IP/C/W/660  
19 November  2019 
(19-7864) Page: 1/3 
Council for Trade -Related Aspects of  
Intellectual Property Rights  Original:  Spanish  
 
  
CROSS PROMOTION  
COMMUNICATION FROM MEXICO  
The following communication, dated  5 November  2019, is being circulated at the request of the 
delegation of Mexico. 
 
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1  BACKGROUND  
1.  Since  2012, the Codex Committee on Nutrition and Foods for Special Dietary Uses (CCNFSDU)  
has been working on revising and updating the Standard for follow-up formula (CXS 156-1987).  
2.  At the 40th Session of the CCNFSDU , held from 26 to 3 0 November  2018, the proposed draft 
revised Standard for follow -up formula  (hereinafter "the proposed draft") was discussed . It was 
agreed to submit  its labelling provisions for endorsement by the Codex Committee on Food Labelling 
(CCFL) at its 45th Session , which would  be held from 13  to 17 May 2019 in Ottawa, Canada . One of 
the issues that was discussed  was the labelling provision  contained  in Section A, paragraph 9.6.4 ., 
of the proposed draft, which refers to " cross promotion ". 
3.  The provision  reads : 
9.6.4. Products shall be labelled in such a way as to avoid any risk of confusion between 
infant formula, follow -up formula for older infants, (name of product) for young children, 
and formula for special medical purposes, and to enable consumers to make a clear 
distinction between them, in particul ar as to the text, images and colours used . Cross 
promotion between products is not permitted in product labelling . (Emphasis added)  
4.  At the 45th Session of the CCFL, the item "Consideration of labelling provisions in draft Codex 
standards ( endorsement )" (CX/FL 19/45/1 Rev) was included in the agenda . The CCFL examined 
the labelling provisions submitted by the Codex committees and consequently included the propos al 
to endorse  the labelling provisions contained in the proposed draft (CX/FL 19/45/4), but without the 
last sentence on " cross promotion ", recommending  further discussion s on this matter . 
5.  Subsequently , at the 42nd Session of the Codex Alimentarius Commission held in Geneva, 
Switzerland, from 8 to 1 2 July 2019, comments in favour  of the endorsement  of the proposed draft 
were made . The Commission decided to endorse  the text of the proposed draft, but stressed that 
the concept  of "cross promotion ", described  at the end of  paragraph  9.6.4. , should continue to be 
examined in the CCNFSDU Committee, especially in light of its po ssible  incompatibility with 
international obligations under the World Trade Organization (WTO) and the World Intellectual 
Property Organization (WIPO).  
6.   The concept of " cross promotion " in paragraph  9.6.4. of the draft Standard for follow -up formula 
(CXS 156-1987) will be further discussed at the 41st Session of the CCNFSDU to be held in 
Düsseldorf, Germany from 24 to 2 9 November  2019. IP/C/W/660  
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  2  LINK TO WTO COMMITMENTS  
7.  The Codex Alimentarius Commission is an international organization engag ed in 
standardization -related activities  under Article 2.4 of the Agreement on Technical Barriers to Trade 
(TBT) .1 This means that if a prohibition on "cross promotion " were included in an international 
Codex  Alimentarius standard , all WTO Members would be obliged to use that standard as a basis for 
their own technical regulations . 
8.  Paragraph 9.6.4. prohibits " cross promotion " between product categories in product label ling. 
However, the term "cross promotion " is not defined in the proposed  draft. First, the absence  of a 
definition may create  uncertainty about the scope and impact of the prohibition o n "cross promotion " 
if the proposed draft is endorsed , as drafted , by the Codex committees . Depending on what is meant 
by "cross promotion ", such an international standard could  affect the use of protected trademarks , 
on the basis of the obligations established  in the WTO Agreement on Trade -Related Aspects of  
Intellectual Property Rights (TRIPS Agreement).  
9.  Under Article 15 of the TRIPS Agreement : 
Any sign, or any combination of signs, capable of distinguishing the goods or services 
of one undertaking from those of other undertakings, shall be capable of consti tuting a 
trademark . Such signs, in particular words including personal names, letters, numerals, 
figurative elements and combinations of colours as well as any combination of such 
signs, shall be eligible for registration as trademarks.  […] 
10.  A single  undert aking may produce "infant formula, follow -up formula for older infants, (name 
of product) for young children, and formula for special medical purposes" . Consequently, the 
prohibition on " cross promotion " between product categories in product labels or  labelling could be 
interpreted (in the absence of clarification on the scope of that definition) as a prohibition on the use 
of the same trademark  for different categories of products , or it may possible to use the same 
trademark , but in a different way  (e.g. through variations in colour),  to avoid the appearance of  
"cross promotion ". This could undermine the capability  of a trademark to distinguish the products of 
one undertaking  from those of other undertakings , as stated in Article 20 of the TRIPS Agree ment.2 
11.  Although Article 17 of the TRIPS Agreement provides for exceptions to the rights conferred by 
a trademark, a prohibition o n "cross promotion " must be examined  to determine whether it could 
be justified under th is Article, as it provides that  such exceptions must take account of the legitimate 
interests of the owner of the trademark and of third parties .3 
12.  The objective of the TRIPS Agreement is to establish obligations for Members to grant and 
protect intellectual property rights in their resp ective territories , by providing  minimum standards of 
protection that must  be adopted . In light of the above , a certain degree  of discretion is permitted  
with regard to establish ing levels of protection that exceed those already provided for  in the 
Agreeme nt; however,  international obligations relating to  grant ing protection to intellectual property 
rights, such as trademarks, are not flexible.  
                                                
1 Article 2.4 of the TBT Agreement reads: Where technical regulations are required and relevant 
international standards exist or their completion is imminent, Members shall use them, or the relevant parts of 
them, as a basis for their technical regulations except when such international standards or relevant parts 
would be an ineffective or inappropriate means for the fulfilment of the legitimate objectives pursued, for 
instance because of fundamental climatic or geographical factors or fundamental technological problems.  
2 Article 20 of the TRIPS Agreement reads: The use of a trademark in the course of trade shall not be 
unjustifiably encumbered by special requirements, such as use with another trademark, use in a special form  
or use in a manner detrimental to its capability to distinguish the goods or services of one undertaking from 
those of other undertakings . This will not preclude a requirement prescribing the use of the trademark 
identifying the undertaking producing the goods or services along with, but without linking it to, the trademark 
distinguishing the specific goods or services in question of that undertaking. (Emphasis added)  
3 Article 17 of the TRIPS Agreement reads: Members may provide limited exceptions to the rights 
conferred by a trademark, such as fair use of descriptive terms, provided that such exceptions take account of 
the legitimate interests of the owner of the trademark and of third parties.  IP/C/W/660  
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  3  RECOMMENDATION  
13.  Mexico recommends analysing the definition of "cross promotion ", as well as the  implications 
for TR IPS Council members of including the prohibition on " cross promotion " between categories of 
follow -up formula for infants  in an international Codex Alimentarius standard, without  having due 
clarification of the scope  of this prohibition or  its possible effects . 
14.  Mexico supports pursuing the discussion on the prohibition on " cross promotion " between 
categories of follow -up formula for infants in the various Codex Alimentarius bodies, and 
recommends that the WTO, as an intergovernmental organi zation with observer status in this 
international standardization body, take note of the concern that th is concept's lack of clarity could 
generate for its Members.  
 
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