RESTRICTED  
  
TN/IP/M/28  
 
17 January 2014  
(14-0268)  Page: 1/24  
Council for Trade-Related Aspects of  
Intellectual Property Rights 
Special Session 
  
 
  MINUTES OF MEETING 
HELD IN THE CENTRE WILLIAM RAPPARD 
ON 3 MARCH 2011  
Chairman: Ambassador D. Mwape (Zambia) 
 
 
SUBJECTS DISCUSSED  
 
1   NEGOTIATION ON THE ESTABLISHMENT OF A MULTILATERAL SYSTEM OF 
NOTIFICATION AND REGISTRATION OF GEOGRAPHICAL INDICATIONS FOR 
WINES AND SPIRITS ........................................................................................................ 1  
2   OTHER BU SINESS ...................................................................................................... 24  
 
_______________ 
 
 
1  NEGOTIATION ON THE ESTABLISHMENT OF A MULTILATERAL SYSTEM OF 
NOTIFICATION AND REGISTRATION OF GEOGRAPHICAL INDICATIONS FOR WINES AND 
SPIRITS 
1.1.  The Chairman recalled that, as foreseen in the work programme circulated on 
13 December 2010, he had held a series of drafting group consultations with a number of sponsors 
of the proposals on the table, namely the joint pr oposal, the proposal contained in TN/C/W/52, as 
well as the one by Hong Kong, China. The Leas t Developed Countries (LDC) Group had been added 
to this small drafting group for the last round of consultations in February. Since January, following 
the TNC's call to develop text in all negotiating groups before Easter 2011, this drafting group had 
worked through the list of six possible elements1 for a Register for Geographical Indications (GIs) 
for Wines and Spirits that the Chair had suggested on 7 December 2010. With respect to the 
organization of meetings, each series of draf ting consultations in the small group had been 
followed by an open-ended informal meeting for the purposes of transparency and inclusiveness, 
at which the draft composite text had been shared with Members as it developed. Such open-
ended meetings had been held on 13 January, 27 January and 11 February. 
1.2.  With respect to the composition of the dr afting group, the Chair said he had applied the 
formula that Members themselves had chosen to use in the so-called "small brainstorming group" that had met outside the WTO. That formula was a balanced representation of the two sides to 
which Hong Kong, China had been added as a third proponent. After the LDC Group – together 
with other delegations – had made a textual proposal on the element of special and differential treatment it was also invited to join the small drafting group.  
                                               
1 These six elements are:  Notification, Registration , Legal Effects/Consequences  of Registration, Fees 
and Costs, Special and Differential Treatment, and Participation. TN/IP/M/28 
 
- 2 - 
 
  1.3.  The Chair emphasized that the small drafting  group process should not be seen to preclude 
Members from discussing, coordinating or developing  text among themselves and, on that basis, 
to table such agreed proposals in the consultations. In fact, he said, this process would still benefit if that could occur not only within the existing camps, but even across both sides of the debate, 
and he continued to encourage Members and group coordinators to create and utilize any such 
opportunity where possible. Regarding the mandate to produce a negotiating text, the Chair reiterated that any text should emerge – as much as possible – from Members themselves, in line 
with the general directions laid out for this phase of the overall negotiations. In the group 
consultations, delegations had the opportunity to make textual proposals or comments that built on all of the past experiences and achievements of the Special Session, including the so-called 
"3-4-5 approach" and previous textual proposals, as  well as taking a fresh constructive look at the 
issues.  
1.4.  He said that since mid-January the drafting group had managed to follow the above 
methodology and completed the exercise by putting text on paper on all the six elements. In view 
of the Special Session's track record this was no small measure of success, and he thanked all 
delegations for their patience and engagement. The state-of-play of the drafting group's work was 
reflected in the paper that had been circulated to delegations on 28 February 2011. With regard to 
the drafting group's paper, he recalled the two impo rtant points of principle of this organization 
that applied in particular to the work the group had undertaken. First, the composite text had emanated exclusively from Members themselves, no t from the Chair. Second, the draft composite 
text represented work in progress and was without prejudice to Members' positions on the overall 
outcome of the negotiations. Members were working on the understanding that nothing was 
agreed until everything is agreed, and that Members could revert to any issue of the text at any 
time.  
1.5.  He said that, although this process had progressed quite far, it still remained fragile and 
delicate, which was why he suggested to maintain the format of small group meetings for the time being. Seeking Members' indulgence and understanding in that respect, he said that it continued 
to be his intention to open the text up to draf ting suggestions from the entire membership once 
that stage had been reached before the Easter deadline. However, looking at the number of square brackets in the current text, he did not believe this would be constructive at the present stage, and he therefore did not intend to open the text for amendments in this session. Furthermore, the 
purpose of this formal meeting was for delegations – particularly those not present in the drafting 
group – to be able to put on record their vi ews on the progress of the consultations and the 
current composite text.  
1.6.  In view of past experience he reminded delegations that the mandate in this Special Session 
was for negotiations on the establishment of a multilateral system of notification and registration of GIs for wines and spirits. He said that, despit e having received repeated assurances from all 
sides that this would be respected, Members had still spent considerable time talking about 
whether or not the composite text should be neutral with respect to possible GI extension or not. This was very unfortunate. Against that background – and although this issue has found its way 
implicitly into the draft composite text  – he would like to ask delegations to keep this particular 
discussion outside this forum. He further suggested that delegations refrained from repeating 
known positions and focussed their comments on th e current state-of-play and the composite text. 
To quote the TNC's Chairman, "please keep your answering machines turned off". 
1.7.  The representative of Canada, speaking on behalf of the Joint Proposal Group, said that a 
revised version of the joint proposal was available in the room and would be submitted to the 
Secretariat for translation and circulation at the end of the meeting. The new version of the joint 
proposal, TN/IP/W/10/Rev.3, had been reformatted to be consistent with the overall structure 
found in the draft composite text and it included the new textual proposals on special and differential treatment provisions that the joint proposal co-sponsors had recently provided in the informal drafting group process. He said that, as pointed out in the cover note and towards the 
end of the first paragraph of the document, th e Joint Proposal Group remained very much 
committed to the Chair's process and to the overall shared objective of formulating a single text without square brackets, but believed it would be helpful to provide the Membership with a revised 
joint proposal in order to illustrate more clearly what were the two different visions on the 
table: one which stayed fully within the mandate – namely the joint proposal, and another which was not compliant with the mandate.  TN/IP/M/28 
 
- 3 - 
 
  1.8.  In introducing the new text of special and differential treatment in Section E of the document, 
he said that the Joint Proposal Group had always viewed their proposal to be the most development-friendly one on the table, in large part because – consistently with the mandate – Members could choose whether or not to participat e in the system. That said, the group had also 
listened intently to the perspectives of others as Members had engaged more concretely in the 
idea of special and differential treatment. It had clearly emerged that the decision whether or not to participate in the system was a policy decision, and that developing countries, and particularly 
LDCs, should be able to make that policy decisi on without being constrained by capacity issues. 
For that reason the group had come up with specific measures that would help to ensure that developing countries, including LDCs, interested in participating or in consulting the registry would have special and differential treatment (S&D) provisions to draw from.  
1.9.  The joint proposal text had been divided into  two sections - one dealing with transitional time 
periods, and another with technical assistance. The language was familiar to Members as it was largely drawn from Articles 66 and 67 of the TRIPS Agreement. With respect to the transitional 
time periods, the new proposal was consistent with the mandate in that it was based on voluntary 
participation. Another proposal, from the LDC Group, the African Group, India, Brazil, China and others, also proposed transition periods of 10 an d 20 years respectively, but in that proposal the 
clock started immediately upon operationalization of the system. The Joint Proposal Group, in 
contrast, was of the view that developing countries, and particularly LDCs, consistent with the voluntary nature of participation, should have additional flexibility to decide for themselves when they wanted to have that clock start running. The designation of the number of years for the 
transition period had deliberately been left as "x" and "y", because the group would appreciate the 
opportunity to hear from developing countries, particularly LDCs, as to what they believed a transitional time period should look like. While the Joint Proposal Group was made up of developed 
and developing countries, there were at present no  LDC Members part of that group, and it would 
therefore be very interesting to hear those delega tions' perspective on how "x" and "y" should be 
defined. 
1.10.  The portion dealing with technical assistance  was also very straightforward. It was based on 
TRIPS language and it was worth pointing out that technical assistance would be available to developing and particularly least-developed country Members seeking assistance with respect to participating in or even just consulting the Register itself.  
1.11.  Another representative of Canada said that her delegation welcomed the circulation of the 
draft composite text for a GI register for wines and spirits. Although getting to this point in time had been a challenge, she was pleased that Members had been able to follow through on the 
Chair's step-by-step work plan on the six elements  plus a preamble text. As a co-sponsor of the 
joint proposal, Canada was particularly pleased to  have contributed to the text proposals on S&D. 
For the first time in these negotiations, Members had been able to assess the GI register for wines 
and spirits in light of tangible provisions related to S&D. Overall, the draft consolidated text was a 
document Canada could work with. She was hopeful that it would be possible in the near term to achieve the ultimate goal of establishing a multilat eral system for the notification and registration 
of GIs for wines and spirits.  
1.12.  However, she said, no obstacle to achieving this objective was bigger and more problematic 
than the insistence of a few Members to ignore the mandate captured in Article 23.4 of the TRIPS Agreement, which had been agreed to again by Ministers in paragraph 18 of the Doha Declaration, 
and reinforced by Ministers for a third time in  paragraph 29 of the Hong Kong Declaration. 
Members had been specifically charged with the resp onsibility of establishing a multilateral system 
where participation was voluntary and the scope of product coverage was expressly limited to 
wines and spirits. There were two visions on the table: one that was completely within the 
mandate, the joint proposal, and another that was not compliant with the mandate, the EU proposal. While populating the consolidated draft text was a notable achievement, it would ultimately be of little consequence if Members could not take the next step of converging on the 
text. Canada was ready and willing to help in this effort, but could only do so if there were clear 
and identifiable assurances that the mandate fo r these negotiations was fully respected by all 
Parties. The issue of mandate was often characterized by the differences of view pertaining to 
scope and participation. However, Canada was also concerned with the EU's interpretation of the 
terms "facilitate the protection" contained in Article 23.4 which it had transformed in their proposal into a "TRIPS plus" legal effect. Two specific concerns for Canada in this regard were the concepts 
of prima facie  evidence and genericness.  TN/IP/M/28 
 
- 4 - 
 
  1.13.  The EU proposal sought to create a system in which the placing a term on the register 
would constitute prima facie  evidence that the term met the TRIPS definition of a GI in all 
markets. Given its difficult experience in the bilateral context, Canada was not ready to accept as prima facie  evidence that a term constituted a GI in its country of origin, let alone in any other 
markets. She recalled that a few years ago the EU had attempted to register in Canada many 
terms that did not meet the criteria of a GI in th eir own country of origin. In fact, only one quarter 
of the thousands of terms that had been presented to her delegation as GIs had actually qualified 
as GIs in their domestic territories. This had been problematic then, but what was even more 
problematic today was that the EU now went one step further and asked Members to blindly accept that the registered terms qualify as a GI not only in its domestic territory but also in the territory of all other Members. This would interf ere with the sovereign authority of a Member to 
implement its own application process, as it would constrain domestic verification procedures. This 
was in direct contradiction of the fundamental TRIPS principle of territoriality. Canada was of the view that every Member must retain its ability to  screen, verify and oppose terms that it deemed 
should not receive GI protection. 
1.14.  The EU proposal also modified the applicability of Article 24.6, an exception for generic 
terms, by reversing the burden of proof. This reversal would shift the burden to Canadian 
administrative bodies and stakeholders, requiring them to prove that the term was generic, in 
order to prevent GI registration. This would alte r the balance in the TRIPS Agreement, giving GI 
holders rights in all markets, without providing other legitimate users the certainty of legal process in rebutting the registration by the GI right holder s. Canada would like to know why the burden of 
proof would be shifted to third parties using generic terms that were in the public domain, as 
opposed to requiring the right holders to prove that  they should own a monopolistic right. This was 
contrary to the ideology of intellectual property  rights. Canada could not accept a registry that 
would affect the rights of its citizens and stakeholders to use certain terms that it deems generic. 
1.15.  In conclusion, she said Canada remained committed to making progress in these 
negotiations, but a number of obstacles had to be overcome in order to achieve this objective. 
Canada was also highly committed to a transparent negotiating process in which Members were 
able to discuss their specific concerns openly. To this effect, she said that her delegation was available to engage in discussions with any Member who might have questions or comments on the joint proposal. 
1.16.  The representative of the European Union said that his delegation appreciated the Chair's 
efforts, patience and guidance for delegations in developing the draft composite text which had 
now been circulated to the entire membership. Co mpleting the program established at the end of 
2010 and developing the draft that was being circulated had not always been easy, but he believed 
that the outcome fairly reflected the views expre ssed throughout the consultation process. This 
was also the reason why the draft contained a substantial number of brackets. This Special 
Session meeting was a good opportunity to share the outcome of the informal consultations with 
the rest of the membership and to ensure full transparency. His delegation was ready to explain the proposals on the table, to answer any questi on and to consider any suggestion to improve the 
quality and the clarity of the text. It was also important to note that the composite draft was a 
work-in-progress document and that the readability of the draft and the clarity of the text would 
certainly need to be improved. Nevertheless, at this stage, the draft reflected the main approaches that had been discussed during the consultations.  
1.17.  He said that it was apparent from the draft that the EU's approach was fully in line with the 
communication from July 2008 when there had be en broad consensus among two thirds of the 
Membership on the approach described in document  TN/C/W/52 ("W/52"). Mindful of the efforts all 
Members of the coalition had made to agree on a common platform, the EU's approach in the draft 
composite text faithfully transposed the W/52 principles. That being said, the EU was of course open to improving the language to clarify any doub t that could arise. Although his delegation had 
understood that this meeting was not intended as a drafting session, it was his impression after 
the last intervention that the EU's proposal was still unclear to some delegations. He would 
therefore like to clarify the ideas behind the EU's drafting proposals as they appeared in the draft 
composite text.  
1.18.  Regarding the preamble, he said that, as currently it was still unclear what exact structure, 
format or instrument would embody the result of  these negotiations his delegation did not see a 
need for a preamble. However, once the content of the legal text had become clear, and if TN/IP/M/28 
 
- 5 - 
 
  Members still felt the need, his delegation would be prepared to consider the content of a 
preamble.  
1.19.  Regarding participation in the Register, the question of whether participation should be 
voluntary or mandatory had been extensively discussed in previous meetings of the Special 
Session and in the current process. The EU's position remained clear and unchanged. The Register 
was to be a multilateral system – otherwise it would have been specified as "plurilateral" – and, in principle, all WTO Members should be part of the system. The idea that a voluntary Register would 
be an adequate S&D measure has been rejected by both developing and least developed countries. 
The rationale of the EU's position was clear from  the proposed draft in B1 and in D1: Members 
"may" notify a GI and "shall" consult the Register and take its information into account when making a decision on GIs and trademarks. The principle has been extracted from these two 
paragraphs and recalled in the specific paragraph A1 related to participation. This also strictly 
reflected the position established in TN/C/W/52. While it had been argued in the past that the Register should be voluntary because of costs and burdens to Members, it was now clear from the 
proposal on the table that the Register that was being proposed would entail very limited costs or 
administrative burdens to Members. 
1.20.  Concerning notification and registration, he  said that the main idea in paragraph B1 was 
that, in line with TRIPS Article 22.1, Members would be able to notify GIs to the Register which 
were protected in their respective territories. Me mbers would only notify GIs that were protected 
domestically, according to the domestic rules im plementing the TRIPS Agreement. In order to 
address concerns over the transparency and reliab ility of the register his delegation had suggested 
including in the draft a few elements to ensure th at the register would provide reliable information. 
However, knowing that such provisions also had to fit into all Member's legal systems, the drafting had tried to cater for such differences. For instance, information on the date of protection received 
in the country of origin or the date when such pr otection ceased was considered useful and should 
be communicated to the Register, only if that was available under the respective domestic systems. If not, then obviously there was no obligation to notify such information. This was the 
case in the EU: there was no date of expiration of  a GI protected under the GI legislation and there 
was therefore no obligation to notify this information. The provisions on updating the register related to modifications that might be made to the register information and to the possible removal of a previously notified GI.  
1.21.  He said that, although his delegation had explained on numerous occasions the objective of 
the proposal and the intended effects of the register, it was ready to further clarify should there be any remaining doubts. It was also useful to recall what effects the Register did not have. The 
Register did not grant automatic protection. It did not change the current rules in the TRIPS 
Agreement on protection or the exceptions available.  It was up to the domestic authorities in each 
Member to apply the TRIPS Agreement and its dome stic legislation. The Register did not change 
the means of protection used by Members. The content of the register would be taken into account 
by the domestic authorities in charge of taking a decision in a specific case. This is why the Register would not create additional burdens or costs: authorities would look at it as part of their existing domestic processes.  
1.22.  He said that the effect was simple: if there was no proof to the contrary, the GI was 
considered a GI as complying with the TRIPS definition. Two of the three proposals in the composite draft text referred to the concept of prima facie  evidence. This was not a new legal term 
or an unknown concept. Domestic authorities would be the ones to decide whether they had proof 
to the contrary regarding whether or not a term met the GI definition within the normal procedures already available in each WTO Member. With regard to the draft composite text on 
genericness, the objective was simply that those relying on that exception had to substantiate 
their assertion. Interventions during previous TRIPS Special Sessions had confirmed that Members 
were already operating in such a way: exceptions invoked had to be substantiated. This simply encapsulated a general principle of good admini stration and common procedural requirements in 
Members' systems. 
1.23.  With respect to concerns regarding a possible extra-territorial effect of such a proposal he 
said that his delegation's proposal did not contradict the principle of territoriality: the domestic 
authorities were the ones that would take the decisions: they would decide if there was proof that 
the term in question was not a GI, and they woul d then decide whether or not the GI should be 
protected according to their own domestic rules.  The register would not affect the ability of TN/IP/M/28 
 
- 6 - 
 
  domestic authorities to decide that a term was generic in their territories or that prior rights 
applied. The current approach of simple effects had gathered the broad support of two thirds of 
the Membership in TN/C/W/52 and the drafting in the composite text reflected this approach.  
1.24.  On costs and fees, he said that they had not yet been fully assessed, which was why the 
provisions were meant to remind Members to tackle this point once the exact shape of the Register 
was known. His delegation, just like other Members, aimed at a simple and easy to use system as foreseen on the basis of TN/C/W/52. 
1.25.  With respect to the provisions on S&D, he said that GIs had the potential to transform 
traditional know-how into intellectual capital and that this was precisely why GIs offered an interesting asset to DCs and LDCs. The link between  agricultural products' quality and reputation 
and their territorial origins offered a means to promote small businesses, exports and rural 
development. DCs and LDCs had a natural advantage in that regard and many examples and 
practical experiences of producers confirmed that GIs were an asset for DCs and LDCs. The development characteristics of GIs were often mentioned by a wide range of sources which 
highlighted a number of benefits linked to the over all sustainability of a territory: the emphasis on 
localised production fostering rural integration because producers, traders, exporters and supply 
chains interacted at local or regional level; the positive impact on job development; the 
development strategies for multifunctional rural development, including regional cooperation 
between local partners; the positive identity of  regions leading to development of tourism, 
improvement in the general infrastructure and in rural services. It was therefore no accident that TN/C/W/52 had attracted the support of a large number of DCs and LDCs. 
1.26.  He said that, as clearly established in TN/C/W/52, provisions on S&D were an important 
element of the proposed draft, and the EU was fully in line with that approach.  
1.27.  The representative of Australia said that  the text-based discussions over the last months 
had usefully allow Members to clarify the meaning and impact of various proposals on the table, 
and to consider the relative benefits, costs and risks associated with each one. While this process had helpfully led to the creation of a single consolidated text and had enabled Members to engage 
in a meaningful technical consideration of these important issues, it had also increased his 
delegation's real concerns regarding what was being sought by the European Union in these negotiations. Australia had previously outlined its strong concerns about the proposed legal effect to the EU text, which he believed was inconsistent with the fundamental TRIPS principle of 
territoriality and would create a system in which a placement of a term on a register would 
constitute prima facie  evidence that the term met the TRIPS definition of a GI in all markets. That 
was simply not an issue of definition only. As Members were required to protect GIs under the 
TRIPS Agreement, if there was a presumption that a GI met the definition of a GI in all markets, 
then Members were indeed required to protect it.  
1.28.  He said that the proposed legal effects would also limit the Article 24.6 exception for generic 
terms by reversing the burden of who would need  t o  e s t a b l i s h  t h a t  a  t e r m  i s  g e n e r i c .  H i s  
delegation believed these significant legal effects would upset the balance of rights and obligations 
in the TRIPS Agreement and significantly increase ra ther than facilitate protection granted to GIs 
and impose undue costs and administrative burdens on all Members, especially developing country 
Members. In practice, the EU proposal would requ ire all WTO Members to protect thousands of GIs 
regardless of whether they would normally be eligible for protection under their own laws and regulations and give GI holders presumptive rights in all markets, creating uncertainty and risk for 
other legitimate users.  
1.29.  He said that Australia was also deeply concerned that the European Union continued to 
insist on elements of the register which were outside the scope of the mandate for these 
negotiations. The linkage drawn between the register for wine and spirit GIs and GI extension had 
significant implications for the nature and the scope of the register and would make it increasingly difficult for his delegation to engage in technical negotiations on the register. To be clear, Australia was not willing to negotiate a register for all products. Australia was a proponent of the joint 
proposal for a voluntary register that met the mandate of these negotiations and respected the 
principle of territoriality while adding real value to  the current system and facilitating protection of 
wine and spirit GIs without imposing unreasonable burdens on governments and industry. His 
delegation strongly supported the revised version of that text tabled today, which had been 
amended to incorporate additional language on S&D, specifically in relation to implementation TN/IP/M/28 
 
- 7 - 
 
  periods and technical assistance. In his view it was clear that Members faced a stark choice 
between the kinds of registers proposed and Australia would encourage all Members to seriously consider the implications of the proposals on the table.  
1.30.  The representative of Japan said his delegation welcomed the circulation of the draft 
composite text and the introduction of the revised joint proposal TN/IP/W/10/Rev.3. His delegation 
would like to take this opportunity to make a couple of points regarding the multilateral system on notification and registration of GIs for wines and sp irits. He said that it was evident from the two 
different titles at the top of eth draft composite text that there was a fundamental difference in 
views on what was being negotiated in the Special Session. The proposal from the European Union, Switzerland and some other Members went far beyond the negotiating mandate given by Ministers. That mandate from the Doha Ministerial Conference was clear: to negotiate the 
establishment of a multilateral system of notificati on and registration of GIs for wines and spirits. 
It was important to be consistent in that mandate, and in that context Japan appreciated the title of the Chair's cover page of the room document  which clearly reflected the accurate mandate. 
1.31.  Regarding substantive provisions of the draft composite text, he said that the legal effects 
or consequences of registration, especially the so-called prima facie  evidence was a concept which 
did not exist in the joint proposal or other proposals. It was the understanding of his delegation 
that a prima facie  case had to be based on sufficient ev idence and legal argument, and that when 
a prima facie  case was made, the burden of proof moved to the other party. Prima facie  evidence 
by itself established a " prima facie  case" in the absence of proof to the contrary, and therefore had 
to be legally equivalent to sufficient evidence with legal argument and only that could justify the 
legal consequence of shifting the burden of proof . However, this was not the case here. Both, the 
EU proposal and the Hong Kong, China proposal suggested that registration of GI information notified by a Member which protected the notified GI in its territory would be considered as prima 
facie evidence that the registered GI met the defini tion of a GI of Article 22.1 in all other WTO 
Members. In these proposals, a GI regi stration was automatically considered prima facie  evidence 
without sufficient legal argument to raise a presumption, although the said notification and 
registration could not be considered sufficient evid ence to support the claim that the registered GI 
met the definition of a GI under Article 22.1 in all other WTO Members. Therefore, the proposal which automatically considers a mere notification an d registration of a GI of a notifying Member as 
prima facie  evidence could upset the balance between a person claiming GI ownership and a third 
party and would therefore be unreasonable. Such  a reversal of the burden of proof was not 
acceptable for his delegation.  
1.32.  He said that, through bilateral negotiations, Japan had some experience with this burden of 
checking a number of GIs in order to determine if these GIs should be considered as GIs in Japan. 
It had been a heavy burden for Japan, and such burden could be put on each WTO Member if the so-called prima facie  evidence concept were to be applied. Japan would therefore like to encourage 
all Members to carefully consider the proposals on  the table. While there was no proposal by the 
W/52 Group, which was often reputed to represent more than two thirds of WTO Members, there 
was an EU proposal supported by some W/52 propon ents on the key issue of legal effects and/or 
consequences of registration. The joint proposal on the other hand was more Member-friendly. It 
did not imply prima facie  evidence effect, which meant that it was much less burdensome, and its 
principle of voluntary participation provided complete flexibility for Members. The revised version now had newly introduced S&D provisions, which ga ve more comfort to Members. It was therefore 
obvious that the joint proposal was the most valuable option for Members within the scope of the 
mandate. His delegation would continue to engage in discussion on this important matter.  
1.33.  The representative of China said that her delegation welcomed the draft composite text on 
the multilateral system of notification and registration of GIs as a basis for future consultations on 
this issue. While her delegation had well understood the Chair's comments on the mandate for the Special Session, it was against discriminating between wines and spirits and other products and would therefore like to restate its position on this issue. China supported negotiations on all three 
TRIPS issues, namely, the GI register, GI extension and TRIPS-CBD, and that such negotiations 
should be held in parallel in different fora. With respect to the multilateral system of notification 
and registration of GIs, China believed it should apply not only to GIs for wines and spirits, but to 
GIs for all kinds of foods. At the same time developing country Members and LDCs should be 
granted S&D, including conditional time periods, exemption from registration fees, and technical 
and financial assistance. China would continue to actively engage in the future consultations on 
TRIPS issues and was looking forward to a comprehensive and fruitful result in this regard.  TN/IP/M/28 
 
- 8 - 
 
  1.34.  The representative of Argentina said that his delegation appreciated the consultations that 
had taken place on the multilateral Register. Ho wever, as the draft composite text was complex 
and difficult to read for those not participating in the consultations, the Joint Proposal Group had today circulated a revised version of its proposal (TN/IP/W/10/Rev.3) to give Members a clear idea 
of what exactly is being proposed. As Canada had explained, a new section E in the document 
contained provisions on S&D based on a transitional time period applicable to the obligation in paragraph D.1 of the proposal. That paragraph established the participating Member's 
commitment to ensure that its procedures include the provision to consult the Database when 
making decisions regarding registration or protec tion of trademarks and GIs for wines and spirits 
in accordance with its domestic law. The new joint proposal text also included provisions on technical assistance for Members participating in the system and for non-participating Members 
wishing to consult the Database. 
1.35.  He said that, as noted by Canada, Australia and Japan, the joint proposal was the only one 
conforming to the mandate of Article 23.4 of th e TRIPS Agreement, which prescribed voluntary 
participation in the Register. The EU proposal en tailed serious legal consequences for Members. 
These consequences were even more serious for developing countries, which, under the EU proposal, were required to bear the heavy burden of proof in determining, on the basis of 
information not easily available to them, whether or not the registered GI complied with the GI 
definition in Article 22.1 of the TRIPS Agreement. Members had to be clear on this point: if a developing country, regardless of its efforts to do so, could not find the evidence necessary to make this determination, or if there was no evidence at all, then according to the EU proposal it 
had no other choice but to grant the GI concerne d the special protection under Article 23 of the 
TRIPS Agreement. This not only resulted in an unacceptable modification of the rights and obligations under the TRIPS Agreement, but also in an intolerable burden for developing countries, 
which had neither the capacity nor the resources to conduct such investigations. 
1.36.  He said that the proposal on S&D circulated by the African Group, the LDC Group, Brazil, 
China and India reflected the views they had on the consequences of the EU proposal by 
requesting implementation periods of between ten and twenty years. 
1.37.  He said that the Joint Proposal Group st ood ready to continue the negotiations. However, 
Argentina was concerned that the question of the mandate had now crept into the text and how that would further impact on the outcome of the negotiations. Although he would heed the request 
not to address this matter now he wished to express his delegation's hope that a way would be 
found to address this matter, in line with th e TRIPS mandate and the mandate conferred by the 
Ministers. 
1.38.  The representative of Malaysia said that his delegation welcomed the initial results of the 
consultations in the form of a draft composite text on all six elements of the proposed multilateral 
register. While the text was still being studied in capital, his delegation would like to make some 
preliminary comments, in particular on the subject creating the greatest difficulty for Malaysia, i.e. 
legal effect or consequenc es of registration. In that respect, his delegation's particular concern was 
paragraph D.1. Malaysia did not agree that Members should be obliged to consider that the inclusion of a term in the register constituted prima facie  evidence that the term fulfilled the 
definition of a GI under the TRIPS Agreement. This would assume that just because a term was a 
GI in one country, it was also a GI in another country. This argument was flawed as words could mean different things to differe nt people in different places. 
1.39.  He said that his delegation had further diffic ulties with accepting the contents of the register 
as prima facie  evidence. Firstly, this would go against the principle of territoriality of IP protection. 
To give an illustration, he said the current position was that, in order to obtain GI protection in 
Malaysia, the applicant would have to submit his application in Malaysia and, once his application 
was approved and included in the Malaysian register, the applicant would be issued a certificate of registration. This certificate was then prima facie  evidence that the term fulfilled the definition of a 
GI in Malaysia. However, if the register would constitute prima facie  evidence that the term 
fulfilled the definition of a GI, this would mean that the GIs included in the multilateral register 
would have the same legal weight and value as a GI that had been registered in Malaysia. Hence, there would no longer be a need for any foreign GI owner to seek registration of a GI in Malaysia 
to obtain protection there. They would simply regi ster their GI in their country of origin and then, 
once the GI had been notified to the WTO and included in the WTO register, the owner would have TN/IP/M/28 
 
- 9 - 
 
  the same legal rights and effects as if he had registered the term in Malaysia under the Malaysian 
law.  
1.40.  Secondly, the proposal also reversed the burden of proof. While normally, in order to obtain 
IP protection, the burden was on the applican t to prove that the subject-matter fulfilled the 
required criteria, this burden was reversed in paragraph D.1. This paragraph introduced a 
presumption that the term was indeed a GI and it was for others to prove that the term was not a GI. This reversal of the burden of proof was inappropriate and could have serious consequences on 
the protection of the public domain. When an IP ri ght was granted, it came at a cost to the public. 
The public suffered a loss because the subject-matt er was taken away from the public domain and 
exclusive rights over it were given to an indivi dual. Therefore it was important that there were 
safeguards that prevented the public from su ffering any unnecessary losses and that those who 
sought to obtain a right should prove that they we re deserving of this right. Placing the burden to 
prove that the subject-matter fulfilled the criter ia to receive IP protection on the applicant 
safeguarded the interest of the public because it ensured that a subject-matter would be taken 
away from the public domain only in cases where the applicant deserved holding their IP rights. 
Reversing the burden of proof as suggested would therefore have serious implications for the rights of the public and erode the safeguards that the law imposed.  
1.41.  He noted that, under the current draft composite text, once a term was notified the 
administering body did not perform substantive examination, but only carried out formality checks before including the term in the register. This meant that accepting that registration had prima 
facie effects was equivalent to recognizing the original registration in the originating Member. This 
posed a problem for several reasons. As the regi stration of a GI was the end result of the 
registration process, Members were being asked to recognize this result without any assurances that the process of registration itself was credible. Currently Members used many different 
procedures for recognizing and registering GIs, including through a registration process, judicial 
decisions or through international agreements. Some of these procedures were stricter than others. For example, if a GI gained recognition through a judicial decision, the evidentiary and 
procedural requirements of judicial proceedings wo uld apply, which would entail a high burden of 
proof. In contrast, if a GI gained recognition through a registration process, the burden of proof would be less since it was an administrative proceeding. The registration processes in Members also differed with respect to strictness. In light of the different procedures and systems that 
Members had in place in recognizing and registering GIs, it would be inappropriate that the same 
legal weight should be accorded to all.  
1.42.  His delegation also disagreed with the view that having a simple register with no legal 
effects would be ineffective in facilitating the protection of GIs. This could be illustrated by looking 
at the other branches of intellectual property. With  regard to patents, when an examiner examined 
a patent application, he would have to determine the inventiveness and the novelty of the 
invention. Patent examiners normally searched on certain recognized databases, such as the 
databases of the European Patent Office, the US Patent and Trademark Office and of other offices such as those in Japan or Korea. This was currently the common practice in Malaysia. Nothing in Malaysian law required consultation of these foreign databases or obliged Malaysia to give certain 
weight to them. However, as a matter of practice, they were almost always relied on by examiners 
and had proved to be useful. Hence even though there was no legal requirement to consult or give specific weight to the content of these registers, they were still useful in helping patent examiners 
making decisions regarding the patentability of the invention. His delegation believed that the 
same was true for the proposed GI register which,  even without legal effects, would be useful and 
would facilitate GI protection. His delegation was looking forward to providing views on the specific 
drafting of the text in the next open-ended drafting session. 
1.43.  The representative of Chile said that, as a sponsor of the joint proposal, his delegation had 
participated constructively in the negotiating group. It had been open to suggestions and 
opportunities to improve the text, in particular with regard to its use by developing and least 
developed countries, and the result was reflected in an additional proposal on S&D. His 
delegation's aim was to have a negotiating text ready by the end of April; in this context, there were two aspects of particular importance for Chile.  
1.44.  First, with respect to the mandate, he sa id that for the Chairman and the Joint Proposal 
Group there was only one possible reading of the Special Session's mandate, namely to negotiate 
a multilateral system of notification and registration of GIs for wines and spirits which facilitated, TN/IP/M/28 
 
- 10 - 
 
  and not increased, the protection of such GIs. Chil e was willing to work in that framework, but its 
flexibility to reach agreements and move forward was dramatically reduced if some Members change and broaden the negotiating mandate arbitrarily in order to address their interests in other areas. 
1.45.  Second, he said that, as the draft compos ite text might appear complex to Members that 
had not participated in the negotiating group, the Joint Proposal Group had circulated a third 
revision of their proposal (TN/IP/W/10/Rev.3), so that all Member were informed in a clear and 
transparent manner of the benefits of adopting ei ther the simple and voluntary register described 
therein, or a more costly and complex one as that proposed by the European Union. In this regard, he would like to highlight, in a preliminary manner , some of the effects that certain elements of 
the EU's proposal could have on Chile's system in practice.  
1.46.  With regard to participation, he said that mandatory legal effects for all WTO Members 
proposed by the EU meant that all Members, including those with no GIs, had to take the responsibility for protecting the thousands of GIs belonging to the EU. Even though a major wine 
producer, Chile only had a limited number of GIs for wines and spirits, around 70 in total. 
Participation in a registration system was therefore something that required careful consideration and should certainly not be a mandatory obligation.  
1.47.  With regard to the consequences of regist ration, he said his delegation welcomed the EU's 
repeated and constant willingness to try and expl ain its proposal, although such explanations 
sometime complicated things. In the negotiating grou p, the EU had said that its proposal involved 
not one or two, but three legal elements or consequences for all Members: first, all WTO Members 
would be obliged to take into account the GIs on th e Register when deciding on the protection of a 
trademark or a GI in their domestic systems. Seco nd, the simple act of the EU notifying a GI into 
the Register would mean that within the framewor k of domestic protection procedures, the EU's 
GIs would enjoy a presumption of validity, thus tran sferring the burden of proving that the GI did 
not comply with the TRIPS definition, and the cost of doing so, to domestic applicants.  
1.48.  Third, additional requirements would have to  be met if domestic intellectual property offices 
wished to apply the exception under Article 24.6 of the TRIPS Agreement regarding the 
genericness of terms. According to the procedure for registering trademarks and GIs in Chile, the 
genericness of a term was determined according to  criteria applied by the National Industrial 
Property Institute. However, should the EU's prop osal be accepted, the IP office would no longer 
be able to fully apply its own law to determine the generic character of a term, since it would only 
be able to determine genericness where a third pa rty intervened and substantiated or proved such 
genericness, or where the office itself proved th at the term in question was generic. These were 
additional requirements which did not currently exist in the TRIPS Agreement which would restrict 
the room for action of domestic offices. 
1.49.  With respect to S&D, he said that the Joint Proposal Group had made additional efforts in 
this area, and India, Brazil, the African Group an d others had also submitted their proposal. He 
found it striking that the EU was referring critically to the voluntary nature of the joint proposal as a form of S&D when it had not made any proposal of its own in this regard.  
1.50.  Regarding the costs of the register, he said that, similar to the proposed legal obligations for 
all Members, the suggestion by the EU that all WT O Members should pay for the administration of 
this system in itself highlighted the burden of  the EU's proposal. Such an arrangement would 
undoubtedly benefit those Members with a greate r number of GIs. The costs of the system as 
proposed by the EU were substantial, especially considering all the translations that would be 
needed. In contrast, the administration costs of the proposed database would be minimal. 
1.51.  He said that, in short, although the EU claimed that the prima facie  evidence applied only to 
the definition and not to the protection of GIs, it was crystal clear from its proposal that this meant 
automatic protection for EU GIs, the transfer of costs to producers and holders of local trademarks 
and GIs, and a limitation of the flexibility curre ntly provided for under Article 24.6 of the TRIPS 
Agreement. In addition, the EU proposed that the cost of this be borne by the entire WTO 
Membership. His delegation could not agree to such a proposal, but would rather - in line with a 
Spanish saying - let someone else carry that particular burden.  TN/IP/M/28 
 
- 11 - 
 
  1.52.  The representative of Chinese Taipei said  her delegation welcomed the circulation of the 
draft composite text as well as the revised version of the joint proposal as announced by Canada. 
While the initial reaction had been to recognize the achievement of the draft composite text - the 
first of its kind since the Round started almost ten years ago - as a positive sign for the 
negotiations, upon a closer look his delegation remained concerned with the numerous brackets 
throughout the text and the differing views still held by Members. She said that, although it could be pragmatic to display all the differing views in  the first drafting phase, her delegation had 
particular concerns with regard to the issue of mandate. 
1.53.   As other joint proposal co-sponsors had done, Chinese Taipei wished to reiterate that, first, 
the scope of the mandate given to this negotiat ing group by Article 23.4 of TRIPS Agreement was 
to establish a multilateral system of notification and registration of GIs for wines and spirits. In 
this regard, her delegation appreciated the Chair's cover page with a clear heading. Second, Article 
23.4 referred to GIs "eligible for protection in those members participating in this system", which meant that Members were free to choose to participate in the system on a purely voluntary basis. 
Lastly, the consequences of registration were meant to facilitate, not to increase, the protection of 
GIs for wines and spirits. The domestic examiner was obliged to consult the database before making any decision, but the importance of the information obtained from the database could be 
assessed on a case-by-case basis in accordance with domestic laws. The mandate spoke for itself 
very clearly with respect to scope, voluntary participation and the obligation to consult the database.  
1.54.  While the first phase of drafting work had been completed, a lot of work remained to be 
done. The issue of submitting the text by th e Easter deadline was paramount, and the way in 
which Members would take this next step would be crucial. Her delegation appreciated the methodology currently applied in the drafting work. It continued to support the Member-driven 
and bottom-up approach, and recognized that the small group meetings were useful and efficient 
for producing a single text. However, it would like to stress that the results of the small group discussions had to feed into the multilateral process,  so that the principles of full participation, 
inclusiveness and transparency would be respecte d throughout the process. Her delegation stood 
ready to work with Members and play a constructive role in the crucial next stage.  
1.55.  The representative of Singapore said that  his delegation welcomed the circulation of the 
draft composite text dated 25 February 2011, and wi shed to make the following observations and 
requests for clarification.  
1.56.  With respect to the title of the text, he sa id that this should ideally reflect the mandate in 
paragraph 18 of the Doha Ministerial Declaration (WT/MIN(01)/DEC/1), where Ministers had 
agreed "to negotiate the establishment of a multilateral system of notification and registration of 
geographical indications for wines and spirits". Si ngapore believed that the title proposed by the 
Joint Proposal Group suitably achieved this. 
1.57.  With respect to participation, the draft te xt reflected two opposing positions. Singapore was 
of the view that participation should be voluntary. In principle, the issue of mandatory or voluntary participation should not be taken in isolation, but be considered along with the consequences of registration. His delegation urged that fellow WTO Members consider, in reviewing the overall 
effect of participation and the consequences of registration, the third guiding principle set out in 
Ambassador Clarke's report (TN/IP/19), which stated that the territorial nature of intellectual property rights should be preserved.  
1.58.  In relation to the element of notification, his delegation supported having a greater level of 
detail in the notifications as this would allow Members to have more information on the protection accorded to the term as a GI in the country of or igin. In this respect, his delegation agreed with 
the inclusion of details such as the GI term being protected, the geographical region it related to, 
and the details of the notifying Member and right owners. It would further be useful for notifications to include details on how the requ irements of TRIPS Article 22.1 were met. His 
delegation trusted that the small drafting group would continue its excellent work in identifying 
and scoping out the details required for notifications.  
1.59.  With reference to paragraph B.5 of the draf t text, he said that Hong Kong, China had raised 
a valid concern as to the administrative capacity and resource constraints of the WTO Secretariat. TN/IP/M/28 
 
- 12 - 
 
  It might thus be appropriate, as suggested by Hong Kong, China, to limit the number of 
notifications or applications to be processed each year. Singapore would like to seek clarification from the small drafting group on whether the limits contemplated were aggregate limits for all countries or country-level limits, or both.  
1.60.  With respect to the element of registration , his delegation supported the concept of an on-
line register open to all to access and search fr ee of charge. The register should be updated from 
time to time to keep the information up to date . He also noted that in paragraph C.6 (a), Hong 
Kong, China had proposed a requirement for the re gistration to be periodically renewed. Such 
requirement would be useful to ensure that th e register was kept updated and did not contain 
obsolete GIs, e.g. GIs that had fallen into disuse in their country of origin. It also complemented paragraph C.6 (f) of the draft text, which imposed an obligation on Members to notify the 
Secretariat of GIs that ceased to be protected, or  that had fallen into disuse, in their country of 
origin. Singapore would nonetheless like to seek clarification from the small drafting group on whether or not there would be any measures to ensure compliance with the obligations under 
paragraph C.6 (f).  
1.61.  Regarding the consequences of registration , his delegation noted that there were broadly 
two differing positions. Under the first position, ad vocated by the Joint Proposal Group, registration 
did not automatically confer, at the domestic level, any enhanced protection in participating 
Members. Members only needed to consult the system when making decisions concerning the domestic protection of trademarks and/or GIs for wine and spirits. Under the second position, advocated by some members of the W/52 Group and Hong Kong, China, the registration would be 
prima facie  evidence that the term in question met th e requirements of Article 22.1 of the TRIPS 
Agreement. With such prima facie  status accorded to the term, the party seeking protection of the 
term in another Member's territory no longer bore  the initial burden of proving that the term met 
the definition of Article 22.1 of the TRIPS Agreemen t. Instead, the burden was shifted to the other 
Member to prove that the term did not meet such  requirements. This reduced the flexibility of 
Members in deciding whether or not to grant GI protection to a term, and increased the rights 
enjoyed by the term in the other Members' territories.  
1.62.  His delegation urged that, in resolving the differences in positions, Members bear in mind 
the five guiding principles set out in Ambassador Clarke's report (TN/IP/19) and generally agreed to by WTO Members during the March 2010 TRIPS Council Special Session meeting. In particular, 
Singapore would like to highlight the first, third and fourth principles, which respectively stated 
that the purpose of the Register was to facilitate, not to increase, the protection of GIs for wines and spirits, that the territorial nature of intellectu al property rights should be preserved, and that 
the Register should not impose undue financial and administrative burdens on Members. While his 
delegation believed that the register could be one of the sources Members could consult when 
making domestic decisions on the protection of  trademarks and GIs, domestic decision-makers 
should be left with the flexibility to decide if and how much weight they should accord the 
information on the Register, in accordance with their domestic systems. His delegation believed that this approach would be more consistent with the generally agreed principles in TN/IP/19.  
1.63.  On the element of Fees and Costs, his delegation noted the two differing proposals on the 
table. One proposal had the cost of setting up and administering the system being borne by the 
central budget of the WTO Secretariat while the other proposal contemplated the costs of the system being fully recovered from its users. In re solving the differences in positions, and deciding 
if and how fees should be imposed and costs should be apportioned, Members might wish to take 
the following thoughts into consideration: fees, if set an appropriate level, could serve to ensure that the administrative capacity and resource constraints of the WTO Secretariat were 
appropriately and efficiently utilised. This would complement any limits set on the number of 
applications to be processed by the WTO Secretaria t each year. Furthermore, if fees were to be 
imposed, there should be transparency in how they we re set. The fees set should also be fair to all 
Members, bearing in mind in particular that there would be differences in the number of 
applications filed, and hence the utilisation of the resources of the register, by each Member. 
Finally, his delegation would like to seek clarification on whether the document titled "Geographical Indications Registry for Wines and Spirits: Appr oximate Costing", currently annexed to the draft 
composite text, was intended to form part of the fi nal text, or was only provided as an explanatory 
note. TN/IP/M/28 
 
- 13 - 
 
  1.64.  His delegation hoped these comments would be useful to fellow Members, especially the 
small drafting group, and looked forward to receiv ing clarifications from the relevant delegations 
on the queries raised. 
1.65.  The representative of Switzerland said that, while delegations had managed in record time 
to lay the foundation of a text based on the differe nt proposals on the table, the task was not over 
as the negotiating group would have to further engage in the negotiations on the register. Her delegation had hoped this would have already begun on some of the points, at least at the 
beginning of this year, but this had not been the case. Once again, the group had been confronted 
with delegations who had simply maintained their positions, well known since 2005, and which were actually a formalization of an older propos al, discussed in detail since 2002, and even before 
1999. This "negotiating" mode and repetition of set positions over ten years had not enabled this 
group to reach consensus nor had it helped to make any meaningful progress. Clearly, it was not 
in this spirit - repeating a set position without tr ying to understand the needs of others within the 
framework of the group's mandate - that Switzerland had begun to negotiate. It was in a spirit of 
compromise that Switzerland had joined the W/52 proposal in order to find a solution to the 
register issue. The W/52 proposal contained a number of flexibilities and had gathered large 
support since 2008. It contained two other elements that were intricately tied to the register, 
namely the extension of Article 23 protection to GIs for all products, and the declaration of the 
country providing/the source of genetic resource s, and/or associated traditional knowledge in 
patent applications. There was a negotiating mandate for these two issues in the Doha Declaration.  
1.66.  With the joint proposal, that had been resubmitted to the Special Session and presented in 
the drafting consultations at the beginning of the year, Switzerland had once again been confronted with a proposal that envisaged the establishment of a simple database, containing 
information which WTO Members could, if they so wished, consult, and with which they could do 
whatever they liked. Her delegation could not see how the repetition of these three elements 
would enable the Joint Proposal Group to respond to the mandate from the Uruguay Round in 
TRIPS Article 24.3, namely to create a multilateral – and not a plurilateral – system of notification 
and registration that would facilitate the protection  of GIs. The joint proposal clearly did not fulfil 
the mandate.  
1.67.  In order to clear up any misunderstandings, she wished to reiterate the following points that 
her delegation supported with respect to the GI register, and as part of the W/52 proposal. 
Switzerland's objective continued to be the establishment of a system for notification and registration that was as simple, practical and non-bureaucratic as possible, while facilitating the 
protection of GIs pursuant to the Special Session's mandate. As stated in previous meetings, 
Switzerland proposed to extend this register to GI s for all products. It was with this in mind that 
her delegation had continued to propose specific elements of the register. She did not see which 
elements would be specific to GIs for wines and spirits only and could not be applied to GIs for 
other products should there be an agreement on GI extension. The Special Session's mandate was to establish a multilateral register, which logically meant that all WTO Members, except those benefitting from a transition period, had already the obligation to provide protection to GI, and 
should therefore be bound by the effects of registration. 
1.68.  She said that S&D measures would have to be established as indicated in the W/52 
proposal, and the views of the W/52 proponents had already been reflected in the composite text. 
However, only once the different elements of the register had been put together could this group 
to know in more detail how to adjust the S&D provisions to the beneficiaries' needs. 
1.69.  She said that in order to respond to the mandate of facilitating the protection of GIs, it was 
indispensable to go beyond the mere mandatory consultation of a source of information. At the 
level of register there needed to be a clear insu rance that national authorities dealing with the 
protection of GIs, be they GI or trademark examiners, judges or any other administrative bodies, would have not only an obligation to consult the information on the multilateral register, but also 
to take due account thereof when taking their decisions by giving that register content the 
necessary weight in their own domestic procedures. Her delegation wondered how the protection of GIs would be facilitated if there were no obligations for Members to consult the register and no 
specific value of information consulted in their territory. Only providing for certain consequences 
from consulting the register would lead to an actual facilitation of the protection of GIs.  TN/IP/M/28 
 
- 14 - 
 
  1.70.  The two elements proposed in the W/52 proposal and reflected in the composite text 
concretized the objective of facilitating protection. Both elements were in the strict framework of the current TRIPS rights and obligations and respected the current balance. The first element consisted in attaching to registrations the effect of a prima facie  evidence regarding the GI 
definition under TRIPS Article 22.1. This prima facie  evidence could be challenged at any time in all 
WTO Members and would not automatically create protection in any WTO Member, as national procedures would have to be respected in order to obtain specific protection. The second element 
consisted in considering claims of genericness only if they were substantiated. This element 
reflected what was already set out in most national procedures for GI or trademark protection where the examining authority or the third party claiming genericness had to explain why the term in question was considered generic.  
1.71.  She said that these two elements would fac ilitate the protection of GI right holders without 
preventing any Member from applying the exceptions under the current TRIPS Article 24 or calling into question the principle of territoriality, as the decision to protect a specific GI would be made at 
national level in the Member where protection was sought in accordance with its national 
procedures.  
1.72.  She hoped that these explanations had helped  clarify the proposed elements on the register 
that her delegation supported as one of three pr ongs of the W/52 proposal. Her delegation hoped 
that the Special Session would see some changes in the Joint Proposal Group's positions so that negotiations could begin towards a compromise solution that would facilitate the protection of geographical indications. 
1.73.  The representative of South Africa said that his delegation, like Canada, had gathered 
valuable experience in its long history of negotiating certain bilateral instruments with the 
European Union. South Africa fully subscribed to the joint proposal and to all views expressed and 
documents circulated in this context. It also reje cted the "horizontalization" that the W/52 proposal 
had introduced into the current debate, and reiter ated the view expressed at previous meetings 
that there was, as stipulated in Article 23.4 of the TRIPS Agreement, no mandate to negotiate on 
issues other than GIs for wines and spirits. 
1.74.  Whilst welcoming the draft composite text, his delegation was of the view that certain 
elements still required clarification, and that positions on many of the technical issues were still far apart as shown by the number of square brackets. The mere fact that the draft composite text of 
23 February 2011 had two headings showed that Members still did not agree on a mandate that 
was obvious. While his delegation was not adverse to the establishment of a voluntary register, it had also raised certain points in relation to the nature and administration of the register, which had been embedded in the draft composite text. His delegation had always indicated that the 
issues of costs and capacity needed to be taken into account and therefore welcomed the 
additional provisions on S&D. South Africa had also indicated in the past its substantial difficulty with the issue of legal effects of the register, which had not been conclusively dealt with in the 
draft composite text. In this regard, his delegation  was concerned by the effect that the provisions 
on the burden of proof and the obligation to consul t the register would have on the respect for the 
territoriality principle and the domestic capability of sovereign countries to impose and inspect 
conditions they deemed applicable. 
 
1.75.  The representative of Turkey said that th at the work program from January until March and 
the six elements proposed by the Chair in their se quence had facilitated the negotiations, and that 
timely open-ended meetings had contributed to th e transparency of the process. Her delegation 
was of the view that the draft composite text would serve as a useful basis for further 
negotiations. Turkey had always held the view th at there was parallelism between the three TRIPS 
issues of the GI Register, GI Extension and TRIPS-CBD. Recalling that the W/52 Group was 
expected to provide a joint text on the GI-Register as soon as possible, she said that consultations 
within the group were still ongoing in view of the importance of all three TRIPS-related subjects. Clearly, due to the large number of sponsors and the potential consequences of the issues tabled 
in the W/52 proposal, coordination was taking time. With respect to the GI-Register, her 
delegation was pleased to see that the composite text covered textual proposals aiming at extending the register to all products. A register limited to wines and spirits would be a repetition of a shortcoming of the Uruguay Round which kept meaningful TRIPS GI protection to geographical 
indications for wines and spirits only. TN/IP/M/28 
 
- 15 - 
 
  1.76.  The representative of the European Union sa id that his delegation supported the statements 
made by other W/52 sponsors and in particular th e additional elements given by Switzerland, and 
would briefly focus on a few points. 
1.77.  The first point related to the two differen t approaches to the mandate: one was the Joint 
Proposal Group's position, which had remained unchanged for some ten years. The other one was 
the W/52 proposal, by delegations which had all shown flexibility – in order to join the W/52 proposal, and some also before even joining it – and had tried move the negotiations forward. He 
said that it was difficult to imagine that this ship would ever reach port unless delegations from the 
Joint Proposal Group were ready to move from positions they had held, and from a text where not a comma had been changed, for ten years. The fundamental question regarding the mandate was whether or not the joint proposal actually met the minimum level required by the mandate. The 
answer was clearly negative. As had already stated, it was very difficult to argue that a voluntary 
system, i.e. a system where Members could consult a register, and then do whatever they wanted 
with that information, would actually facilitate the protection of geographical indications. This point 
was being shared by several other delegations. Whilst the Joint Proposal Group had on a number 
of questions orally indicated that this information had to be taken into account, its proposal did not 
state that clearly. 
1.78.  In response to delegations from the Join t Proposal Group which had alluded that the mere 
fact that a GI, once it was entered into the Regist er, would trigger an avalanche of examinations in 
all the WTO Members, he said that this would not be the case. It would only be in the context of 
the examination in their domestic systems that they would have to consult the register. 
1.79.  With respect to the numbers of GIs to be  examined, he invited members to consult the EU 
website, which showed that the exact number was well below the exaggerated figures cited by some delegations. That being said, even for those GIs included in the EU register, the assumption 
that all of them would necessarily be registered in all WTO Members was dubious. 
1.80.  In response to Argentina's implying that the necessity for countries to assess whether or not 
a term complied with the GI definition would be an additional burden, he recalled that Members to 
which the TRIPS provisions applied already had to make that kind of assessment today. One could 
perhaps argue that giving the registration the status of prima facie  evidence would simplify rather 
than complicate the matter, but this did not change the fact that assessments were already now taking place in the context of Members' domestic procedures, whatever those domestic procedures 
might be. 
1.81.  On Malaysia's question of whether or not the inclusion of a GI in the register would be "the 
end of the story", he said that that was not the intention of the proposal. On the contrary, it would 
be the beginning of a process. First of all, the GI notified for registration would trigger a national 
process: for example, an application for registration in Malaysia. The fact that a GI was included in the multilateral register would not obviate the need to seek protection under Malaysia's particular 
domestic rules. What it did was to ensure that th ere was a register to consult and that the effects 
of the register were limited to constituting prima facie  evidence that the term notified satisfied the 
definition of a GI in the country in which it originated. That did not mean that it necessarily satisfied the definition in a third country. This was a matter for national authorities to examine 
when the request was presented for protection. Th e process of examining was typically a two-step 
process: first, to determine whether the registered GI did satisfy the definition; and second, to determine whether it deserved protection. 
1 . 8 2 .   I n  r e s p o n s e  t o  t h e  c o m m e n t  m a d e  b y  C h i l e  i n  r e l a t i o n  t o  t h e  b u r d e n  o f  p r o o f  r e g a r d i n g  
genericness, he said that it was the EU's understanding that claims of genericness already had to be substantiated in all systems. Chile would be th e first exception where a particular claim that a 
term was generic did not have to be substantiate d. The draft proposed did not change anything 
from current practices, if not in all then at least – after Chile's intervention – in the vast majority of Members. 
1.83.  The representative of the United States welcomed this meeting of the Special Session to 
take stock of the negotiations on the establishment of a multilateral system of notification and 
registration of GIs for wines and spirits. His delegation fully appreciated that the establishment of the multilateral system of notification and registra tion would be part of the single undertaking, and TN/IP/M/28 
 
- 16 - 
 
  was committed to fulfilling the mandate of TRIPS Article 23.4. The consultations had resulted in 
delegations from different sides coming together for the first time to create a consolidated bracketed text. The discussions in the small group consultations over the past few weeks had also 
been enlightening and informative. In that connection, his delegation wished to give other 
delegations not represented in the small group cons ultations a sense of the negotiations to enable 
them to make their own decision about what type of multilateral system would be most appropriate for their countries. 
1.84.  The Joint Proposal Group had put forward a simple, cost-effective and uncomplicated 
proposal that clearly fulfilled Article 23.4 mandate and would provide good value in assisting WTO Members in their domestic decisions in a manner that clearly facilitated protection. Indeed providing for an international database for examiners to use that all WTO Members had set up 
would be a feature that did not yet exist. As indicated by the representative of Malaysia, this was 
equivalent to other systems of intellectual property, as there was no reason to treat GIs differently.  
1.85.  Whilst appreciating the efforts by the Europe an Union to present its own ideas for texts, he 
said that regrettably these proposals would dramatically exceed the TRIPS Article 23.4 mandate and require fundamental changes to the national legal systems of many Members. If the Joint 
Proposal Group had continued to support the same approach for such a long time, it was because 
the mandate had remained the same since the beginning of the Doha Round. It was not only the Joint Proposal Group which was troubled by the sc ope and breadth of the EU's proposals, but many 
other delegations within the W/52 Group had raised serious concerns with the EU's proposals.  
1.86.  His delegation welcomed the S&D provisions, reflected in the third revised text of the joint 
proposal (TN/IP/W/10/Rev.3), and aligned itself  with Canada's comments. The Joint Proposal 
Group developed this text, consistent with principles of voluntariness underlying its approach, after 
close consultation within the group and in particular with developing country Members. He noted 
that there had not been any S&D proposal from the European Union. 
1.87.  Through the small group meetings, his delega tion had been able to get a clear sense of the 
EU's objectives in this negotiation, and wished to share some of its concerns. The explanations 
given by the EU representative in this session simply did not match up with the composite text circulated. First, the EU delegation had confirmed that its proposal was intended to go beyond the Article 23.4 mandate, and provided for the notifica tion and registration of terms other than those 
related to wines and spirits, as reflected by the EU 's support of the title in brackets. When the EU 
delegation had been asked about the extension of Article 23.4 mandate, the response was that its interpretation of the mandate was different. The representative of the United States wondered 
then how much clearer the Article 23.4 mandate could be. The only way to interpret the Article 
23.4 mandate as including more than wines and spirits would be to ignore the words "wines" and "spirits" clearly expressed in that Article. Moreover , the EU's proposal would appear to extend to a 
potentially limitless array of products, well beyond the wines, spirits, agricultural products and 
foodstuffs that were currently covered in the EU. Were there any goods that would not be included? Would the register cover EU's industri al GIs, for example textiles or manufactured 
goods?   
1.88.  Secondly, he said, the EU delegation had confirmed that its proposal would give 
extraterritorial legal effect to EU GIs. Th is would unacceptably override the fundamental 
territoriality principle underpinning the global IP system, and cross the boundaries of the Article 
23.4 mandate to "facilitate" protection. Although the EU delegation's interventions appeared to 
suggest that there was no extraterritorial effect, this was contradicted by the draft composite text. In Section D.1, the EU proposed text provided for a prima facie  presumption that an EU GI would 
be a GI in other Members' national systems, and shifted the burden of proving the contrary. 
1.89.  Thirdly, based on the EU delegation's interv entions, it was clear that the EU proposal could 
significantly burden domestic systems. For exam ple, in many systems, the burden was on the 
party requesting protection to prove that it had the exclusive right to use the GI, and not up to 
everyone else to prove that no such right existe d. The EU proposal would reverse that burden on 
right holders, examiners, and the general public in other Members to prove that the foreign GIs were not eligible for protection in their respective territories. He asked delegations to imagine the 
burden on their domestic systems if they were co nfronted with hundreds, if not thousands, of GIs 
that the EU or another WTO Member would re quest to be registered when the proposed TN/IP/M/28 
 
- 17 - 
 
  registration system came online. How would their national authorities cope with such a request 
and how would their producers react?   
1.90.  The EU proposal appeared to also shift th e balance of rights and obligations in the TRIPS 
Agreement so that those using generic terms or common names for certain goods or services 
would bear the burden to affirm atively prove that those terms were in fact generic or common. 
The language of Section D.1(a) and (b) in the draft composite text led off with the prima facie  
presumption that it "satisfies the definition of 'geographical indication' laid down in Article 22.1 of 
the TRIPS Agreement" and followed with the provision that genericness must be "substantiated". 
1.91.  As said earlier by the EU delegation, this meeting had been set aside for Members' 
questions. The first set of questions related to the excessive burden on each Member's domestic system, both in terms of resources and costs that would be caused by the EU proposal. How much 
would the EU proposal cost globally for WTO Me mbers, consumers, trademark holders and generic 
producers? How much would it cost WTO Members, particularly those with no domestic industry associated with GIs, to create and sustain a system for what seemed to be the protection of 
European GIs and the defence of trademarks and generic terms already on the market? 
1.92.  A second set of questions related to why the EU proposal shifted the balance of rights and 
obligations and upended the principle of territoria lity. These questions arose from the EU proposals 
on legal effects in Section D. Why were GI holders absolved of the obligation to establish GI 
protection in each market in which they desired to be protected and to sell products, while pre-
existing trademark holders and producers of produc ts whose names were generic were required to 
defend, at great cost, a right they already possessed? Why was a presumption favouring GIs 
established for all WTO markets, based on consumer perception in a single market? Why was the 
presumption not as it currently was, i.e., the priority of trademarks, GIs and generics was decided in and by each WTO Member? How did the burden shifting proposed by the EU impact on 
consumers? Why should consumers in markets with pre-existing trademarks and generics be 
required to accept the perceptions of consumers fr om foreign markets? In other words, why should 
a consumer in South Africa, Chile, Australia or Jordan who perceived a reputation in a trademark, 
be asked to suspend that perception and accept as a given that a GI notified in Northern Italy 
necessarily had a given reputation? Why must consumers bear the burden of this kind of reputational fiat? Indeed, as said by the delegati on of Malaysia, words could mean different things 
to different people in  different places.  
1.93.  Responding to the EU comment that these questions would be a matter of domestic law and 
implementation, he said that, without knowing the answers to these questions, Members' understanding of the EU proposal would be in complete. His delegation would welcome answers 
from the EU and its supporters in the coming week s to these and other questions, and would work 
closely with Members not involved in the small gr oup consultations to ensure that their questions 
are answered and their concerns taken into account. 
1.94.  The representative of India said that, whilst he was aware of the Chair's reminder of the 
precise mandate of the Special Session and the di slike manifested by other Members with regard 
to the issue of GI extension, he wished to reiterate his delegation's view that negotiations on the GI register confined to only wines and spirits would be incomplete and create further 
discrimination between product categories. He agreed with comments made by the delegation of 
the United States that GIs should not be treated differently. Other IPRs did not differentiate between product categories, so why should GIs? It should be borne in mind that most of the GIs of 
interest to developing countries were not for wi nes and spirits, but for other products. India had 
149 registered GIs, which were mostly for handloom textiles, handicrafts and agricultural products. 
1.95.  India, along with Brazil, China, the LDC Group and the African Group, had proposed texts on 
S&D, reflected in the composite text of 28 February. It was in keeping with the Doha mandate of 
paragraph 44 that S&D provisions would be an integral part of WTO Agreements. The proposed S&D provisions included specific transition periods for developing countries and LDCs, provisions on exemption from registration fees, technical assistance from the WTO Secretariat and from 
developed country Members in accordance with Article 67. TN/IP/M/28 
 
- 18 - 
 
  1.96.  On the Chair's observation that the composit e text was "work in progress", he said he was 
doubtful about progress. In light of the statements made by other delegations, he saw the challenge for the Chair to come up with a text by Easter.  
1.97.  The representative of Peru said the draft composite text represented "work in progress" with 
a great number of square brackets, and could be used as a basis for the establishment of the GI 
register. Even though it was a complex issue in and of itself, with already many interests at play, this issue was linked to the other two TRIPS i ssues, TRIPS-CBD and GI extension. This linkage 
existed in the view of more than two-thirds of the WTO Members, and could not be ignored, 
especially if Members wanted to achieve agreement over the coming months. The delegations which had co-sponsored the W/52 proposal had both offensive and defensive interests on the three issues. In order to get results on these issues, it was necessary to find an appropriate 
balance between the needs and the interests of many developing countries.  
1.98.  With regard to the multilateral register, th ere still was a great deal of work to carry out on 
the text: the compilation of different proposals on the table was just the first stage. The time had 
come to move into the negotiation process and to  have a polished draft enabling delegations to 
move to a horizontal process. As regards future work, his delegation trusted that, whatever path would be chosen to move forward, the Chairman would lead the group through its work, ensuring 
a transparent and inclusive process, where nothing would be agreed until everything was agreed, 
and where Members would be able to raise any question on any part of the text at any time. 
1.99.  The representative of Cuba said that th e participation of Members in a notification and 
registration system must be voluntary because the mandate under TRIPS Article 23.4 referred to 
"those Members participating in the system" and not to all Members of the WTO. For Cuba, 
voluntary participation meant that Members who did not participate in the system did not have any obligation to consult the GI register. Nevertheless, non-participating Members could, if they so 
wished, consult the register. The simple act of consulting the register did not mean that the non- 
participating Member would be bound to apply any consequences or legal effects of presumption of extraterritorial nature. Such effects would imply that the non-participating Member had accepted, 
and committed itself, to consider a GI on the register as prima facie  evidence that it was a GI 
under Article 22.1 of the TRIPS Agreement. Merely consulting the register also did not mean that the Member had to provide proof to the contrary to reverse the presumption if administrative or judicial decisions to grant or to reject a trademark or a geographical indication had not taken into 
account a geographical indication on the register. He said that the system could not violate the 
principle of territoriality. Therefore there was no obligation for Members' national authorities to automatically recognize GIs on the register as fulfilling the requirements of Article 22.1. The 
existence and functioning of the register could not imply that the burden of proof should be 
reversed, thus favouring the foreign applicant s eeking protection of a GI . A principle and legal 
practice recognized in intellectual property and in the TRIPS Agreement was that applicants 
seeking protection for their trademarks and GIs in a country had to prove that they fulfilled the 
requirements for such protection under that country's domestic legislation. 
1.100.   He said that Cuba supported the proposed provisions on S&D, which should at least give 
developing countries the freedom to decide themselves on their participation in the system. 
1.101.  The representative of Barbados said that, with regard to participation, the system to be 
established would actually facilitate the protection of GIs by providing information to Members on 
whether, for example, a trademark contained, or consisted of, a GI for a wine or a spirit. This 
information was intended to, and should, assist Members in complying with their obligations under 
Article 23 of the TRIPS Agreement. Thus, regardle ss of the language contained in Article 23.4 of 
the Agreement, her delegation supported the es tablishment of a system of notification and 
registration in which all WTO Members would participate. 
1.102.  Turning to the scope of the system, her delegation acknowledged that the mandate 
contained in Article 23.4 of the TRIPS Agreement and paragraph 18 of the Doha Declaration made provision for negotiations on the establishment of a multilateral system of notification and 
registration of geographical indications for wine s and spirits. Should there be agreement among 
Members to extend Article 23 protection to all goods, consideration should be given to widening the scope of the register to include all products in order to facilitate their protection. TN/IP/M/28 
 
- 19 - 
 
  1.103.  On legal effects, her delegation believed that there was greater consensus on this issue 
than appeared at first sight. Members would consult the register and take the information on GIs into account. This information could influence, but need not determine, the outcome of a decision-making process to, for example, register a trademark consisting of, or containing, a GI. Her 
delegation therefore supported the approach that Members should take into account the 
information in the register in their decision-making processes, as well as the rebuttable presumption that terms in the register met the de finition in Article 22.1 of the TRIPS Agreement. 
This definition should be the same in all WTO Members.  
1.104.  With respect to S&D, she said that, since the register was expected to facilitate the 
protection of GIs not only from developed but also from developing countries, it would be necessary to provide S&D in the form of technical and financial assistance to, and reasonable 
transitional time periods for, developing countries, as appropriate.  
1.105.  Finally, on the issue of fees and costs, her delegation noted that in Section E.2 of the 
composite text there was a proposal that registrati ons be "subject to the payment of the requisite 
fee". Her delegation was of the view that, should  there be consensus on this proposal, the fee 
system should not be based on per capita  income, as such a system would discriminate against 
Barbados and other high income vulnerable economies in the Caribbean. 
1.106.  The representative of Thailand said his de legation believed that the composite text was an 
initial step towards agreement on the negotiations on the register, and that the TRIPS negotiations 
should deal with all three TRIPS issues, GI register, GI extension and TRIPS-CBD, in parallel in different forums. 
1.107.  The representative of Brazil said that her delegation remained committed to addressing the 
three TRIPS issues, the GI register, GI extension and TRIPS-CBD in parallel and in accordance with 
the mandate on implementation issues, which formed an integral part of the single undertaking of 
the Doha Round. 
1.108.  Regarding the issues of costs and fees, whether it was a register or an online database, 
the economics remained the same, i.e., there was no "free lunch". If the resources were to come 
from the WTO budget, this necessarily meant that the WTO would take that money from one 
basket to put it in the GI register basket. In Braz il's view, it seemed fair that those countries that 
had more GIs to register would have to pay more for the establishment and maintenance of the register. 
1.109.  Regarding S&D the proposal put forwar d by a large number of developing countries, 
including Brazil, provided for a transitional period during which developing and least developed country Members would be permitted to include their GIs in the register, but would not be 
requested to consult it in their domestic procedures. In other words, during that period, the 
provisions on legal effects would not apply for these countries. 
1.110.  The representative of New Zealand said that his delegation aligned itself broadly with the 
previous statements by Canada, Australia, Argentina, Malaysia, Chile, Japan, Chinese Taipei, 
Singapore, South Africa, the United States and Cuba. Admittedly, those countries did not count as two-thirds of the Membership but several could re present two-thirds of world trade in wines and 
spirits, and certainly all constituted more than tw o-thirds of Members who cared enough about this 
issue to participate actively in this process. 
1.111.  There were broadly two options on the table for most of the key elements in the 
consolidated text. Given the jumble of square br ackets, it was sometimes not easy to identify 
those options. For this reason, the Joint Proposal Group had circulated a third revision of its text, 
i.e. TN/IP/W/10/Rev.3, to present one option clearly. 
1.112.  Regarding the EU option and the consolidated text, he recalled that in the past the 
European Union had requested Members to look at how they would implement its proposal in their 
national systems. His delegation had already responded to the request at previous meetings. He would reiterate a few observations. The starting point was to consider how registration and protection of GIs were currently provided. Ther e  w e r e  a  n u m b e r  o f  d i f f e r e n t  a v e n u e s  i n  N e w  
Zealand, i.e. through the trademark system, the cons umer protection legislation, such as the Fair TN/IP/M/28 
 
- 20 - 
 
  Trading Act, and also through common law, in particular, provisions relating to unfair competition. 
The key element of all of these systems was that th e GI applicant or the person seeking protection 
of the term bore the burden of proof. This meant that in the TRIPS context the GI applicant had to 
prove that the GI met, in New Zealand, the defini tion requirements of TRIPS Article 22.1: the term 
for which the applicant was seeking protection had to "identify a wine or a spirit as originating in a 
certain place," and there had to be proof that a certain quality or reputation of the wine or spirit was essentially attributable to that geographical origin. It went without saying that an applicant 
seeking protection in New Zealand needed to prov e that the term had an identifying impact for 
consumers in New Zealand. In other words, the applicant must prove that these consumers associated the term with the claimed quality or reputation. So, in order to implement the EU proposal, New Zealand would actually have to turn its current system on its head, i.e., to reverse 
the burden of proof. Rather than the GI applicants  bearing the burden of proving that their terms 
met the TRIPS Article 22.2 definition in New Zeal and, that burden would fall on examiners and 
third parties in New Zealand to prove that the terms did not meet that definition. This would 
amount to automatic protection: if a term met the Article 22.1 definition in New Zealand, then 
New Zealand was obliged under TRIPS to protect that term. The EU proposal dictated to New Zealand's decision-makers to determine whether or not that definition was met. His delegation's 
concern was not an abstract legal one.  
1.113.  He said that the EU option would also  entail substantial burdens and costs because the 
reversal of the burden of proof also meant a reve rsal of the burden of costs. As already noted 
before, the burden would be less on the EU GI owner and more on other WTO Members' IP 
examiners and third parties. He could see the attr action of such a system for Members that were 
large exporters of wine and spirit GIs. On that count no Member could compete with the European Union. 
1.114.  Recalling that the EU had assured delegations earlier in this meeting that there would be 
less than 10,000 terms concerned, he said his delegation did not take comfort from such assurances, judging from a 380-pages long list of EU GIs for wines only, not to mention GIs for 
spirits. 
1.115.  To conclude, his delegation welcomed the composite text as the conclusion of phase1 of 
the Special Session's work, which was in itself a significant achievement. With regard to phase 2, which would be the refinement of the composite text, his delegation would be willing to be flexible 
in finding convergences and enabling a refinement of the text. However, there would be no point 
in embarking on phase 2 if some participants were not prepared to work within the mandate of this negotiating group, particularly on its scope. In that regard his delegation welcomed the 
Chairman's assurances at the beginning of the meeting. Unfortunately some Members' 
interventions appeared to disregard the Chairman's  instructions and the negotiating mandate. His 
delegation urged those Members to review their positions to enable the Special Session to move 
forward. 
1.116.  The representative of Ecuador recalled that  the negotiation was about the establishment of 
a system of notification and registration of GIs fo r wines and spirits. For Ecuador, the adoption of 
unbalanced commitments in the intellectual property area would not be an option. Ecuador would 
have to assess the results in the intellectual property area that adequately reflected the 
fundamental principle underlying the Doha Round negotiations, i.e. the development dimension. Accordingly, any commitments emerging from the in tellectual property negotiations should contain 
"plus" components for developing country Members, such as non-mandatory participation in the 
system, and precise, effective and operational S&D provisions. The draft composite text contained proposals for such provisions. While they could in deed be improved, they tended to reflect the 
mandates set forth in paragraph 44 of the Doha Ministerial Declaration with respect to developing 
and least developed countries. As understood by his delegation, the proposed text contained binding provisions on transition periods for Members who opted to undertake commitments and would therefore be given time to adapt gradually to the new rules, as well as provisions on 
commitments to supply technical and/or financial assistance aimed at capacity-building and 
facilitating the use of a system of notification and registration of GIs for wines and spirits. His delegation urged all developing and developed co untry Members to examine the proposed texts on 
S&D to find common ground and common objectives. TN/IP/M/28 
 
- 21 - 
 
  1.117.  He said that, for Ecuador, the final resu lts reached in the negotiations of this Special 
Session would also depend on the assessment of the overall balance under the principle of the 
"single undertaking". 
1.118.  The representative of El Salvador said that her delegation supported the statement made 
by Canada on the revised joint proposal, and was satisfied with the momentum achieved in the 
"bottom-up" process resulting in the draft composite text. 
1.119.  On S&D she said that the co-sponsors of  the joint proposal submitted a text with two 
components: transitional time periods and technical assistance. In the negotiating process, these 
components would provide a good basis for enriching future discussions and Members' 
contributions. 
1.120.  As a complementary comment she said that the developing or least-developed country 
Members that opted to participate in the multilateral system would be able to benefit from training 
and/or capacity-building during the transition period to enable them to implement the commitments deriving from their participation, so th at once the multilateral register applied, those 
Members would have the adequate tools and capacity to apply the provisions agreed upon for the 
register. In light of these considerations, her delegation encouraged Members to continue with the ongoing constructive process in order to conclude the negotiations within the time line and 
mandate agreed upon by all Members. 
1.121.  The representative of Bangladesh, speaking on  behalf of the LDC Group, said that as it was 
the first time that a composite text was produced, it was his group's understanding that it 
remained work in progress, without prejudice to Member's positions on the overall outcome of the 
negotiations, that nothing would be agreed until everything had been agreed, and that Members 
could revert to any issue of the text at any time. In spite of human and financial capacity constraints, his group had started working on the elements of the Draft Composite Text, especially 
with (1) legal effects/consequences of the registration, (2) fees and costs, and (3) S&D, and would 
come up with specific positions in the coming days. 
1.122.  The representative of Hong Kong, China said that her delegation believed the composite 
text formed a  useful basis for developing the multilateral system of notification and registration of 
GIs for wines and spirits. The covering note of the composite text reflected that the text was "work 
in progress" and the comments that Members made in this meeting would no doubt contribute to make the text more comprehensive. In order to bridge the divergent views of Members, Hong 
Kong, China had tendered a text proposal which re flected the general practice of WTO Members on 
formality examination and the special practice of evidential legal provisions in Hong Kong. Both the formality examination and the evidentiary legal provision had been operating in Hong Kong, China 
for over ten years. Its purpose was to obtain  long-term efficiency with minimal immediate 
investment. The overriding consideration was that the proposed system should work. It was in this context that Hong Kong, China had structured and submitted its proposal with the following 
guiding principles: (i) the purpose of the system was to facilitate the protection of GIs for wines 
and spirits; (ii) Members  shall be free to determine the appropriate method of implementing the 
provisions of the TRIPS Agreement; (iii) intellectual property rights were of territorial nature; (iv) the system shall not impose additional substantive legal obligations or confer additional legal rights 
on Members beyond the TRIPS Agreement; and (v) the system shall not impose undue financial 
and administrative burdens on participating Members, in particular those Members who did not have many GIs to notify. 
1.123.  She said that, instead  of focussing on one or two particular aspects of the composite text, 
this negotiating group should look at the composite text as a whole to see what the overall effect would be. Under Hong Kong, China's proposal, Me mbers could choose to participate freely under 
the proposed system, which was entirely voluntary. This had been reflected in Section A.1 of the 
composite text. As reflected in Section C.1, the proposed multilateral system would involve a formality examination of the notified GIs. The noti fied GI would be entered on the register by the 
WTO Secretariat upon submission of some basic in formation, such as details of the GI, ownership 
and the basis on which it was claimed to be prot ected in the country of origin, and upon payment 
of the requisite fee, as reflected in Section B. The formality examination would only involve checking of the documents submitted by the noti fying Member to make sure the minimum formal 
requirements were met. The register would contain the information of the registered GIs and 
would be made available to participating Members, e.g. through an internet website.  TN/IP/M/28 
 
- 22 - 
 
  1.124.  The registration, she said, would then be accepted by the domestic courts, tribunals or 
administrative bodies of the participating Members to prove three issues, namely (i) ownership, (ii) that the indication was within the definiti on under Article 22.1 of the TRIPS Agreement, and 
(iii) that the GI was protected in the country of  origin. These three issues would be deemed to 
have been proven unless evidence to the contrary was produced by the other party to rebut it. In 
other words, the registration would give rise to  a rebuttable presumption over these three issues. 
This was reflected in Section D.1 of the composite text. The aim of the proposal was to assist the 
owners of the registered GIs to discharge their bu rden of proof on the three relevant issues in 
domestic proceedings. This would in turn, her delegation believed, facilitate protection of GIs as mandated under Article 23.4 of the TRIPS Agreement. The balance of Members' rights and obligations under the TRIPS Agreement would not be affected under the proposed system. 
Questions on conformity of GIs and competing claims for GIs would continue to be dealt with 
under Member's domestic legal systems, as the registration could be challenged in national courts and other authorities. The exceptions under Articles 22-24 of the TRIPS Agreement would continue 
to be applicable and decided in accordance with Members' domestic regimes, having regard to the 
local circumstances. Parties' substantive rights under the domestic proceedings would not change and the territoriality principle would be respected.  Under Hong Kong, China's proposed system, the 
legal effects of the registrations would be limited in scope and there would be no legal effect on 
non-participating Members, as reflected in Section D.4 of the composite text. She recalled that her delegation had developed four hypothetical case studies in a room document dated 28 October 2009 to illustrate how its proposal would work. 
1.125.  She said Hong Kong, China had also proposed that a GI registration would have to be 
renewed every ten years in order to remain on the register, thus ensuring that the register would be up-to-date, that the costs of operating the sy stem - based on user-pay principle - be shared 
among participating Members on the basis of the number of applications filed by each of them. 
This was reflected in Sections C.6 and E.2 respectively in the composite text. In response to Singapore's question, she recalled that her delegation had provided a model in Annex B of 
TN/IP/W/8, later updated on 2 February 2011 in a textual proposal in the small drafting group to 
explain the user-pays principle. Her delegation hoped that the proposal as well as the room document would help Members to focus on the issues that merited discussion and exploration so that the system would be as comprehensive as possible.  
1.126.   Her delegation was ready to work with all Members to improve on the draft composite 
text, including on S&D. It welcomed and had benefited from the comments expressed by Members on its proposal. The draft composite text was work in progress, and Members should continue 
working towards the target of early conclusion of the negotiation on the GI register for wines and 
spirits.  
1.127.  The representative of Nigeria, speaking  on behalf of the African Group, thanked the 
Chairman for his efforts to ensure that a composite text was drawn from Members' contributions. 
The African Group was studying the text and would come back with more detailed comments. 
1.128.  The African Group had co-sponsored the proposal on S&D as reflected in Section F of the 
composite text. The proposal provided for transition periods for developing and least developed 
country Members, technical and financial assistance by developed country Members and an 
exemption from registration fees. He said that a reading of the composite text clearly showed that 
there was no common position on any of the six topics from the proponents of the W/52 proposal. 
This was due to the fact that the African Group was still working on three texts, i.e. on TRIPS-CBD, 
GI extension and the multilateral register together and he hoped that whatever would be agreed as a W/52 proposal would then be included in the composite text. 
1.129.  The African Group was concerned with the issue of costs relating to the administration of 
the register, as an increase of Members' annual contribution to the WTO would not be acceptable to them. As indicated by the delegation of Brazil, this would lead to taking money from one basket 
to another, and could affect the WTO current technical assistance programs to developing 
countries and LDCs.  
1.130.  The representative of Kenya said his delegation, as a sponsor of the W/52 proposal, 
supported a one-pronged approach on the three issues of GI extension, TRIPS-CBD and GI 
register. Kenya was ready to support the establishment of a multilateral system of notification and TN/IP/M/28 
 
- 23 - 
 
  registration of GIs and consider participating in it if, and only if, such a system also covered 
products beyond than wines and spirits. 
1.131.  The representative of Costa Rica said that the draft composite text undoubtedly 
represented an important step forward. His delegation supported the statements made by previous 
speakers from the Joint Proposal Group, and supported the third revision of the joint proposal, as 
well as the textual proposals submitted by th e Joint Proposal Group during the small group 
consultations. Costa Rica also supported the text on S&D, which was based on the various 
elements of Articles 66 and 67 of the TRIPS Agreement but which, more importantly, kept intact 
the principle of voluntary participation, unlike other proposals which departed from that principle of the Article 23.4 mandate. 
1.132.  As mentioned by other co-sponsors of the joint proposal, if this negotiating group really 
wanted to progress to the next stage of the negotiations and eliminate square brackets, it would 
have to focus on the mandate. His delegation was opposed to extending the scope of the register to products other than wines and spirits and recalled that it had already been very flexible on that 
issue: some delegations had forgotten that Article 23.4 only referred to GIs for wines, and as part 
of the Doha Declaration balance the scope had been extended to cover spirits. 
1.133.  His delegation could not support the proposals contained in the composite text that aimed 
towards shifting the burden of proof, giving a registered GI the effect of prima facie  evidence. This 
would go beyond facilitation of protection and alter the balance of rights and obligations in the TRIPS Agreement. His delegation could only accept, for Members participating in the register, the obligation for domestic authorities to consult the database when taking decisions in accordance 
with their domestic legislation, respecting the balance of rights and obligations in the TRIPS 
Agreement, in particular the principle of territoriality. The joint proposal met this objective, and was the only text that reflected the mandate. His delegation wished to thank the Chairman for the 
assurances that the negotiating mandate would be respected, and trusted him to ensure that this 
would be the case. 
1.134.  The representative of Canada recalled that  the representative of the European Union had 
mentioned twice that the registration of a GI would create a prima facie  evidence that the term 
met the definition of a GI "in the country of origin ". The EU had proposed in Section D.1(b) of the 
composite text dated 28 February that the registrati on of the GI would mean that it satisfied the 
definition of a GI "in that Member". In the small drafting group, the EU had indicated that "in that 
Member" meant "in the consulting Member". For Canada, this seemed different from "in the 
country of origin". If, as mentioned by the EU twice, the presumption concerned the country of 
origin, why did the EU not accept the terms prop osed by India, spelling out clearly that the 
presumption would be "in the notifying Member"?  
1.135.  With respect to the number of GIs that were  being protected in the EU, she said that this 
issue was troublesome because during the negotiat ions of the bilateral agreement between the EU 
and Canada, Canada had received a list of 10,000 names that were supposed to be GIs for wines 
and spirits in Europe. If, as indicated by the EU  delegation, there would be just some 2,000 GIs, 
why had the EU presented such a long list of names to Canada?  
1.136.  In response to a comment made by the EU  on Chile's system, the representative of Chile 
referred back to paragraphs 78 to 80 of the minutes  of the last Special Session of the Council for 
TRIPS (document TN/IP/M/27), which reflected the description of Chile's legal provisions regarding genericness. 
1.137.   Recalling the EU's comment that its proposal did not add new requirements nor restrict 
the application of TRIPS flexibilities, he asked why this provision would then be necessary and use up Members' scant time and resources negotiating provisions which according to their own 
proponents did not make any changes to the current system. 
1.138.  The representative of Korea said that th e composite text represented meaningful progress 
and could be a good basis for further discussion. However, for her delegation, the consultations 
were still at an early stage and would require considerable effort to make substantive progress and 
r e m o v e  s q u a r e  b r a c k e t s  a s  m u c h  a s  p o s s i b l e .  C o n c r e t e  w o r k  p l a n s  o n  h o w  t o  p r o c e e d  w i t h  
consultations before Easter were necessary. In th is regard, she said, although further text-based TN/IP/M/28 
 
- 24 - 
 
  negotiations could be done in a small group se tting in order to expedite discussions, those 
discussions should be shared with the wider membership in order to enhance transparency. 
1.139.  She recalled Korea's general position that th e creation of a register system should be in 
line with the mandate and consistent with the territoriality principle of the TRIPS Agreement. 
Above all, the multilateral register should not impose heavy burdens on developing countries. Her 
delegation further had concerns regarding the statement made by the EU representative on certain elements of the W/52 proposal, such as mandatory participation and legal effects of registration. 
1.140.  The representative of the European Union, in response to the comment that the text 
proposed by the European Union would amount to a dramatic reversal of the burden of proof on 
genericness, said that – as already indicated on previous occasions – the decision would rest entirely with the national authorities.  
1.141.  The representative of Angola expressed hi s delegation's full support for the statement by 
Bangladesh as coordinator of the LDC Group. He said that the draft composite text was the first 
one to emanate from Members themselves and, in spite of the great number of square brackets, 
this text constituted at least the first step towards real negotiations. The second step should be 
to focus on how to remove the square brackets and find appropriate language to accommodate the 
concerns expressed by different Members. The LDC Group had proposed and submitted, with other 
developing countries, language on S&D provisions and was still considering formulations in other 
areas.  
1.142.  Angola continued to be of the view that the three TRIPS issues were linked together and 
required an appropriate solution. 
1.143.  The representative of the European Unio n said that, whilst the experience of bilateral 
negotiations was apparently painful for some countries, these negotiations did often end up in 
agreements which apparently were satisfactory en ough to be signed by the two parties. Without 
dwelling too long on the issue, he said that there were many explanations, including historical ones 
and the bilateral context of negotiations, which was different.  
1.144.  With regard to Canada's question on the country where the presumption would apply, he 
said that the EU proposed wording could not mean "the originating Member" since there was no 
prima facie  evidence required for a GI which was already protected there. So, clearly, the term 
should "in the consulting Member". 
1.145.  The Chairman said that the brackets around  the words "wines or spirits" in the composite 
text obviously invited comments. This issue would have to be addressed before the process could 
make any meaningful headway beyond just putting differences on paper. However, as the Chair of 
this negotiating group, he felt it was his duty to stave off this encroachment and focus on the 
issues within the mandate and especially certain issues, such as participation and legal effects.  
2  OTHER BUSINESS 2.1.  On further work and on how to make best use of the time until Easter and make as much 
progress as possible, the Chairman said that  the group should - as suggested by several 
delegations - use this period to clean up the text, in preparing for any horizontal process that 
might begin in the context of the wider process after Easter. In that regard, he said that he had his own ideas and considered it his preserve to use any format of consultations that he felt would 
be appropriate in view of the overall process. Absent any suggestions from Members, he said he 
would continue his group consultations, to be followed by transparency meetings.  
2.2.  The Special Session took note of the statements made. 
__________