WORLD TRADE  
ORGANIZATION  RESTRICTED 
IP/C/M/70 
1 October 2012  
 
(12-5273) 
Council for Trade-Related Aspects of 
Intellectual Property Rights  
 
 
 
MINUTES OF MEETING 
 
Held in the Centre Willia m Rappard on 5 June 2012 
 
Chairperson:  Ambassador Dacio Castillo (Honduras)  
 
  The present document contains the record of the discussion which took place during the 
Council for TRIPS meeting held on 5 June 2012. 
 
_______________ 
 
 
Subjects discussed Page nos. 
A.  NOTIFICATIONS UNDER PROVISIONS OF THE AGREEMENT  ......................................................... 4  
B.  REVIEWS OF NATIONAL IMPLEMENTING LEGISLATION  .............................................................. 5  
C.  REVIEW OF THE PROVISIONS OF ARTICLE 27.3(B) ..................................................................... 7  
D.  RELATIONSHIP BETWEEN THE TRIPS  AGREEMENT AND THE CONVENTION ON 
BIOLOGICAL DIVERSITY  ............................................................................................................. 7  
E.  PROTECTION OF TRADITIONAL KNOWLEDGE AND FOLKLORE  ................................................... 7  
F.  NON-VIOLATION AND SITUATION COMPLAINTS  ...................................................................... 15  
G.  REVIEW OF THE IMPLEMENTATION OF THE TRIPS  AGREEMENT UNDER ARTICLE 71.1 ........... 17  
H.  REVIEW OF THE APPLICATION OF THE PROVISIONS OF THE SECTION ON 
GEOGRAPHICAL INDICATIONS UNDER ARTICLE 24.2 ............................................................... 17  
I.  TECHNICAL COOPERATION AND CAPACITY -BUILDING  ............................................................ 18  
J.  LETTER FROM THE CHAIR OF THE GENERAL COUNCIL CONCERNING WAYS TO 
IMPROVE THE TIMELINESS AND COMPLETENESS OF NOTIFICATIONS AND OTHER 
INFORMATION FLOWS  ............................................................................................................... 22  
K.  EXCHANGE OF INFORMATION ON SECURING SUPPLY CHAINS AGAINST COUNTERFEIT 
TRADEMARKS  ........................................................................................................................... 23  
L.  COPYRIGHT LIMITATIONS AND EXCEPTIONS :  ONGOING NEGOTIATIONS AT WIPO  - 
BRIEFING BY BRAZIL AND THE UNITED STATES  ....................................................................... 32  
M.  INFORMATION ON RELEVANT DEVELOPMENTS ELSEWHERE IN THE WTO ............................... 35  
N.  OBSERVER STATUS FOR INTERNATIONAL INTERGOVERNMENTAL ORGANIZATIONS  ............... 37  
O.  OTHER BUSINESS  ...................................................................................................................... 37  
 IP/C/M/70 
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  1. In proposing the agenda for adoption, the Chairman said that item K on "Exchange of 
Information on Securing Supply Chains against C ounterfeit Goods" had been put on the proposed 
agenda at the written request of the delegation of th e United States.  Item L on "Copyright Limitations 
and Exceptions:  Ongoing Negotiations at WIPO - Br iefing by Brazil and the United States" had been 
put on the agenda at the written request of th e delegations of Brazil and the United States. 
2. The representative of India observed that a new agenda item K had been added to the already 
overstretched agenda.  The stated aim was to "pro mote an exchange of information that can help 
eliminate counterfeits from the global supply chain".  He had serious concerns over the adoption of 
the item.  Firstly, the title of the US submission (IP /C/W/570) was confusing as it referred to the word 
"counterfeits" in a very loose fashion.  IP issues were distinct from quality issues, and the Council was 
not a forum to discuss quality or safety issues.  Its mandate was limited to discussions on the 
provisions of the TRIPS Agreement.  Since the scope of its Article 51 was limited to the enforcement of counterfeit trademark and copyright pirated goods , any discussion limited to these goods would be 
welcomed.   
3. Secondly, the submission provided information on issues that were beyond the scope of the 
Agreement.  Thus any discussion on technological tools or on government procurement policies could 
not be accepted.  The Agreement provided flexibil ity to enforce its provisions and this flexibility 
needed to be protected.  Thirdly, it was unfortunate  that the proponents wished Members to discuss IP 
enforcement, when the submission was based on s ources of information that were of questionable 
nature.  Members could not be expected to discuss information based on news reports, dubious 
websites or articles published at the behest of big companies.  Even the documents published by 
government agencies provided limited data and were one-sided.  He therefore had serious concerns 
over the inputs required for any substantive enga gement on the issue, and wondered whether the 
statistics mentioned in the submission could withstand the scrutiny of the WTO’s Dispute Settlement Mechanism.  Finally, any discussion in the WTO on item K would mean duplicating the work being 
done by the World Customs Organization (WCO), the World Health Organization (WHO), and the 
World Intellectual Property Organization (WIPO) a nd other specialized agencies.  He therefore 
strongly opposed the adoption of item K. 
4. The representative of Ecuador, supporting India' s statement, said that he was seriously 
concerned about including item K on the agenda.  The provisions and c overage of the TRIPS 
Agreement were very precise and only provided that  the Council would monitor the operation of the 
Agreement and in particular Members' compliance  with their obligations.  It only mentioned 
counterfeit trademark and pirated copyright goods, and there was no rules on securing supply chains.  
He did not understand the intended nature, sc ope and purpose of discussing counterfeit goods in 
supply chains or the arguments justifying such di scussion, since the issue was not mentioned in the 
Agreement, Council decisions or Ministerial declarations. 
5. The representative of South Africa joined India in raising his objection to the introduction of 
item K.  IP enforcement had become a very promin ent and pressing issue internationally.  Whilst the 
debate in formulating solutions to that issue was diverse, there was consensus that counterfeiting and 
piracy had reached very alarming level, which conti nued to rise. At the same time, the main actors, 
such as governments, right holders, the civil soci eties, international or ganizations, relevant 
institutions, scholars, academics and practitioners gene rally disagreed on the actual level of piracy and 
counterfeiting.  They also disagreed on its effects and the tools to be employed to combat it.  As a 
result, the process of finding suitable solutions had b een and continued to be a global challenge.   
6. There was no harmonized definition of trademar k counterfeiting or even of what constituted 
criminal trademark infringement.  TRIPS Article 51, footnote 14(a) and (b) provided narrow definitions of "counterfeit trade mark goods" and "p irated copyright goods".  However in policy 
discourse, the term "counterfeit" was often used much more broadly.  In many debates, it seemed that  IP/C/M/70 
 Page 3 
 
 
  the concept of counterfeiting had b een broadened to include infringements of trademarks, copyrights, 
patents and industrial designs.  This  expanded usage was not substantia ted in fact or otherwise, and 
should not be applied to generic medicines.  The WHO was currently dealing with this issue and the 
Working Group of Member States on Substandard/ spurious/falsely-labelled/falsified/counterfeit 
medical products had its adopted terms of reference to formulate a definition of 
"substandard/spurious/falsely-labe lled/falsified/counterfeit medical  products" to address access to 
quality, safe, efficacious and affordable medical products, including the supply and use of generic 
medical products.  He felt that item K went beyond the Council's mandate and was already covered in 
other more appropriate fora. 
7. The representative of China said that counterfeit goods might go beyond the scope of the 
TRIPS Agreement.  The issue of enforcement had been debated in the Council several times since 
2006.  Discussions had taken place on an ad hoc  basis.  In a spirit of collaboration and in order to 
facilitate the adoption of the agenda, she suggested to  amend the title of item K to read "Exchange of 
Information on Securing Supply Chains against Counterfeit Trademarks". 
8. The representative of Cuba, supporting the statemen ts made by India and other Members, said 
that she did not understand the aim of discussing item K and that she was concerned about the 
interpretation that was being given to counterfeit goods. 
9. The representative of the United States expressed her appreciation to the delegation of China 
for its useful suggestion to amend the title of item K.  Adding the word "trademark" between 
"counterfeit" and "goods" would be a constructive way of focusing on th e intent of the agenda item.  
She felt that counterfeiters were not concerned with maintaining a quality standard of the brand 
owner.  She had hoped to focus the discussion on ex change of views on how to protect supply chains 
against counterfeit trademark goods and to discuss a ra nge of tools that she had found useful.  She had 
also hoped that other governments could share thei r national experiences and what had been learned 
from a number of bilateral efforts where countries were working together to achieve that goal. 
10. The representative of Japan, supporting the US delegation, believed that item K should be 
addressed in the Council, since IP enforcement was a relevant issue for the Council.  Japan had also 
submitted a document on IP enforcement (IP/C/W/571)  and wished to introduce it under the agenda 
item.  He believed that the item was useful for sharing information on recent enforcement initiatives, 
such as border measures, and on related statistics. 
11. The representative of Nicaragua shared the c oncerns expressed by Ecuador, India, Cuba and 
other delegations with regard to the exchange  of information on securing supply chains against 
counterfeit goods as proposed by the United States.  She fe lt that that topic should not be raised in the 
Council since it did not fall within its mandate. 
12. The representative of  Mexico welcomed the inclusion of ite m K, since it referred to exchange 
of information on securing supplying chains against counterfeit goods.  He could also go along with 
China's suggestion to change the title of the item. 
13. The representative of the European Union said th at, in his view, IP enforcement was one of 
the most relevant issues on the proposed agenda.  Since enforcement was an integral part of the 
TRIPS Agreement, a ritual discussion of agenda items on the issue at the beginning of each Council 
meeting was not justified.  He was open to discuss all items that fell under the Agreement and he did 
not understand the constant effort to prevent di scussion on enforcement.  He thanked the positive 
statement by China, but preferred the title to remain as it was.  The Agreement addressed 
infringement of different rights, and "counterfeiting" might also refer to IPRs other than trademarks. IP/C/M/70 
Page 4  
 
  14. The representative of China said that she could not agree with Members who saw 
enforcement as one of the most relevant issues  for the Council.  While being open-minded, she 
recalled that the Council had a long-standing manda te to work on implementing issues.  She was 
concerned that the discussion on enforcement mi ght distract the Council's attention from those 
implementation issues.  However, she hoped that the meeting could proceed as long as the discussion 
was consistent with the TRIPS Agreement, in line with her suggestion to amend the title of item K.  
Under this condition, she could go along with the discussion, on an ad hoc  basis. 
15. The representative of India, supporting the statem ent made by China, said that he could go 
along to amend the title of item K to refer to "counter feit trademarks".  He did not agree with the EU 
interpretation that the TRIPS Agreement could c over everything without defining what counterfeit 
was.  He also said that item K was limited to the present Council meeting and that he did not wish to 
have any discussion beyond it. 
16. The Chairman suggested that the Council adopt  the proposed agenda with item K amended to 
read as "Exchange of Information on Securing Su pply Chains against Counterfeit Trademarks". 
17. The Council took note of the statements made and so agreed. 
A. NOTIFICATIONS UNDER PROVISIONS OF THE AGREEMENT  
18. The Chairman said that, since its meeting in  February 2012, the Council had received a 
number of updates to earlier notifications under various provisions of the TRIPS Agreement: 
 Colombia had notified Law No. 1343 of 31 July  2009 approving the Trademark Law Treaty 
and its Regulations, adopted on 27 October 1994;  the treaty had entered into force for 
Colombia on 13 April 2012 ; 
 Japan had notified amendments to its Civil Pr ovisional Remedies Act and its Code of Civil 
Procedure under "Other Laws and Regulations".   
These notifications had been made available in the IP/N/1- series of documents, and the actual texts of 
laws in sub-series of documents that were ava ilable in electronic form on the Documents Online 
database. 
19. As regards notifications of contact points unde r Article 69 for the exchange of information 
and cooperation on trade in infringing goods, sin ce the Council's meeting in February, Togo had 
notified its contact point.  In addition, updates to  contact points notified earlier had been received 
from Canada and Norway.  The information on the Members' transparency toolkit page had been 
updated accordingly. 
20. The representative of Australia foreshadowed  his delegation's intention to notify the 
Intellectual Property Laws Amendment (Raising the Ba r) Act passed by the Australian Parliament on 
15 April 2012.  The Act introduced a wide range of reforms to improve the fit and function of 
Australia’s IP system in six key areas:  raising the quality of granted patents;  free access to patented 
inventions for regulatory approvals and research;  reducing delays  in resolution of patent and trade 
mark applications;  assisting the operations of the IP profession;  improving mechanisms for trademark and copyright enforcement;  and simplifying the IP system.  Most of the provisions in the 
Raising the Bar Act would come into effect on 15 April 2013.  However, the experimental use and 
regulatory approval exemptions had come into force immediately.  Australia was in the process of 
developing the substantial regulati ons that would be required under the Act.  The draft regulations 
were intended to be available for public consu ltation in August 2012 and finalized in early 2013.  IP/C/M/70 
 Page 5 
 
 
  21. The representative of Colombia said that, in co mpliance with its commitments under the Free 
Trade Agreement between Colombia and the Un ited States that had entered into force on 
15 May 2012, Colombia had issued the following IP  laws for implementation that would be notified 
to the WTO:   Law 15-20 of 2012 whereby Colombia had implemented its commitments assumed under the trade promotion agreement between Colo mbia and the United States, and its modifying 
protocol in the framework of the foreign trade po licy and economic integrati on;  Decree 0727 of 2012 
whereby Article 5 of Decree 502 of 2003 was modifi ed;  Decree 0729 of 2012 whereby there was a 
partial regulation of Decisi ons 486 and 689 of the Commission of the Andean Community;  
Decree 0733 of 2012 establishing the publication of information of general interest concerning 
requests for pharmacological evaluation and sanitary registration submitted to the national medicine 
and food supervisory agency (INVIMA);  and Law 14-55 of the 29 June 2011 approving the Protocol 
concerning the Arrangement of Madrid Concerning th e International Registration of Marks, modified 
in 2006 and 12 November 2007.  On 29 May 2012, Co lombia had deposited at WIPO its instrument 
of accession, and the treaty would enter into force on 29 August 2012. 
22. The Chairman urged those Members whose initia l notifications of laws and regulations 
remained incomplete to submit the outstanding mate rial without delay.  He also reminded other 
Members of their obligation under the TRIPS Agreem ent to notify any subsequent amendments of 
their laws and regulations without delay after thei r entry into force.  He especially encouraged 
Members to notify changes made to their laws and/or regulations to implement the Decision on 
TRIPS and public health. 
23. The Council took note of the statements made. 
B. REVIEWS OF NATIONAL IMPLEMENTING LEGISLATION  
(i) Review of legislation of Maldives  
24. The Chairman recalled that, at the Council's meeting in March 2011, Maldives had informed 
the Council of its graduation from LDC status on 1 Janua ry 2011, and it had outlined the state of play 
of its implementation of the TRIPS Agreement.  The Council had agreed to come back to the 
arrangements for the review of Maldives' implemen ting legislation later in 2011, once it had received 
the necessary notifications of laws and regulations .  At its meeting in October 2011, the Council had 
agreed to review the implementing legislation of Maldives at the present meeting.  Maldives' 
notification of its Law on Copyright and Relate d Rights had been circulated in document 
IP/N/1/MDV/1, and the text of that law was available in the relevant law series of documents.  
25. The representative of Maldives said that, with  Maldives' graduation into a middle income 
country (MIC) on 1 January 2011, the Government had initiated steps to comply with the TRIPS 
Agreement.  It gave the utmost priority to protect, promote and improve the quality of IPRs in Maldives and thereby fulfil its international obligati ons and commitments.  In this regard, a lot of 
effort had been initiated in the last few years, especi ally the last couple of months, to raise the level of 
understanding and awareness of IPRs within the Ma ldivian community.  The aim, in the immediate 
term, was to foster an environment conducive towa rds establishing a holistic IP regime and an IP 
culture in Maldives.   
26. The ratification of the Copyright Law on 21 Oct ober 2010 had been the first government step 
to fully implement the provisions of the Agreement.   The Copyright registration regulation had also 
been published on April 2011 and the registration service under this regulation was being provided by 
the Intellectual Property Unit of the Ministry of Economic Development.  The Industrial Property Act 
had also been drafted. IP/C/M/70 
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  27. The Intellectual Property Unit had initiated a public awareness campaign in September 2011 
that aimed to increase awareness on IPRs.  This in cluded awareness sessions in the media to educate 
consumers to refrain from buying counterfeit and pirated goods.  The Intellectual Property Unit was 
also working with key enforcement agencies.  Wo rkshops specifically focused  on the fulfilment of 
obligations under the Agreement ha d been conducted for government a nd private stakeholders in the 
industry.   
28. Concurrently, the Intellectual Property Unit was working with WIPO in preparing the national 
industrial property law and necessary regulations to implement it.  Work to create capacity and 
information sessions with the Legislature in prep aration to the introduction of National Industrial 
Property Act was also planned.   
29. While Maldives strived for a complete IPR syst em, it faced obstacles and difficulties.  Chief 
among them were difficulties to strengthening human capital and a computerized system to manage 
the IPR system.  Consequently, Maldives would need  technical assistance and continued cooperation 
from partner countries and multilateral agencies.  The Government of Maldives stood ready to 
welcome and work with key partners. 
30. The representative of the United States thanke d Maldives for having notified their copyright 
laws.  Regretting the delay in her delegation's review of those laws, she said that it had only recently 
provided questions concerning them to Maldives.  She hoped that, in the future when Maldives would 
notify the other relevant IP laws, her delegation w ould be much more prompt.  As could already be 
seen from Maldives' intervention, public awaren ess campaigns were a critical part in fighting 
counterfeiting of IP within Maldives. 
31. The Chairman requested the delegation of Maldiv es to provide written replies to the questions 
posed during the review within eight  weeks after the present meeting. 
32. The Council took note of the statements made. 
(ii) Follow-up to reviews already undertaken 
33. The Chairman said that, as regards the reviews of national implementing legislation that had 
been initiated at the Council's meetings since Apr il 2001, the reviews of three Members remained on 
the Council's agenda, namely those of Cuba;  Fi ji;  and Saint Kitts and Nevis.  He urged the 
delegations concerned to provide the outstanding material as soon as possible, so as to allow the 
Council to complete the follow-up to these reviews. 
34. The representative of Cuba said that proposed d ecree laws regarding circuit layouts and plant 
varieties and other procedures were currently being published, and hoped that she would be able to 
make a presentation of that legisla tion at the Council's next meeting. 
35. The Council took note of the statements made. 
(iii) Arrangements for the review of the national implementing legislation of Montenegro 
36. The Chairman said that, under item M, he woul d provide information on Montenegro's and 
Samoa's accessions to the WTO.  He already noted that Montenegro had agreed to apply the TRIPS 
Agreement no later than the date of its accession to  the WTO, without recourse to any transitional 
period.  In light of this, he suggested that th e Secretariat be requested to contact Montenegro 
concerning the notification procedures of the Council.  Given that, after the receipt of the notifications 
of its legislation, other Members would need some ti me to prepare questions to be posed to it in the 
context of the review, and then Montenegro would need some time to prepare its responses, it would  IP/C/M/70 
 Page 7 
 
 
  appear that the most appropriate time for the revi ew of its TRIPS implemen ting legislation would be 
the Council's first meeting in 2013.  He suggested th at the Council revert to the arrangements for this 
review at its meeting in November. 
37. The Council so agreed. 
C. REVIEW OF THE PROVISIONS OF ARTICLE 27.3(B) 
D. RELATIONSHIP BETWEEN THE TRIPS  AGREEMENT AND THE CONVENTION ON BIOLOGICAL 
DIVERSITY  
E. PROTECTION OF TRADITIONAL KNOWLEDGE AND FOLKLORE  
38. The Chairman suggested that the Council conti nue to discuss the three agenda items together 
on the basis of contributions by Members as had been the practice at past meetings.  He recalled that, 
as requested by the Council at its meeting in Fe bruary 2012, he had continued his predecessor's 
consultations on the suggestion that the Secretaria t of the Convention on Biological Diversity (CBD) 
be invited to brief the Council on the outcome of the Nagoya meeting.  He said that, unfortunately, he 
was not in a position to report any new devel opments in delegations' positions on that matter. 
39. The representative of Indonesia emphasized the im portance of the issues of the relationship 
between the TRIPS Agreement and the CBD, an d the protection of traditional knowledge and 
folklore.  Enhancing the discipline of disclosure requirements had become an overriding priority for 
developing countries, including Indonesia, due to a n eed to formulate more effective legal protection 
of genetic resources, traditiona l knowledge and folklore.   
40. In light of the adoption of the Nagoya Protocol  on Access to Genetic Resources and the Fair 
and Equitable Sharing of Benefits Arising from Thei r Utilization (Nagoya Protocol), she said that all 
Members, especially those who did not share her views, should give serious consideration to the 
importance of the issue and the matters at stake.  It would be in the interest of the broader membership to articulate further through the TRIPS Agreement the aim to afford a sufficient level of protection of 
genetic resources and to provide a fair practice for their use.   
41. She said that her delegation, together with a group of like-minded countries had successfully 
come up with a draft text for the effective protec tion of genetic resources at the second session of the 
like-minded countries meeting held in Bali in 2011.  The draft text had been adopted by the WIPO 
Intergovernmental Committee on Intellectual Propert y and Genetic Resources, Traditional Knowledge 
and Folklore (IGC) and the General Assembly as one  of the working documents and had been utilized 
as a reference at the 20
th Session of the IGC in February 2012.   
42. In light of the development in the IGC, she said that a harmonized interaction between the 
CBD and the TRIPS Agreement would be benefici al for all countries.  In keeping with its 
commitment to address the issues of genetic r esources, traditional knowledge and folklore, the 
Government of Indonesia was organizing an intern ational symposium on genetic resources, traditional 
knowledge and folklore in Bali on 27-30 June 201 2.  Its aim was to underline the importance of 
addressing these issues in a comprehensive manner through defensive mechanism.  A number of 
distinguished and renowned experts had confirmed their participation as speakers in the planned 
event. 
43. The representative of Brazil said that, until r ecently, the interplay between the TRIPS 
Agreement and the CBD had been the subject of in tense debate and detailed technical discussions 
undertaken in the WTO, both in the TRIPS Counc il and within the framework of the Director-IP/C/M/70 
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  General's consultations.  Such intensive discussions we re in stark contrast to the present state of play 
in which momentum had been lost.   
44. Moreover, there had been little progress since the Director-General had issued his so-called 
Easter report in April 2011.  The report, circul ated in document WT/GC/W/633, covered the three 
TRIPS-related issues, namely the establishment of a multilateral register for geographical indications 
for wines and spirits; extending a higher level geog raphical indication protection to products other 
than wines and spirits; and the disclosure requirement obliging patent applicants to disclose the origin 
of genetic material and traditional knowledge used in  their inventions.  In his report, the Director-
General had indicated that Members had covere d much ground and that the discussions had been 
useful for all parties involved.  He had also highlig hted Members' consistent support for the principles 
and objectives embodied in the CBD, including prior informed consent and equitable sharing of 
benefits.  The report also mentioned that Memb ers continued to disagree on how to address those 
particular issues.  He said that the Director-Gener al's report was a concise and fair reflection of the 
state of play of those issues over a year ago. 
45. He further said that there was a need to r ecapture a debate that remained crucial for 
developing countries and to link it with on-going deve lopments at the IGC.  His delegation would 
revert to the matter in a future session of the C ouncil with concrete ideas about the process.    
46. The representative of the Plurinational State of  Bolivia said that over 15 years had elapsed 
since the adoption of the TRIPS Agreement.  Howe ver, the Council's review of the provisions of 
Article 27.3(b) was yet to be completed.  Article  27.3(b) made it possible for Members to patent 
certain life forms, in particular, plants and an imals, as well as essentially biological processes, and 
required that Members provide patenting of other life forms, such as microorganisms and 
microbiological processes.  The adoption of the Agr eement and the entry into force of Article 27.3(b) 
had led to an international race to patent life fo rms, comprising plants and animals, including human 
genes, cells, and microbiological organisms.   
47. Bolivia had voiced its concerns in two communications submitted in 2010 and 2011, 
highlighting the adverse effects and the implications  of the adoption of Article 27.3(b) and proposing 
an international ban on patenting of life.  In  those communications, Bolivia had emphasized, in 
particular, the ethical and moral implications of  Article 27.3(b), and the potential role of the 
international community in making it possible for life itself to be treated as just another technology to be used or traded.  By that approach the interna tional community had extended the logic of the market 
and profits to the very roots of life itself, raisi ng serious ethical and moral problems, which, in his 
view, ran counter to the beliefs and values of many peoples and cultures from many parts of the 
world.  In particular, such an approach was at odds  with that of the indigenous people of Bolivia, who 
held that life was sacred and should not be dealt with as just any other technology which could be 
monopolized or privatized.   
48. In addition, Bolivia had referred to the negative effects of Article 27.3(b), in particular, in 
sectors of fundamental importance su ch as agriculture, health, food, a nd climate change.  Contrary to 
what had been claimed, the adoption of Article 27. 3(b) had not led to an increase in innovation.  
Instead it had become clear that patenting of life was having a negative impact on innovation, leading 
to significant problems for farmers who were dependent on use and access to life forms, which were now being patented.  The trend had resulted in the co ncentration of vital sectors in the hands of just a 
few multinationals that determined the type of i nnovation that could be ach ieved and the types of 
technology, thus subordinating the future of manki nd to their own interests.  He said that it was 
imperative to review the Article in order to prohib it any patenting of life forms at the international 
level.  IP/C/M/70 
 Page 9 
 
 
  49. The representative of China said that her delega tion recognized that patents could be closely 
related to the utilization of gene tic resources and/or associated traditional knowledge.  The TRIPS 
Agreement, the CBD and the Nagoya Protocol shoul d operate in a neutrally supportive manner.  As 
mandated by Ministers, the TRIPS Council had been instructed to examine, inter alia,  the relationship 
between the TRIPS Agreement and the CBD.  The Council should undertake work in the area of 
patents, and appropriate and e ffective measures should be taken to prevent misappropriation of 
genetic resources and avoid err oneous patents.  As a co-sponsor  of documents TN/C/W/52 and 
TN/C/W/59, China considered that mandatory discl osure requirements would contribute to enhancing 
the transparency of the utilization of genetic r esources and/or associated traditional knowledge, while 
helping to advance legal certainty an d ultimately achieve their goals.   
50. Furthermore, the disclosure requirement was c onsistent with the transparency principle 
established in the multilateral trading system.  He r delegation did not cons ider it burdensome for a 
patent applicant to fill in the form with the information of prior informed consent and access and 
benefit-sharing, as indicated in document TN/C/W /59, considering the legitimate objectives pursued 
by the system.   
51. She said that the contractual arrangements propo sed by some Members were insufficient to 
ensure the protection of genetic resources as su ch arrangements depended on the voluntary behaviour 
and fulfilment of parties to the contract.  Patent  examination played a second-hand role in preventing 
erroneously granted patents.  Compared with th e large quantity of genetic resources available 
throughout the world, information contained in the database and likely to be accessible to patent 
examiners prior to the granting of a patent would be  limited.  The responsibilit y to respect a sovereign 
right over genetic resources should rest with the le gal and natural persons th at access or use genetic 
resources and associated traditional knowledge. 
52. She said that the TRIPS-CBD issue was an implementation issue under the Doha Work 
Programme, and as such had stalled for over ten years.   Members should give serious consideration to 
how to move forward in order to succeed in resolv ing the issue constructively.  To that end, she 
expressed her support for the proposal to invite th e CBD Secretariat to make presentations in the 
TRIPS Council.  Such a presentation would provide a different perspective and help to improve 
Members' understanding of the Nagoya Protocol by contributing to the discussion on how to establish 
a mutual supportiveness between the WTO and other organizations. 
53. The representative of India said that the Doha  Ministerial Declaration mandated that the 
negotiations on outstanding implemen tation issues should be an integral part of the Work Programme.  
The relationship between the TRIPS Agreement and the CBD was a critical implementation issue for 
developing countries.  There was general ag reement among Members on preventing biopiracy, 
erroneously granted patents and enhancing mutual supportiveness be tween the TRIPS Agreement and 
the CBD.  In April 2011, a large number of develo ping countries had expressed their support for the 
text of the disclosure proposal.  The proposal sought  to meet those objectives through an amendment 
of the TRIPS Agreement by including mandatory disc losure requirements, prior informed consent and 
access and benefit sharing, thus meeting the requirements of the Nagoya Protocol.   
54. At the national level, under the Biological Di versity Act of 2002, India had undertaken a 
number of measures to prevent misappropriation of  genetic resources and/or associated traditional 
knowledge.  The problem, however, had an obvious in ternational dimension and as such needed an 
international solution in order to be addressed effectively. 
55. While the agenda item had been before the C ouncil for over a decade, the momentum needed 
to move the issue forward was lacking because of  the lack of engagement of some developed 
Members.  Even the consensus required for a briefing from the CBD Secretariat on the Nagoya Protocol was lacking.  The Doha Round was c onceived as a development round and would not be IP/C/M/70 
Page 10  
 
  completed if it fell short of correcting the imbala nce in the TRIPS Agreement.  The relationship 
between the Agreement and the CBD  was a critical implementation issue for developing countries 
and, for his delegation, an outcome on that issu e was an essential element of any development 
package emerging from the Round.   
56. The representative of Viet Nam expressed his delegation's support for introducing a 
mandatory disclosure requirement in the TRIPS Ag reement and the principle of prior informed 
consent access and benefit sharing.   
57. The representative of the Bolivarian Republic of Ve nezuela said that, with regard to access to 
genetic resources, he wished to reaffirm the s overeignty of States over their biological resources, 
which meant that the authority to determine access to genetic resources lied with national 
governments and was subject to their national legi slation.  He also reaffirmed his position on 
traditional resources and the need not to include such  resources within the traditional purview of IP;  
on the contrary, the system should be used to  protect these resources and keep them under the 
ownership of their historical users, without the po ssibility of them being patented.  This was how the 
system was understood by the Ven ezuelan constituent, and develope d and established in Venezuela's 
national legislation. 
58. The representative of Angola, speaking on behalf of the LDC Group, said that the relationship 
between the TRIPS Agreement and the CBD and GI extension were two outstanding implementation 
issues under the negotiation mandate of the WTO Di rector-General in accordance with paragraph 39 
of the Ministerial Declaration. 
59. The work on the TRIPS-CBD issue aimed at combatting biopiracy and preventing the 
misappropriation of genetic resources and associ ated traditional knowledge.  The LDC Group, 
together with a large number of Members, s upported a proposal making it mandatory for patent 
applicants to disclose the origin of genetic resources and associated traditional knowledge.   
60. In the Dar es Salaam Declaration, LDC Minist ers had requested that the TRIPS Agreement be 
amended to include a mandatory requirement for the disclosure of the country of origin of genetic 
resources, and/or associated traditional knowledge, for which a definition would be agreed on in 
patent applications.  Further, LDC Ministers had re quested to include a requirement to process patent 
applications only on completion of the disclosure re quirement, as well as an agreement to define prior 
informed consent and access and benefit sharing. 
61. The LDC Group encouraged the Director-General to proceed with his consultations on those 
two outstanding implementation issues.  Furthermor e, the LDC Group shared the view that the CBD 
Secretariat should be invited to the Council to br ief Members on the outcome of the Nagoya Protocol 
and update them on the on-going process following the Nagoya Conference aimed at addressing the 
remaining issues, such as the international certifi cate of compliance, bearing in mind the parallel 
process on-going in other forums. 
62. The representative of Colombia supported the statement by Indonesia as coordinator of the 
Like-Minded Countries' Group.  Colombia, in its dual position as a mega-diverse and developing 
country, recognized the need and mandate to discu ss those issues so that the biodiversity of the 
country could be given due consideration.  She sai d that the TRIPS Agreement was in line with the 
objectives of the CBD and underlined the synergies of  both instruments.  She reiterated Colombia's 
interest in continuing discussions with a focus on establishing a link between the Agreement and the 
CBD.  Further, she supported the proposal to invite  the CBD Secretariat to brief the Council on the 
results of the Nagoya meeting.  IP/C/M/70 
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  63. The representative of Ecuador supported Bolivia's  statement that the relevant provision of 
Article 27.3(b) should become binding.  He was con cerned over the lack of su bstantive and practical 
progress on the three agenda items, which stemmed from the specific mandate set out in paragraph 19 of the Doha Ministerial Declaration, instructing the Council "to examine, inter alia,  the relationship 
between the TRIPS Agreement and the Convention on Biological Diversity, the protection of 
traditional knowledge and folklore, and other releva nt new developments raised by Members pursuant 
to Article 71.1."  To his knowledge, the mandate ha d been the outcome of an intense debate, on the 
basis of which Members had decided to further harn ess the concerns of the broader membership about 
the relationship between the TRIPS Agreement and th e CBD, as well as the issue of proper protection 
of biodiversity, traditional knowledge  and folklore against misappropriation, by incorporating the 
following elements:  disclosure of the source and c ountry of origin, prior informed consent, and 
equitable sharing of benefits. 
64. Document TN/C/W/59 of 19 April 2011 capture d more than 11 years of exchanges on those 
topics and contained the legal elements which, if incorporated in the Agreement, would guarantee a minimum of legal protection aimed at ensuring legitimate and fair access to biodivers ity and/or 
associated traditional knowledge.  He agreed with Br azil's that, pursuant to the Ministerial mandates, 
the Director-General's discussions on the relationship between the TRIPS Agreement and the CBD should be resumed.  Further, he said that he would welcome a briefing on the Nagoya outcomes by 
the CBD Secretariat, as suggested by the delegation of India, to be held within the framework of a 
regular meeting of the Council. 
65. The representative of the United States said that , as several delegations had noted, there had 
been a lull in the consultations on the three is sues, namely, the relationship between the TRIPS 
Agreement and the CBD, and review of Article 27. 3(b), and the protection of traditional knowledge 
and folklore.  Though work on those issues had been  dormant, some activities had been undertaken or 
planned, such as the symposium organized by the Government of Indonesi a on defensive measures 
(databases) scheduled for that week.  She looked fo rward to a briefing on that discussion at the next 
Council meeting. 
66. In addition, WIPO members had achieved some significant work at a recent meeting of the 
IGC focussing on traditional knowledge.  At its me eting of 16-20 April 2012, they had discussed 
objectives and principles, along with a possible te xt for a document to address the protection of 
traditional knowledge. 
67. Much work, however, was needed to devel op a common understanding of the objective of 
protecting traditional knowledge and the principles unde rlying the desired objective.  For instance, if 
an objective of the protection of traditional knowledge w as to provide an incentive to preserve and 
maintain that knowledge, was there a better way to  ensure that the knowledge was not lost?  How 
could traditional knowledge be distinguished from ot her knowledge, particular ly knowledge that was 
understood to be part of the co mmon heritage of mankind?   
68. Article 27 of the Universal Declaration of Human Rights provided that: "(1) everyone has the 
right freely to participate in the cultural life of the community, to enjoy the arts and to share in 
scientific advancement and its benefits;  (2) everyone  has the right to the protection of the moral and 
material interests resulting from any scientific, literary or artistic  production of which he is the 
author."  Those two paragraphs were understood to represent the view that an author had rights, as 
provided for in copyright and patent systems, but those rights coincided with the larger communities' 
right to benefit from the arts and scientific work s.  More work was still needed to gain an 
understanding of how a new exclusive right on th e protection of traditional knowledge would fit 
within these two classes of rights recognized by the Declaration. IP/C/M/70 
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  69. The IGC would continue its work later th at month focussing on traditional cultural 
expressions.  In the context of that work, the IGC still needed, in her view, to discuss in detail the 
objective and underlying principles.  It also needed to analyze the effect that any new protections 
would have upon the rights enshrined in Article 27 (1) of the Universal Declaration of Human Rights. 
70. The representative of Norway said that her de legation continued to believe that measures 
should be introduced in the patent system to make it supportive of the provisions in the CBD and the 
Nagoya Protocol.  She considered that the single most important measure that could be introduced to ensure that the rights related to genetic resources and traditional knowledge we re safeguarded within 
the patent system was the mandatory disclosure requirement.   
71. She recalled the proposal her delegation had submitted to the Council in 2006 to introduce 
such a requirement in the TRIPS Agreement.  Th e topics covered by the agenda items had been 
debated in detail in the course of two sessions of the IGC held earlier that year.  At the IGC, Norway 
had put forward detailed proposals on how a mandat ory disclosure requirement could be shaped.  
Measures other than the mandatory disclosure requi rement should also be introduced to make the 
patent system supportive of the CBD and the Nagoya Protocol.  She also recalled the proposal for a 
joint recommendation on genetic resources and associat ed traditional knowledge put forward by the 
United States, Canada, Japan, Korea and Norway at the 20
th session of the IGC.  She added that the 
various possible measures should be compleme ntary and not mutually exclusive.   
72. Her delegation considered that the IGC was th e appropriate forum for a detailed discussion on 
the topics covered by the agenda items at hand a nd that the work in the Council should be of a 
complementary nature.  She said that the issue of  the relationship between the TRIPS Agreement and 
the CBD and the Nagoya Protocol remained of great importance and added that the topics being 
discussed under those agenda items should theref ore still be on the agenda in the forum. 
73. The representative of Switzerland said that Switzerland had implemen ted a patent regime 
which promoted the protection and patentability of  inventions, particularly in the field of 
biotechnology, and thereby also made use of the flexibility provided by the TRIPS Agreement.  The 
field of biotechnology held particular promises  for mankind both in developing and developed 
countries.  A precondition for the necessary investments in R&D of new biotechnological products was a reliable and effective patent and court sy stem, among other critical factors such as overall 
favourable market conditions for companies. 
74. Bearing in mind the close connection between ad equate and effective patent protection, on 
one hand, and facilitating private and state enterprise s to invest more means in the R&D of innovative 
products and services, on the other hand, Switzerland held  the view that the review of  Article 27.3(b) 
should not lead to any lowering of the level of patent protection for biotechnological inventions.  
Article 27.2 in conjunction with Article 27.3(b) already provided for both sufficient flexibility and 
some freedom to opt for the exclusion of certain inventions as precautionary measures that a national 
legislator could take - within the scope of the Agreement. 
75. An initiative, which was intended to increase tran sparency and enhance legal certainty in the 
context of the patent application and granting process, was contained in submission TN/C/W/52 
which Switzerland had co-sponsored.  More than two thirds of Members proposed therein key 
modalities language for the three TRIPS issues.  The requirement for disclosing the source of genetic 
resources and TK in patent applications was one of those three issues, besides the GI extension and GI 
register.  He believed that such a requirement w ould be an adequate way to add legitimacy and 
promote a better understanding and acceptance of  the benefits of the patent system. 
76. The representative of South Africa said that paragraph 19 of the Doha Declaration instructed 
the TRIPS Council to pursue its work programme u nder Article 27.3(b), Article 71.1 and paragraph  IP/C/M/70 
 Page 13 
 
 
  12 of the Ministerial Declaration to examine, inter alia,  the relationship with the CBD and protection 
of traditional knowledge.  The deba te regarding the relationship between TRIPS and the CBD had 
been on the Council's agenda for some time without any tangible results.  A large group of developing 
country Members had proposed an amendment to th e Agreement to introduce a mandatory disclosure 
requirement in patent applica tions, and had sought clear guidance on that matter as part of the 
modalities decision.  The basis of the amendment, which required access and benefit sharing, prior 
informed consent and disclosure of the source of ma terial when applying for a patent, was contained 
in document TN/C/W/59. 
77. Traditional knowledge played a key role in the pr eservation and sustainability of biodiversity.  
South Africa was a mega-diverse country, and as su ch formed part of a select group of countries 
whose many activities based on tr aditional knowledge had become an  important source of income, 
food and healthcare for many indigenous and loca l communities.  Its growing vulnerability had 
increased the demand for its protection, creating a sense of urgency for most governments, especially in developing countries, to develop legal framewo rks that would effectively preserve and protect 
traditional knowledge.  Most countries had identified IP  laws as the ideal system capable of affording 
the necessary protection.  A multilateral system of disclosure would be the most efficient way to 
afford such protection.  It was therefore the plea of South Africa that the relationship between TRIPS and the CBD should be crystalized by moving swiftl y to text-based negotiations.  He joined other 
Members in calling on the Council to invite th e CBD Secretariat to update the Council on the 
developments in respect of the Nagoy a Protocol and other developments. 
78. The representative of Tanzania said that the relationship between the TRIPS Agreement and 
the CBD was a crucial issue of the Doha mandate.  She stressed the need for the membership to 
resolve that long-outstanding issue.  She supported the statements by Indonesia, India and Angola on 
behalf of LDCs.  Her de legation continued to support the manda tory disclosure of the country of 
origin, prior informed consent and benefit sharing.  She also supported the proposal to invite the CBD 
Secretariat to provide a briefing for Members on the Nagoya Protocol, so that they could work 
towards resolving the issue in a timely manner.   
79. The representative of Korea said that patenting lif e forms must not be denied considering all 
the benefits deriving from biotechnology, and added th at inventors should be encouraged in order to 
enhance human welfare in the area of public health.  He said that the TRIPS Agreement and the CBD could be implemented in a mutually supportive manner since their objectives were different. 
80. He said that his delegation advocated establishi ng a traditional knowledge database system as 
a proper solution to address erroneously granted pate nts by allowing patent examiners to search for 
traditional knowledge and provide protection in the name of prior art in the process of patent 
examination.  Mandatory disclosure requirements would increase legal uncertainty and eventually 
discourage researchers and inventors in the area of biotechnology.  Hence his delegation was opposed to such requirements. 
81. The representative of Japan said that the issue of misappropriation of genetic resources could 
be considered from two important pe rspectives:  firstly the issue of erroneously granted patents and 
secondly the issue of compliance with the CBD re garding access to genetic resources and fair and 
equitable benefit sharing.  Appropriate measures s hould be sought respectively, and in each case they 
should work towards solutions with no adverse effect  on the existing IP system.  He said that Japan 
has proposed the establishment of a one-click data base with a view to addressing the issue of 
erroneously granted patents. 
82. He reiterated the importance of the Nagoya Pr otocol, adopted at the CBD COP10 held in 
Nagoya, Japan, in October 2010.  In accordance wi th the Protocol, each member was expected to 
address its domestic implementation, which would in turn have an effect worldwide.   IP/C/M/70 
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  83. With regard to the Bolivian proposal, he reitera ted the importance of the patent system as an 
incentive for technical development in all fields, especially but not limited to biotechnology.   
84. The representative of Chile said that the three ag enda items were important for Chile.  In his 
view, the three fundamental requirements for patentability spelt out in Article 27.1, i.e. novelty, 
inventive step and industrial applicability, should be applied and respected in full by IP offices, and 
were this to happen, there should be no contradic tion or conflict with the appropriation of naturally 
occurring life forms.  It was essential for nationa l and regional patent offices to have the full 
information available and the technical capacity to avoid granting erroneous patents that failed to 
comply with some of those patentability requirem ents.  Databases therefore could improve access to 
information on genetic resources and traditional knowl edge, and Chile was curre ntly working in that 
area. 
85. Owing to its geographical characteristics, Chile possessed a genetic variety which was 
endemic and therefore a heritage unique to it.  Fo r that reason, Chile was at present developing legal 
provisions aimed at regulating the matter more broa dly, in line with its international commitments.  
Furthermore, it was conducting an analysis of the potential benefits of the disclosure requirement. 
86. The representative of Canada noted the work  undertaken on IP and genetic resources and 
traditional knowledge at the multilateral level, in pa rticular in the context of the IGC, which she 
considered as the best forum fo r technical discussions on IP related to genetic resources, traditional 
knowledge and folklore.  She welc omed the progress made at the 20th session of the IGC on genetic 
resources in February 2012, and notably the fact that , in the spirit of the renewed mandate that called 
for accelerated work, it now had a consolidated te xt on genetic resources similar to the texts on 
traditional knowledge and traditional cultural expression.  During the session, Canada, Japan, 
Norway, Korea and the United States had submitte d a joint recommendation on genetic resources and 
associated traditional knowledge.  The intent of the joint recommendation was to identify the basic 
elements on which IGC participants were in agreement and help move the consolidated text forward.  
In addition, she acknowledged the progress made in reducing the options and further streamlining the 
text on traditional knowledge at the IGC meeting of April 2012. 
87. She looked forward to hearing more about Indonesia’s symposium on databases.  She 
considered that the focus on greater access for IP offices to digital libraries of genetic resources and 
traditional knowledge had proved to be a practical way of protecting genetic  resources and traditional 
knowledge within the patent system.  Having greater  database access helped ex aminers in determining 
what constituted genetic res ources and traditional knowledge. 
88. The representative of Australia said that Aust ralia was recognized as a mega-diverse country 
with a high degree of endemism and unique indigenous cultures, and ha d a strong interest in a balance 
between holders and users of genetic resources an d associated traditional knowledge.  It sought to 
protect genetic resources and traditional knowledge and ensure legal certainty in the IP system to 
encourage innovation and investment in goods and services that were directly based on genetic 
resources and traditional knowledge. 
89. He said that the TRIPS Agreement and the CBD were consistent.  Aust ralia had implemented 
fully its obligations under both agreements, which it viewed as mutually supportive.  Australia had a 
strong interest in the issue under deliberation and we lcomed the significant progress made in the IGC.  
He said that WIPO was best placed to consider such  a complex IP issue and that Australia continue its 
constructive engagement. 
90. Australia was a signatory to the Nagoya Pr otocol, and the Australian Government was 
currently undertaking internal processes to consider its ratification.  IP/C/M/70 
 Page 15 
 
 
  91. The representative of the United States said that  her delegation could no t lend its support to 
the suggestion that the CBD Secretariat invited to provide a briefing on the Nagoya Protocol.  It was 
her understanding that the next CBD meeting in  India on compliance measures would be more 
relevant to the Council's work.  She said that the Government of India and other Members present at 
that meeting should be able to provide such a briefing.   
92. The Chairman suggested that the Council request  the Chair to continue consulting on the 
suggestion that the CBD Secretariat be invited to  brief the Council on the outcome of the Nagoya 
meeting. 
93. The Council took note of the statements made under those three agenda items and so agreed.   
F. NON-VIOLATION AND SITUATION COMPLAINTS  
94. The Chairman recalled that, at the Eighth Session of the Ministerial Conference, Ministers 
had directed the TRIPS Council to continue its  examination of the scope and modalities for 
complaints of the types provided for under subpara graphs 1(b) and 1(c) of Article XXIII of GATT 
1994 (so-called "non-violation and s ituation complaints") and make recommendations to their next 
Session, which they had decided to hold in Decem ber 2013.  It was agreed that, in the meantime, 
Members would not initiate such complaints under the TRIPS Agreement.1   
95. He said that discussions on that issue dated b ack to 1998, in view of the initial deadline for 
the Council to make recommendations by 1999, and th at Members might wish to take the time now to 
consider what form a concrete recommendation to th e next Ministerial Conference could take rather 
than working on the assumption that the matter would be deferred yet again. 
96. As requested by the Council at its last meeting,  he had consulted with a number of interested 
delegations on how the Council should organize its continued examination of the scope and 
modalities for non-violation complaints.  There had been calls for specific examples of situations 
where such complaints could be applied.  Some de legations had said that it would be helpful if the 
proponents could explain the potential benefits of su ch complaints.  Some other delegations had said 
that those having concerns relating to such compla ints should suggest modalities for their application 
to address such concerns. 
97. A number of delegations had suggested that it mi ght be helpful to discuss those matters in an 
informal setting.  He said that he intended to get in touch with interested delegations to ascertain 
whether he could facilitate such informal discu ssions among delegations, r eaffirming his commitment 
to working with them to find a concrete way fo rward on that longstanding question.  One way to 
facilitate discussions at that stage would be to re quest the Secretariat to update its earlier summary 
note on the points raised in the Council's substantive discussion on that matter thus far.  The summary 
note was originally circulated in June 2002 as doc ument IP/C/W/349, and subsequently updated in 
2004 as document IP/C/W/349/Rev.1.  The delegations he had consulted were broadly in favour of 
that idea. 
98. The representative of the Bolivarian Republic of  Venezuela said that subparagraphs 1(b) 
and 1(c) of Article XXIII of GATT 1994 could not be applied to the TRIPS Agreement.  In the event 
that this assertion was not to be accepted, such a pplication would require the consensus of the entire 
membership, as stipulated in Article 64.3 of the TRIP S Agreement.  This was completely at odds with 
what many Members had stated at TRIPS Counc il meetings, where there was increasing support for 
the position that these GATT 1994 provisi ons were inapplicable to IP. 
                                                      
1 Document WT/L/842. IP/C/M/70 
Page 16  
 
  99. Moreover, the lack of any concrete cases fo r evaluation by the Council with a view to 
examining the scope and modalities for complaints of  the types provided for u nder subparagraphs 1(b) 
and 1(c) of Article XXIII of GATT 1994, as estab lished in Article 64.3 of the TRIPS Agreement, 
demonstrated that it was patently impossible to co nsider IP as a good, which was the intent underlying 
that provision.  In October 2002, Venezuela, toge ther with a group of other countries, had submitted 
document IP/C/W/385 setting out the reasoning behind that position, including the factual and legal 
reasons for challenging the possibility of addressing IP as a good. 
100. The representative of Ecuador said that it regarded  non-violation and situation complaints as 
inapplicable to the TRIPS Agreement.  Ecuador 's main arguments were set forth in document 
IP/C/W/385 that it had co-sponsored.  Nonetheless,  he concurred with the Chair's intention to 
reinvigorate Members' discussions on that sensitive t opic, paving the way for substantive analytical 
work to resume.  Accordingly, he supported the s uggestion that the Secretaria t be requested to update 
document IP/C/W/349/Rev.1 to provide a factual summ ary of exchanges of views that had taken place 
between 2004 and 2012.  He added that it was importa nt to consider also other options for possible 
academic debate in the future. 
101. The representative of Cuba said that, like Venezuela and Ecuador, she considered non-
violation and situation complaints  inapplicable under the TRIPS Agreement.  The key arguments were 
contained in document IP/C/W/ 385 that Cuba had co-sponsored. 
102. The representative of the European Union said th at he was not entirely convinced that non-
violation and situation complaints  should be applicable to TRIPS.  As the moratorium had been 
extended until the end of 2013, the Council had about one and a half years to reflect the matter.  He 
was open to having a debate and listening to any convincing reasons for and good examples of why 
non-violation complaints should apply to TRIPS.  He supported the suggestion to update document 
IP/C/W/3497Rev.4. 
103. The representative of Viet Nam said that, in his view, non-violation and situation complaints 
were not relevant and inapplicable to TRIPS.   He therefore supported banning non-violation 
complaints completely. 
104. The representative of China said that, if a Member was in compliance with the TRIPS 
Agreement, a non-violation and s ituation complaint should not be submitted under the WTO dispute 
settlement procedures.  The onus should be on the Me mbers believing that such complaints should be 
available to come up with examples or concrete  situations where that would be necessary.  She 
suggested that the Chair continue  with his informal consultations within the extended moratorium. 
105. The representative of Angola, speaking on behalf  of the LDC Group, said that a non-violation 
complaint was a legal action that allowed a Member to bring a case before the WTO Dispute 
Settlement Body if it considered that a benefit ar ising from trade concessions had been deprived by 
another government's action, even if such an action did not actually relate to that specific 
commitment.  With the exception of a few countries , the majority of Members were of the opinion 
that such actions were unnecessary, bearing in mi nd that the TRIPS Agreement did not grant tariff 
concessions and that they would create an unn ecessary responsibility based on another Member's 
expectations and not on actual ob ligations.  After several consultations organized the present Chair 
and his predecessors on the possible way forward, co nsensus seemed to be emerging on the extension 
of the moratorium by the Ministerial Conference.  Hence, he considered that that kind of balance 
should be maintained. 
106. The representative of Canada said that, given that  non-violation and situ ation complaints had 
not been applied to the TRIPS Agreement to date, agreeing to apply them could shift the negotiated 
balance achieved by Members and maintained since the Uruguay Round.  The onus was now on the  IP/C/M/70 
 Page 17 
 
 
  proponents to explain the benefits of applying such  complaints under the TRIPS Agreement, and her 
delegation stood ready to hold such a discussion in the Council.  Furthermore, her delegation was 
supportive of having the Secretariat update the su mmary information note contained in document 
IP/C/W/349/Rev1. 
107. The representative of India said that non-violation and situation complaints should not be 
made applicable to the TRIPS Agreement.  Such co mplaints could upset the delicate balance of rights 
and obligations in the Agreement and limit the use of  flexibilities inherent in it to secure objectives 
relating to public health, nutrition, the transfer of  technology and other issues of public interest in 
sectors of vital importance to socio-economic and technological development.  He expressed his 
support for the Chair's consultations and the sugges tion that the Secretariat be requested to update 
document IP/C/W/349/Rev.1, and urged the Counc il to resume discussions on that issue. 
108. The representative of Indonesia supported th e view that non-violation and situation 
complaints should not be applied to the TRIPS Agreement. 
109. The Chairman suggested that the Secretariat be  requested to update its earlier summary note 
IP/C/W/349/Rev.1 on the points raised in the Council's substantive discussions on the issue of 
non-violation and situation complaints.  He said that he  would continue to be informally in touch with 
delegations to see if they had any ideas on how th e Council's discussion on the matter could best be 
facilitated.  He encouraged delegations to cons ider whether they would have any examples of 
situations where such complaints might be releva nt or any suggestions for modalities for the Council's 
consideration. 
110. The Council took note of the statements and so agreed. 
G. REVIEW OF THE IMPLEMENTATION OF THE TRIPS  AGREEMENT UNDER ARTICLE 71.1 
111. No statements were made  under this agenda item. 
112. The Council agreed to revert to the matter at its next meeting. 
 
H. REVIEW OF THE APPLICATION OF THE PROVISIONS OF THE SECTION ON GEOGRAPHICAL 
INDICATIONS UNDER ARTICLE 24.2 
113. The Chairman recalled that Article 24.2 re quired the Council to keep under review the 
application of the provisions of the section on ge ographical indications of the Agreement.  The 
principal tool used to coordinate the review process was a checklist of questions contained in 
document IP/C/13 and Addendum 1, which a number of Members had submitted, but many had not 
yet completed.  In addition, at its meeting in  March 2010, the Council had agreed to encourage 
Members to share information on bilateral agreements  they had concluded relating to the protection of 
geographical indications, and to notify them to the Council.  That had already produced some useful 
and informative material.  However, the material th at had been provided to the Council was certainly 
incomplete and not up to date, bearing in mind the considerable developments  nationally, regionally 
and bilaterally having taken place since the re view process had commenced over a decade ago.  
114. As the question of GI protection remained of continuing interest and a point of discussion, 
Members were likely to benefit from a more complete and up-to-date picture.  He therefore urged those delegations that had not yet done so to cons ider providing their resp onses to the questions.  
Likewise, he encouraged those Members having al ready responded to the checklist to provide updates 
to the extent there had been any significant cha nges in the way that they provided protection to 
geographical indications.  He added that there w as a considerable benefit in having up-to-date, IP/C/M/70 
Page 18  
 
  accurate and geographically more representative materi al available as the basis of the on-going review 
process.   
115. In line with the Council's recommendation made  in March 2010, he also encouraged any 
Member that was a party to any bilateral agreem ents related to the protection of GIs to share 
information on such agreements, if it had still not done so. 
116. The representative of Australia, referring to the Council's recommendation to share 
information on any bilateral agreements, said th at, on 22 May 2012, Malaysia and Australia had 
signed the Malaysia-Australia Free Trade Agreement, which contained a substantive article relating to 
GIs.  The provisions relating to GIs in that Agreement reflected support by both countries for adequate and appropriate le vels of GI protection.  As with all types of IPRs, it was important that GI 
protection balanced the interests of right holders and consumers.  Australia  supported GI protection 
that promoted rather than undermined international trade. 
117. The GI text in the FTA affirmed the safeguard measures in place in both parties' systems to 
ensure that GI protection of GIs was appropriately ba lanced.  In particular, it required parties to take 
into account whether a term was customary in co mmon language as the common name for such goods 
or services in its territory.  The GI text also requi red parties to provide an opportunity for interested 
persons to object to the granting of protection for a term claimed to be a GI, in accordance with Australia's recognition that such objections procedur es were a fundamental aspect of an effective and 
balanced GI system.  The text of the FTA was available on the website of Australia's Department of Foreign Affairs and Trade.
2 
118. The Council took note of the statements made and agreed to revert to the matter at its next 
meeting. 
I. TECHNICAL COOPERATION AND CAPACITY -BUILDING  
(i) Arrangements for the annual review 
 
119. The Chairman said that the Council had trad itionally undertaken its annual review of 
technical cooperation each autumn.  He therefore s uggested that the Council hold its annual review at 
its next meeting scheduled for 6-7 November.  Ac cordingly, he suggested that the Council invite 
developed country Members to s upply information on their activities pursuant to Article 67 of the 
TRIPS Agreement.  Other Members who also made available technical cooperation were encouraged 
to share information on these activities if they so wish ed.  He also suggested that the Council invite 
those intergovernmental organizations that had obser ver status in the Council to provide information 
on their activities of relevance and that the WTO S ecretariat also be instructed to report on its 
activities.  He proposed that the Council request that this information be made available by 
11 October in order to allow its time ly circulation before the meeting. 
120. The Council so agreed. 
121. As regards the preparation of those reports, th e Chairman recalled that, at the February 2012 
Council's meeting, under "Other Business", the Se cretariat had briefed the Council on its on-going 
implementation of the recommendations for savings and more efficient use of resources made by the Budget Committee (WT/BFA/128) and adopted by the Ge neral Council.  The decision, in particular, 
instructed all Chairs to work with Members to  reduce the overall volume of official documents 
submitted for production.  These measures might include, inter alia , reducing the length of reports, 
                                                      
2 http://www.dfat.go v.au/fta/mafta/  
  IP/C/M/70 
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  annexes and statements without jeopardizing their content or the appropriate reflection of specific 
Members' positions.  The notifications on Article  67 activities represented one area where the Council 
produced a very significant amount of invaluable do cumentation, containing information which could 
be difficult to access and review to get an overall pict ure of developments.  In view especially of the 
obligation on the Council to look for areas of potential improvement in the processing and 
management of documentation, including to identif y cost savings and to improve accessibility and 
usability of information, he proposed that the Secretar iat be invited to identify ways of facilitating the 
submission, processing and circulation of this information, so as to ease the burden both for Members submitting information and for Members consulting this  information.  This would be done without 
prejudice to the existing framework for Council doc umentation, Council procedures and the rights and 
obligations of Members.  He further proposed th at the Secretariat be invited to consult with 
delegations at a technical level and repor t to the Council at its next meeting. 
122. The Council so agreed. 
(ii) Other matters 
 
123. The Chairman said that, since its last mee ting, the Council had received an update to a 
notification of a contact point for technical coope ration on TRIPS from Norway.  The information on 
Members' transparency toolkit page had been updated accordingly.   
124. As regards the LDC needs assessment process, he recalled that paragraph 2 of the TRIPS 
Council's 2005 decision on the "Extension of the Tr ansition Period under Article 66.1 for Least-
Developed Country Members" provided that "with a view to facilitating targeted technical and 
financial cooperation programmes, all the least-d eveloped country Members will provide to the 
Council for TRIPS, preferably by the 1 January 2008, as much information as possible on their individual priority needs for technical and financia l cooperation in order to assist them taking steps 
necessary to implement the TRIPS Agreement".  To date, such information had been received from 
six Members, namely Sierra Leone, Uganda, Ba ngladesh, Rwanda, Tanzania and Senegal.  The 
Council's 2005 decision also provided that developed country Members shall provide technical and 
financial cooperation in accordance with Article 67 in  order to effectively address the needs identified 
by LDCs.  Furthermore, it called for the WTO to enhance its cooperati on with WIPO and other 
relevant international organizations with a view to making technical assistance and capacity building 
as effective and operational as possible.  
125. He recalled that, at the Council's February 20 12 meeting, he had said that the Council would 
revert to the suggestion Nigeria had made at the Co uncil's October 2011 meetin g that, if acceptable to 
it, the Secretariat should prepare a note aimed at i ndicating areas that had been implemented in those 
LDCs that had submitted their need s assessments, as well as the outstanding areas.  This matter 
closely related to the annual review of technical cooperation that the Council would be undertaking at 
its next meeting, and to a Symposium on LDC Priority Needs for Technical and Financial 
Cooperation that the Secretariat was again planning to organize, at the request of the LDC Group, 
back-to-back with that review. 
126. The representative of the Secretariat said that the Council's 2005 decision called upon the 
Secretariat to enhance its cooperation with WIPO a nd other relevant international organizations in 
order to assist LDC Members.  The Secretariat had therefore consulted with LDC Members to develop a tailored process to assist in identifying indi vidual priority needs and to foster coordination 
of responses to the needs identified.  In particul ar, at the request of the LDC Group made at the 
Council's meeting on 8 June 2009, the Secretaria t had arranged a series of regional workshops and 
Geneva-based symposia for LDC Members to identif y and discuss individual priority needs and to 
coordinate an effective, system-w ide response to those needs.   IP/C/M/70 
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  127. The Secretariat was planning to hold a Symposium on LDC Priority Needs for Technical and 
Financial Cooperation from 31 October to 2 Novemb er at the WTO.  The Symposium followed a 
series of workshops convened regiona lly and in Geneva.  To facilita te participation of capital-based 
officials, the Symposium was scheduled to ru n back-to-back with the Council's meeting of 
6-7 November.  Based on the experience of the past  activities in that series, he encouraged the 
participation of capital-based officials with res ponsibilities for coordinating, planning and delivering 
technical cooperation activities relevant to TRIPS im plementation, as this would enable a degree of 
practical outcomes that was difficult to achieve ot herwise.  The Secretariat would follow up with 
interested delegations accordingly.  LDC Member s had also pointed out the need for sufficient 
funding of capital-based officials responsible for needs assessments and technical cooperation in their 
countries.  In view of funding constraints, the S ecretariat was looking for further sources of funding 
and would value any suggestions from individual Me mbers in this regard, as this would make a 
significant difference to the practi cal impact of the activity.   
128. The forthcoming Symposium formed part of th is on-going process, and was being planned in 
consultation with key stakeholders, including LDC Me mbers, and relevant in ternational and regional 
organizations.  The Symposium would aim at streng thening the flow of practical information and 
coordination with intergovernmental  organizations and other provide rs of technical and financial 
assistance, and at updating information on the identifi cation of priority needs and the responses given 
to them.  It would provide a platform for coope rating partners to share experiences regarding the 
needs assessment process, as well as information on on-going activities and outstanding needs to complete the process.   
129. Past symposia in the series had concentrated on sharing information in an ad hoc  way on 
current projects or programmes that were relevant to the identification of individual priority needs, or 
that would respond to such needs when they had already been identified.  To ensure that the 
participants in the Symposium were working from the best information base, the Secretariat was 
attempting to collate this information this time in  a more systematic and timely way, so that the 
Symposium might be more effective as a practical coordination mechanism.  To simplify the process, 
the information to be provided needed only be gene ral in character, effectively an identification and 
brief description of relevant programmes, rather th an any detailed description.  This gathering of 
information for the workshop was based on the expe rience with past workshops, and was not intended 
to replace or substitute for the regular reporting ex ercise to the Council or any other processes of the 
Council, although in practice the relevant Members might draw on the same background information. 
130. As part of the preparation of the Symposium, the Secretariat had also discussed with the LDC 
Group the possibility of preparing an informal in formation resource for LDC Members which would 
provide an overview of the state of implementation of the Agreement in LDCs and analyse the relevance of reported technical assistance programm es for diverse aspects of the implementation in a 
systematic and accessible form.  As an informal information resource to assist participants in the 
Symposium, this material would not be linked to the Council's discussion of that matter, but it was a 
possibility – if it was indeed feasible to prepare it,  which had not yet been confirmed - that it would 
assist Members in gaining a practical  understanding of the state of play. 
131. The representative of Bangladesh said that he hoped that many development partners would 
participate in the Symposium to find out how to he lp LDCs, since very little had been achieved to 
meet identified needs after the submission of the n eeds assessments by six LDCs and there had been 
no encouraging signs for the future.  He hoped that  the Symposium would be another opportunity to 
get much needed technical cooperation and capacity building.  He also hoped that all Members would 
sympathetically consider LDCs' wish to ge t an extension of their transition period. 
132. The representative of Angola, speaking on behalf of the LDC Group, recalled that the 
Council's 2005 decision on the extension of the trans itional period for LDCs allowed these countries,  IP/C/M/70 
 Page 21 
 
 
  during a period of seven and a half years, not to pr ovide protection to trademarks, patents, copyright, 
industrial design, geographical indications and tr ade secrets, among others.  The decision also 
requested LDC Members to provide information to the Council on their individual priority needs for 
technical and financial cooperation in order to impl ement the Agreement.  He noted with concern that 
only six LDC Members had submitted their individual needs assessments and that there had not been 
any concrete steps forward to respond to them.  Other LDCs, up to 32, were in the process of 
identifying their priority needs.  He hoped that the Symposium would assist LDC Members to foster 
coordination of responses to the needs identified and to develop a dialogue process to assist the 
remaining LDCs to identify their individual priority  needs.  He also hoped that the Symposium would 
mobilize automatic funding to help other LDCs in th e process of identifying their individual priority 
needs and also to develop a guidebook and materials for LDC Members to benefit from practical past 
experience.  He also requested the Secretariat to ensu re the participation of the capital-based experts.   
133. As to the practical steps undertaken by th e LDC Group to implement the WTO Ministerial 
Decision on the Transition Period for LDCs under Artic le 66.1 of the TRIPS Agreement, he said that 
the Group was currently reflecting on developing a work programme based on individual priority 
needs identified for technical and financial assistance that would be submitted for the consideration of 
developed country partners and in tergovernmental organizations at the Symposium and to the next 
Council's meeting, prior to the initiation of the ne gotiations on the appropriate time-period for an 
extension of the transition period.   
134. The representative of the European Union said that  he was supportive of this process and the 
cooperation with LDCs on the implementation of IP rules.  Regarding the countries that had already 
identified their specific needs, the EU had estab lished a detailed technical cooperation programme 
with Bangladesh, and had developed two progra mmes with Uganda.  These programmes addressed 
identified needs and were designed together with th e authorities of these countries.  The EU services 
in charge of cooperation and developm ent were also in contact with Sierra Leone.  Thus at least with 
these three countries, the EU had already been working intensively.  It was also ready to look at the 
submissions made by the remaining countries.  It w ould also participate in the Symposium and try to 
see how best its development programmes could work to put in place IP systems and to make these systems work. 
135. The representative of Tanzania said that he r delegation was discouraged because, since 
Tanzania had presented its needs assessment almo st a year earlier, no developed partner had 
approached the country to offer support of th e activities which had been identified.  Despite 
Tanzania's efforts to approach some of these developed partners nothing was coming up.  She 
therefore requested that the developed partners  help LDCs to meet the identified needs. 
136. The representative of Switzerland said that his delegation was planning to participate in the 
Symposium, which would provide an opportunity to ag ain make contact with the partner countries, to 
assess the results of bilateral projects launched, and to  exchange practical information to make further 
implementation of projects more successful.  The latest IP technical cooperation project with 
Bangladesh had been running since March 2012 and Switzerland was looking forward to sharing some first experience with the Secretariat and any participants at the Symposium. 
137. The Chairman urged the LDC Members that had not yet provided information on their 
individual priority needs for technical and financial cooperation to do so.   
138. The Council took note of the statements made and agreed to revert to the matter at its next 
meeting. IP/C/M/70 
Page 22  
 
  J. L
ETTER FROM THE CHAIR OF THE GENERAL COUNCIL CONCERNING WAYS TO IMPROVE THE 
TIMELINESS AND COMPLETENESS OF NOTIFICATIONS AND OTHER INFORMATION FLOWS  
139. The Chairman recalled that, at its past few meetings, the Council had had on its agenda a 
letter from the Chair of the General Council concerning ways to improve the timeliness and 
completeness of notifications and ot her information flows in the area of its responsibility.  In order to 
facilitate the Council's consideration of that issue,  the Secretariat had presented at the October 2009 
meeting a factual background note (IP/C/W/543) pr epared at the Council's request, summarizing the 
relevant procedures and providing information on th e use of those procedures.  The document further 
contained suggestions for the Council's consider ation on how to improve the transparency and 
user-friendliness of the notification system.  At th e subsequent meetings, the Secretariat had provided 
oral reports on further developments in that area.  At  its last meeting, the Council had agreed to revert 
to that agenda item at the present meeting, so as to provide Members with a further opportunity to 
share any comments and allow the Secretariat to in form the Council of any further enhancements to 
its services improving the transparency and u ser-friendliness of the notification system. 
140. The representative of the Secretariat said that th e Secretariat was continuing to circulate base 
documents for notifications of laws and regulations  both in hard copy and electronic form, but the 
actual texts of these laws and regulations contai ned in sub-series of documents would only be 
circulated in electronic form on the Documents On line database.  This procedure responded to the 
feedback from users that the routine circulation of ha rd copies of texts of laws  and regulations did not, 
on the whole, facilitate access to these materials.  To the contrary, feedback from users had showed 
that, overwhelmingly, the first point of access was the on-line version of the document, not separate 
collections of hard copies. 
141. More generally, on transparency and user-friend liness of the notification system, the work of 
the Secretariat remained guided by the directions  in the letter from the Chairman of the General 
Council and the background note IP/C/W/543.  Th e core objective of the work on timeliness and 
completeness of notifications and other information flows had continued to be the goal of making that 
material available in a more user-friendly way, and thus to make it more straightforward for Members 
to prepare and submit their notifications, in shor t to reduce the burden on Members.  This had 
included both the documentary burden on Members to  fulfil their notification obligations and making 
it easier to consult the information in a way that corresponded more directly with the actual needs of 
stakeholders. 
142. Considerable expense was involved in processing some of the notification materials, making 
this area particularly relevant when considering the recommendations for savings and more efficient 
use of resources in the area of documentation r ecently made by the budget committee and adopted by 
the General Council.  Some of the notification ser ies had represented the most extensive and thus 
costly materials to work with, both in their preparation and in their handling, distribution and translation.  The on-going work aimed to impr ove practical document management within the 
parameters already set by the Council's own decisi ons and the TRIPS Agreement and it continued to 
follow directly the outline set out in document IP/C/W/543.   
143. The Secretariat had reviewed and developed an overview of the body of existing notifications, 
a collection of over 15 years' worth of heterogene ous documents, of immense potential practical use, 
but at the same time presenting a major informa tion management challenge.  There had been three 
main phases:  the initial notifications of devel oped countries in 1996;  the initial notifications of 
developing countries in the early 2000s;  and a more recent increase in activity corresponding to 
accessions and regular revisions and updates of IP laws.  The forthcoming accessions were likely to 
produce still more material.  These notifications were  still held in a range of different formats but 
work was under way to ensure that all documents were available in text-searchable form on line.  
Once the range of materials was fully available in digital form, it would be appropriate to consider  IP/C/M/70 
 Page 23 
 
 
  how to use relevant information technology tool s to improve the usability and the accessibility of 
those data to reduce wasteful and expensive paper-b ased approaches, where appropriate.  In addition, 
improved accessibility and usability of data would ensure that it could contribute to the broader effort 
across the Secretariat towards a more integrated ho listic approach to managi ng notifications and other 
trade policy information, including the Integrated Trade Intelligence Portal (I-TIP), announced at the 
margins of the December 2011 Ministerial Conference. 
144. The next step was therefore to consider how  to provide more user-friendly web tools for 
accessing and using the information contained in no tifications, building on the pilot work already 
reported to the Council.  Consideration should furthe r be given to making use of such tools as the 
common portal established with WIPO for the submi ssion of legislative texts and exploring further 
cooperation along those lines, given the overlappi ng responsibilities between the WTO and WIPO 
that had been recognized in the TRIPS Agreement itself.   
145. Other avenues that could be explored in the area of practical document management, rather 
than determining new notification approaches, might include (i) facilitating the submission of texts for 
regular notifications, other than legislative texts,  through a notification tool;  and (ii) a continued 
focus on suggested standard notification formats to  facilitate both the preparation of notification 
materials and their handling and dissemination.  The Secretariat would seek to consult with delegates 
and other users of that information through informal  workshops and technical assistance activities and 
aimed to develop appropriate tools that corres pond to the actual needs of actual stakeholders, 
particularly delegations.   
146. Notification materials were now routinely being used to inform the Secretariat's technical 
cooperation activities, in response to the demand fro m Members for information at a very practical 
level and in a factual way about the approaches take n by Members in relation to various areas of IP 
law and policy.  Further technical assistance activ ities would concentrate on more effective use of 
notification processes, so as to advance the objec tives set out by the General Council concerning the 
timeliness and completeness of notifications unde r the Agreement as well as user-friendly access to 
and use of those materials. 
147. The Chairman suggested that the Council agree to  revert to that agenda item at its next 
meeting so as to afford Members a further opport unity to make their comments on the subject and 
allow the Secretariat to inform the Council on any further improvements to its services aimed at enhancing transparency and use-frie ndliness of the notification system. 
148. The Council took note of the statements made and so agreed. 
K. EXCHANGE OF INFORMATION ON SECURING SUPPLY CHAINS AGAINST COUNTERFEIT 
TRADEMARKS  
149. The Chairman said that this item had been put on the agenda at the written request by the 
delegation of the United States, and that a communication from the United States entitled "Securing 
Supply Chains against Counterfeit Goods" had been ci rculated in document IP/C/W/570.  In addition, 
the Council had received a communication from Japan entitled "Enforcement of Intellectual Property 
Rights" that Japan intended to present under this item.  The document provided an updated version of 
an earlier communication, document IP/C/W/501 dated 8 October 2007, and had been circulated in 
document IP/C/W/571. 
150. The representative of the United States said that  she believed that the Council could continue 
to make a positive contribution to addressing IP enforcement-related challenges through a 
constructive exchange of views and experien ces.  The negative economic consequences that 
counterfeit trademark goods caused and the serious threat  to the health and safety of consumers were IP/C/M/70 
Page 24  
 
  well known.  Counterfeiters were not  concerned with maintaining the quality standard of the brand 
owner.  As a result, counterfeit trademark goods were often made with inferior, unsuitable and 
sometimes dangerous substances.  She said that in  some markets, according to a brand protection 
group, almost 70 per cent of counterfeit products were of automotive parts.  These counterfeit 
products were understood to be res ponsible for about 50 per cent of the automotive accident fatalities 
in countries with significant automotive part counterfeiting. 
151. Although the impact of counterfeits on health and safety was well known, the United States 
believed that the economic impact of counterfeits wa s less well understood.  Reports that showed that 
the United States, Indonesia, Burundi, Kenya, Rwa nda, Uganda, Tanzania and many other countries 
lost significant tax revenue due to counterfeit a nd fake goods.  Less quantifiable, however, was the 
impact upon jobs or income - the business owners who built up a reputation in a good, only to have it 
copied and their hard work stolen.   
152. In March of 2012, the US Government had pub lished a report that described the importance 
of IP to the United States, according to which IP intensive industries accounted for 60 per cent of US 
exports and 40 million jobs in 20 10.  Although the report focused on the US industry, many of the 
industry sectors represented in the report were global  or not specific to the United States, as was the 
conclusion of the report, namely that IP was important for growth. 
153. In order to fight counterfeiting, IP owners a nd consumers, including governments, could first 
ensure that the products that they sold and purch ased were legitimate.  The automotive industry, for 
example, was fighting back with education camp aigns, radio frequency iden tification tags, smart 
phone technology, and other high tech tools to ensure that products in the supply chain were 
legitimate.  The US paper provided more information about these tools. 
154. Second, governments could protect the supply chain, and thereby the health and safety of 
consumers, to ensure that appropriate taxes are coll ected and IPRs are respected.  For example, the US 
Customs and Border Protection (CBP) was charged w ith enforcing IPRs while facilitating the flow of 
legitimate trade across the border.  CBP devoted s ubstantial resources to targeting, intercepting, 
detaining, and seizing shipments containing IPR-infringing goods at the border.   
155. The US Immigration and Customs Enforcement (ICE) was one of the primary US law 
enforcement agencies investigating IPR violations  involving the illegal production, smuggling, and 
distribution of counterfeit or pirated products.  In  2011, the value of infringing goods seized by CBP 
and ICE reached US$178.3 million.  The total number of IPR seizures increased by 325 per cent over 
the past decade.  Consumer electronics was the t op commodity seized.  Approximately one-third of 
the seized goods in this category were IPR-infringing cellular telephones.  
156. Over the past five years, trade in counterfe it goods had shown a marked shift towards using 
international mail and express courier services to tran sport this illegal merchandise.  An important 
factor contributing to the increased use of mail and express courier services was the continued growth of websites selling counterfe it merchandise directly to consumers.  The significant increase in seizures 
recorded in the financial year 2011 meant that the expanding scope of gl obal counterfeiting activity 
would remain an important preoccupation for th e US business community and consumer groups.  
157. As counterfeiters continued to improve thei r criminal enterprises by using increasingly 
sophisticated tools that made their counterfeit goods  appear authentic, CBP required advanced tools 
and technologies to improve detection of counte rfeit goods.  Some of these tools and technologies 
included risk modeling;  mobile smart phone devi ces to provide CBP frontline officers with real-time 
tactical targeting data when examining shipments;   and product identification guides to assist CBP 
personnel with authenticating genuine articles and identifying counterfeit and pirated products.  She 
said that more information on these tools and technologies was provided in the US paper.  IP/C/M/70 
 Page 25 
 
 
  158. Methods used by CBP to identify counterfeit products  were also being used in other countries.  
For example, Nigeria was using technology similar to that used by the CBP at their ports of entry.  
She said that CBP would like to partner with Ni geria by sharing information and experiences to 
facilitate effective deploying and utilization of these tools to ensure that consumers of both Members 
were not harmed by dangerous c ounterfeits.  In addition, she said, other Members had developed 
additional tools to reduce the market opportunities fo r counterfeits.  For example, Egypt promoted the 
legitimate trade of automotive parts by sponsoring a market for legitimate auto parts, and Kenya 
provided training to pharmaceutical customs inspec tors to curb trade in counterfeit trademark 
pharmaceutical products.  She believed that the Council's work would benefit from sharing the 
national experiences of Egypt, Kenya and other countr ies that were successfully fighting back against 
counterfeiting.   
159. Customs authorities were responsible for about 90 per cent of counterfeit goods confiscated in 
Europe, and 70 per cent in the world.  In many cases , these authorities worked together bilaterally and 
plurilaterally to address counterfeiting.  One exampl e of such bilateral efforts was the Memorandum 
of Cooperation signed in 2007 between the customs administrations of the United States and China 
and she believed it would be beneficial for Chin a to share their experience under this Memorandum 
with the Council.  Another example of bila teral cooperation to address counterfeiting was a 
March 2011 Memorandum of U nderstanding (MoU) between India and Nigeria.  According to press 
reports, pursuant to this MoU, Indian authorities would provide training and assistance to Nigeria's 
National Agency for Food and Drug Administration and Control (NAFDAC).  Additional information 
on this MoU from China and Nigeria would also be interesting to the Council. 
160. The role of international organizations, such  as the World Customs Organization (WCO) and 
Interpol was well known and they played a significant role in protecting supply chains from counterfeit products.  She said governments had to be one step ahead of the counterfeiters who were 
becoming more and more sophisticated in the way th ey manufactured and distributed their goods.   
161. It was her delegation's hope that the techniqu es discussed in the paper would be helpful in 
addressing the growing scale of IPR-infringing trade encountered around the world.  They had been 
summarized for the information of Members with the aim to promote an exchange of information that 
could help eliminate counterfeit trademark goods fro m the global supply chain.  Her delegation hoped 
to hear and learn from other Members who were  waging a successful battle against counterfeiters. 
162. The representative of Japan, in introduci ng document IP/C/W/571, recalled that IP 
enforcement at the border had become a challenging and complicated issue for all customs authorities 
who were expected to play a vital role to comb at global counterfeiting and piracy.  Recognizing the 
importance of exchanging views, experiences and b est practices with other Members, Japan's paper 
aimed to share its experiences of IP enforcement at the border with other Members, introduce recent trends of infringements, and to provide some insi ght into its border measures against counterfeits and 
pirated goods. 
163. As mentioned in paragraph 2 of the paper, th e number of annual cases of import suspension 
by the Japanese customs remained  above 20,000 through the years from 2007 to 2011 while the 
number of items suspended at the border decreased from 1,039,000 in 2007 to 728,000 in 2011, indicating the significant increase in small-lot shipments of infringing goods.  As mentioned in paragraph 5, in terms of the type of commodity, Japan's customs suspensions of fake brand name 
products were dominated by bags and other apparel.  
164. He said that, as mentioned in paragraph 7, a nu mber of people had tried to import counterfeit 
and pirated goods by disguising them as personal u se items, which accelerated the recent trend of 
small-lot shipments in IPR enforcement at the borde r.  In order to tackle this smuggling activity, 
Japan had strengthened its enforcement regarding sma ll-lot cargos.  In principle, the customs initiated IP/C/M/70 
Page 26  
 
  enforcement exercises regardless of the number of ite ms involved.  Japan's efforts to improve customs 
officers' expertise were mentioned in section IV of the paper. 
165. IP enforcement at the border was one of th e most challenging and complicated issues for 
customs authorities around the world.  Japan had st rengthened enforcement in several ways, while 
fully recognizing the importance of a flexible and well-balanced enforcement system to address the 
problem of counterfeits and pirated goods. 
166. The representative of the Europ ean Union shared information on the European Memorandum 
of Understanding on the sale of counterfeit goods via the Internet, signed on 4 May 2011, as an 
example of how to address infringements and probl ems with counterfeit goods.  The development of 
e-commerce offered unprecedented opportunities to  increase consumer choice and access to wider 
markets.  However, the sale of counterfeit goods ov er the Internet also presented a threat to all 
stakeholders including consumers, rights owners, Internet platforms and society in general, as 
consumers were at a growing risk of buying infe rior and possibly dangerous  products; brand values, 
reputation and economic interests of rights owners were jeopardized; and the efforts of Internet 
platforms to be widely regarded as safe places to  buy and sell legitimate products were undermined. 
167. The purpose of the MoU was to establish a code of practice in the fight against the sale of 
counterfeit goods over the Internet and to enhance collaboration between the signatories, including 
notice and take-down procedures.  The signatories  included four Internet platforms, 14 companies; 
and 15 trade associations, whose membership consiste d of several thousand companies.  Its scope was 
to cover  non-original physical goods manufactured without the consent of the right owner and which 
infringed IPRs.  The topics covered in the MoU in cluded general principles; notice and take down 
procedures; pro-active and preventive measures; cooperation and information sharing; consumer 
confidence; and repeat infringers. 
168. On 24 May 2012, at an evaluation meeting with  all stakeholders on the functioning of the 
MoU, the overall indication was that, although onlin e counterfeits were and would remain a "moving 
target", the MoU was working well and no major problems had been identified.  The evaluation 
period had been extended by six months to a llow time to prepare a thorough evidence-based 
evaluation report.  Strong and direct operational links had been established between all signatories, 
and notice and take down procedures and tools had been upgraded.  The process to allow for an extension of the MoU to other brands, trade associa tions and Internet platform s, as well as to other 
types of stakeholders had been initiated. The te xt of the MoU could be found on the Commission's 
website of DG Internal Market. 
169. The representative of Argentina welcomed th e US and Japanese proposals which he believed 
would be a contribution to the discussion around comp liance with IPRs.  His delegation would further 
study these documents and might revert with comments at the next meeting. 
170. The representative of Brazil said that initiatives by  Members to discuss IP enforcement at the 
Council had a long history.  There had been a good deal of discussion on the matter in the period of 
2006 to 2008.  More recently, some Members had wished to discuss, for different reasons, the 
Anti-Counterfeiting Trade Agreement (ACTA) at th e Council.  It had always been Brazil's 
understanding that enforcement was not an item on the Council's permanent agenda but had been 
included only at the request of one or more Members.   At the present meeting, it was on the agenda at 
the request by the US delegation.  
171. He fully recognized Members' right to draw the Council's attention to matters of their interest 
and might wish to share issues pertaining to their experience and domestic practices.  However, that 
was not to be taken as recognition that enforcement should be debated regularly at the Council, nor 
that the Council had any mandate to adopt reco mmendations or best practices on enforcement.  IP/C/M/70 
 Page 27 
 
 
  172. Articles 1.1 and 41.5 of the TRIPS Agreement provided Members with leeway to implement 
the enforcement provisions of the Agreement accord ing to their own priorities and their own legal 
systems and practice.  Furthermore, Article 41.1 established that enforcement procedures 
implemented by Members had to be applied in such  a manner as to avoid the creation of barriers to 
legitimate trade and to provide for safeguards agai nst their abuse.  He said that this was worth 
recalling in view of the increasing number of measures that were being taken in the name of 
enforcement and for the purpose of combating trade in counterfeit and pirated goods.   
173. He said that item K of the provisional age nda had originally been entitled "Exchange of 
Information on Securing Supply Chains against Counterfeit Goods", and he was glad to note that the title had been reformulated following  China's suggestion.  However, the title of the US document still 
did not adequately reflect its contents.  While  the title referred to counterfeit goods only, the 
document itself, by contrast, was not confined to  counterfeit goods as defined by the Agreement with 
respect to trademark violations, but went much beyond that.  
174. In some passages, such as for example para graph 4, the document virtually equated 
counterfeit with substandard goods.  While it was tr ue that counterfeit goods were often substandard, 
substandard goods could very well be  genuine branded goods.  The fact remained that counterfeit and 
substandard were concepts applicable to differe nt realities that only occasionally overlapped.  
Section II of the document further expanded beyond trademark counterfeiting by referring to seizures 
of "IPR infringing goods", including pirated copy right products.  In the Council, Members should 
employ the definitions contained in the Agreemen t itself, as imprecise terminology often led to 
misleading analysis.  
175. In concluding, he said, Brazil wished to thank the United States and Japan for having 
voluntarily provided the Council with a good deal of  information of certain national practices on 
enforcement which would be conveye d to the relevant authorities in Brazil dealing with enforcement 
issues.  
176. The representative of China said that it was he r understanding that item K had been adopted 
on an ad hoc  basis and was not a standing item on the agenda.  While she recognized that the aim for 
the proponents under the item was to share info rmation, rather than to impose on Members 
obligations beyond the Agreement, to her delegation,  this was simply another round of enforcement 
discussion, on which China's position was well known and had not changed over the past years.   
177. She said that Members had been mandated by Ministers at Doha and Hong Kong to focus on 
resolving the implementation-related issues.  While  those issues remained stalled at the Council, 
China had serious concerns that to address other i ssues would divert the strength of the Council and 
divert from the mandated topics.  Moreover, the en forcement issue was sufficiently dealt with under 
bilateral IP mechanisms among Members.  She belie ved that the reputation of this exercise at the 
Council might not be helpful for addressing those issues.   
178. She said, in discussions on global supply chains  among Members, the concern of developing 
countries was usually how to engage themselves effec tively in these supply chains.  It was not clear to 
her whether item K had any relationship with the global supply chain discussion in that context.  In any case, in their discussions Members generally agr eed that global supply chains were mainly an 
outcome of the creation and proliferation of distri bution networks created by multinational companies 
and thus mainly driven by the business sector.  It  was therefore her understanding that securing supply 
chains against counterfeit trademarks was first a nd foremost the responsibility of the business sector 
and that both the demand and supply side of th e business chain had shared responsibilities in this 
regard.  To be exact, both importer and exporte r had the common obligation to secure the supply 
chain against counterfeit trademarks.   IP/C/M/70 
Page 28  
 
  179. With respect to the data that had been menti oned in the presentations by the United States and 
Japan, she said that – absent further verification – she had serious doubts regarding their authenticity.  
China recognized the well-known risks and the ha rm caused by trademark counterfeiting to the 
industry and consumers.  All Members should impl ement and maintain enforcement procedures as 
specified in Part III of the Agreement to permit  effective action against any act of trademark 
counterfeiting covered by the Agreement.  At th e same time, the Agreement made it clear that 
Members were free to determine the appropriate me thod of implementing the provisions within their 
own legal system and practice and that Members coul d, but were not obliged to, implement in their 
laws more extensive protection than was required by TRIPS.  
180. She said that China had put substantial resour ces into strengthened enforcement, carrying out 
special campaigns of cracking down on infringing and counterfeiting trademarks.  China had also 
advanced the construction of long-term mechanisms for IP protection and actively fostered favourable 
legal, market, and social environments.  It was her belief that the enforcement issue could only be 
effectively dealt with in the context of such  a comprehensive long-term perspective.   
181. China believed it was desirable for Members to join hands and do something together, but 
that this had to be in the common interest of a ll Members and could not divert the Council's attention 
away from the mandated resolution of the implementa tion issues.  In this regard, she shared the 
concern expressed by Bangladesh and Angola on beha lf of the LDCs, and expressed especially by 
Tanzania, that their priority needs assessments had been delivered to the Council over a year ago, but 
they had so far received no effective response.  Chin a believed that this was a serious issue that the 
Council should address.  While the Council was pressing more LDCs to identify their priority needs, 
she wished to urge Members to take into cons ideration the needs already identified and respond 
according to the requirements of the Agreement. 
182. The representative of India said that, while it was his understanding that this was not a 
permanent item on the agenda, he welcomed any discussion on enforcement under Part III of the 
Agreement and would engage constructively in this re gard.  The issue of IP enforcement was distinct 
from issues of quality and safety and the Agreem ent itself suggested no connection between these 
areas.  IPRs, including trademark rights, were not granted on the basis of quality and safety of a 
product, and the simple fact that a product bore a trademark did not guarantee that the product was 
safe or had the requisite quality.  Many branded products had been know n to be unsafe and a threat to 
public life.   
183. Further, he said, IP enforcement was not an a ppropriate or an effective framework to deal 
with the issues of quality and safety.  On the c ontrary, making a link between IP enforcement and 
quality issues was wholly inappropriate because it ma rginalized the role of  those agencies actually 
responsible for ensuring standards of quality and safety.  The submitted document on securing the 
supply chain was an important contribution that highlighted the problem of counterfeiting from the 
safety of automobiles to the variety of defence equipment, and including its effect on the life of 
people through counterfeit medicines.  The submission in the form of a country experience of how to 
address the problem of counterfeiting through a mu ltidimensional approach, including international 
cooperation, underscored the enormity of the issue a nd highlighted an urgent need to confront the 
problem.   
184. He said that the word counterfeiting had been u sed in a very loose fashion in the document.  
While the paper made reference to trademark counte rfeiting in a few places, the term was mostly used 
to refer to goods of compromised quality, safety a nd efficacy.  In particular, the paper referred to 
losses through unpaid taxes on the basis of media re ports to underline the problem of counterfeiting in 
Indonesia and the East African community of Bur undi, Kenya, Rwanda, Uganda and Tanzania.  In 
this regard, footnote 2 contained a reference to a news item in the Jakarta Post headlined "Fake 
Products cost Re 43.2 trillion in lost access" based on a report of an investigating institute of the  IP/C/M/70 
 Page 29 
 
 
  Indonesia School of Economics.  Before making a ny judgement on the relevance of the figure of 
Re 43.2 trillion, he said it would be important to not e that the study covered diverse items like leather 
products, software, automobile parts, clothing, limes , cosmetics and pharmaceuti cals.  The percentage 
of these different items that infringed IPRs like tradem arks or copyright would be needed to provide a 
correct picture.  Further, statistics on sales figures  of branded items for the same goods sold in the 
country on which the taxes were paid, as well as on  the percentage of Indonesian people who could 
afford branded items could throw more light on the extent of losses associated with the infringement 
of IPRs as defined in TRIPS.   
185. He said that footnotes 3 and 4 referred to an article sponsored by the Anti-Counterfeiting and 
Product Protection Programme of the Michigan Stat e University, which focu sed on the effect of 
counterfeit drugs on health, economic  and technological development,  and foreign investment in 
African countries.  In this article, the term c ounterfeit was used to describe a broad category of 
substandard drugs, falsified or fa lsely labelled foods and other c ounterfeit products whether or not 
they infringed IPRs.  His delegation therefore ha d serious doubt about the accuracy of the figures 
quoted in this regard.   
186. It was precisely because of a lack of a workab le definition for drugs of compromised quality, 
safety and efficacy that the WHO had set up a memb er state mechanism addressing the issues of poor 
quality, unsafe medical products on a public health perspective, including issues pertaining to the supply chain.  He stressed that the issues of pr oduct safety and efficacy did not fall within the purview 
of the TRIPS Agreement and were therefore beyond  the mandate of the TRIPS Council.  Enforcement 
measures could not guarantee products of qualit y, but excessive and unreasonable enforcement 
measures could easily undermine access to affordable  medicines.  This had been shown in the past 
when several shipments of medical products had been  illegally seized by authorities in an EU member 
state, resulting in patients not receiving their treatments in time.   
187. The US paper also provided data on counterfeiting provided by the US Customs and Border 
Protection and the US Immigration and Customs Enfo rcement agencies.  According to these data, the 
value of infringing goods for the period Octobe r 2010 to September 2011 was $170.3 million, for a 
country of GDP $15 trillion.  He said that the releva nt document again failed to provide specific data 
for infringements of different IPRs, thus making it impossible to know the exact extent of trademark 
counterfeiting and copyright piracy.  There were ther efore several questions that remained regarding 
the paper circulated by the US delegation. 
188. He said that although the issue of enforcemen t was of critical importance to India, it was 
necessary to maintain the delicate balance provided for in Part III of the TRIPS Agreement.  This very 
careful balance of the interest of the right ho lders on the one hand, and those wrongly accused of 
infringement on the other, so as not to cause barriers to legitimate trade, was of utmost importance.  
For this delicate balance to be maintained, the Ag reement had to be viewed in its entirety without 
focusing on just one aspect to the exclusion of others.  It was further important to recognize the issue 
of limited resources of developing country governments to enforce IP laws relative to other laws 
which might have a higher priority.  The text of Pa rt III also recognized that IPRs were private rights 
and that actions for their enforcement ultimately had to be taken by the right holders themselves. 
189. The representative of Korea welcomed the docum ents circulated by the United States and 
Japan, which were both informative and useful.  Ko rea shared the concerns regarding the growing 
scale and increasingly sophisticated ways of IP in fringement, and the view that counterfeit goods 
could pose serious threats to the health and safety of  consumers.  As in the United States and Japan, 
statistical records from the Korean  Customs Service showed that trademark counterfeiting topped the 
list of IP infringements both in terms of the number of cases as well as the value of the products 
involved.  With a view to addressing the shared concerns on global counterfeiting and piracy, Korea 
continued to enhance its laws and regulations on IP protection and en forcement.  To name just one IP/C/M/70 
Page 30  
 
  example, the scope of border measures had been significantly expanded, and civil, criminal and 
administrative procedures had been strengthened.  He believed that this would help encourage 
innovative industries and achieve effective IP protec tion.  Korea remained ready to contribute to a 
constructive exchange of information in this area. 
190. The representative of Canada welcomed the submissions by the United States and Japan and 
supported further discussion on this issue.  Canada  took the protection and enforcement of IPRs 
seriously and was committed to combating global trade in counterfeit goods.  It supported initiatives 
that were aimed at further reducing the entrance of  counterfeit goods into the global economy, such as 
the sharing of information and best practices on IP  enforcement, so long as such initiatives provided 
sufficient flexibility for variances in domestic laws  and policies, particularly with respect to 
information and privacy laws, as well as resources.   Enhanced knowledge on the scope, scale, costs 
and impacts of counterfeit goods could help Members take the most effective measures in combating 
global trade in counterfeit goods. Canada was furt her supportive of forward-looking initiatives to 
secure supply chains, such as through the utilization of  improved inspection targeting of imports that 
present a high risk for IP infringement.   
191. Canada was well aware of the risks counterfeit goods  could pose to the health and safety of its 
citizens.  It was also particularly concerned with  the disproportionate effect counterfeit goods might 
have on the health and safety of individu als in developing countries who may have 
difficulty preventing counterfeit goods from entering into their supply chains, as well as with the negative impacts such goods could have on the economy.  
192. The Royal Canadian Mounted Police had witn essed a significant growth in the number of 
counterfeit products posing risks to the health and sa fety of consumers. For example, the percentage 
of occurrences involving harmful counterfeit pro ducts had more than doubled since 2005 from 
11.2 per cent to 25.8 per cent in 2011.  In 2011, mo re than 210 cases of harmful counterfeit products 
had been investigated, including every day produc ts such as pharmaceuticals, electrical products and 
consumer electronics, as well as toys, batteries, toiletr ies and household products.  In 2011, the total 
value of seized counterfeit goods had reached over CAN$67 million.  The Royal Canadian Mounted 
Police continued to work with international pa rtners, such as the US IPR National Coordination 
Centre, Interpol, and Europol, to combat these grow ing trends.  Canada looked forward to future 
discussion on this important issue which had implic ations for all Members' economies, governments, 
and most importantly, the health and well-being of their citizens. 
193. The representative of Australia welcomed the US initiative to exchange information about 
securing supply chains against counterfeit goods at the Council and the submissions on IP 
enforcement.  The papers provided a useful excha nge of information that could help in the fight 
against eliminating counterfeits from the global su pply chain.  As for many countries, counterfeit 
goods were a serious concern for Australia.  The nu mber of illicit goods detected at the border had 
increased in recent years in line with higher imports of consumer goods.  Australian customs and 
border protection services had seized over 850,000 counterfeit items in 2011 with a potential retail 
value in the tens of millions of dollars.  He said that it was important to recognize that counterfeit 
goods impacted negatively on all Members, including  net importers of IP such as Australia.   
194. In Australia, enforcement measures were not just  about protecting IP right holders, they were 
also about protecting consumers.  Counterfeiting not only affected luxury brands and goods - 
everyday household goods were now also routinely being counterfeited.  For example, Australia's 
Customs and Border Protection Service had seized  large quantities of counterfeit washing powder, 
facial soaps, toothpaste, beer, ghee, frozen vegeta bles and shaving razors.  As the US paper noted, 
many counterfeit goods were substa ndard in quality and had the potential to cause physical harm.  By 
way of illustration, the Australian Customs and Bord er Protection Service had seized counterfeit beer 
contaminated with foreign matter and mould, electri c hair straighteners that  melted when turned on,  IP/C/M/70 
 Page 31 
 
 
  and mobile phone batteries that did not contain fuses to prevent them from overheating.  His 
delegation was aware of reports from around the wo rld of serious harm, including death, resulting 
from the use or consumption of counterfeit produc ts, underlining the risks counterfeit goods pose to 
consumers in all countries. 
195. The representative of Switzerland said that it was important that the major issues of 
enforcement, counterfeiting and piracy were disc ussed in the Council.  Both reports provided 
substantive and factual information about one of th e most critical issues in IP protection and, in 
practical terms, the protection of c onsumers, public health, safety, and general welfare.  The statistical 
data presented in the reports re flected the tendencies that Swiss  authorities also faced.  One tendency 
was the shift towards using international mail and courier services to transport illegal merchandise, 
presenting the challenge that small-lot cargos, disguised  as personal use, were difficult to detect.  This 
was accompanied by the major administrative effort  that was necessary for systematically tackling 
such smuggling activities. 
196. He believed the two submissions were useful a nd relevant contributions to the exchange on 
best practices and new aspects and approaches to an ever-growing issue.  He said that he would be 
interested to hear other Members’ experiences and that Switzerland might, at a later point in time, 
update its earlier submissions and stat ements with regard to IP enforcement by its national authorities. 
197. The representative of Bangladesh said that, while  there was still no agreed definition of 
counterfeit products, he shared the concern of many  Members regarding counterfeit trademarks.  He 
said that, to fight the problem of trademark counte rfeiting, there already existed the Madrid System, 
the WIPO trademark law treaty, the Singapore Treaty and above all the TRIPS Agreement, and the 
proper implementation of these existing treaties should be the first step to fight the trade in 
counterfeits.  However, in doing so Members had to be careful that new measures did not hinder 
access to essential medicines, or access to informat ion, knowledge and the Internet.  Any alleged 
offender had to have the opportunity  of recourse to a court of law.  The provisions of any such 
measures should not be so broad or fluid as to leav e room for different interpretations by different 
enforcement agencies, and the concerns of LDCs should always be considered, as they had to be 
allowed special and differential treatment in any such legal regime.   
198. One way of fighting counterfeit trademark pr oducts had already been mentioned by the 
United States, namely that India was helping Nige ria with technical cooperation and capacity building 
to fight trade in counterfeits.  He said that if de veloped countries would extend similar co-operation 
on capacity-building and awareness-raising to deve loping countries, the fight against counterfeit 
products would be easier and more productive.  Stra ightforward enforcement might not always be a 
straightforward answer. 
199. The representative of Mexico said that Mexico  had adopted a series of measures to fight 
against counterfeit goods and piracy through variou s government branches in coordination with the 
private sector.  This had affected textiles, garmen ts, healthcare products which had been a threat to 
public health in areas such as tobacco and alcoholic drinks, among others.  There had also been illicit 
actions such as downloading books and music, whic h represented a growing trend.  Piracy and 
counterfeiting not only affected right holders, but also  the general population in different areas such as 
public health, and represented a loss of tax earnings. 
200. The Council took note of the statements made. IP/C/M/70 
Page 32  
 
  L. C
OPYRIGHT LIMITATIONS AND EXCEPTIONS :  ONGOING NEGOTIATIONS AT WIPO  - BRIEFING 
BY BRAZIL AND THE UNITED STATES  
201. The Chairman said that this item had been put  on the agenda at the written request of the 
delegations of Brazil and the United States. 
202. The representative of Brazil said that, in April 2012, the President of Brazil, Dilma Rousseff, 
had visited the United States.  In the joint statem ent issued on that occasion, Presidents Rousseff and 
Barack Obama "reaffirmed the commitment of both countries to the conclusion of an effective 
international instrument in WIPO that ensures that copyright is not a barrier to equal access to 
information, culture, and education for visually impa ired persons and persons with print disabilities".  
203. Together with the United States, his delegation had asked for a specific agenda item to be 
included on the Council's agenda to discuss that partic ular issue for two reasons.  Firstly, a briefing on 
the negotiations underway in WIPO was no doubt rele vant to the membership of the Council.  The 
WTO and WIPO were the only inte rnational organizations with mu ltilateral mandates to oversee the 
working of the international IP system and to negotia te IP issues.  The work of the two Organizations 
was by definition interlinked in the area of IPRs.  The second reason for a briefi ng at that stage was its 
timeliness in view of the negotiations having  made a good deal of progress, but further 
intergovernmental engagement w ould nonetheless be needed to complete them successfully.  
204. The chief aim of the instrument under negotia tion at WIPO was to respond to a challenge 
resulting from a systemic flaw in the copyrights system.  The existing legal framework had simply been unable to provide the incentives that were necessary to increase the supply of books and works 
in formats accessible by persons with print disabilities.  
205. It was estimated that, even in rich countries,  no more than five per cent of published works 
were available in such formats - a clear situation of market failure.  In order to remedy that, the 
negotiations at WIPO’s Standing Committee on Co pyrights and Related Rights (SCCR) proposed a 
regime of clearly circumscribed exceptions and limitations that contemplated essentially two issues:  (i) the establishment of a minimum degree of ha rmonization of exceptions and limitations existing 
within national legislations;  and (ii) the possibility  of a trans-border flow of works in accessible 
format.  Both issues went hand in hand.  A signifi cant increase in trans-border flows of works in 
accessible format depended to a large extent on prog ress in making national legislations compatible 
with that aim. 
206. The instrument under negotiation was intended to help meet the needs of a specific 
community that had been suffering from a so-called "book famine".  At the same time, it was being 
designed to ensure a greater level of legal stability and predictability to actions undertaken within the 
scope of the anticipated exceptions and limitati ons, thereby strengthening the copyright system. 
207. Negotiations in the SCCR had commenced in  2009 when a small group of Latin-American 
countries, including Brazil, had tabled a treaty proposal drafted by the World Blind Union, the most important intergovernmental organization represen ting visually-impaired persons worldwide.  
Different proposals were later on s ubmitted by the African Group, the European Union and the United 
States.  All of them had represented major contribut ions to the process.  Since 2011, negotiations had 
gained momentum, and a growing number of countries  from various regions and at different stages of 
development had been working on a single draft text. 
208. While there were points still under negotiation, progress had been steady and he hoped that a 
diplomatic conference would be convened with  the aim of concluding the negotiation of an 
international instrument that woul d benefit persons with print disab ilities.  He was, moreover, hopeful 
that more countries would join the efforts and enga ge constructively in the negotiations.  Lastly, his  IP/C/M/70 
 Page 33 
 
 
  delegation was convinced that only a treaty that cr eated an effective regime would be capable of 
providing persons with print disabilities with expanded access to education and knowledge and 
therefore with an adequate framework fo r the full enjoyment of human rights.  
209. The representative of the United States said that  she was pleased to share with Brazil the 
opportunity to inform the Council of the on-going nego tiations in the SCCR to recognize the need of 
visually impaired persons and persons with print disabilities to access copyrighted materials in a 
format that they could read.  WIPO members were  reviewing and refining a "working document on an 
international instrument on limitations and excepti ons for visually impaired persons/persons with 
disabilities", which was adopted by the previous SCCR meeting.  The working document provided a 
basic framework and currently included a preamble  and a number of draft articles.  The document 
would serve as the basis for future text-based wo rk at the next SCCR meeting in July 2012.  
210. After the previous SCCR meeting in De cember 2011, WIPO members had also met 
informally on several occasions to discuss key issu es.  WIPO members generally agreed that an 
instrument of some nature was needed on an inte rnational level to enhance and clarify the legal 
framework for copyright exceptions and limitations  for the benefit of persons with visual 
impairments/print disabilities, so as to address th e "book famine" that the blind faced, especially in 
developing countries.  Furthermore, WIPO Member s recognized that it was preferable for right 
holders to make their works accessible to persons with visual impairments/print disabilities and that, 
to the extent that such access was not available, appropriate copyright exceptio ns and limitations were 
needed. 
211. Although there was general agreement in the SCCR as to the desired objective, there was no 
agreement yet on how to proceed in terms of whether an instrument should be in the form of a formal 
binding treaty, a declaration, a joint recommendation,  or a combination of such instruments.  In 
addition to the nature of the instrument, the S CCR still needed to engage in further discussion and 
analysis of several substantive areas.  In genera l, the working document being developed called for 
WIPO members to establish exceptions and/or limitations in national copyright law for the blind and 
other persons with visual impairments/print disab ilities;  the working document then provided for a 
system of national laws that used "authorized en tities" to provide special format copies of printed 
works to such beneficiaries.  
212. Perhaps more importantly, it was her delegati on's intention that the instrument would 
establish an enhanced international framework for th e cross-border exchange of special format copies, 
so that non-profit organi zations and government agencies providi ng services to the blind could benefit 
from special format copies made by their counterpart s in other countries.  It was her delegation's hope 
that such a system would help address the "book famine" that the blind faced, particularly in 
developing countries.  In the discussion at the SCCR,  WIPO members continued to develop and refine 
the standards for "authorized entities" which w ould provide access to copyrighted works for the 
benefit of visually impaired pe rsons/persons with print disabiliti es.  Those standards would help 
ensure that "authorized entities" under the instrume nt were operating in a wa y to facilitate access, 
while also maintaining the integrity of their procedures.   
213. Although there was still much substantive work to  be done, there was consensus within WIPO 
to work together to achieve the appropriate out come to meet the needs of visually impaired 
persons/persons with print disabilities, while safeguard ing the interests of authors.  She was confident 
that delegations could succeed in meeting these needs. 
214. The representative of Australia thanked the dele gations of Brazil and the United States for 
placing an item concerning copyright limitations and exceptions on the agenda for the information of 
Members.  His delegation continued to support an  outcome on copyright limitations and exceptions 
for the visually impaired capable of gaining wid espread support across regional groups in WIPO.  In IP/C/M/70 
Page 34  
 
  addition, he pointed out that Australian copyright law already provided for exceptions and statutory 
licences to allow the making of accessible formats for th e print disabled.  An international instrument 
was desirable to regulate the cross-border transfer of accessible formats.  An y instrument needed to 
balance the legitimate inter est of publishers and authors as well as  persons with print disabilities.  His 
delegation would continue to actively engage on this issue. 
215. The representative of Argentina said that his de legation was in favour of concluding a binding 
international instrument that would substantiv ely address the problem of persons with print 
disabilities and allow them to be on an equal foo ting with the rest of the population.  A binding 
instrument should provide a minimum base of excep tions allowing for the production, adaptation, and 
exchange of works in a special form at for visually impaired persons.  Such an instrument would allow 
for the elimination of legal obstacles that preven ted the exchange of such works amongst different 
countries. 
216. The representative of Ecuador welcomed the initiative by Brazil and the United States to 
include an agenda item on copyright limitations  and exceptions in the context of the on-going 
negotiations at WIPO.  As one of the original co-sponsors, together with Brazil, Paraguay and 
Mexico, of the proposal for the negotiation of a treaty for the blind and persons with reading 
disabilities and other forms of reduced mobility, he was pleased to note that, as reported by Brazil and 
the United States, agreement had been reached to wo rk on a consolidated text - a decision that was 
taken up by the WIPO member countries in December 2011 - and that that would serve as a basis for the proceedings of the next session of the SCCR.  He was confident that WIPO would garner sufficient political will to convene a diplomatic c onference on a treaty for the blind at its General 
Assembly in 2012. 
217. At its 21
st session, the SCCR had agreed on a work programme on exceptions and limitations, 
which would include working documents for the form ulation of "an appropria te international legal 
instrument or instruments" in order to advance towards the "obj ective of reaching agreement on 
appropriate exceptions and limitations for pers ons with print disabilities and other reading 
disabilities";  likewise, it would discuss a possible working document on "appr opriate exceptions and 
limitations for libraries, archives, educational, teaching and research institutions, and persons with 
other disabilities". 
218. Ecuador's interest in submitting and co-sponsori ng that initiative together with other WIPO 
members was prompted by the importance of giving visually impaired persons access to information, knowledge and education, and enabling them to pa rticipate in the society.  Based on existing 
flexibilities in the various international IP instrume nts and, in that case, the flexibilities provided in 
the TRIPS Agreement, a proposal to that end was put  forward, which had now been consolidated into 
a single negotiating text.  It was his understanding that  the text would ensure that the WTO's IP rules 
were interpreted in such a way as not to u ndermine Members' policies to promote access to 
knowledge, culture and development, the protecti on of human rights, and otherwise promote the 
public interest, including through appropriate limitati ons or exceptions to copyright and related rights. 
219. His delegation was committed to continue giving the matter such careful and informed 
consideration in the Council as was necessary to ex amine the flexibilities in the Agreement regarding 
limitations and exceptions to copyright and related rights in the light of the objectives and principles 
underpinning that international instrument.  Las tly, he thanked the delegations of Brazil and the 
United States for their briefing on the status of the negotiations of a WIPO treaty for the blind, to 
which his delegation intended to le nd full support, so that a binding instrument addressing the needs 
of vulnerable segments of their societies such as vi sually impaired persons could be agreed without 
delay.  IP/C/M/70 
 Page 35 
 
 
  220. The representative of Paraguay thanked the dele gations of Brazil and the United States for 
introducing the item on the agenda.  Paraguay had been one of the initial proponents of such an 
initiative, together with Brazil, Ecuador and Mexico .  The proposal concerned the adoption of a treaty 
on limitations and exceptions for copyright in favour of the visually impaired and the print disabled 
persons.  His delegation considered that the treaty that was being worked on in WIPO would be the 
best way to couch those limitations and exceptions.  He praised the tremendous amount of work that 
had been accomplished by the community-based organiza tions throughout that period.  His delegation 
continued to support the adoption of a le gally binding document to that end. 
221. The representative of Chile thanked the dele gations of Brazil and the United States for 
bringing the issue of copyright limitation and excepti ons for the visually impa ired to the Council's 
attention.  His delegation considered that a multilate ral treaty that dealt adequately with the question 
of limitations and exceptions would be of the utmo st importance, since limitations and exceptions 
were tools that made it possible to ensure an adequately balanced IP system.  In 2005, Chile had 
proposed the inclusion of the issue on the SCCR ag enda, which up to then had not considered the 
matter to be one of its work priorities.  The pr oposal was based on the understanding that limitations 
and exceptions were tools which made it possible to define and protect a heritage of public property 
and areas of freedom for the use of knowledge and products of human creativity, which were 
necessary not only to guarantee the human right to participate in cultural activities and scientific and 
economic progress, but also to facilitate and promot e the creative activity of authors and cultural 
industries.  
222. In 2008, Chile had submitted, together with Brazil, Nicaragua and Uruguay, a new proposal 
with a concrete work plan on limitations and exceptio ns, which presently formed part of the standing 
agenda of the SCCR.  In addition to this, several years ago, within the framework of the Asia-Pacific 
Economic Cooperation (APEC) forum, Chile had prep ared a survey on copyright limitations and 
exceptions, with a view to learning about the reality of this issue in APEC member countries.  Special 
emphasis had been placed on limitations and excep tions concerning digital technology (e.g. those 
relating to temporary copies, technological protec tion measures, reverse engineering, and Internet 
service providers).  The survey had also covered limitations and exceptions relating to educational 
use, use by libraries and archives, and use by pe rsons with visual/auditory disabilities, as well as 
others of a more general nature concerni ng use by non-commercial and non-profit entities, 
translations, etc.  The report on this work - fi nally approved as a document of the APEC Intellectual 
Property Rights Experts' Group - could be downloa ded free of charge from the APEC website, where 
it had already been viewed around 15,000 times.  Lastly, in March 2012, Chile had organized a 
seminar in Santiago, in conjunction with APEC, to look at these issues in greater detail.  The seminar 
had been attended by representatives from the 21 APEC economies. 
223. The Council took note of the statements made. 
M. INFORMATION ON RELEVANT DEVELOPMENTS ELSEWHERE IN THE WTO 
(i) Status of acceptances 
224. The Chairman said that, since the Council's meeting in March 2012, Togo and the Kingdom 
of Saudi Arabia had deposited their instruments of acceptance of the Protocol Amending the TRIPS 
Agreement on 13 March and 29 May 2012, respectively.3  To date, 44 instruments of acceptance had 
been deposited, including the one by the European Union and its member States.  He encouraged 
those Members that had not yet notified their accepta nce of the Protocol to ensure that necessary 
measures were being taken in their capitals to a llow the consideration of the acceptance in a timely 
fashion. 
                                                      
3 Documents WT/Let/848 and WT/Let/855.  IP/C/M/70 
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  225. In the light of the decision taken by the Ge neral Council to extend the period for acceptance 
of the Protocol Amending the TRIPS Agreem ent until 31 December 2013, the WTO Director-
General, at the General Council meeting of 1 May 2012, had drawn Members' attention to the 
importance of accepting the Protocol and urged tho se Members who had not yet accepted it to consult 
with their governments so that domestic procedures  could be completed in due course.  That was 
needed to give legal certainty to this additiona l pro-health flexibility for the more vulnerable 
Members.  He had also recalled that by accepting the Protocol, a Member needed not implement domestic legislation to use the flexibilities;  the acceptance simply confirmed the existing political 
agreement that the new flexibilities should be open to ot her Members to make use of, if they chose  to 
do so. 
226. In that context, the Chair recalled that the S ecretariat had made available on the WTO website 
information regarding the procedural requirements of  acceptance together with a model instrument of 
acceptance
4, which could be accessed through the dedicat ed gateway page on "TRIPS and Public 
Health".5  The purpose of that information was to assist  Members in drawing up their instruments of 
acceptance.  The relevant information was availa ble on a webpage on "How to Accept the Protocol 
Amending the TRIPS Agreement". 
227. The representative Viet Nam said that Viet  Nam was in the process of preparing its 
acceptance of the Protocol and expected the domestic procedures to be soon completed. 
(ii) Accessions 
228. The Chairman said that Montenegro had become the 154th Member of the WTO on 29 April 
2012.  In paragraph 259 of the Report of the Working Party on the Accession of Montenegro,6 the 
representative of Montenegro had stated that Mont enegro would apply the pr ovisions of the TRIPS 
Agreement no later than the date of its accession to  the WTO, without recourse to any transitional 
period.  The relevant commitment had been incorpor ated in paragraph 2 of its Protocol on Accession.7 
229. Samoa had become the 155th Member of the WTO on 10 May 2012.  In paragraph 223 of the 
Report of the Working Party on the Accession of Samoa8, the representative of Samoa had confirmed 
that Samoa would apply the TRIPS Agreement no la ter than 1 July 2013 in accordance with the 
Action Plan contained in the report.  The relevant commitment has been included in paragraph 2 of its 
Protocol on Accession.9 
(iii) Disputes 
230. By means of a communication, dated 13 March 2012, Ukraine had requested consultations 
with Australia regarding the issue of "Australia - Certain Measures Concerning Trademarks and Other 
Plain Packaging Requirements Applicable to Tobacco  Products and Packaging" (document IP/D/30).  
The following Members had requested to join t hose consultations:  Guatemala, Uruguay, Brazil, 
Norway, the European Union, New Zealand, Cana da and Nicaragua (documents WT/DS434/2 to 9, 
respectively). 
231. Furthermore, by means of a communication, dated 4 April 2012, Honduras had requested 
consultations with Australia on the same measur es (document IP/D/31).  The following Members had 
                                                      
4 http://www.wto .org/english/tratop_e /trips_e/accept_e.htm 
5 http://www.wto.org/english/trat op_e/trips_e/pharmpatent_e.htm 
6 Documents WT/ACC/CGR/38 and WT/MIN(11)/7. 
7 Documents WT/MIN(11)/28 and WT/L/841. 
8 Document WT/ACC/SAM/30. 
9 Documents WT/MIN(11)/27 and WT/L/840.  IP/C/M/70 
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  requested to join these consultations:  Brazil, Zimbabwe, New Zealand, Nicaragua, Guatemala, 
Uruguay, the European Union, Ukraine, Canada, El  Salvador, Norway, the Philippines and Indonesia 
(documents WT/DS435/2 to 14, respectively). 
232. The Council took note of the information provided. 
N. OBSERVER STATUS FOR INTERNATIONAL INTERGOVERNMENTAL ORGANIZATIONS  
233. The Chairman said that there were 15 pending  requests for observer status in the TRIPS 
Council by other intergovernmental organi zations.  That list was contained in 
document IP/C/W/52/Rev.12.  While the Council had not been able to progress on the issue of permanent observer status of late, there appeared to be agreement that it consider whether observer 
status could be granted on an ad hoc  meeting-by-meeting basis to any of those IGOs whose requests 
were pending and who met the criteria for observe rs as defined in Annex 3 of the General Council 
Rules of Procedures.  
234. To that end, in June 2011 the Council had requ ested the Secretariat to contact the various 
IGOs with pending requests, in order to update the information they had provided earlier, including 
information on the nature of their work and the r easons for their interest in being granted observer 
status.  Since that time, the Secretariat had r eceived updated information from the European Free 
Trade Association (EFTA), the South Centre, the Conférence des Ministres de l'Agriculture de 
l'Afrique de l'Ouest et du Centre  (CMA/AOC), the Cooperation Council of the Arab States of the Gulf 
(GCC), the United Nations Environment Programme (UNEP), and the International Organization of 
Vine and Wine (OIV).  The releva nt information had been faxed to Members and was also available 
on the Members' website. 
235. As requested by the Council at its last meeting,  he had consulted with interested delegations 
on the issue of observer status, in particular in the li ght of that updated informat ion.  It appeared that 
delegations still needed more time to examine the upda ted information.  Hence, he suggested that he 
continue his consultations on the requests for observe r status with a view to ascertaining whether the 
Council could take any decisions at its next meeting. 
236. The Council so agreed.  
O. OTHER BUSINESS  
(i) Invitations to ARIPO and OAPI 
237. The Chairman recalled that, at its meeting in J une 2010, the Council had agreed to grant an ad 
hoc observer status on a meeting-to-meeting basis to the African Regional Intellectual Property 
Organization (ARIPO) and the African Intellectual Pr operty Organization (OAPI).  He suggested that 
that the Council again invite ARIPO and OAPI to attend the Council's next formal meeting on an ad 
hoc basis.   
238. The Council so agreed. 
(ii) Tenth annual review under paragraph 2 of the decision on the "Implementation of 
Article 66.2 of the TRIPS Agreement" 
239. The Chairman recalled that paragraph 1 of  the decision on the "Implementation of 
Article 66.2 of the TRIPS Agreement" provided th at developed country Members submit annually 
reports on actions taken or planne d in pursuance of their commitments under Article 66.2.  To that 
end, they were required to provide new detailed reports every third year and, in the intervening years, IP/C/M/70 
Page 38  
 
  updates to their most recent reports.  Those reports  were required to be s ubmitted prior to the last 
Council meeting scheduled for the year in question.   Paragraph 3 of the Decision determined the 
information to be provided in such reports. 
240. The first, second and third sets of detaile d annual reports under the Decision had been 
presented to the Council's end-of-year meetings in  2003, 2006 and 2009, and updates to the Council's 
meetings in the intervening years.  Therefore, in  2012 developed country Members were to submit a 
fourth set of new detailed reports  on actions taken or planned in pursuance of their commitments 
under Article 66.2, prior to the Council's end-of -year meeting scheduled for 6-7 November.  As 
provided in paragraph 2 of the Decision, the Counc il was to review these updates at that meeting. 
241. Accordingly, he suggested that developed c ountry Members be requested to provide new 
detailed reports on actions they have taken or planned in pursuance of their commitments under 
Article 66.2 by 11 October, i.e. about three w eeks before the meeting, allowing for their timely 
circulation and review at the Council's meeting in November.  242. The Council so agreed.   
 
243. The Chairman said that, like the annual reports  on technical cooperation activities that the 
Council had discussed under item I, the notifications  under Article 66.2 activities represented another 
area where the Council had produced a significant amount of invaluable documentation, containing information that could be difficult to access and revi ew to obtain an overall picture of developments.  
He noted that LDC delegations had commented on that  question in the past.  In addition, bearing in 
mind the obligation on the Council, already noted un der item I, to seek improvements in resources for 
processing and managing documentation, he proposed th at the Secretariat be invited to identify ways 
of facilitating the submission, processing and circula tion of such information, thus easing the burden 
for Members submitting that information and for Me mbers consulting that information alike.  The 
process would be undertaken without prejudice to th e existing reporting framework as agreed by the 
Council under Article 66.2.  He proposed that the S ecretariat be invited to hold technical consultations 
with delegations and report to the Council at its next meeting.   
244. The Council so agreed.  
245. The representative of the Secretariat said that, like  in the past few years, the Secretariat was 
planning to hold a workshop on the implementati on of Article 66.2 on 5 November 2012, back-to-
back with the Council's next meeting.  Following th e format of the previous events, the workshop 
aimed to provide a forum for informal dialogue between LDC and develope d country delegations.  
The primary objective of the workshop was to assi st LDC Members to understand the contents and 
the background to the reports in th at area.  That workshop would be particularly valuable given that 
2012 represented the due date for new detailed re ports by developed country Members.  The 
workshop could also provide an opportunity to discu ss ways of facilitating the submission, processing 
and circulation of such information.   
246. In addition, he recalled that the next in the series of technical cooperation workshops on IP 
and public health convened in close cooperation with WHO and WIPO was due to be held on 
9-12 October 2012.  The due date for nominations from developing country and economy in transition 
Members was 15 June. 
(iii) Other reviews  
247. The Chairman said that, as had already been discussed under item I, the Council would take 
up at its November meeting its annual review of technical cooperation under Article 67.    IP/C/M/70 
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  248. Furthermore, the Council would also have on its agenda the annual review of the functioning 
of the Paragraph 6 System.  In his consultations prior to their present meeting, he had encouraged 
delegations to share with him any thoughts or su ggestions concerning the arrangements for that 
review that they might have.  He said that it was his intention to pursue further consultations prior to 
the November meeting on prepara tions of that annual review. 
(iv) Fulfilment of TRIPS obligations 
249. The Chairman recalled that the delegation of Cuba had indicated that it wished to raise under 
"Other Business" the issue of fulfilment of TRIPS obligations. 
250. The representative of Cuba said that her intervention on counterfeiting in the United States of 
a prestigious and well-known Cuban trademark came  at good time, since it followed the examination 
under item K of the proposals of two Members con cerning counterfeit goods, alle gedly to ensure the 
relevance and protection of trademark rights.  Because of the importance of regulating IPRs and of their impact on international trade, the TRIPS Ag reement had been welcomed as one of the great 
achievements of the Uruguay Round.  Since then , many developing countri es and least developed 
countries with limited resources and economic and ins titutional constraints had had to make enormous 
efforts to adapt their domestic legislation to the provisions of that Agreement.  It was therefore 
astonishing and shameful that developed countries like the United States should maintain legislation 
that was contrary to the Agreement, even where it had been declared inconsistent by the DSB.  In 
February 2002, the DSB had ruled that Section 211  of the Omnibus Appropriations Act of 1998 was 
inconsistent with the Agreement and with the Paris Convention for the Protection of Industrial 
Property.  However, the United States had yet to ta ke any action to implement the DSB's rulings and 
recommendations.  Nothing could possibly justify th e United States' illegal conduct, which had lasted 
more than ten years. 
251. Section 211 of the Omnibus Appropria tions Act denied Cuban owners and 
successors-in-interest of Cuban nationals the rec ognition and exercise in the United States of their 
rights to trademarks and trade names.  Under this legi slation, the Bacardi company, in a flagrant act of 
piracy, was using the Havana Club trademark in th e United States to market rum that was not of 
Cuban origin.   
252. In 1976, the Cuban company CUBAEXPORT had obtained ownership of the Havana Club 
trademark in the United States, and its registra tion had been periodically renewed without any 
problem until 2006 in accordance with the procedures laid down by the US Patent and Trademark Office (USPTO).  In 2006, the Office of Foreign Asse ts Control of the US Department of the Treasury 
had denied CUBAEXPORT a licence permitting paymen t of the fee for the re newal of the trademark 
registration and, consequently, the USPTO could not process the application that had been submitted.  
The refusal had been covered by Section 211.  During years of court battles between CUBAEXPORT 
and the Office of Foreign Assets Control, the US civil courts had upheld the decision of the Department of the Treasury, thereby legitimizing the application of a measure that violated the basic 
multilateral trade principles of national and MFN tr eatment.  As recently as 14 May 2012, the US 
Supreme Court had rejected CUBAEXPORT's pe tition for the case to be reviewed, thereby 
definitively depriving the Cuban entity its right to  ownership of the trademark which it legally had 
held for more than 30 years prior the introduction of Section 211. 
253. The US Government was entirely responsible fo r what had happened.  During the judicial 
proceedings which had just reached their unjust c onclusion, the Office of Foreign Assets Control had 
argued that it would not issue the licence because it was under State Department orders not to do so, 
since that would be inconsistent with US foreign policy towards Cuba. IP/C/M/70 
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  254. She added that the WTO legal texts, in this case the TRIPS Agreement, must prevail over the 
political interests of individual countries.  What  had happened was a seri ous violation of the 
multilateral industrial property commitments by th e United States, a country which paradoxically had 
played a leading role in building the new multilateral system of rights and obligations in that area.  
This dispute, together with other on-going lawsu its against Cuban patents and trademarks in US 
courts, left no doubt that the underlying objective was to destroy, by any means, Cuba's intangible 
goods which were important competitive resources for the country's sustainable development. 
255. In contrast, Cuba had always respected its ob ligations under international industrial property 
legislation without the slightest discrimination, and in doing so had ensured that more than 5,000 US 
trademarks and patents continued to benefit from re gistration in Cuba.  If the US Government failed 
to act, it would be solely responsible for stea ling the Havana Club trademark from its legitimate 
owner, the company CUBAEXPORT, and for the nega tive consequences that this could entail for the 
reciprocal protection of industrial property.  In view of the paramount importance of these 
considerations, she requested that the issue be included as an agenda item at the Council's next 
meeting. 
256. The representative of the European Union than ked Cuba for its interesting and thought-
provoking intervention, which concerned a company based in the European Union. 
257. The representative of Ecuador said that the stat ement by Cuba gave much cause for concern 
as it related to non-compliance with and lack of re spect for IPRs of a developing country Member.  
More than ten years had passed since 2002, wh en the WTO Appellate Body had ruled that 
Section 211 of the Omnibus Appropriations Act of 1998 was inconsistent with the TRIPS Agreement 
and the Paris Convention for the Protection of In dustrial Property, and its  recommendations had still 
not been implemented by the United States.  The legal effect of the US legislation and the United States' non-compliance with the Appellate Body's recommendations had been to prevent IP holders 
from obtaining recognition in the United States for their rights on trademarks or trade names of 
recognized Cuban ownership, such as the "Havana Club" rum trademark.  
258. Ecuador agreed with Cuba that to be consis tent with the often cited issues of systemic 
concerns, the exercise of rights, the implemen tation of commitments under the multilateral trading 
system, and with the WTO agreements and the TR IPS Agreement in particular, all Members were 
under the obligation to comply with the undertakin gs made under the Agreement, and especially the 
rulings of the highest legal instances of the Organiza tion.  Ecuador thus endor sed Cuba's concern that 
there were still flagrant violations of IPRs w ithin the WTO framework and that the non-complying 
parties were failing to rectify those breaches in a time ly fashion.  The crux of the matter was that the 
United States must take a coherent line and had not only a moral but also a legal obligation to comply 
with the Appellate Body's decisions and to repeal Section 211. 
259. The representative of Viet Nam encouraged th e parties involved to fully implement the 
rulings and recommendations of the DSB. 
260. The representative of Bolivia expressed his concern about the violation of Cuban IPRs in 
breach of the DSB decision.  The non-compliance was all the more egregious as these were the very 
Members who promoted the adoption of new IP obliga tions and extension of IPRs to other areas.  
Hence he supported Cuba's statement and urged the country concerned to implement the DSB 
decision. 
261. The representative of China said th at she shared Cuba's concern that its IPR holders could not 
enjoy equitable and appropriate protection of the rights granted by the TRIPS Agreement.  She hoped 
that the issue could be resolved soon.  IP/C/M/70 
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  262. The representative of Argentina said that he shar ed Cuba's position.  As Argentina had stated 
in previous DSB meetings, this non-compliance of th e United States that had lasted for over ten years 
had negative effects on the credibility of the multilate ral trading system.  All the more so when the 
more vulnerable Members of the Organization were i nvolved.  He invited the United States to bring 
Section 211 of the Omnibus Act 1998 into compliance with the rulings and recommendations of the 
DSB.  Since February 2002, this body had ruled that those measures were incompatible with the 
TRIPS Agreement and the Paris Convention. 
263. The representative of Brazil expressed his support for the statement made by Cuba, and said 
that respect for the enforcement of DSB decisions  by all Members was a key condition for the proper 
functioning of the rules-based international trading system embodied in the WTO. 
264. The representative of Paraguay supported C uba's position concerning the United States' 
compliance with the DSB ruling, and urged the pa rty concerned to fulfil its legal commitment. 
265. The representative of Nicaragua said that ten years had gone by without the United States 
having brought Section 211 of the Omnibus Appropr iations Act of 1998 into conformity with the 
rulings and recommendations of the DSB.  That deferment of compliance with the recommendation 
undermined the efficiency and credibility of the DSB and the multilateral trading system and could set 
a precedent that would affect other Members and especially developing countries.  Nicaragua supported Cuba's claims and urged the United Stat es to abide by the provisions of the TRIPS 
Agreement by repealing Section 211 and reach ing a satisfactory solution to the case. 
266. The representative of the Dominican Republic ur ged the United States to fulfil the decisions 
of the Appellate Body with reference to this case in  order not to diminish th e credibility of the WTO. 
267. The representative of Chile express his concern for the protracted non-fulfilment of the 
resolutions and decisions by the Appellate Body, which had found that Section 211 of the Omnibus 
Appropriations Act was not consistent with the TR IPS Agreement, in particular with two of its 
guiding principles, namely MFN and national treat ment.  The non-implementation of DSB decisions 
by the United States had a negative impact on the credibility of the WTO and of the TRIPS 
Agreement, in particular with regard to tradem arks.  Chile urged the United States to address the 
situation as soon as possible and to bring its legisl ation into compliance with the WTO IP provisions 
as recommended by the DSB. 
268. The representative of Bolivarian Republic of Ven ezuela said that it was necessary to put an 
end to the economic, commercial and financial blockade that the Un ited States had imposed on Cuba, 
including the application of what was known as the Helms-Burton Act.  By attempting to prevent the 
development of foreign investment in Cuba associat ed with the international sale of Cuban products 
with trademarks and trade names that enjoyed worl dwide prestige, the United States was causing that 
country irreparable damage.  In the present financ ial crisis, which was affecting trade and would 
continue to affect it even more, the United Stat es' maintenance of such a stance towards that 
Caribbean island would generate even  greater damage than had already been done.  Nine years earlier, 
a firm decision had been taken by the DSB.  The decision was supported by countries that believed in 
the benefits of multilateralism and the need to comply  with the Organization's rulings in order to make 
it stronger.  Yet there had been no compliance.  Th erefore, Venezuela urged the United States to take 
steps, as a matter of urgency and necessity, to  comply with its obligations under the TRIPS 
Agreement.  The United States was a signatory  of the TRIPS Agreement, under which it was 
constantly making demands from de veloping countries but, as demonstrated by this case, with which 
the United States itself was not prepared to comply. 
269. The representative of India supported the statemen t made by Cuba and believed that, just as 
IPRs were important for developed countries, they were equally important fo r developing countries.  IP/C/M/70 
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  Lack of engagement on the part of developed Me mbers in respect of genetic resources, traditional 
knowledge and other issues which were important to  developing countries showed disrespect for the 
IP of these countries.  India urged the United States to comply with the ruling of the DSB. 
270. The representative of the United States, raising a point of order, said that normally detailed 
discussions would be addressed under a specific age nda item so that all delegations would have 
advance notice of the topic and be able to come fully  prepared to respond to that agenda item.  Since 
this particular topic was raised under "Other Busi ness", she had not expected the discussion to have 
been as extended.  As could be seen from the many voices that were expressed, the topic was of 
interest to many and her delegation looked forwar d to discussing it in future TRIPS Council meetings. 
271. The representative of Cuba thanked the United Stat es for its suggestion and requested that this 
matter be included on the agenda of the Council's next meeting as a permanent item. 
272. The representative of the United States said that the normal process for including a topic as an 
agenda item should be applied, wh ich involved submitting a written requ est ten days in advance of the 
meeting.  If in the future there were to be interest  to make a specific topic a permanent agenda item, 
the Council would need to consider that at that  time.  However, it would be unusual to make a 
country-specific measure a standing agenda item, and such a step would need careful consideration. 
273. The representative of Cuba said that, at the a ppropriate time, her dele gation would present an 
official written request concerning the way in whic h Cuba would like to deal with this matter. 
274. The Council took note of the statements made. 
__________