- If a Member lodges an opposition in respect of a notified geographical indication, it
might not be required to protect the term in question in its own territory, but its
producers would loose their rights in the markets of all other Members who did not
challenge the notification.95
                                                     
88 JOB(02)/70, para. 21;  TN/IP/M/2, para. 69.
89 JOB(02)/70, para. 22;  TN/IP/M/2, paras. 69, 81.
90 TN/IP/M/2, paras. 78, 93, 95;  TN/IP/M/3, para. 78;  TN/IP/M/4, paras. 16, 122.
91 TN/IP/M/2, para. 78.
92 TN/IP/M/4, para. 122.
93 TN/IP/M/2, para. 78;  TN/IP/M/4, para. 122.
94 TN/IP/M/2, para. 78.
95 TN/IP/M/4, para. 129.TN/IP/W/7
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- The reversal of the burden of proof envisaged in the proposals itself amounts to a new
substantive obligation.96
44. In response, it has been said that these proposals would create no new substantive
obligations.97  The exceptions would continue to be available, only they would be exercised in a
different way, through an opposition procedure.98  Once a Member has lodged an opposition on the
basis of an exception, the exception would continue to be applicable as far as that Member is
concerned unless agreed otherwise as a result of bilateral negotiations.  In this sense, all challenges
would be successful.99  As for the protection of the geographical indication in third countries, this was
a matter for the authorities of those countries and could not give rise to rights on behalf of Members
other than the Member that is the country of origin of the geographical indication.100
45. The question has been raised as to what would be achieved by the system proposed in
IP/C/W/107/Rev.1 if, after a Member has opposed a geographical indication, all that would happen is
that consultations would be held, the matter discussed and, if there is no agreement, each of the
Members concerned would go its separate way.101
46. In response, the point was made that this is why the system proposed in IP/C/W/255 provided
for a multilateral possibility to settle the dispute in the event that there was no settlement at the end of
the bilateral consultation process.  This would also help address problems of imbalance of economicpower in the consultation process.  This proposal also envisaged that, in appropriate cases, the effect
of a successful challenge should be erga omnes  in order to take into account the problems mentioned
with respect to third markets.  Moreover, it should be remembered that, while registration would
result in a rebuttable presumption of eligibility for protection, the ultimate decision on whether a term
was eligible for protection would remain at the national level.
102
47. In regard to the concern regarding territoriality and national legislative discretion  that has
been expressed about the proposals in IP/C /W/107/Rev.1 and IP/C/W/255, the view has been
expressed that it would difficult to see how a multilateral opposition procedure could be consistent
with the principle of territoriality.  The system that was being proposed in IP/C/W/255 would entail an
arbitration panel of Members of unknown nationality  who would not be in a position to understand
the determinations made by national courts and the perceptions of consumers as to whether a term has
become generic.103  Consistent with the principle of territoriality, Members should not be deprived of
the right to apply their own laws in making dete rminations about intellectual property protection
within their borders.  In this regard, the point has been made that existing multilateral systems of
notification and registration, such as under Article 6 ter of the Paris Convention, the Hague Agreement
in the field of industrial designs and the Madrid Protocol in the field of trademarks, all rely ultimately
on determinations under domestic law to determine eligibility and protection.104  The need to respect
the freedom of Members, recognized in Article 1.1 of the TRIPS Agreement, both to determine the
appropriate method of implementing the provisions of the TRIPS Agreement within their own legal
                                                     
96 TN/IP/M/4, paras. 122, 126.
97 TN/IP/M/2, para. 69.
98 TN/IP/M/2, para. 92.
99 TN/IP/M/2, para. 92;  TN/IP/M/4, para. 123.
100 TN/IP/M/4, para. 130.
101 TN/IP/M/4, para. 127.
102 JOB(02)/94, pages 4-5;  TN/IP/M/4, para. 132.
103 TN/IP/M/2, para. 84;  TN/IP/M/3, para. 25.
104 TN/IP/M/2, paras. 70, 71.TN/IP/W/7
Page 15
system and practice as well as to determine the degree of protection to be accorded provided it meets
the minimum required under the TRIPS Agreement has also been emphasized.105
48. In response, the view has been expressed that the proposals in question for a multilateral
register fully respect the principles contained in Article 1.1 of the TRIPS Agreement.106  There is no
intention to advocate the establishment of a supranational court that would impose decisions onnational authorities and courts.  Registration woul d merely mean that those who use the names of
others that are registered multilaterally would have to prove their cases in court, if challenged.
107
National courts or authorities would remain free to  examine independently the value of a registration
as evidence and would thereby maintain their freedom to assess whether there actually was, in the
specific case, any infringement.108  Further, the system of challenge and opposition that has been
proposed would allow WTO Members to take full account of their territorial specificities and thus
respect the principle of territoriality.109
49. As regards the system proposed in TN/IP/W/5 , it has been said that this system would
facilitate protection by making readily available to all WTO Members the information contained in
notifications and registrations of geographical indications for wines and spirits for use in their
decision-making processes relating to the protection of such geographical indications.110  Illustrating
this point, it was said that such a system would be useful for helping ensure that when wine is
imported with a label bearing a geographical indication that geographical indication is authorized in
the country of production.111
50. In response, it has been questioned whether the system proposed in TN/IP/W/5 would
facilitate protection, for the following reasons:
- The system does not provide for a mechanism to filter out names that should not be
protected and therefore risks creating more confusion than clarity about which names
should be given Article 23-level protection.112  Legal uncertainty regarding the effect
of the system could increase litigation and eventually administrative costs.113
- While national authorities would be bound to refer to the list, the list gives rise to no
national legal effects and the national authorities could choose to ignore it in theirdomestic administrative decisions.
114  TN/IP/W/5 does not provide for any
mechanism to monitor the obligation for natio nal authorities to "refer" to the lists of
GIs on the database.
                                                     
105 TN/IP/W/5, page 3;  TN/IP/W/6, paras. 1-2, 20 ;  TN/IP/M/2, paras. 71, 76;  TN/IP/M/3, para. 69;
TN/IP/M/4, para. 72.
106 JOB(02)/70, para. 17;  TN/IP/M/2, paras. 67, 73.
107 TN/IP/M/2, para. 74;  TN/IP/M/3, 132.
108 TN/IP/M/2, para. 69.
109 TN/IP/M/2, para. 82.
110 TN/IP/W/5, page 3;  TN/IP/M/3, para. 131.
111 TN/IP/M/3, para. 132.
112 TN/IP/M/2, para. 75.
113 TN/IP/M/2, para. 69.
114 JOB(02)/70, para. 24;  TN/IP/M/2, paras. 69, 75.TN/IP/W/7
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III. WHAT IS MEANT BY A "SYSTEM OF NOTIFICATION AND REGISTRATION"
51. In the List of Points and Issues for Discus sion at the June 2002 Meeting circulated by the
Chairperson (JOB(02)/49, paragraph 6), he suggested the following:
It might be useful to consider how such terms have been understood in intellectual
property contexts, both at the national and international level.  This is a subject onwhich the Special Session could, if so wished, ask the WTO and/or the WIPO
Secretariat to provide factual material, in particular about the different types of
"registration system" that can be found at the international level, with their main
features, procedures and legal effects.  Delegations may wish to express their views
on these matters as well as on the costs and benefits of different possible systems.
52. Discussions on this category of issues in the Special Session have been organized following a
structure suggested by the Chairperson:
The Special Session could go into issues of "mechanics" in greater detail, including
such matters as procedures for notification, opposition, registration and modification
as well as issues of costs and the possible role of the Secretariat, having regard to the
various proposals that have already been made and new or modified proposals.
115
Accordingly, this section of this paper is organized using the same headings.
A. PROCEDURES
53. This section outlines points made by particip ants with respect to the "mechanics" of the
proposed system of notification and registration.  Two main sets of proposals have been made on
these matters:
(i) the proposal contained in TN/IP/W/5;(ii) the proposal contained in IP/C/W/107/Rev.1.  Some variations or additions to this
proposal have also been suggested:
- the proposal contained in IP/C/W/255 for the addition of a multilateral
arbitration mechanism to resolve challenges that cannot be settled by bilateral
negotiation;
- the suggestion that provision should be made for a brief examination of
notifications as to form by the administering body
116;
- the suggestion that provision should be made for a summary examination as
to form by the administering body as to whether challenges are well-founded
or not.117
The parts of the formal documents containing th e above-mentioned proposals as to procedures are
reproduced in Annex 2 of this document.
                                                     
115 TN/IP/M/2, para. 145;  TN/IP/M/3, para. 14.
116 TN/IP/M/3, para. 27.
117 TN/IP/M/3, para. 29.TN/IP/W/7
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54. The issue of the extent to which the proposals that have been made respond appropriately to
the procedural steps set out in the Special Session's mandate namely, notification and registration, has
been discussed.  One view has been that it is of great importance that a clear distinction be made
between the phases of notification and registration118 since the two phases serve different purposes,
and that the proposal in TN/IP/W/5 does not achieve this.119  Another view has been that this proposal
does make a distinction between the two phases.  "Notification" would be the responsibility of an
individual Member to identify and submit its list of domestic geographical indications;  "Registration"
would be the WTO Secretariat's responsibility to comp ile a database of such notifications to facilitate
sharing of the information with all WTO Members.120  However, "notification" and "registration"
should be understood as elements of a single act;  i.e. that the system should consist of a register of
notifications.121  Proposals in IP/C/W/107/Rev.1 and IP/C /W/255 amount to advocating a four-stage
system:  notification;  formal examination;  opposition;  and registration.122
55. Regarding the question of how the term "registration" in Article 23.4 should be
understood , one view is that this term refers to a specific way of implementing TRIPS requirements
that differs, for example, from the common law approach based on case law.  Registration in the field
of intellectual property is normally understood as involving the grant of a title of protection with a
genuine legal effect, for example in the area of trademarks and certification marks.123  Under a system
where registration has no legal effect, the act of registration would not add value to that of notification
and would not be in line with Article 23.4.124  To give such added-value, registration should follow a
phase of examination which would give it greater legitimacy.125
56. In response, the point has been made that none of the definitions of the term "registration" in
the Collins dictionary make any reference to a legal effect.  Any suggestion that the term refers to a
specific way of implementing TRIPS obligations would be inconsistent with Article 1.1 of the TRIPS
Agreement and amount to an increase in the level of Members' obligations.  "Registration" for the
purposes of the Special Session should be understood to involve the act of entering a notified term in
a list set up and maintained for that purpose by the administering body.  While the TRIPS Agreement
does refer to "registration" in other sections, those references are to national registration systems.  It isclear that the TRIPS Agreement allows Members to use a variety of mechanisms to protect
geographical indications and thus there is no value in seeking to make reference to registration in
different parts of the TRIPS Agreement.
126
57. In this regard, reference has been made to WIPO systems of notification and registration .
On these systems, the following points have been made:
- These international systems were meant to have legal effects, albeit of varying
degrees;  this was consistent with the approach suggested in IP/C/W/107/Rev.1.127
- The WIPO systems are aimed at the acquisition of protection, as indicated in
paragraph 5 of the Secretariat note TN/IP/W/4.  Article 23.4, by contrast, uses the
words "to facilitate protection".  "Application" suggests a path to acquiring rights but
the drafters of Article 23.4 selected the term "notification", not "application".  Thus,
                                                     
118 TN/IP/M/2, para. 99.
119 TN/IP/M/2, paras. 99, 103, 108, 110;  TN/I P/M/3, paras. 35, 40;  TN/IP/M/4, para. 71.
120 TN/IP/M/2, para. 106.
121 TN/IP/M/2, para. 104.
122 TN/IP/M/3, para. 46.
123 TN/IP/M/2, paras. 103, 108.
124 TN/IP/M/2, para. 108.
125 TN/IP/M/2, para. 110.
126 JOB(02)/94, pages 4-5;  TN/IP/M/2, paras. 101, 114.
127 TN/IP/M/3, para. 18.TN/IP/W/7
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they clearly mean something different.  Other Articles in the TRIPS Agreement refers
to "application" (e.g. Article 15.3) or to "applicant" (e.g., Article 29);  it is, therefore,
clear that the drafters of Article 23.4 could have used the term "application" if they
had so desired.128
- Except for the Patent Cooperation Treaty, there are few signatories to the systems
described in TN/IP/W/4.  As has been noted by earlier speakers, this fact suggests
that the international community had not readily accepted approaches where the
registration process has an objection procedure and results in the granting of
substantive rights.  The Special Session should not adopt an approach that past
history demonstrates has not proved acceptable to a large number of countries.129
- The Lisbon Agreement for appellations of origin, the Madrid system for marks and
the Hague Agreement for designs, as international registration systems for applicantsseeking national protection through the international system, have a different purpose
from that envisaged under Article 23.4.
130
1. Notification
58. The following substantive conditions  to be met by notified GIs have been mentioned in the
proposals and interventions:
- GIs notified are those "domestic geographical indications recognized as eligible for
protection under their national legislation…"131 or those "which identify goods as
originating in its territory, corresponding to the definition in Article 22, paragraph 1
of the TRIPS Agreement".132
- Only indications that receive protection in the notifying Member at the time of
notification and which have not fallen into disuse within the meaning of Article 24.9
should be notified.133
59. The question of who should be the administering body which would receive notifications and
provide other secretariat services under the multilateral system is addressed in paragraphs 121-128
below.
60. With regard to the information that should be contained in the notification of a GI, the
proposals provide that this should include the date that the geographical indication received
protection in the notifying Member, as well as any time-limit or date of expiry for that protection.134
61. With regard to other data or documentation  that should be included in the notification, the
following proposals have been made:
- In TN/IP/W/5, it has been proposed that "[I]in the interest of transparency and to ease
the use of information by WTO Members participating in multilateral agreements for
the protection of GIs, those WTO Members participating in such agreements must
                                                     
128 TN/IP/M/3, para. 32.
129 TN/IP/M/3, paras. 32, 53.
130 TN/IP/M/3, para. 69.
131 TN/IP/W/5, page 5, section 1;  TN/IP/M/3, para. 101.
132 IP/C/W/107/Rev.1, B.2;  TN/IP/M/2, paras. 26, 29, 35;  TN/IP/M/3, para. 39.
133 TN/IP/M/3, para. 40.
134 TN/IP/W/5, page 5, section 1;  IP/C/W/107/Rev.1, B.3;  TN/IP/M/3, para. 33.TN/IP/W/7
Page 19
indicate the agreements under which each of the notified geographical indications is
protected."135
- In IP/C/W/107/Rev.1, it is proposed that "[t]he 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 onwhich each geographical indication first received protection in the country of origin.
Any time-limit on that protection and the type of product as well as prima facie
evidence of the geographical indication's conformity with the provisions of the
Agreement, should also be provided".
136
- It has also been suggested that each participating Member may provide any other
information it considers useful for the TR IPS Agreement's implementation and for the
application at the national level of the prohibition regarding the use of thegeographical indications for non-originating products.
137
- The information required might also include the spelling of the GI, the identification
of the applicant, the territory from which the goods originate and a description of the
characteristics or qualitative features of the goods.138
62. The following views have been expressed on these proposals:
- The proposal concerning the notification of international agreements should not be
looked at in isolation from the legal effects of the system.  What would be the
implications of a GI that is notified on the basis that it has been included in a bilateral
or multilateral agreement?  For example, how would one know whether a notified GI
that two countries have committed themselves to protect does not fall underArticle 24.9?  The proposal would give rise to uncertainty.
139
- The proposal that international agreements could be used as a basis for the validity of
notified GIs means that obligations contracted by some Members under those
agreements would indirectly be transferred to other WTO Members which have not
ratified such multilateral agreements.140
- With regard to information to be provided such as national legislative, administrative
or judicial decisions and bilateral, regional or multilateral agreements, notifications
should be short summaries of the information to be provided.  Supporting documents
could be retrieved from the website;  circulation to Members would hence not be
necessary.141
- The requirement concerning the notification of laws and regulations regarding
geographical indications could constitute a duplication of existing obligations (e.g.the notification obligation under Article 63.2), or might be considered as an
                                                     
135 TN/IP/W/5, page 5, section 1.
136 IP/C/W/107/Rev.1, B.3.
137 IP/C/W/107/Rev.1, B.3-5;  TN/IP/M/3, paras. 19, 27, 36.
138 TN/IP/M/3, para. 36.
139 TN/IP/M/3, para 45.
140 TN/IP/M/3, para. 45.
141 TN/IP/M/3, para. 59.TN/IP/W/7
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additional obligation and would therefore be equal to an amendment to the TRIPS
Agreement.142
- The point was made that the system might concern not only terms already protected
in a WTO Member but also those eligible fo r protection in that Member.  In the latter
case, it would not always be possible to provide specific documentation making thecase that the term is already protected at the national level.  This would be the case
where Members are implementing a system of GI protection on  a common law basis,
which does not necessarily require prior registration of a term.
143
63. In response, the following comments have been made:
- The proposal of having copies of international agreements is intended to cover cases
where the legal basis for the protection of a GI in the country of origin could not be
found in a national legal, administrative or judicial text but rather in a regionalagreement.  For example, under the Bangui Agreement, a single title of protection
would be granted for a GI and produce effect in the country of origin as well as in the
other contracting parties of the Bangui Agreement.
144
- Notification of laws and regulations as well as of international agreements  should not
be too burdensome for Members since in most cases these texts have been notified tothe TRIPS Council under Article 63.2;  a cross-reference would therefore suffice.
Experience with a regional system shows that the necessary information can be
summarized on one or two pages.
145
64. It has been suggested in the proposals and various interventions that notifications should be
made according to an agreed format .146  In this regard, the following comments have been made:
- The format of submissions could be establ ished through negotiations or, if the WTO
Members so agree, by the Secretariat147, after the multilateral system itself is
established.148
- The format should be so designed as to make the Secretariat's task of compiling the
initial and subsequent notifications as simple as possible and to make the resultingdatabase as user-friendly as possible.
149
- It has also been suggested that in accord ance with normal WTO practice, the format
of notifications be kept simple.150
                                                     
142 TN/IP/M/3, para. 45.
143 TN/IP/M/3, para. 54.
144 TN/IP/M/4, para. 59.  The Bangui Agreement is the abridged name of the "Agreement Revising the
Bangui Agreement of 2 March 1977 on the Creation of an African Intellectual Property Organization" of 24
February 1999.
145 TN/IP/M/4 , paras. 59, 64.
146 TN/IP/M/3, paras. 19, 33.
147 TN/IP/W/5, footnote 4;  TN/IP/M/3, para. 33.
148 TN/IP/M/3, para. 33.
149 TN/IP/M/3, para. 33.
150 TN/IP/M/3: para. 59.TN/IP/W/7
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65. It has also been suggested that the Member notifying a geographical indication should be
required to provide not only translations in all three WTO languages but also in the languages of the
Members where protection is sought.151
66. As regards the accompanying information and data  that would be contained in the
notification of a geographical indication, it has been suggested that this information should be notifiedin one of the three WTO languages.  It would then be translated by the notifying Member, or
depending on the circumstances and arrangement made, by the administering body into the other
WTO languages for circulation to WTO Members.
152  The point has been made that this information
should not be voluminous since most of the information is already available in the WTO, for example
in the context of notifications made under Article 63.2 obligations, and a cross-reference would be
sufficient.153
67. With regard to the proposal in TN/IP/W/5, the view has been expressed that, since
Article 23.1 prohibits the use of geographical indications even in translation, it would seem that from
the point of view of translation costs the two approaches do not seem to be substantially different,
provided that the relevant authorities actually refer to the database.154
68. With regard to the language of notification and translation , the discussion has addressed
first the treatment of the geographical indication itself and second the treatment of accompanyinginformation to be contained in the notification of a geographical indication.  With regard to the
geographical indication itself , it has been suggested that the notification should be made in the
language of the country of origin.  The responsibility for determining what the translation of a notified
term was in the language of other Members where protection is sought would lie with the national
authorities of those Members.  It has been suggested that the burden of such translation should not begreat since it would be limited to one or two words.
155
69. In response, the point has been made that the translation of the geographical indication itself
is a highly important matter since Article 23.1 requires GIs to be protected also in translated form and
Members would need to know exactly what they are being requested to protect.156  Under the system
proposed in IP/C/W/107/Rev.1, the translation of the GI in the jurisdiction of each WTO Memberwould need to be known since the notification would trigger a legal effect in every Member.  If a
notified term is to be translated from the language of the country of origin into a national language
through a WTO language, this would not be an easy exercise, in particular into languages with
different script or spelling and from languages the pronunciation of which is not well known.
157
70. It has been said that if notified, such national authorities of countries which do not use a WTO
language have to translate their information as details of the area of production and of the product
covered by a GI for the purposes of trademark examination, this could be a considerable problem.158
Since every Member would be obliged to examine ever y notification if it is not to waive prematurely
any of its rights under Articles 22 and 24 depending on the linguistic ability of the individual
examiner a complete translation of the notification would be required before the task could even
begin.159
                                                     
151 TN/IP/M/4, para. 89.
152 TN/IP/M/3, para. 19.
153 TN/IP/M/4, para. 61.
154 TN/IP/M/4, para. 92.
155 TN/IP/M/4, para. 61.
156 TN/IP/M/4, para. 62.
157 TN/IP/M/4, paras. 17, 66.
158 TN/IP/M/4, para. 66.
159 TN/IP/M/4, para. 85.TN/IP/W/7
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71. Concern has also been expressed about the large number of geographical indications for
wines and spirits that might be notified and the consequent burden of translation.160  In response, it
has been said that nothing had been said to justify the concern about a very large number of
notifications and that ways and means of ensuring  that the system was not excessively burdened in
this way should be explored.161
72. With regard to the proposal contained in TN/IP/W/5, it has been said that the issue of
language and translation is less significant since registration would not have a legal effect at the
national level.162
73. It has been proposed that the administering body should undertake for each notification a
brief or summary examination as to form  after it has been received from a Member.  If the
administering body considers that the notified GI clearly does not meet the basic conditions, the
national authority of the notifying Member would be informed and would be expected to provideconfirmatory information or to renounce the notification.  It would be open to the Member to repeat
the notification at a later stage if it so decides.  Such a procedure would help ensure that GIs clearly
not meeting the requirements under Article 22.1 would not be registered under the system and that
Members were not faced with a large number of improper notifications.
163
74. With regard to this proposal, the following comments have been made:
- A summary examination as to form woul d not be necessary since Members would be
notifying GIs that are recognized as eligible for protection domestically, that is GIs
that meet the TRIPS definition as transposed into domestic legislation.164
- Although there might be a need for ways and means to refuse registration of
mischievously notified terms, it would be difficult for the administering body toascertain with any degree of finality whether a particular term meets the requirements
of Article 22.1.  Because of the territoriality principle, this would be a matter for
individual Members to determine.  This would go beyond the mandate of
Article 23.4.
165
- Rather than by providing for an examination as to form by the administering body,
the best way to avoid an excessive number of inappropriate notifications would be by
reaching a better common understanding of the definition contained in Article 22.1 of
the TRIPS Agreement.166
75. In response to these comments, it has been said that the examination proposed is not meant to
check whether each notified geographical indication respects the national legislation of the country
which has notified it or the TRIPS Agreement.  It is just a brief examination as to formal requirements
to ensure that there is some basis for the notification.  It is not intended to substitute the administeringbody for Members, which are the ones to make the determination as to substance on the basis of
national law and the TRIPS Agreement.
167  The WTO Secretariat could, without putting in jeopardy
                                                     
160 TN/IP/M/4, para. 62.
161 TN/IP/M/4, para. 67.
162 TN/IP/M/4, para. 62.
163 TN/IP/M/3, para. 27;  TN/IP/M/4, paras. 109, 112.
164 TN/IP/M/4, para. 62.
165 JOB(02)/94, page 6;  TN/IP/M/2, para. 101;  TN/IP/M/3, para. 64;  TN/IP/M/4, paras. 62, 106.
166 TN/IP/M/3, para. 54.
167 TN/IP/M/4, para. 109.TN/IP/W/7
Page 23
its neutrality, assume the task of providing a "sanity check" on the notifications and acting as a
"formal filter".168
76. In regard to communicating the notifications of GIs to other Members and making them
accessible to the public , the following proposals have been made (see also paragraphs 121-128 below
on the possible role of the Secretariat and on costs.):
- TN/IP/W/5 provides that " [c]opies of the registered geographical indications for
wines and spirits shall be distributed to all WTO Members.  To ensure maximum
transparency, the Secretariat shall, in addi tion to distributing copies of the lists to
WTO Members, make the list accessible, in searchable form, on the WTO's Internet
Web Site …".169
- In IP/C/W/107/Rev.1, it is proposed that the notified GIs be "published as soon as
possible by the WTO Secretariat and notified to Members".170  It has been said that
the possibility of having this publication made via the WTO website should be
considered.171
2. Opposition
77. Section C of IP/C/W/107/Rev.1 , entitled "Multilateral Examination of Geographical
Indications Published", provides for a challenge or opposition mechanism aimed at resolvingdisagreements between Members about the protection of an individual geographical indication that
has been notified.  IP/C/W/255  proposes the addition to this mechanism of a multilateral arbitration
system to be used when bilateral negotiations have failed to resolve the dispute.
78. The proposal contained in TN/IP/W/5  does not provide for a multilateral opposition or
challenge mechanism.  It has been explained that, since this proposal does not provide forregistrations that trigger legal effects in Members, there is no need for such a mechanism.  Any
opposition would be exclusively at the national level.  If any WTO Member objects to the registration
of a GI notified by another Member, the former may oppose the recognition of that geographical
indication in accordance with the laws of the notifying Member.  If an opposition is successful, the
notifying Member would request that the administering body remove the registration of thechallenged indication from the multilateral system.  The registration of that indication would be
removed from the multilateral system and would not be included in any updated lists circulated to
Members.
172
79. Given the importance of the legal system of the notifying Member as the forum for
oppositions, stress has been placed on the need to ensure that the opposition procedure within the
notifying Member's legal system and practice is available to the nationals of all other WTO Members
on a non-discriminatory basis  in accordance with the requirements of Articles 3 and 4 of the TRIPS
Agreement.173  In this regard, it has been recalled that, under the proposal in TN/IP/W/5, oppositions
would be initiated by private parties, not only by governments.  This also helps to explain why the
making available of information on notifications of GIs to the public under the proposal is important
for providing interested parties an opportunity to challenge them.174
                                                     
168 TN/IP/M/4, para. 113.
169 TN/IP/W/5, page 5, section 2, para. 2.
170 IP/C/W/107/Rev.1, para. B.7.
171 TN/IP/M/3, para. 62.
172 TN/IP/W/5, page 5, section 2.
173 TN/IP/M/3, paras. 34, 56.
174 TN/IP/M/3, para. 34.TN/IP/W/7
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80. In this regard, it has been said that the proposal in T/IP/W/5 would provide a way of resolving
disputes in the same way as disputes concerning the patentability of inventions or the registrability of
marks are handled;  this is to say by specifying that disputes would be resolved solely under the
national laws of Members.  That is currently the sate under the existing international notification and
registration systems cited by the Secretariat in 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, do
not solely apply national law in determining whethe r protection should be extended or not.  These two
treaties are not broadly accepted.
175
81. The suggestion has been made that the proposals contained in IP/C/W/107/Rev.1 and
IP/C/W/255 might be complemented by a requirem ent for the body administering the multilateral
system to examine, in a formal and summary way , whether the challenge seemed to be well-
founded or not.  This would help avoid the risk of  the system becoming paralysed by an excessive
number of challenges.176  In response, it has been said that this proposal seemed to presume that there
would not be any confusion as to the criteria relating to definition and eligibility for protection.  Inthis regard, reference was made to the points regarding a lack of a sufficient common understanding
made in the Special Session's discussion on the first category of issues (see paragraphs 15-17 and
22-30 above).
177
82. Regarding the information that should be prov ided when a challenge is lodged , it has been
said that challenges should be accompanied by a statement of the grounds on which the challengingMember is invoking Article 22.1, 22.4 or paragraphs 4 or 6 of Article 24.  Filing a challenge should
not be an onerous procedure.  The type of evidence to be provided would be that relating to the
national law of the Member lodging the challenge, for example how the notion of generic is
interpreted in its national law.
178  During the 18-month examination period, participating WTO
Members could ask questions and request further information or explanations from the notifyingMember.
179
83. With regard to the appropriate period for the filing of oppositions , the following views
have been expressed:
- The period of 18 months suggested in this proposal should be sufficient to enable
other Members to examine notifications and decide whether or not to lodge an
opposition.  However, other time-frames could be considered.180
- It has been questioned, whether it would be possible to analyse within the proposed
time-frame of 18 months all the information that would accompany every
notification.181
- In response, it has been said that it would not be necessary for a Member to make a
final determination within the 18-month period, for example on whether a name was
generic or not.  What was proposed was that Members gather prima facie evidence onwhether a name might have become generic.  This did not mean that all possible lines
                                                     
175 TN/IP/M/4, para. 72.
176 TN/IP/M/3, para. 29;  TN/IP/M/4, para. 109.
177 TN/IP/M/3, para. 64.
178 TN/IP/M/4, para. 67.
179 TN/IP/M/3, paras. 20, 41.
180 TN/IP/M/3, para. 41.
181 TN/IP/M/3, para. 45.TN/IP/W/7
Page 25
of defence and pieces of evidence had to be provided, but that at least the opposition
should be initially founded and that there should be some evidence that the name
might have become generic.  Afterwards, and in the course of the bilateral
negotiations that would follow, the situation would be clarified.182
- It has also been suggested that the period should be "reasonable and proportionate".183
The point has been made that the duration of this procedure should be long enoughfor Members, including developing countries, to examine all notifications in the
context of the multilateral system.
184
84. It has been said that there are limited cases where countries may have an interest in the same
geographical indication.  Since systems explored (expert committee, mediation or dispute settlement)
have their limits and can be time-consuming and costly or raise problems of compatibility with the
WTO Dispute Settlement Understanding and enforcement by national courts, it has been proposed tohave recourse to direct bilateral negotiations.  It would be simple and efficient since it involves only
the parties concerned;  they should communicate the results to the administering body.
185
85. The question has been asked as to how the bilateral negotiations  that would follow an
opposition would be carried out .186  In response, it has been said that the duration of the bilateral
negotiations could vary greatly and much depended on the goodwill of the parties in trying to reach asettlement.
187
86. The issue of what would be the proposed legal effect of the lodging of an opposition  under
the proposal in IP/C/W/107/Rev.1 has been discussed.  The question has been raised as to whether
recourse to judicial avenues in the countries that are parties to the negotiations would be affected.  It
has also been asked whether producers in the Member that has lodged an opposition, for examplebecause the term is considered generic, would or would not be prevented from continuing to use the
term.
188  In response, it was said that the opposing country could continue to use the term during the
course of the consultations as well as after the consultations, if the consultations do not lead to
agreement otherwise.189
87. In response, a concern has been expressed that, whereas the term could continue to be used in
the country that has lodged the opposition, its producers would not be able to continue to use the term
in the markets of other WTO Members which had not also lodged an opposition.190  The view has
been expressed that, during the period of bilateral negotiations, it should be ensured that the rights of
producers should not be undermined in third countries also.191  For example, the right of a producer to
go on using a name which it had been using in good faith in a third market before 1994 should not be
impaired, even if the name is protected as a GI in other Members.192
                                                     
182 TN/IP/M/4, para. 60.
183 TN/IP/M/3, para. 38.
184 TN/IP/M/4, para. 71.
185 IP/C/W/107/Rev.1, page 2, paras. 9-10.
186 TN/IP/M/4, para. 77.
187 TN/IP/M/4, para. 78.
188 TN/IP/M/4, para. 77.
189 TN/IP/M/4, para. 78.
190 TN/IP/M/4, para. 79.
191 TN/IP/M/4, para. 81.
192 TN/IP/M/4, para. 83.TN/IP/W/7
Page 26
88. In response, it has been said that the possibility to lodge an opposition is not limited to
Members producing a product under a generic name, but could also apply to other Members where the
product is marketed and the name is generic.  In accordance with the principle of territoriality, it
would be up to each Member to decide whether a name is generic or not in its territory.193  T h e
proposed system does not lead to any undermining of the rights of producers in third countries.  If, ina given country, a GI is not generic and is considered to qualify for protection, that protection is
already applicable in that Member by virtue of the TRIPS Agreement itself:  the registration merely
brought to light an existing protection.
194
89. Concerns have been expressed about the possible implications of a multilateral opposition
system  of the sort proposed in IP/C/W/107/Rev.1 for national systems  to implement the provisions
in the TRIPS Agreement on geographical indications.  It has been said that this proposal would
require each Member to establish a system to examine each notified geographical indication and thatthe multilateral system should not force Members who have decided not to implement an examination
system domestically to do so.
195  Any register negotiated should not prejudice the continue right of
Members participating in it not to establish a national registration system.  To do otherwise would
imply a significant change to existing Members rights and obligations under Article 23.196
90. In response, the question has been raised as to the procedures used to identify GIs for wines
and spirits eligible for protection by Members that do not have national registries.  Do such Members
examine conformity with the definition in Arti cle 22.1?  For example, is this done under the
certification mark system?  How would Members that do not have national registries establish a list of
names to be notified under the system?  It has been said that responses to these questions would help
shed light on the kind of opposition procedure that is needed in the multilateral register.197
91. It has been proposed that the opposition procedure should be divided into two phases:  that of
bilateral negotiations;  and, as a last resort, if such negotiations do not yield a mutually acceptable
solution, a multilateral phase.198  Proposals have been made for this multilateral phase to take the form
of an arbitration system (IP/C/W/234 and IP/C/W/255), the decisions of which would be final and
binding.199  It has been said that when developing the procedure for arbitration, Members should, to
the fullest extent possible, build upon existing WTO procedures and principles including those set out
in the DSU.200  Alternative systems for settling differences that would have the same multilateral
character and be simple and effective could also be considered.201
92. The following reasons for having an arbitration system have been given:
- The proposal would help ensure that smaller countries, which have limited bilateral
bargaining power, enjoy the same opportunities for representing their legitimate
commercial interests as bigger ones.202
- The arbitration system would prevent abuses of the opposition procedure since it
would not be left to individual countries to determine whether a challenge is justified
                                                     
193 TN/IP/M/4, para. 80.
194 TN/IP/M/4, para. 82.
195 TN/IP/M/3, para. 24.
196 TN/IP/M/4, paras. 68, 72.
197 TN/IP/M/3, para. 65;  TN/IP/M/4, para. 64.
198 TN/IP/M/3, paras. 29, 42.
199 IP/C/W/234 and IP/C/W/255;  TN/IP/M/3, paras. 29, 52.
200 IP/C/W/234, para. 9.
201 TN/IP/M/2, para. 35;  TN/IP/M/3, para. 42.
202 IP/C/W/234, para. 5;  TN/IP/M/2, para. 35;  TN/IP/M/3, para. 42;  TN/IP/M/4, para. 132.TN/IP/W/7
Page 27
or not203;  it would be an "investment" in the sense that it would prevent ever-lasting
negotiations.204
- The proposed arbitration mechanism is not alien to the WTO system (Articles 25 and
22.6 of the DSU) and has a precedent (Article 8.5 of the Agreement on Subsidies and
Countervailing Measures).205
93. In reaction to the proposal for a system of arbitration, the following comments have been
made:
- Nothing in the TRIPS Agreement obliges a Member to go into an arbitration.  The
proposal would change the existing level of obligation.206  It would also go beyond
the Special Session's mandate.207
- By virtue of the territoriality principle of IPRs, the question of how a Member
territorially applies the TRIPS Agreement should not be left to arbitrators who do notknow how the system of that Member wo rks or how a term is regarded (e.g., by
consumers) in that Member.
208  Decisions regarding the exceptions under Article 24
can only be made by the national courts or the administrative bodies applying the
national law in the country where protection is sought.209
- The (universal) erga omnes  effect of challenge may have a disproportionate impact.
It is likely that just a few WTO Members will be forced to carry out the collective
burden of challenge, especially since the vast majority of WTO Members are not
likely to have the administrative means to reviews thousands of GIs.210
- An arbitration system at multilateral level could not be applied effectively.211
- If GIs were to be dealt with by adjudicators, then there would be a comparable need
for a standing group of adjudicators and dispute settlement specialists to solve all the
problems in the area of GIs, and this aspect should not be considered lightly.212
- The system would be cumbersome, highly regulatory and entail costs.213
3. Registration
94. The proposal contained in TN/IP/W/5  does not provide for a multilateral opposition
procedure.  Registration takes place following receipt by the administering body of notifications from
participating Members.  It takes the form of inclusion of the notification in a searchable database of
all notified geographical indications for wines and spirits.  The database would include:  the
geographical indication for the wine or spirit that has been notified, the WTO Member who made the
notification, the date on which the indication was protected by the notifying Member, the expiration
                                                     
203 IP/C/W/234, para. 5;  TN/IP/M/2, para. 35.
204 TN/IP/M/3, para. 75.
205 IP/C/W/234, para. 6;  TN/IP/M/2, para. 35.
206 TN/IP/M/2, para. 88;  TN/IP/M/3, paras. 25, 46.
207 TN/IP/M/3, paras. 25, 46.
208 TN/IP/M/2, paras. 84, 95;  TN/IP/M/3, para. 25.
209 TN/IP/M/3, para. 25.
210 TN/IP/W/1, page 2.
211 TN/IP/M/2, para. 84.
212 TN/IP/M/3, para. 64.
213 TN/IP/M/2, para. 36;  TN/IP/M/3, para. 127.TN/IP/W/7
Page 28
date of this protection, if any, in the notifying Member, and any agreement for geographical
indications for wines and spirits under which the indication is protected.214
95. With regard to the question of legal effects under national legislation, WTO Members
choosing to participate in the system would commit th emselves to consult, along with other sources of
information, the database when making decisions regarding recognition and protection ofgeographical indications for wines and spirits in accordance with their national legislation.
Information from the database would be taken into a ccount in making such decisions.  All Article 24
exceptions would remain in force under national law.  WTO Members not participating in the system
would be encouraged to refer to the database, alon g with other sources of information, in making such
decisions under their national legislation.
215
96. With regard to the proposal in IP/C/W/107/Rev.1 , registration would take place at the end of
the 18-month period following publication of the notification of the geographical indication by theadministering body.  The registration would include annotations of the challenges that had been
lodged, such as the name of the opposing country and the TRIPS provisions invoked.  The registration
would only have legal effect in Members who ha ve not lodged an opposition.  Members who have not
challenged the geographical indication within the time-limit cannot refuse its protection on the basis
of Articles 22.1, 22.4 and 24.6.
216  It has been said that other reasons could be invoked at any time
before domestic courts such as Article 24.8 or 24.9.217  Exceptions under Article 24.4 and 24.5 would
operate at the national level.218
97. With regard to the proposal made in IP/C/W/255 , it has been said that only geographical
indications that have not been opposed would be registered after 18 months from the date of
publication.  With regard to those that have been opposed, geographical indications successfullychallenged on the basis of Article 22.1 and Article 24.9 of the TRIPS Agreement would not be
registered.  That is to say the arbitrators decision in the case of such challenges would be of an
erga omnes  nature.  Geographical indications successfully challenged on the basis of paragraphs 4, 5
and 6 of Article 24 would be registered with a note that the registration does not have a legal effect in
the successful challenging Member.
219  Another suggestion made is similar, except that Articles 24.9
and 24.5 have not been referred to as the basis of a multilateral challenge.220
98. With regard to the differences between the legal effects flowing from challenges under Article
22.1 and Article 24.9, on the one hand, and Articles 24.4, 5 and 6, on the other, it has been said that an
erga omnes  effect is important for the former because it would save time and effort for the
participants in the system, since a single challenge would prevent the registration of a notified name
not fitting the definition or not under protection in the country or origin.  Further, it would prevent the
situation where the failure of a participant to challenge a notification could lead to unwarrantedeconomic losses.  As regards the latter provision, challenges would only have an inter partes  effect
since their applicability would depend on the particular circumstances of the challenging Member
concerned.
221
                                                     
214 TN/IP/W/5, page 4.
215 TN/IP/W/1, page 2;  TN/IP/W/5, page 5.
216 IP/C/W/107/Rev.1, D.4;  TN/IP/M/3, para. 21.
217 TN/IP/M/3, para. 30.
218 TN/IP/M/4, para. 84.
219 TN/IP/M/3, para. 43.
220 TN/IP/M/3, para. 30.
221 TN/IP/M/3, para. 43.TN/IP/W/7
Page 29
99. With regard to the nature of the legal effects that would result from registrations under the
proposals in IP/C/W/107/Rev.1 and IP/C/W/255 in the Members where the registrations have such
effects, it has been said that they would give rise to a presumption of the protectability of the
geographical indication in question under the national law of each of the Members concerned.  It has
been said that presumption would not apply in respect of reasons which had not been open tochallenge in the opposition procedure, for example the exception contained in Article 24.8.  Under the
proposal contained in IP/C/W/255, this would al so apply to the requirement of Article 24.9.
222  Points
made regarding this matter can be found in paragraphs 41-48 above.
100. All the proposals provide for copies of registered geographical indications to be distributed to
all WTO Members as well as made accessible on the WTO website.223
4. Updates and modifications
101. The proposals provide for the multilateral register to be updated so as to take into account the
following:
- the registration of new GIs;
- and any modification of existing registrations or cancellations, for example because
the GI is no longer protected in the country of origin or has fallen into disuse in that
country.224
102. It has been suggested that the procedures applying to new GIs and modifications be the same
as those applying to original notification of GIs.225
5. Review/monitoring of the system
103. TN/IP/W/5 proposes that  the TRIPS Council examine the operation of the multilateral system
four years after its establishment, to evaluate its effectiveness in facilitating protection of Members'GIs for wines and spirits in accordance with Section 3, Part II of the TRIPS Agreement.  This
examination would not constitute a re-negotiation of the system.
226
6. Contact point at Members' level
104. Under the approach proposed in IP/C/W/107/Rev.1, each participating Member must provide
a contact point in its administration.227
105. In reaction to this proposal, it has been said that this would be a duplication of an existing
obligation under the TRIPS Agreement (Article 67 concerning notification of contact points) or might
constitute an additional burden for Members.228
                                                     
222 TN/IP/M/3, para. 30.
223 TN/IP/W/5, page 4;  IP/C/W/107/Rev.1, D.6.
224 TN/IP/W/5, section 1;  TN/IP/M/3, paras. 31, 61.
225 IP/C/W/107/Rev.1, D.6, E.2.
226 TN/IP/W/5, page 6, section 5.
227 IP/C/W/107/Rev.1, B.6;  TN/IP/M/3, para. 27.
228 TN/IP/M/3, para. 45.TN/IP/W/7
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B. COSTS
106. After setting out general points, this subsection summarizes the issues raised and points made
structured according to the persons or bodies that initially bear the costs of establishing and running a
multilateral system:  that is to say, Member governments, producers, consumers and the administering
body.  The points made in regard to who should ultimately bear these costs, for example the extent towhich the costs of Members should be passed on to producers and the costs of the administering body
passed on to Members and/or producers, are summarized under the relevant heading.
107. It has been said that it is difficult to address the issue of costs and to make useful estimates
without information on the likely number of registrations.
229  The point has also been made that the
cost-benefit ratio of systems needs to be analysed at the national level for each country taking into
account each country's specific interests.230
108. The following general points about the proposals have been made:
- The proposal contained in IP/C/W/107/Rev .1 would establish a system that would be
far more costly than the one in TN/IP/W/ 5.  The more complex the system is, the
higher the cost.231  There is also a direct relationship between the structure of the
system and the cost involved.232
- In response, it has been said that not only  the costs incurred should be taken into
account but also the effect of the outcome or the benefits that could be drawn from
the system.233  A system genuinely helping producers, consumers and administrations
to get protection under Article 23 could more than justify higher implementation
costs than one which provides no such help.234  The costs of the system would be
relatively small compared to the costs incurred in other fields of intellectual propertyrights.
235
- In regard to the proposal in TN/IP/W/5, it has been said that the system would be a
simple one, not place undue financial burden upon participating Members nor have
any legal or financial obligation upon non-participating Members.236
1. Costs to governments
109. In regard to the proposal contained in IP/C/W/107/Rev.1 , it has been said that the following
costs to governments would arise237:
- the cost of putting new legislation into place;
- the cost of establishing a national system for the examination of geographical
indications in those Members which do not already have such a system;
- the cost of creating a file regarding each notification;
                                                     
229 TN/IP/M/3, para. 76;  TN/IP/M/4, para. 88.
230 TN/IP/M/2, para. 105.
231 TN/IP/M/2, para. 105;  TN/IP/M/3, para . 88;  TN/IP/M/4, paras. 85, 86, 91, 97.
232 TN/IP/M/3, para. 101.
233 TN/IP/M/2, paras. 109, 111, 112;  TN/IP/M/3, para. 75;  TN/IP/M/4, para. 94.
234 TN/IP/M/2, para. 109;  TN/IP/M/4, para. 94.
235 TN/IP/M/3, para. 83.
236 TN/IP/W/6, paras. 24, 42.
237 TN/IP/M/2, para. 107;  TN/IP/M/3, para. 77;  TN/IP/M/4, paras. 85, 86.TN/IP/W/7
Page 31
- the cost of translating the notified geographical indication and the information
accompanying the notification where necessary;
- the cost of investigations necessary to determine whether a notified GI falls under one
of the exceptions in Article 24.4 and 24.6 and is consistent with the definition in
Article 22.1;
- the cost of establishing whether there is a conflict with an existing trademark.  Where
a country protects unregistered trademarks, this would involve public consultations;
- the cost of engaging in bilateral negotiations and, in the case of the supplementary
proposal in IP/C/W/255, of entering into an arbitration procedure.
110. The view has been expressed that the demands of the system in terms of examination  might
be such that national administrations would not be  capable of completing the work involved within
the prescribed 18 months.  This could lead to a large number of oppositions.238  What is involved is
not the costs associated with one or two notificatio ns, but rather those associated with analysing and
assessing the history of geographical indications in certain countries which have had systems for their
protection in place for a long time.  Countries which are new to the protection of geographical
indications have significant concerns about the workload and costs entailed.239  Further, the point has
been made that the system envisaged in IP/C/W/ 107/Rev.1 would not be cost-effective since it might
oblige Members to examine notifications of geographical indications even where the applicant has no
commercial interest in the markets of the Members concerned.240  A survey of the costs of
examination of a single mark indicates costs that range from a few hundred to over US$1,000
according to the Member.  A rough estimate of the cost of examining a single geographical indication
in all Members is thus in the order of US$50,000, costs which would have to be borne bygovernments, not the applicant.
241
111. In response, it has been said that the advantages of the system have to be looked at as well as
its costs.242  For example, the phase of examination would allow Members to collect information on
notified geographical indications before making formal opposition would reduce the number of
disputes.  In the same vein, although the system of arbitration might, at first sight, seem a source ofadditional cost, it should be considered as an "investment" in finally resolving differences and saving
costs that would otherwise be incurred in bilateral negotiations or national procedures.
243  The system
would also facilitate the task of trademark examiners in applying Articles 22.3 and 23.2.244  A register
with the legal effect of a presumption of prot ectability would help national administrations.
Usurpation would diminish, and in turn, litigation (and administration costs) would decrease.245
112. In regard to the proposal in TN/IP/W/5 , it has been said that only minimal changes to existing
national regimes would be required.246  There would be some costs – compiling notifications in the
agreed format, those arising out of any opposition under national law, monitoring national
geographical indications to notify new ones or withdraw lapsed ones – but these would be less than
under the other proposals.247  It has been said that, whereas under the proposal in IP/C/W/107/Rev.1,
                                                     
238 TN/IP/M/4, para. 85.
239 TN/IP/M/4, para. 100.
240 TN/IP/M/4, para. 85.
241 TN/IP/M/4, para. 86.
242 TN/IP/M/2, paras. 109, 111;  TN/IP/M/3, para. 77.
243 TN/IP/M/3, para. 75.
244 TN/IP/M/3, para. 72.
245 JOB(02)/70, para. 22;  TN/IP/M/2, para. 69.
246 TN/IP/M/3, para. 78.
247 TN/IP/M/3, para. 68.TN/IP/W/7
Page 32
the costs of examination and opposition, including translation costs, would not be borne by the
applicant but would fall on governments248, the costs of oppositions at the national level that might
flow from the system foreseen in TN/IP/W/5 might fall on interested parties, not always on
governments.249
113. In regard to the proposal in IP/C/W/107/Rev.1, it  has been said that there is nothing in the
system outlined in that document that would put  governments under an obligation to provide " ex
officio " enforcement of geographical indications.  Governments could leave this to the holders of
rights in geographical indications, who could avail themselves of the presumption established by the
system in proceedings before courts or administrative agencies.250
114. The issue of the costs that might be incurred by the governments of Members with little or
no producer interest  in the system because they do not have industries producing wines or spirits has
been discussed.  The point has been made that a Member which does not examine notifications andlodge oppositions would not incur the associated administrative costs.
251  In response, it has been said
that this would mean that such a Member would become a passive subject of obligations.  Moreover,
the question has been raised as to how could such a country know whether or not a term notified in its
language was generic if it did not make a translation?252
115. In regard to the issue of how the costs on governments might be allocated or financed , it
has been suggested that a system whereby producers would directly file notifications under the system
could be envisaged.253  The view has also been expressed that the costs involved in examining
geographical indications should be borne solely by the applicant.254
116. In regard to the translation  costs that might fall on governments, a summary of the points
made on the tasks involved by translation can be found in paragraphs 66-72 above.
117. It has been suggested that a system by which a registration of a geographical indication would
be accepted by courts as prima facie evidence , in much the same way as some courts treat
registrations of works in copyright registries, would be simple and inexpensive but yield substantial
benefits.255
2. Costs to producers
118. With regard to producers producing in the area that is designated by a geographical
indication , the following points have been made concerning the costs and benefits that could be
involved in the multilateral system:
- The view has been expressed that the systems proposed in IP/C/W/107/Rev.1 and
IP/C/W/255 would enable such producers to make savings as they would have easier
access to the legal means available to them to secure and enforce the level of
protection prescribed in Articles 22 and 23.256  Producers would not feel compelled to
seek protection of their GIs by way of prevention in each Member.  Occasional free-
riding a notified GI would be discouraged because producers using GIs notified by
                                                     
248 TN/IP/M/4, para. 86.
249 TN/IP/M/3, para. 34.
250 TN/IP/M/3, para. 72.
251 TN/IP/M/4, para. 72
252 TN/IP/M/4, para. 74.
253 TN/IP/M/3, para. 72.
254 TN/IP/M/4, para. 76.
255 TN/IP/M/3, para. 87.
256 TN/IP/M/3, para. 73.TN/IP/W/7
Page 33
other countries would have to bear the burden of proof and incur litigation costs.257
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.  This
could be particularly valuable for producers in developing countries who might not
otherwise have the means to assert their rights in all markets.  The notification,examination and opposition phases should therefore be considered as an investment
in the usefulness and viability of the system;  the costs involved would be off-set by
the benefit that would be derived from a real facilitated protection.
258
- Further, the holders of rights in geographical indications would have a clearer view
regarding countries in which their geographical indications might have become
generic.  That would facilitate investment and export decisions.259
- The view has also been expressed that the proposal contained in TN/IP/W/5 would
benefit this category of producers very little since it does not provide for reversal of
the burden of proof or any other legal effect.260
119. With regard to the effects on producers other than those in the area indicated by a
geographical indication , the following points have been made:
- The cost of the proposal contained in IP/C/W/107/Rev.1 to such producers could be
very significant.  While a Member may not have to protect a term that is generic in its
own territory, other Members not having opposed the notification within the time-
limit of 18 months would be obliged to protect it and would have to stop the
importation of all products bearing that term coming from any Member other than the
notifying one.261
- The costs of an opposition system as suggested in IP/C/W/107/Rev.1 would be very
heavy;  as shown by the WTO dispute settlement system, not only are the costs high
for governments but there are also 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.262
- In response, it has been said that such producers would not be required to re-label
their products and would not incur costs.  If they have been exporting products to
countries in which the names are not generic, they would be able to continue
exporting to such countries until the "legitimate producer" challenges that practice.
These exports may continue, if justifiable under any of the other exceptions of
Article 24 of the TRIPS Agreement.  Where the exports cannot be justified under
those exceptions, use of a protected name and use of that name would have to cease ifso demanded by the right holder.  In that regard, the situation with a register is not
different from that which exists without it:  if the right holder were to challenge such
a practice solely under domestic legislation, the outcome would have to be the
same.
263
                                                     
257 JOB(02)/70, para. 20.
258 TN/IP/M/4, para. 94.
259 TN/IP/M/3, para. 73.
260 TN/IP/M/4, para. 94.
261 TN/IP/M/3, para. 78;  TN/IP/M/4, para. 129.
262 TN/IP/M/2, para. 95;  TN/IP/M/4, para. 54.
263 TN/IP/M/3, para. 73.TN/IP/W/7
Page 34
3. Costs to consumers
120. The following views have been expressed:
- The system proposed in IP/C/W/107/Rev.1 would reduce competition and thus impose
some costs on consumers, especially those who have been used to having access to
products bearing notified geographical indications but not coming from thegeographical area so indicated and which cost less than the genuine product.
264  Th is
might apply in particular to the produce of "new world" wine producers who have been
endeavouring to bring to consumers a wider diversity of wines at competitive prices.265
- Since the proposal in IP/C/W/107/Rev.1 provides that the obligations flowing from the
register would be applied in all WTO Members regardless of whether they are
participating or not, these costs would be incurred by consumers in all WTO Members,
and not just in those Members with interest in producing wines and spirits.266
- In response, it has been said that consumers have a genuine interest in gaining easier
access to those legal means that the TRIPS Agreement makes available to them in order
to prevent misuse of geographical indications in their markets.267  Consumer
associations, which have fewer resources than producers, could more easily defend their
interests under the system in IP/C/W/107 /Rev.1 against persons who market their
products using notified geographical indications.268
- Any costs on consumers from the cessation of infringing activity would be no different
from those incurred in the field of trademarks from action against counterfeiting.269
- In regard to the proposal in TN/IP/W/5, the view has been expressed that it would not
bring any added value to the legal standing of consumers in being able to preventinfringement of geographical indications in their territories.
270
4. Costs to the administering body
121. It has been said that, under the proposal in TN/IP/W/5 , since the administering body's main
tasks would be to design, compile and maintain the notifications in a searchable database (also
accessible on the WTO website)271, the administrative cost to the administering body would not be
substantially different from that incurred by the WTO Secretariat in administering existing WTO
notification systems.272  In regard to the proposal in IP/C/W/107/Rev.1 , it has also been said that the
costs to the administering body would basically consist of the costs of compiling and distributing
notifications, possibly translating them if the system so requires, annotating challenges and updating
the system.273  In this regard, it has also been suggested to have the documents accessible on the WTO
website.274
                                                     
264 TN/IP/M/3, paras. 79, 91.
265 TN/IP/M/1, para. 39.
266 TN/IP/M/3, para. 91.
267 TN/IP/M/1, para. 2.
268 JOB(02)/70, para. 21.
269 TN/IP/M/3, para. 85.
270 JOB(02)/70, para. 26;  TN/IP/M/2, para. 69.
271 TN/IP/M/3, para. 68.
272 TN/IP/M/3, para. 88.
273 TN/IP/M/3, paras. 71.
274 TN/IP/M/3, para. 59.TN/IP/W/7
Page 35
122. In regard to the issue of the most appropriate way of financing or allocating the costs  that
would be incurred by the administering body, it ha s been said that it would be inappropriate to
apportion the cost of compiling and maintaining the searchable database to all WTO Members
because not all are wine or spirit producers for international trade and are likely to participate in the
system.275  Non-participating Members should not be required to share the costs of running the
system.276  It has been suggested that a system based on user fees which would be apportioned on the
basis of a number of GIs notified be foreseen.277  This would be consistent with other similar
multilateral systems.278  It has also been noted that Members would be free to determine at the
national level who would bear the fees, the government or the producers.279
123. The suggestion has been made that, to minimize costs to Members of running the system, the
involvement of the International Bureau of WIPO  could be envisaged.  On the basis of an
arrangement between WIPO and the WTO, the International Bureau of WIPO could be asked tomanage the system.
280
124. In response to questions, the International Bureau of WIPO has provided information on its
experience regarding the inclusion of an a new official language for procedure in the framework of
the Madrid Protocol.  Preliminary explanations have been given regarding various fees under the
Patent Cooperation Treaty, such as translation fees.281
125. This issue of the costs that would be incurred by developing and least-developed countries
has been discussed, including special and differential treatment.  In this regard, the following views
have been expressed:
- If the system were to be based on fees, it might be onerous for developing
countries.282
- The suggestion has been made that there be a "waiver" or exemption regarding the
payment of fees by such countries and that there be some way of financing the
participation of these countries in the system through technical assistance.283
- The system proposed in TN/IP/W/5 would not impose undue burdens and would
satisfy the needs for S&D measures for LDCs and developing countries because it isentirely voluntary.
284
C. POSSIBLE ROLE OF THE SECRETARIAT
126. It has been said that, under the proposal contained in TN/IP/W/5 , 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;  and providing basic information to Members on
procedural aspects of notifications and withdrawals.  However, it would be up to Members to ensure
                                                     
275 TN/IP/M/3, paras. 68, 71, 86.
276 TN/IP/M/4, para. 33.
277 TN/IP/M/2, para. 102;  TN/IP/M/3, paras. 68, 75.
278 TN/IP/M/2, para. 102.
279 TN/IP/M/3, para. 75;  TN/IP/M/4, para. 95.
280 TN/IP/M/3, paras. 82, 113, 114, 115;  TN/IP/M/4, para. 93.
281 TN/IP/M/3, paras. 97, 98.
282 TN/IP/M/4, para. 91.
283 TN/IP/M/3, para. 75;  TN/IP/M/4, paras. 95, 98.
284 TN/IP/W/5, pages 4-5, section 4;  TN/IP/M/3, para. 9.TN/IP/W/7
Page 36
that the information they have notified to the system has been accurately recorded and is kept up-to-
date.285
127. Under the approach in IP/C/W/107/Rev.1 , the administering body would have to undertake
the tasks listed in that proposal.  In addition, the suggestions to complement this proposal would entail
the administering body having to carry out a brief examination as to form of notifications andoppositions
286, as well as the task of servicing arbitration panels.287  Regarding notification, this would
mean examining compliance with th e formal requirements of all notifications, publishing the notified
geographical indications and ensuring that Members are informed about those geographical
indications.  Regarding registration, it would mean administering the register, entering geographical
indications onto the register, publishing registered geographical indications periodically in a
transparent manner, and handling cancellations 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 theresults of such challenges.
288
128. The question of whether it would be appropriate for the administering body to conduct
summary examinations as to form  of notifications and challenges has been discussed.  In addition to
the points already set out on this matter in para graphs 73-75 above, the following views have been
expressed:
- Placing the WTO Secretariat in a position of having to take a view as to whether a
notification is consistent with the definition of a geographical indication or falls
within one of the Article 24 exceptions would be inconsistent with its long-standing
practice of not commenting on legal matters.289
- The proposal would not be feasible since it would require the administering body to
become familiar with the national systems of all WTO Members.290
- In response, it has been said that the administering body's task is not to examine
whether or not each notified geographical indication respects the national legislation
of the country which has notified it or the TRIPS Agreement.  It would be a brief
examination as to form to ensure that there was some basis for the notification.291  If
such a role would be inappropriate for the WTO Secretariat, it could be considered
whether the task of administering the system should be entrusted to a special body set
up for this purpose292 or another organization with technical skill in the area.293
IV. PARTICIPATION
129. In the List of Points and Issues for Discus sion at the June 2002 Meeting circulated by the
Chairman (JOB(02)/49, paragraph 7), he identified the following points and issues on this subject:
What is meant in Article 23.4 by, on the one hand, the requirement to establish a
"multilateral" system and, on the other hand, the provision that it should relate only to
geographical indications "eligible for protection in those Members participating in the
                                                     
285 TN/IP/W/5;  TN/IP/M/4, paras. 104, 116.
286 TN/IP/M/4, para. 94.
287 TN/IP/M/3, para. 114.
288 TN/IP/M/4, para. 115.
289 TN/IP/M/4, paras. 108, 116.
290 TN/IP/M/4, para. 110.
291 TN/IP/M/4, paras. 112, 113.
292 TN/IP/M/4, paras. 109, 115.
293 TN/IP/M/4, paras. 22, 109.TN/IP/W/7
Page 37
system"?  It would be helpful for delegati ons to express their views on whether they
see a tension between these two concepts, a nd, if so, how best it should be resolved.
130. The point has been widely made that the language in Article 23.4 referring to the facilitation
of the protection of geographical indications eligible for protection "in those Members participating in
the system" makes it clear that WTO Members should be free to decide whether or not to
participate in the system and thereby to seek the facilitation of the protection of their
geographical indications under it .
131. Most of the discussion under this heading has concerned the question of whether notifications
and registrations of geographical indications under the system should have any effect in WTO
Members that do not participate in the system.  Differing views have been expressed on this issue.
132. One view is that the fact that Article 23.4 refers to a "multilateral system" makes it
clear that it is intended that notifications and registrations of geographical indications should
have effects in all WTO Members, including those that do not participate in the system .  In
support of this view, the following points have been made:
- It is necessary for the system to have effects for non-participating as well as
participating Members if it is to meet its objective of facilitating the protection of
geographical indications.294  Given that the future system would not create new rights
and obligations even if the notifications entail legal effects, it would be logical that
these legal effects apply in all WTO Members, bearing in mind that the rights that are
being protected already exist in all Members under Article 23 without registration.295
It was not clear how a voluntary system with no legal effect and constituting a merelist of GIs could facilitate the protection of GIs.
296
- Determining the meaning of the term "multilateral" can only be done by contrasting it
with the word "plurilateral".  In the cont ext of the WTO, "plurilateral" is understood
as referring to a system in which participation is entirely voluntary.  Conversely,
"multilateral" systems are understood to be instruments by which all Members are
bound.297
- It would not have been logical for the negotiators of Article 23.4 to have envisaged a
voluntary system in the sense that there would be legal effects only on the
participating countries, since a voluntary system already existed, namely the Lisbon
Agreement, and this had not been a successful instrument due to its voluntary
nature.298
133. Another view is that the system should not give rise to any mandatory effects on WTO
Members not participating in it .  The reference in Article 23.4 to a "multilateral system" should not
be taken to suppress or override the voluntary nature of the system made clear by the words
"Members participating in the system".299  In this regard, the following reasons for the use of the word
"multilateral" have been advanced:
                                                     
294 TN/IP/M/2, para. 120;  TN/IP/M/4, para. 28.
295 TN/IP/M/4, para. 28.
296 TN/IP/M/4, para. 29.
297 JOB(02)/70, para. 34;  TN/IP/M/4, paras. 21, 28.
298 TN/IP/M/4, para. 22.
299 TN/IP/W/6, para. 18;  TN/IP/M/2, para. 122;  TN/IP/M/4, paras. 16, 23, 24, 44.TN/IP/W/7
Page 38
- The word "multilateral" refers to the fact that the negotiation of the system is a
multilateral negotiation, taking place in a multilateral forum and pursuant to a
multilaterally agreed mandate and that the outcome of the negotiations would be a
multilaterally agreed result.  The term does not relate to the scope and character of the
system to be negotiated;  that is a function of the voluntary nature of the participationin the system.
300  The multilateral nature of the negotiating process meant that all
Members would participate in setting up the system, so that their concerns could be
taken into account in the system, thus facilitating implementation as and when they
might decide to become part of it and also ensuring that they are familiar with what
the system required.301
- Rather than comparing the word "multilate ral" with the term "plurilateral", the word
"multilateral" should be seen as opposed in meaning to "bilat eral" (between two
countries) and "regional" (among countries of a region).  The term "multilateral"
could cover two or more countries and need not cover all Members.302
- At the time that Article 23.4 was negotiated, it was not possible to know whether or
not all WTO Members would choose to participate in the system to be established
pursuant to that provision and it would not have been appropriate to have prejudgedthis question by using the word "plurilateral".
303
- The key consideration in determining whether an agreement can be considered
multilateral is whether it is open to all Members.  The fact that participation might be
voluntary does not detract from its multilateral character.  Reference has been made
in this regard to the criteria used for dete rmining what is a multilateral environmental
agreements.304
- In regard to the argument that paragraph 18 of the Doha Declaration means that all
WTO Members have committed themselves or showed willingness to participate in
the system, the point has been made that paragraph 18 of the Doha Declaration still
refers to the implementation of Article 23.4 of the TRIPS Agreement.305
134. In regard to the argument adva nced relating to the Lisbon Agreement, it has been pointed out
that not all of those Members who advocate a mandatory system were signatories of the Lisbon
Agreement at the time that Article 23.4 was negotiated, thus putting into doubt the argument that the
WTO system should be mandatory.  Moreover, it has to be taken into account that the Lisbon
Agreement does not have a dispute settlement mechanism and that this might have been a
fundamental consideration to those delegations who advocated Article 23.4.306
135. In response, it has been said that understanding the term "multilateral" to make it clear that
the negotiations should take place in a multilatera l forum would mean that the word is redundant
given that Article 23.4 states explicitly that negotiations must be undertaken in the Council for TRIPS.
Such a method of construing this provision would not be consistent with the approach of the
Appellate Body which has held that agreements should be interpreted in such a way that all terms are
given appropriate meaning, that is without nullifying the meaning of individual terms within any
                                                     
300 TN/IP/W/6, para. 16;  TN/IP/M/2, paras.  122 and 123;  TN/IP/M/4, paras. 23, 25.
301 TN/IP/M/4, para. 23.
302 TN/IP/M/4, paras. 23, 25.
303 TN/IP/M/2, para. 122;  TN/IP/M/4, para. 24.
304 TN/IP/M/2, para. 126;  TN/IP/M/4, paras. 33, 34.
305 TN/IP/M/4, para. 34.
306 TN/IP/M/4, para. 25.TN/IP/W/7
Page 39
agreement.  The same consideration applies to the ar gument that the term "multilateral" refers to the
nature of the negotiating mandate.307
136. The issue of whether the proposals that have been made would establish a proper balance of
rights and obligations between participating Members and non-participating Members  has been
discussed.  In this regard, the following points have been made:
- The proposals contained in IP/C/W/107/Rev.1 and IP/C/W/255 attempt to strike a
balance by making some of the effects of the system applicable to all WTO Members
and limiting other effects to participating Members only.308  Given that the register
would only facilitate the protection of geographical indications that Members are
already obliged to protect under the TRIPS Agreement, the proposed legal effects on
non-participating Members is not disproportionate since the system would merely
create a presumption of the eligibility for protection of a registered andnon-challenged geographical indication and not create any new rights.
309
- In response, it has been said that it could not be accepted that a balance is achieved
when for those Members participating in the system there are rights and obligations,
but for those Members who chose not to participate in the system there are no rights
but only obligations.310
- The systems proposed in IP/C/W/255 and IP/C/W/107/Rev.1 would impose
mandatory substantive new obligations and costs on Members which do not produce
wine and stand to benefit little from the proposed systems.  This stems from the
foreclosing of the possibility to use exceptions if this is not done within 18 months
following the notification of a GI.311
- On the other hand, the proposal contained in TN/IP/W/5 provides an appropriate
balance.  For those who choose to participate in the system, there are rights and
obligations and, for those who do not, there are none.312
137. In regard to least-developed countries , the view has been expressed that it would be
inappropriate for the obligations flowing from the proposal contained in IP/C/W/107/Rev.1 to applyto such Members.
313  The necessary solutions and flexibilities for these Members should be
explored.314  This could be done through a reference to special and differential treatment.315
138. In regard to special and differential treatment , the view has been expressed that this is
effectively applied by the proposal in TN/IP/W/5 since, as a consequence of participation being
voluntary, Members who do not wish to participate in the system would not find themselves facing
the same obligations as those who do.316  The proposal thus provides a self-regulating mechanism for
special and differential treatment.317
                                                     
307 TN/IP/M/4, para. 22.
308 JOB(02)/70, para. 36.
309 TN/IP/M/4, para. 28.
310 TN/IP/M/2, para. 130.
311 TN/IP/M/4, para. 16.
312 TN/IP/M/2, para. 130.
313 TN/IP/M/2, para. 127;  TN/IP/M/4, para. 20.
314 TN/IP/M/4, para. 20.
315 TN/IP/M/2, para. 133.
316 TN/IP/M/4, para. 15.
317 TN/IP/W/5, page 4;  TN/IP/M/3, para. 9;  TN/IP/M/4, para. 18.TN/IP/W/7
Page 40
ANNEX 1 – LIST OF DOCUMENTS OF THE COUNCIL FOR TRIPS (1997-2003)
Document
SymbolCommunicated
byTitle Distribution Date
2003
TN/IP/M/4 Secretariat Minutes of the Meeting of 28 November
20026 February 2003
2002
TN/IP/W/4/Add.1 Secretariat Multilateral Notification and Registration
Systems - Addendum27 November 2002
TN/IP/W/6 Argentina,
Australia, Canada,
Chile, New Zealand
and the UnitedStatesMultilateral System of Notification and
Registration of Geographical Indications
for Wines (and Spirits)29 October 2002
TN/IP/W/5 Argentina,
Australia, Canada,
Chile, Colombia,
Costa Rica,
Dominican
Republic, Ecuador,El Salvador,
Guatemala,
Honduras, Japan,
Namibia, New
Zealand, the
Philippines,
Chinese Taipei andthe United StatesProposal for a Multilateral System for
Notification and Registration of
Geographical Indications for Wines and
Spirits Based on Article 23.4 of the
TRIPS Agreement23 October 2002
TN/IP/M/3 Secretariat Minutes of the Meeting of
20 September 200221 October 2002
TN/IP/W/4 Secretariat Multilateral Notification and Registration
Systems18 September 2002
TN/IP/M/2 Secretariat Minutes of the Meeting of 28 June 2002 26 August 2002
JOB(02)/94 Australia Intervention Made by the Delegation of
Australia at the Special Session of 28 June
200226 July 2002TN/IP/W/7
Page 41
Document
SymbolCommunicated
byTitle Distribution Date
TN/IP/W/3 Bulgaria, Cyprus,
the Czech
Republic, the
EuropeanCommunities and
their member
States, Georgia,
Hungary, Iceland,
Malta, Mauritius,Moldova, Nigeria,
Romania, the
Slovak Republic,
Slovenia, Sri
Lanka, Switzerlandand Turkey
318Negotiations Relating to theEstablishment of a Multilateral System of
Notification and Registration of
Geographical Indications24 June 2002
JOB(02)/70 The European
Communities and
their member StatesNegotiations Relating to the
Establishment of a Multilateral System of
Notification and Registration of
Geographical Indications – Issues for
Discussion at the Special Session of theTRIPS Council of 28 June 2002 -
Informal Note24 June 2002
JOB(02)/49 Chairperson List of Poin ts and Issues for Discussion at
the June 2002 Meeting4 June 2002
JOB(02)/44 The European
Communities and
their member StatesHow to achieve a Focused and Structured
Agenda to Negotiate the Establishment of
a Multilateral System of Notification and
Registration28 May 2002
TN/IP/W/2 United States Issues for Discussion in the Negotiation
Under Article 23.410 April 2002
TN/IP/W/1 United States Questions and Answers – Comparison of
IP/C/W/107/Rev.1 ("EC Proposal"),
IP/C/W/133/Rev.1 ("Joint Proposal"),IP/C/W/255 ("Proposal by Hungary")9 April 2002
TN/IP/M/1 Secretariat Minutes of the Meeting of 8 March 2002 22 March 2002
2001
IP/C/M/33 Secretariat Minutes of the Meeting of 19-20
September 20012 November 2001
IP/C/M/32 Secretariat Minutes of the Meeting of 18-22 June
200123 August 2001
IP/C/M/30 Secretariat Minutes of the Meeting of  2-5 April 2001 1 June 2001
                                                     
318 For Estonia see document TN/IP/M/2, para. 21.TN/IP/W/7
Page 42
Document
SymbolCommunicated
byTitle Distribution Date
IP/C/W/259 The European
Communities and
their member StatesEstablishment of a Multilateral System of
Notification and Registration of
Geographical Indications Under
Article 23.4 of the TRIPS Agreement –Comparative Table of the Main Proposals
Submitted to Date31 May 2001
IP/C/W/260 The European
Communities and
their member StatesEstablishment of a Multilateral System of
Notification and Registration of
Geographical Indications under
Article 23.4 of the TRIPS Agreement -
Comments on the Proposal JointlySubmitted by Canada, Chile, Japan and
the United States (IP/C/W/133/Rev.1)30 May 2001
IP/C/W/255 Hungary Incorporation of Elements Raised by
Hungary in IP/C/W/234 into the Proposal
by the European Communities and their
member States on the Establishment of a
Multilateral System of Notification andRegistration of Geographical Indications3 May 2001
IP/C/M/29 Secretariat Minutes of the Meeting of 27-30
November and 6 December 20006 March 2001
2000
IP/C/W/234 Hungary Opposition/Challenge Procedure in the
Multilateral System of Notification and
Registration of Geographical Indications11 December 2000
IP/C/M/28 Secretariat Minutes of the Meeting of 21-22
September 200023 November 2000
IP/C/M/27 Secretariat Minutes of the Meeting of 26-29 June
200014 August 2000
IP/C/W/189 New Zealand New Zeala nd's System of Protection for
Geographical Indications and theMultilateral Notification and Registration
System for Geographical Indications
Under Article 23.4 of the TRIPS
Agreement22 June 2000
IP/C/W/107/Rev.1 The European
Communities and
their member StatesImplementation of Article 23.4 of the
TRIPS Agreement Relating to the
Establishment of a Multilateral System ofNotification and Registration of
Geographical Indications - Revision22 June 2000
IP/C/M/26 Secretariat Minutes of the Meeting of 21 March 2000 24 May 2000
1999
IP/C/M/25 Secretariat Minutes of the Meeting of 20-21 October
199922 December 1999
IP/C/M/24 Secretariat Minutes of the Meeting of 7-8 July 1999 17 August 1999TN/IP/W/7
Page 43
Document
SymbolCommunicated
byTitle Distribution Date
IP/C/W/133/Rev.1 Canada, Chile,
Japan and the
United StatesProposal for a Multilateral System for
Notification and Registration of
Geographical Indications for Wines and
Spirits Based on Article 23.4 of theTRIPS Agreement26 July 1999
IP/C/M/23 Secretariat Minutes of the Meeting of 21-22 April
19992 June 1999
IP/C/M/22 Secretariat Minutes of the Meeting of 17 February
19999 April 1999
IP/C/W/134 United States Suggested Method for Domestic
Recognition of Geographical Indications
for WTO Members to Produce a List of
Nationally-protected Geographical
Indications11 March 1999
IP/C/W/133 Japan and the
United StatesProposal for a Multilateral System for
Notification and Registration of
Geographical Indications for Wines andSpirits Based on Article 23.4 of the
TRIPS Agreement11 March 1999
IP/C/M/21 Secretariat Minutes of the Meeting of 1-2 December
199822 January 1999
1998
IP/C/M/20 Secretariat Minutes of the Meeting of 17 September
199815 October 1998
IP/C/M/19 Secretariat Minutes of the Meeting of 16 July 1998   5 August 1998
IP/C/W/107 The European
Communities and
their member StatesProposal for a Multilateral Register of
Geographical Indications for Wines and
Spirits Based on Article 23.4 of theTRIPS Agreement – Establishment of the
Register and Registration Procedure28 July 1998
IP/C/M/18 Secretariat Minutes of the Meeting of 12 May 1998 11 June 1998
IP/C/M/17 Secretariat Minutes of the Meeting of 24 February
199823 March 1998
1997
IP/C/M/16 Secretariat Minutes of the meeting of 17-21
November 1997  5 December 1997
IP/C/W/85 Secretariat Overview of Existing International
Notification and Registration systems for
Geographical Indications Relating toWines And Spirits17 November 1997
IP/C/M/15 Secretariat Minutes of the Meeting of 19 September
199715 October 1997
IP/C/M/14 Secretariat Minutes of the Meeting of 15 July 1997 15 August 1997TN/IP/W/7
Page 44
ANNEX 2 – PROPOSALS FROM DELEGATIONS
EXCERPT FROM IP/C/W/107/REV.1
"REVISED PROPOSAL BY THE EUROPEAN COMMUNITIES
AND THEIR MEMBER STATES
ESTABLISHMENT OF A MULTILATERAL SYSTEM OF NOTIFICATION AND
REGISTRATION OF GEOGRAPHICAL INDICATIONS
A. MEMBERS' PARTICIPATION IN THE MULTILATERAL SYSTEM
1. All Members may participate in the multilateral system of notification and registration by
making a voluntary declaration to the Secretariat.
2. Having made such a declaration, Members shall apply the operating rules of the multilateral
system of notification and registration.
3. The participation or non-participation of Members in the multilateral system of notification
and registration shall be without prejudice to their rights and obligations under section 3 of Part II of
the TRIPS Agreement, unless otherwise foreseen in this multilateral system.
B. NOTIFICATION AND PUBLICATION OF GEOGRAPHICAL INDICATIONS
1. A participating Member shall notify, without delay, the Secretariat its declaration of
participation in the system.
2. It shall notify all geographical indications which identify goods as originating in its territory,
corresponding to the definition in Article 22, paragraph 1 of the TRIPS Agreement.
3. 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.  Any time-limit on that protection and the type of product in question, as well as prima facie
evidence of the geographical indication's conformity with the provisions of the Agreement, should
also be provided.
4. Each participating Member may provide any other information it considers useful for the
Agreement's implementation and for national application of the prohibition on the use of geographical
indications for non-originating products.
5. National provisions implementing the multilateral system of notification and registration shall
also be notified.
6. Each participating Member shall provide a contact point in its administration.
7. The geographical indications, notified by participating Members, shall be published as soon
as possible by the WTO Secretariat and notified to Members.TN/IP/W/7
Page 45
C. MULTILATERAL EXAMINATION OF GEOGRAPHICAL INDICATIONS PUBLISHED
1. Members may examine the published geographical indications.  They may send questions to
and ask for explanations from the participating Member in question within a period of 18 months
following publication by the Secretariat.
2. Where a Member challenges, in a duly justified manner, the protection of an individual
geographical indication notified by another Member, these Members shall enter into negotiations,
within the period of 18 months, aimed at resolving the disagreement.
3. These provisions are without prejudice to the application of the WTO Dispute Settlement
Understanding.
D. REGISTRATION
1. Geographical indications, which have been notified and published, shall be registered within
18 months of publication.  Registration shall refer to any challenge under provision C.2.
2. In the case of homonymous geographical indications, each indication shall be registered
subject to the provisions of Article 22, paragraph 4 of the TRIPS Agreement.
3. Participating Members shall facilitate the protection of an individual registered geographical
indication by providing the legal means for interested parties to use the registration as a presumption
of the eligibility for the protection of the geographical indication.
4. Members who have not challenged, within 18 months, the registration of an individual
geographical indication under provision C.2 shall not refuse its protection on the basis of
Articles 22.1, 22.4 and 24.6 of the TRIPS Agreement.
5. The obligation to protect an individual geographical indication shall be suspended if the
geographical indication is not or ceases to be protected in its country of origin or has fallen into disuse
in that country.
6. The Secretariat shall publish the registered geographical indications and inform Members of
them.
E. UPDATING THE MULTILATERAL SYSTEM
1. Participating Members shall notify the Secretariat of any additions or amendments to or
deletions from their initial notification of geographical indications.
2. The same examination and registration as well as publication procedures shall apply."TN/IP/W/7
Page 46
EXCERPT FROM IP/C/W/255
"The following text seeks to incorporate the points raised in Hungary's submission
(IP/C/W/234) into the proposal by the European Communities and their member States(IP/C/W/107/Rev.1) on the establishment of a multilateral system of notification and registration of
geographical indications:
a. The following two sentences would be added at the end of Paragraph C2:
'If such bilateral negotiations do not yield a mutually satisfactory result within the 18 month
period the dispute arising from the challenge shall be settled by multilateral arbitration.  The
decision of the arbitrator shall be final and binding upon the parties.'
b. Part D would read as follows:
'1. Geographical indications, which have been notified, published and have not been challenged,
shall be registered within 18 months of publication.
'2. Until a challenge made in connection with the multilateral registration of an individual
geographical indication is not settled under the provisions in paragraph C2, the notified
geographical indication shall not be registered.
'3. Geographical indications successfully challenged on the basis of Article 22.1 or Article 22.4
of the Agreement on TRIPS shall not be registered.
'4. Geographical indications successfully challenged on the basis of Article 24.4, Article 24.5 or
Article 24.6 of the Agreement on TRIPS shall be registered and the registration shall refer to
the successful challenge.
'5. Participating Members shall not refuse protection for registered geographical indications. A
successful challenge made on the basis of Article 24.4, Article 24.5 or Article 24.6 of the
Agreement on TRIPS shall justify the refusal of protection only in respect of the Member or
Members which successfully challenged registration.
'6. Participating Members shall facilitate the protection of an individual registered geographical
indication by providing the legal means for parties to use the registration as a presumption of
the eligibility for the protection of the geographical indication.
'7. The obligation to protect an individual geographical indication shall be suspended if the
geographical indication is not or ceases to be protected in its country of origin or has falleninto disuse in that country.
'8. The Secretariat shall publish the registered geographical indications and inform Members of
them."TN/IP/W/7
Page 47
EXCERPT FROM TN/IP/W/5
"Multilateral System for Notification and Registration of Geographical Indications
Established under Article 23.4 of the TRIPS Agreement
1. Notification
WTO Members wishing to participate in the system will submit  319 to the Secretariat a list of
domestic geographical indications for wines and spirits recognized as eligible for protection under
their national legislation indicating for each indication the date on which recognition was granted by
the notifying Member and the date, if any, on which protection will expire.
In the interests of transparency and to ease use of the information by WTO Members
participating in multilateral agreements for the protection of geographical indications for wines and
spirits, those WTO Members participating in such agreements must indicate the agreements under
which each of the notified geographical indications is protected.
Subsequently, Members participating in the system will notify only additional domestic
geographical indications for wines and spirits recognized as eligible for protection under their national
legislation and will withdraw the notification of any previously notified geographical indication for
wine or spirits no longer recognized as eligible for such protection under their national legislation.
WTO Members may decide to participate or discontinue participation in the system at any
time by withdrawing their notifications.
2. Registration
Following receipt of notifications from participating Members, the Secretariat shall compile a
list on behalf of all WTO Members in the form of a searchable database of all notified geographical
indications for wines and spirits.  This database shall be known as the World Trade Organization
Geographical Indications Multilateral System for Wines and Spirits (the "Multilateral System for
Wines and Spirits").  The Multilateral System for Wines and Spirits shall include:  the geographical
indication for the wine or the spirit that has been notified, the WTO Member who made the
notification, the date on which the indication was protected by the notifying Member; the expirationdate of this protection, if any, in the notifying Member and any agreement for geographical
indications for wines and spirits under which the indication is protected.  In accordance with
Article 23.3, the same or similar geographical indication for wines and spirits may be submitted by
more than one WTO Member, provided the geographical indication is recognized by each notifying
WTO Member in accordance with its national regime for protecting geographical indications forwines and spirits.
Copies of the registered geographical indications for wines and spirits shall be distributed to
all WTO Members.  To ensure maximum transparency, the Secretariat shall, in addition to distributing
copies of the lists to WTO Members, make the lists accessible, in searchable form, on the WTO'sInternet Web Site ( www.wto.org) .
After the initial notification, the WTO Secretariat shall revise the database of notified
geographical indications for wines and spirits, adding or deleting indications in accordance with WTO
                                                     
319 The format for submissions shall be established through negotiations or, if the WTO Members so
agree, by the Secretariat.TN/IP/W/7
Page 48
Members' notifications or a request for removal received from the WTO Member who originally
made the notification.
Decisions to grant protection for geographical indications for wines and spirits shall occur at
the national level.  If any WTO Member objects to the registration of a geographical indication forwines or spirits notified by another Member, the former may oppose the recognition of that
geographical indication in accordance with the laws of the notifying Member.
If an opposition is successful, the notifying Member shall request that the Secretariat remove
the registration of the challenged indication from th e Multilateral System for Wines and Spirits.  The
registration for that indication shall be removed from the Multilateral System and shall not be
included in any updated lists circulated to Members.
3. Legal Effects under National Legislation
WTO Members choosing to participate in the system will commit to consult, along with other
sources of information, the WTO Geographical Indications Multilateral System for Wines and Spiritswhen making decisions regarding recognition and protection of geographical indications for wines
and spirits in accordance with their national le gislation.  Information obtained from the WTO
Multilateral System for Wines and Spirits would be taken into account in making those decisions in
accordance with that national legislation.  This proposal does not affect the applicability of Article 24
of the TRIPS Agreement;  all Article 24 exceptions to protection would remain in force under nationallaw.
WTO Members not participating in the system will be encouraged to refer to the WTO
Multilateral System for Wines and Spirits, along with other sources of information, in making
decisions under their national legislation involving recognition or protection of geographicalindications for wines and spirits in order to ensure that such decisions are based on the most complete
information available.  However, this system would not give rise to specific obligations for Members
that decide not to participate.  Members are therefore free to consider their own capacity to take on
obligations emanating from particip ating in the proposed system.
Any geographical indication for wines or spirits established in accordance with national
legislation is entitled to protection under Section 3 of Part II of the TRIPS Agreement, whether or notit is registered in the WTO database.
4. Voluntary Participation
Participation in this system is voluntary.  Furthermore, the system will not prejudice or affect
the protection already contained in Section 3 of Part II of the TRIPS Agreement for geographical
indications for those Members choosing not to participate.  Requiring participation would increase
TRIPS obligations for WTO Members outside a full trade round and would be contrary to Article 23.4
of the TRIPS Agreement.  A voluntary participation system fully adheres to the mandate in
paragraph 18 of the Ministerial Declaration.
This system satisfies the need for special or differential treatment measures for
least-developed and developing countries because it is entirely voluntary.TN/IP/W/7
Page 49
5. Monitoring the System
The TRIPS Council shall examine the operation of the multilateral system for notification and
registration of geographical indications for wines and spirits four years after its establishment to
evaluate its effectiveness in facilitating protection of Members' geographical indications for wines andspirits in accordance with Section 3 of Part II of the TRIPS Agreement.  This examination shall not
constitute a re-negotiation of the system."
__________