RESTRICTED  WORLD TRADE  
ORGANIZATION  TN/IP/M/9 
6 September 2004  
 
(04-3697) 
Council for Trade-Related Aspects 
of Intellectual Property Rights Special Session  
 
 
 
MINUTES OF MEETING  
 
Held in the Centre William Rappard
 
on 18 June 2004  
 
Chairperson:  Ambassador Manzoor Ahmad (Pakistan)  
 
  Subjects Discussed
: Page No.  
A. ADOPTION OF AGENDA ................................................................................................................1  
B. NEGOTIATION OF THE ESTABLISHMENT OF A MULTILATERAL SYSTEM OF 
NOTIFICATION AND REGISTRATION OF GEOGR APHICAL INDICATIONS FOR WINES AND 
SPIRITS ............................................................................................................................... ..........1  
C. OTHER BUSINESS .........................................................................................................................9  
 
_______________ 
  A. 
ADOPTION OF AGENDA  
1. The Special Session agreed  to adopt the agenda as set out in WTO/AIR/2327. 
B. NEGOTIATION OF THE ESTABLISHMENT OF A MU LTILATERAL SYSTEM OF NOTIFICATION AND 
REGISTRATION OF GEOGRAPHICAL I NDICATIONS FOR WINES AND SPIRITS  
2. The Chairman  said that, by way of a communication circulated in document 
TN/IP/W/9/Add.1, the Separate Customs Territo ry of Taiwan, Penghu, Kinmen and Matsu had 
requested that it be added to the list of sponsor s of document TN/IP/W/9, namely the paper entitled 
"Questions and Answers" relating to the "Joint Pr oposal for a Multilateral System of Notification and 
Registration of Geographical Indications for Wines and Spirits" and which was submitted by 
Argentina, Australia, Canada, Chile, Ecuador, El  Salvador, New Zealand and the United States. 
3. The representative of Argentina  recalled that at the April meeting the EC delegation had said 
that its proposal ("EC proposal") did not constitute TR IPS-plus in the sense that it did not go beyond 
the TRIPS provisions and did not therefore alter the existing balance of rights and obligations.  Like 
many other Members, Argentina w as of the opposite opinion:   the EC proposal would actually alter 
the balance of rights and obligations negotiated in the Uruguay Round by creating new obligations 
impairing the rights acquired under the TRIPS Ag reement and modifying its basic principles. 
4. Besides the obligation to maintain bilateral ne gotiations among Members, the "creation of an 
'opposition procedure' and/or an ad hoc disput e mechanism" as indicated  in the EC proposal 
(IP/C/W/107/Rev.1) would create a quasi-judicial  procedure departing from the WTO dispute 
settlement system.  Such a procedure could not be adopted through a notification and registration TN/IP/M/9 
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system but only in accordance with the provisions of  Article X of the WTO Agreement.   In the 
TRIPS Agreement, the right to challenge a GI or  the application of exceptions of Article 24 for 
example were not subject to any international oppo sition procedure or to compulsory bilateral or 
multilateral negotiations.  The EC proposal would im pair and even nullify the flexibilities obtained in 
the Uruguay Round by affecting not only the provisions of  Section 3, Part II, but also other provisions 
of the TRIPS Agreement.  Under Articles 22 and 23, Members only had the obligation to provide the 
legal means for right holders from other Members to  seek protection.  In other words, as for other 
categories of IPRs under the TRIPS Agreement, right  holders from a Member must obtain the grant of 
their rights in other Members on a country-by-country  basis due to the territoriality principle, which 
was inherent to all IPRs, including GIs.  The EC proposal, which attempted to create a kind of 
international application for protection of a GI  and a right to universal validity based on the 
extraterritorial application of a national legislation,  would eliminate the territoriality principle.  It 
would deprive Members of their rights under Article  1.1 of the TRIPS Agreement.  The European 
system of protection of GIs was developed follo wing changes in the Common Agricultural Policy, 
namely the subsidization of quality and of produc t differentiation instead of the subsidization of 
quantity.  This was not necessarily the policy of other WTO Members. 
5. The EC proposal would increase the obligations of Members with the establishment of a new 
system of protection that created legal presumptions, including irrebuttable ones, with effects such as 
the reversal of the burden of proof.  It require d the elimination of the exception under Article 24.6 
regarding generic names after a certain time-lim it, and undermined Article 24.5 regarding prior 
trademarks by privileging GIs to the detriment of prior trademarks with consequent losses to 
producers who had been legitimately using their re gistered trademarks in trade.  With such 
presumptions, the EC proposal undermined the right  of individual parties under a Member's national 
law to invoke the TRIPS exceptions at any moment in th at Member's jurisdiction.  It also restricted in 
terms of time-limits the possibility for individual pa rties to invoke exceptions in other jurisdictions, 
allowing only  governments to invoke them at the inte rnational level.  There were no such time-limits 
under the TRIPS Agreement. 
6. As a result, non-European producers would lose th e right to use generic terms or trademarks 
which they had been legitimately using in third mark ets, if not in their own.   Those producers would 
lose sales and markets where they had often cont ributed to the dissemination of names and to 
consumer recognition of products by these names.  Many of these names had been disseminated 
during the strong migratory currents from Europe to the rest of the world by the Europeans 
themselves, who had first used such names when  they migrated and continued using them for 
products they consumed or produced.  According to  estimations, between the second half of the 19
th 
century and the first half of the 20th century, 11 million Europeans emigrated to Latin America, out of 
which 38 per cent were Italian, 28 per cent Spanish an d 11 per cent Portuguese.  Half of them went to 
Argentina. 
7. The EC proposal would create an unprecedented IP system, and, what was worse, it would be 
a system created in a vacuum.  Recalling that under Article 1.1 of the TRIPS Agreement Members 
"[shall] be free to determine the appropriate method of implementing the provisions of [this] 
Agreement within the framework of their own le gal system and practice", the representative of 
Argentina said that there was no harmonization, at th e international level, of substantive law in the 
field of GIs, which would be the minimum requireme nt for any process with the kind of results sought 
by the European Communities.  She recalled th at there was no mandate for amending the TRIPS 
Agreement or for undertaking nego tiations regarding a substantive harmonization in the WTO or in 
any other international forum.  The EC were attemp ting to use their legislation as a basis for the grant 
and refusal of rights at the national level of each Member, going beyond the principle of territoriality 
and the private right character of IPRs.  Through a negotiation aimed at establishing a procedural 
system, the EC were attempting to achieve a disguised substantive amendment to the TRIPS 
Agreement.  Nothing justified the need for granting to  owners of GIs a status higher than that granted 
to owners of other IPRs cove red by the TRIPS Agreement.  TN/IP/M/9 
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8. The proposed system would entail significant costs both at multilateral and national levels.  
The representative of Argentina asked  the European Communities to clarify what the cost would be of 
managing such a system and what the cost would be of re-conversion of produc ts, i.e., of re-labelling 
and of marketing.  For countries as yet without such a system, the examination of whether or not a GI notified under the multilateral system could be challenged would be extremely complicated and 
costly.  It would not only be necessary to compare th e registers of GIs and trademarks but also to 
verify for example whether or not a name had become  generic. It would also be necessary to verify 
that the GI was not a protected grape variety or a name used by a person or by that person's 
predecessor in business.  This complex information would require the use of a system and human resources with costs that not all Members would be able to bear and for which the TRIPS Agreement 
did not foresee any obligation.  With all the examinations required under the EC system, producers in 
many countries would automatically lose any rights of protection and those countries would be obligated to protect the notified GI.  The costs of such a system would be reduced only in favour of European producers because the act ual costs for obtaining protection would be transferred to 
governments and producers of third countries.  In  this regard, developing and least-developed 
countries would obviously be the ones to suffer most from the prejudice. 
9. European producers received substantial subsidi es for the development of products protected 
by geographical indications, in some cases directly or through structural funds for the development of 
rural areas or for anchoring producers in those ar eas.  Referring to the fact that the European 
Communities had identified certain geographical i ndications in their tariff nomenclature, the 
representative of Argentina said that if an analysis of certain products were made, it would be difficult 
to determine that they were not substantially -like products as defined by the GATT and the TBT 
Agreement.  This discrimination in the nomenclatur e was another "plus" that the EC were attempting 
to add to IPRs.  The multilateral trade system had the aim of increasing competition through the reduction of tariff and non-tariff barriers.  With rega rd to IPRs, certain practices or protection systems 
might have adverse effects on trade.  In the Pr eamble of the Marrakesh Agreement, Members had 
agreed to enter into reciprocal and mutually adva ntageous arrangements directed to the "substantial 
reduction of tariffs and other barriers to trade and to  the elimination of discriminatory  treatment in 
international trade relations".  The TRIPS Agreemen t, in addition to being covered by the objectives 
of the multilateral trade system, aimed "to reduce dist ortions and impediments to international trade, 
and taking into account the need to promote effectiv e and adequate protection of intellectual property 
rights, and to ensure that measures and procedur es to enforce intellectual property rights do not 
themselves become barriers to legitimate trade".  Moreover, Article 8 of the same Agreement 
stipulated that Members might adopt appropriate  measures "to prevent the abuse of intellectual 
property rights by right holders or the resort to practices which unreasonably restrain trade or 
adversely affect the international transfer of technology".  Clearly, the EC proposal would  unreasonably restrain legitimate trade of wine and spirits. 
10. The representative of Argentina further referre d to the 2002 report made by the Commission 
on Intellectual Property Rights ("CIPR") set up by the Government of the United Kingdom.  The CIPR report indicated that only 20 countries, mos tly developed ones, were party to the Lisbon 
Agreement and that by 1998 out of 766 appellations  of origin protected under that Agreement 95 per 
cent belonged to European countries.  The main message of the report was that developing countries 
should avoid compromise solutions that reflect th e regimes of protection of IPRs in developed 
countries, which should not press for stronger pr ocedures regarding IPRs.  The report further 
suggested that new studies should be undertaken before developing coun tries could consider 
accepting new solutions within the WTO.  Argentin a fully shared the views expressed by the CIPR 
report. 
11. The representative of th e European Communities
 said that his delegation did not consider that 
the opposition and examination procedures in the EC pr oposal were TRIPS-plus to the same extent as 
the proposal sponsored by Argentina and other Members ("joint proposal" (TN/IP/W/5 and TN/IP/W/9)).  He pointed out that under that joint proposal the national authorities would have an TN/IP/M/9 
Page 4  
 
obligation to look into a database, and that th ere was no such obligation included in the TRIPS 
Agreement either. 
12. He disagreed with the representative of Argentin a that bilateral negotiations or the ad hoc 
dispute mechanism proposed in the EC proposal was a nother TRIPS-plus element, given that this idea 
was a mere repetition of the existing obligation under  Article 24.1 of the TRIPS Agreement.  The EC 
proposal did not undermine the principle of territorial ity given that the EC proposal allowed Members 
and national authorities to make a thorough examina tion of notifications according to their own laws 
and to the principle of territoriality to finally decide whether or not to protect a GI by making a challenge.  With regard to the exceptions of Artic les 24.5 and 24.6, although the EC proposal did not 
mention these provisions, it suggested that countries would have 18 months to examine the notified 
GI.  Recalling that the Argentine legislation provi ded for a time-limit fo r opposition that did not 
exceed nine months, the representative of the Europ ean Communities said that this showed that the 
opposition challenge and the time-limit proposed by th e EC proposal would not be such a burdensome 
obligation.  His delegation would however be open to  alternative solutions regarding the time-limit for 
opposition. 
13. On the existence of a harmonized system of protection of GIs in Europe, he said that the 
system did not purport to protect farmers but to ensure free circulation of goods within the Community.  As for the losses of rights and market s for producers, he said that the filing of a 
reservation or an opposition on the ground of genericalness  would be sufficient to prevent such losses.  
On immigration matters, his delega tion believed that immigration was not connected to the misuse of 
geographical indications.  With regard to the poin t made that the European Communities were trying 
to export their model of protection of GIs, he sai d that the European Communities had never used the 
WTO Dispute Settlement system to complain against Members who had implemented the TRIPS Agreement in a manner different from the European model.  Neither had his delegation expressed, in 
the course of the review of national laws in th e TRIPS Council, any objection to other Members 
having different systems;  it had been of the view that each Member should adopt the system that best 
fitted its own internal characteristics.  Regarding re -labelling, he said that there were very few well-
documented cases of countries that had given up the u se of a GI.  One famous  example was the name 
"Cava" for Spanish sparkling wine, used to replace the term "Champagne".  In spite of changes in 
labelling, the exports of "Cava" in the last ten years had increased by 1,000 per cent, meaning that 
what made the product successful was its quality and that the use of its own name made the product 
unique and recognizable. 
14. On costs, he said he could not agree that co sts would be transferred from European producers 
to producers in third countries, since his delegati on adhered to the idea that those who benefited from 
the system should be the ones to contribute to it.  His delegation remained open to proposals for other 
mechanisms to ascertain that no country should bear  burdens beyond its capacity, and that the system 
established was feasible, functional and financially sound.  He finally said that products bearing GIs 
normally did not benefit from agricultural subs idies and he did not understand how the customs 
nomenclature of the European Co mmunities by including certain GI names would give European 
producers any advantage. 
15. The representative of Bolivia
 recalled that Article 23.4 of the TRIPS Agreement stipulated 
that, in order to facilitate the protection of GIs,  negotiations should be undertaken concerning the 
establishment of a multilateral system of notificatio n and registration of geographical indications for 
wines eligible for protection "in those Members partic ipating in the system".  In conformity with the 
Singapore Declaration and with the first sentence of  paragraph 18 of the Doha Declaration, Bolivia 
held the view that Article 23 already granted a high level of protection to GIs for wines and spirits and 
that this did not generate any additional burdens a nd obligations to Members, whose participation in 
the system should be voluntary.  In addition, Ar ticle 1.1 of the TRIPS Agreement gave Members 
discretion regarding the implementation of the provi sions of the Agreement, including those relating 
to GIs.  This meant that the conditions for the gr ant and exercise of rights regarding the use of GIs  TN/IP/M/9 
 Page 5 
 
 
must be set out by WTO Members.  The eligibility for protection of GIs for wines and spirits should 
be established by each Member within the framework of its own legal system and practices as well as of other agreements.  Hence, the results of the ne gotiations on the multilateral system of notification 
and registration of GIs should not be onerous and s hould be voluntary.  Without prejudice to these 
points, the provisions that were being negotiated should take into account special and differential 
treatment for developing countries as stated by the Doha Declaration.  For this purpose, studies should 
be undertaken on the costs and consequences of a mandatory multilateral system of registration for 
developing and least-developed countries. 
16. The representative of the United States
 said that his delegation shared some of the concerns 
raised by Bolivia and Argentina on the EC proposal .  On the bilateral negotiations mentioned in 
Article 24.1, his delegation believed that such negotiations did not ha ve to be concluded, and that, 
under the EC proposal, if a Member did not raise an objection within 18 months, that Member would lose the right to refuse protection of the notified term.  His delegation believed that the European 
Communities were seeking to impose a harmonization process directly onto the WTO without the normal give-and-take that characterized negotiations of other intellectual property rights at the World 
Intellectual Property Organization.  He also said his delegation was open to further discussions on the 
joint proposal. 
17. The representative of Australia
 said that the issue of bila teral negotiations mentioned in 
Article 24.1 was an important one and had not been  thoroughly discussed in the TRIPS Council.  Her 
delegation believed that, as a result of the EC propo sal, a producer who wanted to use a generic term 
would have to enter into a negotiation designe d to increase the protection of the individual 
geographical indication regardless of whether or not th e term was generic.  This would be a situation 
her delegation could not agree with and would like to discuss further. 
18. The representative of New Zealand  said that the joint proposal proposed the creation of a 
searchable database which would pr ovide information on GI  rights claimed by producers in other 
Members and which national authorities could choose to use in their own domestic decision-making 
processes.  The joint proposal did not create an obligation for national authorities to consider the 
database.  The mandate only required the facilitation of notification and registration of GIs and the 
question of legal certainty should be left to Member s at the national level.  New Zealand agreed with 
Australia and the United States that there was a si gnificant amount of work to be done across a wide 
range of issues, not only legal effects and par ticipation, but also costs and burdens of an 
administrative system and notification procedures. 
19. The representative of Nicaragua  said that her delegation believed that a system according to 
the joint proposal would help fulfil the oblig ations under the TRIPS Agreement by providing 
Members with an automated search mechanism w ith easy access to information on names used to 
describe wines and spirits.  For her delegation, the joint proposal maintained the balance between the 
rights and obligations under the TRIPS Agreement and responded to the manda te of paragraph 18 of 
the Doha Declaration.  In this sense, her delega tion was of the view that the voluntary nature of 
participation was in conformity with that paragra ph and with Article 23.4 since it did not involve any 
increase or reduction in the rights and obligations and gave Members the possibility of electing to 
participate in the system at any point in time.  In light of this, her delegati on asked to be included in 
the list of co-sponsors of document TN/IP/W/9.  He r delegation also shared the concerns expressed by 
Bolivia regarding special and differential treatment. 
20. The representative of Switzerland  said that, at a time when the substantive work of the 
Special Session seemed blocked and Members did not see m to be able to agree on any of the elements 
of the multilateral system, it might be useful to me ntion the areas of converg ence before dealing with 
the controversial ones insofar as the latter seemed to be key elements of not simply establishing any 
sort of  multilateral system, but one which was ap t to actually fulfil the mandate of facilitating the 
protection of geographical indications for wines and spirits in the WTO. TN/IP/M/9 
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21. Switzerland agreed with the co-sponsors of the jo int proposal in respect of their outline on the 
protection granted by Articles 22 to 24 of the TRI PS Agreement.  It also agreed that, according to 
Article 1.1 of the TRIPS Agreement, Members we re free to determine the appropriate method of 
implementing TRIPS obligations at their national level, including the provisions on GIs.  Thus, 
contrary to the point made by the authors of the joint proposal, the establishment of a national register 
of GIs was not a prerequisite for the establishment of a multilateral system with legal effects.  Further, 
his delegation agreed that the system should not add to or diminish existing rights and obligations under the TRIPS Agreement but that it must effectivel y facilitate the obtaining of  that protection.  The 
rights of legitimate GI users were to get effec tive protection for their GIs in other WTO Members 
against abusive or false uses of their GIs.  The obligation of WTO Members was to provide legal 
means to prevent usurpation and false use of GIs.  This obligation must be looked at in combination 
with the right of the WTO Member where the prot ection of a GI was sought to invoke an exception 
under Article 24.  Under the mandate, the Council’ s task was to define how these rights and 
obligations could be ensured and at the same time ef fectively facilitate the protection of GIs.  For the 
sponsors of the joint proposal, it would be sufficien t to establish a non-binding database in which any 
indication notified by WTO Members would be enlisted without any "substantive" examination of 
these indications as to their nature as a GI in accordance with the require ments set out in Article 22.1.  
While agreeing that such a database might perhaps fulfil the requirement of not changing the rights 
and obligations of Members under the TRIPS Agreem ent, he said that it would not facilitate their 
protection either at the national or international level.  On the contrary, it would complicate and 
confuse the work of national authorities and courts  because a list of designations which were not 
recognized as GIs for the purposes of the TRIPS Ag reement would be useless when trying to establish 
whether protection should apply or not.  His delegation believed that in order to effectively achieve 
the purpose of facilitating protection, Members need ed to establish a system of notification and 
registration which provided for a certain pro cedure of examination and opposition while fully 
preserving the rights and obligations of Members unde r the Agreement.  Such a system would allow 
each WTO Member which might choose to do so to notify its GIs.  Before registration was 
undertaken, other WTO Members should have the opportunity to oppose the listing of an indication if it was not a GI according to TRIPS standards or to oppose the legal effects of the registration of that 
indication on its own territory by invoki ng the exceptions provided in Article 24. 
22. For his delegation, a system effectively facilita ting the protection of GIs should give a legal 
effect to the registration after examination and after the possibility of opposition;  this effect should be 
the creation of a "rebuttable presumption" of the va lidity of the GI in all WTO Members that had not 
opposed its registration.  Under this concept of "rebuttable presumption", a judgement at the national level could rebut the presumption of validity of the registered designation.  Rights and obligations of 
WTO Members in Section 3, Part II of the TRIPS Agreement would therefore be preserved;  they would not be increased or lowered.  In the event that it would be necessary to enforce a GI right 
against illegitimate use, this reversal of the burden of proof would benefit legitimate GI users in their 
enforcement efforts, and the protection of that GI  would be facilitated.  With such a multilateral 
system,  national administrations and producers in thir d countries would also have at their disposal a 
truly useful instrument, containing reliable informati on on the status of the protection of the registered 
GIs in the different WTO Members.  Again, this  would facilitate protec tion both at national and 
international levels.  By equipping the multilate ral system with an examination and opposition 
procedure and the creation of a presumption that coul d be rebutted at the national level, the register 
would also fully meet the legitimate preoccupati on of the authors of the joint proposal that WTO 
Members should be free to determine for themselves wh ether or not a particular term qualified as a GI 
in their territory. 
23. As for the costs of the multilateral system, he recalled that the point made by the co-sponsors 
of the joint proposal was that the searchable datab ase would facilitate the current level of protection 
while minimizing the burden and costs for Members.  For his delegation, it went without saying that 
the establishment of a multilateral system, of whatever nature, would result in certain costs.  However, 
these costs needed to be considered in relation to  the added value and adva ntages which would result  TN/IP/M/9 
 Page 7 
 
 
from such a system.  Since a simple database syst em with neither legal effects nor a multilateral 
character would not result in any facilitation of GI protection, the costs for such a system would in 
any case be wasted.  While he believ ed that Members agreed that the system should have a procedure 
as simple and straightforward as possible, he was of the view that it should ensure the following 
elements:  first, to enable all Members to notify a nd register their GIs, ther eby participating in the 
system without being deterred by formal requirements and excessive costs;  seco nd, to ensure that the 
registration of GIs respected some minimum formal requirements so that the register became a truly useful tool to facilitate the legal protection of GIs as required under Article 23.4 of the TRIPS 
Agreement.  He said that just a list of names, the significance or legal value of which was not known, 
would not be able to fulfil the mandate. 
24. On the question of participation in the system, he said that the words "eligible for protection 
in those Members participating in the system" in Article 23.4 of the TRIPS Agreement suggested that 
WTO Members were free to choose to make us e of the multilateral system by notifying and 
registering their GIs.  In this respect, his delega tion agreed that participation was voluntary.  When 
exploring further the meaning of "participating in the system", it was essential to also look at the term 
"multilateral".  "Multilateral" stood in contrast to  "plurilateral".  In the context of the WTO, 
"plurilateral" was understood as referring to a system  in which participation was entirely voluntary, 
for example the Agreement on Trade in Civil Aircraft  or the Agreement on Government Procurement.  
Conversely, "multilateral systems" were understood  to be instruments by which all WTO Members 
were bound or would be bound.  There seemed to be agreement among Members that the register 
should not create new rights or obligations.  At th e same time, Members would agree that the rights 
and obligations to provide protec tion consistent with Section 3, Part II of the TRIPS Agreement 
continued to apply even after the establishment of  the multilateral system.  Accordingly, for his 
delegation, it seemed obvious that the legal eff ects of this system, which were not going beyond 
Section 3, Part II of the TRIPS Agreement, app lied to all Members, whether they notified and 
registered their GIs in that system or not. 
25. The representative of Chinese Taipei
 said that his delegation believed that, with regard to 
legal effects, voluntary participation was useful in the sense that it would allow each Member to 
determine whether the system was suitable or not , and would maintain the rights and obligations 
under the TRIPS Agreement, especially Article 1.1.  He recalled that Article 23.4 provided Members 
with the choice of participation in the future re gistration system and that there was no mandatory 
participation in any other IP treaty-based registration system. 
26. The representative of Canada  recalled that the EC proposal submitted in document 
IP/C/W/107/Rev.1 stated that "the register should not ... require WTO Members to enact new 
domestic legislative or administrative structures and would allow them to make use of existing 
structures and facilities".  In a non-paper circulated  by the European Communities regarding the legal 
effects under their proposal (JOB(03)/123, dated 25  June 2003), it was indicated that "participating 
Members shall facilitate the protection of an in dividual 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 indications".  It was not clear to his delegation how to introduce such a presumption without changing the Canadian legislation because the concept of 
presumption of eligibility did not exist in Canadi an law.  The legal concept of "a rebuttable 
presumption of validity", explained by the Swiss repr esentative, did not exist in Canadian law either.  
He asked the delegations of the European Communiti es and Switzerland to give clarifications on these 
two concepts.  For Canada, to implement such pr oposals would imply some implementation costs and 
other consequences in changing regulations an d administrative procedures.  This was an 
implementation issue for further discussion. 
27. His delegation was also concerned about how it would be possible for Members to examine 
and evaluate each GI proposed for protection wit hout enacting new administrative procedures.  He 
gave the example of the recent bilateral wine ne gotiations between his country and the European TN/IP/M/9 
Page 8  
 
Communities.  Canada was first asked to protect more  than 8,000 European wine names.  It had taken 
some time to assess whether those names were eligible   for protection in Cana da.  Canada had finally 
concluded that only some 1,500 of those names were e ligible for GI protection.  If the concept of legal 
presumption were applied in the context of those bilateral negotiations, then Canada's ability to 
evaluate those wine names expediti ously would have been different. 
28. He expressed support of the suggestion made by  Bolivia for studies regarding the potential 
costs for least-developed and developing countries, esp ecially if the system was to be mandatory.  His 
delegation believed that the joint proposal better reflec ted the fulfilment of the mandate.  The fact that 
other delegations had asked to be included as co -sponsors of document TN/IP/W/9 showed that the 
paper was indeed useful. 
29. Finally, he asked for clarification of the status of the proposal made by Hungary 
(IP/C/W/255) after it had joined the European Union. 
30. The representative of Costa Rica
 said that his delegation agreed with the facilitation but not 
with the increase of protection of GIs and that partic ipation in any future syst em of registration should 
be on a voluntary basis as stipulated by Article 23.4.  He asked that Costa Rica be added to the list of 
co-sponsors of document TN/IP/W/9. 
31. The representative of Australia  disagreed with Switzerland that the joint proposal would 
complicate and confuse matters, considering the number of Members who supported it.  She also 
agreed with Canada on the need for further cl arification on the issue of legal presumptions. 
32. The representative of the European Communities  said that Article 24.1 was meant to increase 
the protection of the right holder of the GI, not to increase the rights of the generic producers.  The 
idea of having bilateral negotiations in the pr ocedure under the multilateral system was not new 
because it was already in the language of Article 24.1. 
33. The common system of GIs in the European Co mmunities was created to avoid the obstacles 
to trade that the lack of GI protection had caused in the internal market.  Turning to the statement 
made by Canada on the concept of legal presumption in Canadian law, he said that this concept 
should have been introduced in the register created  by Canada after the bilateral agreement with the 
European Communities. 
34. He finally said that his delegation did not belie ve that, if the joint proposal were adopted, 
European holders of GIs would consider that the multilateral system would facilitate the protection of 
their GIs as required by Article 23.4 of the TRIPS Agreement. 
35. The representative of Argentina  said that for her delegation it was clear from Article 24.1 that 
no Members needed to enter into bilateral negotia tions with any other Member to grant or obtain 
protection or to enable domestic producers to initiate  legal proceedings at the national level.   She 
asked the representative of the Euro pean Communities to give a clarification:  if currently an 
Argentine producer or the Argentine Government wa nted to enforce an exception under Article 24.4 
before a court, should Argentina enter into nego tiations with the WTO Member concerned by the 
exception prior to alleging that exception in its favour at the national level? 
36. With regard to the bilateral agreement betw een Canada and the European Communities, the 
fact that Canada had to examine some 8,000 name s before arriving at 1,500 names was a waste of 
time, money and human resources.  In this regard, she said that only developed countries like Canada 
could afford such examination within a certain laps e of time.  If a multilateral registration system like 
the one proposed by the European Communities were imposed, then every Member would have 
18 months to examine a large number of terms with  already 10,000 terms simply from the European 
Communities.  TN/IP/M/9 
 Page 9 
 
 
37. Her delegation did not believe that GIs protection facilitated mutual trade, since this was often 
done by reducing customs tariff and non-tariff barriers,  like sanitary and technical barriers.  She said 
that the national GI systems of some EC member States having created a technical barrier to trade within the European Communities, they had been expanded to the Community level to overcome such 
barrier.  This was now being amplified to a global level. 
38. The representative of Canada
 said that the 1,500 wine name s listed under the Canadian-
European Communities bilateral wine agreement were  eligible for protection under that agreement.  
Nevertheless, there was no concept of presumpti on in Canadian law, namely the Canadian 
Trademarks Act, that would apply to GIs generally or to the list in the bilateral agreement.  Therefore, 
to implement the EC proposal, it would be necessar y to amend the Canadian Trademarks Act, which 
had not been the case for the conclusion of  the Canadian-EC bilateral negotiations. 
39. The representative of Australia  said that Article 24.1 had nothing to do with the current 
negotiations.  Since this provision had been men tioned on several occasions but not in any mandate, 
she said that further clarifications would be necessary. 
40. The representative of the European Communities  disagreed with the delegation of Argentina 
on the interpretation of Article 24.1:  there was an  obligation to enter bilateral negotiations if a 
Member asked for them.  Responding to a request for clarification asked by that delegation on the need for a country to enter into negotiations pr ior to using the exceptions under Article 24 at the 
national level, he said that that would not be n ecessary.  He further said that, between 1992 and 1994, 
not only GIs but also trademarks had been harm onized within the European Communities, showing 
that the harmonization process had nothing to do with the Common Agricultural Policy, but with a 
common policy in the field of intellectual property. 
41. The representative of Malaysia
 said that, regarding Article 23. 4, her delegation considered 
that the creation of an entirely new multilateral sy stem of notification and registration for wines and 
spirits would go beyond the purpose of facilitating pr otection.  The current TRIPS Agreement, as 
reflected in Article 1.1, Article 22.2 and Article 23.1, required Members to provide the legal means 
for protection of GIs.  Any proposal for a multilate ral system that would lead to presumptions of 
eligibility or requirements not to refuse protecti on would not only subordinate the obligation of 
Members to provide the legal means to the rule of adopting a system that would create new obligations but could also impose such a rule.  As for participation, she said that it should be 
voluntary and hence have no legal eff ects on non-participating Members. 
C. 
OTHER BUSINESS  
42. The Chairman  suggested that further meetings of th e Special Session should take place back-
to-back with the two meetings of the regular sessions  of the TRIPS Council, which were scheduled for 
21-23 September 2004 and 30 Nove mber to 2 December 2004. 
43. In accordance with a suggestion from the Chair,  the Special Session took up the question of 
the Chair's report to the TNC in informal mode.1 
__________ 
                                                      
1 This report was circulated as document TN/IP/10.