RESTRICTED  WORLD TRADE  
ORGANIZATION  TN/IP/M/21 
28 May 2009 
 
 (09-2584) 
Council for Trade-Related Aspects 
of Intellectual Property Rights Special Session  
 
  
MINUTES OF MEETING 
 
Held in the Centre William Rappard
 
on 5 March 2009  
 
Chairman:  Ambassador C. Trevor Clarke (Barbados) 
 
 
Subjects discussed  Page No . 
 
A. ADOPTION OF AGENDA ...............................................................................................................1  
B. NEGOTIATION ON THE ESTABLISHMENT OF A MULTILATERAL SYSTEM OF 
NOTIFICATION AND REGISTRATION OF GEOGRAPHICAL INDICATIONS FOR WINES AND 
SPIRITS ............................................................................................................................... .........1  
(i) Cluster 1 (Legal effects and participation).......................................................................2  
(ii) Cluster 2 (Notification and registration) ........................................................................24  
(iii) Cluster 3 (Other elements such as costs and burdens and special and 
differential treatment) ...................................................................................26  
C. OTHER BUSINESS ......................................................................................................................30  
 
_______________ 
 
 A. A
DOPTION OF AGENDA  
1. The Chairman  proposed that under "Other business" the Special Session briefly discuss its 
future work. 
2. The twenty-first Special Session agreed  to adopt the agenda as set out in WTO/AIR/3317. 
B. NEGOTIATION ON THE ESTABLISHMENT OF A MULTILATERAL SYSTEM OF NOTIFICATION AND 
REGISTRATION OF GEOGRAPHICAL INDICATIONS FOR WINES AND SPIRITS  
3. The Chairman  recalled that, at the last formal meeting of the Special Session in October 2008, 
calls had been made for an intensif ication of work on the technical issues.  Since then he had held a 
series of consultations and informal  meetings.  He thanked all dele gations consulted for their frank 
and helpful comments and suggestions.   TN/IP/M/21 
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  4. At those meetings, Members had understood that his mandate was limited to the negotiation of 
a multilateral system of notification and registration of  geographical indications for wines and spirits.   
5. At those meetings, the delegation of the European Communities (EC) had clarified the status 
of its proposal.  It had confirmed that the pr oposals contained in document TN/C/W/52,  entitled 
"Draft modalities for TRIPS related issues", dated 19 July 2008, and in particular paragraphs 1 to 3, 
reflected the EC's position on the register.  The EC had also indicated that the proposal on the register 
was supported by more than 100 Members.  At the open-ended meetings of 4 and 5 December several 
delegations of the Joint Proposal Group as well as th e delegation of Singapore sought clarifications 
regarding the register proposed in TN/C/W/52.  The EC gave oral replies at those meetings.  In response to requests made by other delegations, th e EC had recently provided a written compilation of 
the elements of its oral interventions made in December.  The compilation was faxed to all 
delegations on 25 February asking that requests for further clarifications, if needed, be addressed to 
the EC delegation before 3 March in  order to ensure an efficient meeting.  The Secretariat had made 
available some copies of the EC's replies at the b ack of the room for those delegations who might not 
have them.  The Chairman said that he understood that some delegations had communicated further 
comments and requests for clarification to the EC , and thanked those dele gations who had copied 
their communications to the Chair and the Secretariat. 
6. As had been done at the December meetings, the Chairman suggested that the discussion be 
organized by clusters of elements based on the categorization made by his predecessor in paragraph 4 of his report contained in TN/IP/18, namely:  (i) lega l effects and participation;  (ii) notification and 
registration;  and (iii) other elements such as fees , costs and administrative burdens, particularly for 
developing and least-developed countries, and speci al and differential treatment (S&D).  The 
questions posed by several delegations at the meetings of 4 and 5 December as well as the replies given by the EC could be placed in such clusters.   
7. He also encouraged delegations to seek cl arifications and make comments on the joint 
proposal contained in TN/IP/W/10/Rev.2 as well as on the Hong Kong, China proposal contained in 
TN/IP/W/8. 
8. Finally, he asked delegations to bring concre te examples of concerns and explain how the 
registration of trademarks and GIs operated at their domestic level so as to have a wide-ranging 
discussion on each of the issues. 
9. The Special Session
 so agreed. 
(i) Cluster 1 (Legal effects and participation) 
10. The representative of the European Communities  said that because of the importance his 
delegation and the other 107 co-sponsors of docum ent TN/C/W/52 attached to this issue, his 
delegation had circulated in writing the elements of  the replies it had given during the Special Session 
meetings of 4 and 5 December.  Further to this  circulation it had received additional requests for 
clarification.  As suggested by the Chairman, he  would structure his intervention according to the 
three clusters. 
11. Recalling his delegation's full supp ort of each and every part of document TN/C/W/52, he said 
that that document reflected the EC's position on th e register.  There were some issues regarding 
notification and registration or other issues which had voluntarily not been touched upon in 
TN/C/W/52.  Certain key questions had been settle d, and his delegation would therefore build upon 
the work done in the past inst ead of reinventing the wheel.    TN/IP/M/21 
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  12. On the important issue of development, he not ed that TN/C/W/52 was the only proposal that 
addressed the key interests of developing countri es in a TRIPS amendment to include a disclosure 
requirement in patent applications and the extensi on of the additional GI protection currently enjoyed 
by geographical indications (GIs) for wines and spirits to GIs for other products.  The EC had 
substantially adjusted its views on the disclosure is sue to better take into account the interests of 
developing countries.  Secondly, TN/C/W/52 w as the only proposal that included provisions on 
special and differential treatment for developing countries and in particular for least-developed 
countries.  Finally, TN/C/W/52 was the only proposal which was supported by a vast majority of developing countries.  There was no comparison in terms of support by those countries between this 
proposal and others. 
13. He recalled that his delegation had expanded at length on the important issue of the legal 
effects of registrations at the meeting of last December.  He wished to address a few aspects which had not been touched upon:  
- When and by whom would the register be cons ulted?  Document TN/C/W/52 stipulated that 
the register would be consulted and its inform ation be taken into account:  (i) by domestic 
authorities;  (ii) in the framework of existing procedures provided for by national law;  and, 
(iii) in relation to decisions regarding regist ration and protection of trademarks and GIs.  
Under the proposal, domestic authorities would cons ult the register and take this information 
into account when making decisions regarding th e registration and protection of trademarks 
and GIs.  In response to question 47, he said that such decisions might be made in the framework of administrative procedures regard ing trademark or GI applications, e.g. 
examination procedures and third parties' oppositio n procedures, but that this answer also 
applied to judicial decisions regarding the protection of trademarks and GIs. 
 - What would be the consequences of a registration for the national system of a third country?  
What would be the changes brought by the proposal contained in TN/C/W/52 in comparison 
with the EC's previous proposals?  The issue of the consequences of a registration was one of 
those where his delegation had shown much flex ibility.  TN/C/W/52 had incorporated changes 
such as the elimination of the opposition procedure at international level.  He recalled that in 
November 2007 the EC's new ideas had proposed a rebuttable presumption regarding three elements:  (i) that the a name on the register  was a GI in accordance with the definition of 
TRIPS Article 22.1;  (ii) that it was not a generic;  and (iii) that  it did not falsely represent to 
the public the true origin of the goods.  In contrast, document TN/C/W/52 focused on only two 
consequences of the register.  The first one w ould be that a name on the register would enjoy 
the prima facie evidence that it met the definition of a GI under TRIPS Article 22.1.  As the rebuttable presumption seemed to have raised concerns in some countries, TN/C/W/52 had 
made clear that the information of the register should be considered on its appearance, i.e. at 
first sight as attesting only a fact.  In other word s, the register with all the information notified 
by the country of origin would provide the evidence that the name was, on its appearance, a GI.  The second consequence of an entry on the register would be that any assertion regarding 
the genericness of the name should be substantia ted.  There would no longer be any rebuttable 
presumptions, and actually not even a prima f acie evidence concerning genericness.  These 
were significant changes, showing that the proposal in TN/C/W/52 was a compromise.  He 
added that this compromise on the consequences of  a registration had been made to address, as 
part of S&D negotiations, the developmental aspect. 
 - In response to the question why the other exceptions under Article 24 had not been mentioned, 
he said that this related to a critical element in the proposal of TN/C/W/52, namely the clear 
distinction that should be made between GI definition and GI protection.  Prima facie evidence 
related only to the GI definition:  the entry of  a name on the register did not imply automatic 
GI protection.  To be protected in a third c ountry, the GI would have to follow the procedures TN/IP/M/21 
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  provided for in that country.  When consultin g the register and taking its information into 
account, the domestic authorities would continue to handle the procedure, the evidence, the 
legal arguments and take the final decision on the matter at stake in light of all elements 
available.  In other words, when domestic au thorities examined whether or not a GI could be 
protected, they would continue to be able to  rely upon the domestic rules regarding, for 
example, the exceptions of genericness or of  prior trademark rights.  Under the proposal 
contained in TN/C/W/52, Article 24 TRIPS a nd all its exceptions would continue to be 
available. 
 - As regards the meaning of the words "evidence" , "proof" and "substantiate", he said that the 
proposal contained in TN/C/W/52 did not aim at providing a legal definition of each of them.  
He would, however, give some clarifications.  Firstly, "prima facie evidence" was evidence, 
which on its appearance, or literally put, attested at first sight to a certain fact:  the register 
with all the information notified by the country of origin regarding a geographical name would 
provide evidence that a name was, on its appearance, a GI.  "Proof" related to the elements of 
the GI definition under Article 22.1.  It could take any form provided for under domestic law.  
It would be up to each domestic authority to assess whether or not the proof provided actually related to the elements of the GI definition.  Regarding the meaning of the requirement that 
"assertions on the genericness must be substan tiated", he said that the provision would be 
implemented by each Member according to its domestic legal system and practice.  At this stage, his delegation did not see the need for agreeing a precise definition of those terms;  
however, if Members so wished, his delega tion could enter into such an exercise. 
  - As regarded questions on procedure, he said that first each GI would go through a domestic 
process of approval - which could be administrative or judicial - in a Member in accordance with its IP legislation, which had been duly not ified and scrutinized by other Members.  In 
other words, the registration of the GI on the re gister would have been accompanied by all the 
necessary information agreed by Members, showing that it had met the definition of 
Article 22.1.  A GI would remain in the register as long as it was protected in the country of origin in accordance with the TRIPS Agreement.   The register would be consulted in the 
course of trademark procedures, which actually would not be different from the proposal in 
document TN/C/W/10/Rev.2.  The register would not, however, entail protection:  the fact that 
a name had been recorded on the register coul d not be treated as a ground for refusing, for 
example, a trademark application by a third party.  Using the example of the GI "Bordeaux", he said that the register would contain all th e supporting information checked by the EC and 
France that "Bordeaux" met the TRIPS GI definition and was protected in the country of origin in accordance with the TRIPS Agreement.  If the GI right holders of "Bordeaux" 
wanted to protect it in a third country, they would have to go to the competent national 
authority to seek the type of protection provided  for in that country.  They would have to 
follow the procedure described and submit the info rmation they had provided.  In the course of 
that procedure the authority of that third country would consult the register and note that "Bordeaux" was not on the register.  There would be two options possible.  Option 1:  no third 
party had submitted any information.  The author ity would not look further into the issue of 
the GI definition and would treat it in accord ance with its national procedure, it being 
understood that the authority might deny protec tion to "Bordeaux" on any other grounds in 
accordance with its national law or any relevant international treaties to which the country was 
bound.  Option 2:  if on the contrary the national authority held proof that the GI on the register did not meet the GI definition or if a third party had provided information on the GI, 
the authority might decide to dig further into the case.  It might ask the GI right holder to 
provide more supporting information and the national authority would, on the basis of the elements collected, decide whether or not "Bord eaux" met the GI definition.  It went without 
saying that the authority would decide on the overall question of whether or not "Bordeaux"  TN/IP/M/21 
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  should be protected in its territory in accordan ce with its domestic law.  Whatever decision 
was or were to be taken, it might be revised at  any time if the national procedures so allowed.  
 - On Member coverage or participation, he said that TN/C/W/52 had clearly indicated that 
"Each WTO Member shall provide that domestic authorities will consult the register and take 
its information into account ...".  In other word s, the register would apply to all Members. 
 14. The representative of El Salvador
 thanked the EC delegation for its explanations.  She wished 
to focus on the statement made by the EC representa tive that the procedure for the registration of GIs 
would take into account the principle of territoria lity and respect the rule that procedures would be 
based on the domestic legislation of each Member.  In the first option mentioned by the representative 
of the EC, the competent administrative authority in El Salvador, the registrar, could accept the 
application provided that it had complied with all th e requirements of the domestic legislation.  In the 
second option, he could reject the application because he had the information or was aware, based on 
his discretionary powers, that there was indeed a GI , but that this GI was not protected within the 
national territory.  The registrar would reject th e application and, in accordance with the legal 
procedures, parties would be duly notified and have, under her country's  legislation, a time-limit to 
appeal before the last instance in El Salvador, the Supreme Court, which might decide that the 
application was not eligible for protection.  She ask ed what the situation would therefore be if, on the 
one hand, the GI had been definitely rejected at th e last instance in a Member and, on the other hand, 
the GI had been registered on the multilateral regist er.  Could a final decision by the last judicial 
instance of a Member be overturned by the multilateral register? 
15. The representative of Canada  thanked the European Communities for having provided a 
written version of their oral answers.  This had been  useful in better understanding some of the EC's  
propositions.  While the EC paper had answered many of Canada's questions, th ere were still others 
that needed to be addressed, and replies that would require further clarifications and explanations.  His 
delegation did not see why the discussion should be limited to only a few items.  There should be a 
wide discussion to ensure that all Members ha d a better understanding of the EC's proposal.   
16. His delegation also considered it useful to comp are the EC's ideas with  the ideas in the joint 
proposal.  In this regard, he pointed out that ther e were not "proponents" on one side and "opponents" 
on the other but rather "supporters" of another approach.  The joint proposal fully satisfied the 
mandate.  As was suggested by the Chairman, questi ons from the floor on the joint proposal would be 
welcome.  
17. In response to the EC's fax of 25 February, Ca nada had identified, and communicated to the 
EC, a number of questions that had not been answered or only partly answered.  His delegation had some difficulties in fully understanding  the EC's ideas on elements such as prima facie  evidence, 
burden of proof and genericness exceptions, for vari ous reasons:  partly because they had not fully 
understood the EC's explanations, partly because of basic policy disagreement and partly because they 
did not see how these elements would fit into the Doha mandate.  Some of Canada's requests for clarification and related policy, legal and proced ural questions had been addressed in the EC's 
statement.  The EC had indicated in many instan ces that key legal and procedural issues would be 
decided according to the receiving country's domestic  laws and procedures, which was in compliance 
with Article 1.1 of the TRIPS Agreement.  As an  exporter of wines and spirits, Canada was seeking 
information on how individual co-sponsors, the EC a nd the other Members, sa w key issues in relation 
to their legal systems and processes.  The EC represen tative had, at a previous meeting, said that the 
WTO was about market access and practical effects and not just policy.  His delegation wished to have a better understanding of the effects of the EC's  ideas in those regards.  Finally, the EC itself had 
chosen not to answer certain questions.  As many of them were important to assess the EC's latest 
ideas, his delegation would therefore reiterate them. TN/IP/M/21 
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  18. On legal effects, his delegation wished to recei ve replies in greater detail from the EC and 
other co-sponsors of TN/C/W/52 with regard to  how some issues were being addressed in their 
respective systems.  It was indicated that decisions and procedures would be left to domestic authorities.  This would raise two questions.  Firstly, would all Members have the same view 
regarding terms such as "proof", "evidence to the contrary" and "substantiation", or would they not be 
creating a new fertile area for disputes in the WTO?  Secondly, as his country was a producer and 
exporter of wines and spirits, he wished to know what Canadian producers and exporters could expect 
in key foreign markets of interest.  In this regard, he noted that the joint proposal would not create the 
same type of uncertainties.   
19. On participation, he recalled that this nego tiating group's mandate clea rly referred to "those 
Members participating in the system" only, and that wi ne and spirits trade was of interest to a subset 
of WTO Members only.  Why did the EC want to require all WTO Members to participate?  In contrast, the joint proposal did not require participation by all Members.  
20. In response to the EC's request that delegati ons should further reflect on the replies it had 
given, his delegation would try to expand on some of them, and hoped it would receive full answers.  
Question 27 dealt with the situation where two coun tries would take two different decisions on the 
same GI:  for example, the national authorities of on e country could decide that the notified GI did not 
meet the Article 22.1 definition while the authoritie s of another country could decide the opposite.  
Would the GI that was registered on the multilateral re gister still be considered to meet the definition 
of a GI?  In this connection, Canada's view was that  the definition of a GI on the register also related 
to whether it was a wine or a spirit and would not be limited to Article 22.1.  He asked whether or not 
the GI would be removed from the register if it fa iled to be considered a GI in one WTO Member. 
21. Question 30 raised the issue of what would ha ppen if a person was of the view that the 
registered GI did not meet the TRIPS definition.  What would this person need to do to rebut the 
presumption? 
22. Question 32 concerned the issue of evidential burde n.  Was it the EC's intention to have the 
party opposing the GI bear a greater evidential burde n than the party seeking to register the GI?  As 
regarded question 34, could the EC clarify whet her it was the intention of the co-sponsors of 
TN/C/W/52 to change established WTO jurisprudence as to the burden of proof? 
23. Finally, question 9 on how GIs protected through tradition or by convention would be treated 
under the EC's ideas was of particular interest  to Canada and other common law countries. 
24. The Chairman
 agreed that it would be more correct to  say that there were no "opponents" to 
the register as all Members supported the idea of a re gister but that certain elements of the proposal 
were not acceptable to some Members.  
25. The representative of New Zealand  welcomed the provision of additional information by the 
EC.  The EC paper had allowed his delegati on to develop a better understanding about how 
paragraphs 1-3 of TN/C/W/52 on the register of GIs for wines and spirits would operate in practice.  
In his delegation's view, this sort  of process had been lacking over the past few years and it was a 
welcome step forward in terms of New Zealand's shared commitment to intensify the register negotiations.  Although the EC paper had been received only a few days  ago, his delegation had been 
able to identify some questions arising from the pa per, and which had been communicated to the EC 
delegation at its request.  The paper would be furthe r examined by technical experts from all relevant 
agencies in Wellington.  It was antic ipated that there would be furthe r questions about the EC's latest 
set of new ideas for the register negotiations.  His delegation welcomed the EC's willingness to 
provide the additional information to the membersh ip and looked forward to comparing how this new 
thinking would sit alongside the joint proposal.  TN/IP/M/21 
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  26. On legal effect, his delegation had a few questions  on the term "and in the absence of proof to 
the contrary".  As already put forward by the Joint Proposal Group in question 23, would the newly proposed legal effect be really different from a pr esumption?  Although the EC's representative had 
said that the concept of "rebuttable presumption"  had been removed due to  concerns expressed, and 
had been replaced by other terms, " prima facie  evidence" and "in the absence proof to the contrary", it 
was not clear to his delegation that there was ac tually a substantive difference.  Was that the 
understanding of all TN/C/W/52 propone nts?  He recalled the statement made by the EC on patents at 
the 3 March meeting of the regular session of the TRI PS Council in relation to an issue raised by India 
and Brazil that, when an IP right holder brought a case to a court, it would be up to him to prove the alleged infringement of IP rights.  What the EC had said about patents equally applied to GIs.  
According to this principle, those controlling the GI  in the country of origin would have to assert their 
IP rights in another jurisdiction.  Against this background, his delegation was of the view that the legal effects proposed in TN/C/W/52 would be to re verse the burden of proof in favour of GI right 
holders, who would be able to prove an alleged infri ngement in other jurisdictions merely by pointing 
to a name recorded on a register in Geneva.  Tho se opposing the GI would bear the burden of showing 
proof to the contrary.  The clarifications request ed by his delegation on the meaning of the terms 
"prima facie  evidence", "proof to the contrary" and "substa ntiated" were containe d in questions 24, 30 
and 31. 
27. He said that there was much clarity in the two types of answer given by the EC delegation.  
First, the meaning of the terms would be subject to negotiation and, second, their meaning could be 
determined by domestic legislati on and procedures.  If the meaning were to be determined by 
domestic procedures, it would be necessary to take some time in this Special Session to explore with 
key trading partners how these arrangements might be implemented under domestic procedures.  His 
delegation would welcome comments from the key pr oponents of TN/C/W/52, e.g. the EC, China, 
India and Brazil.  It would also  be interesting to see how these pr ovisions would apply in other key 
markets for New Zealand wine and spirits exports  such as the United States, Australia and many 
countries in Asia.  This sort of discussion would be  crucial to a real understanding of what the EC's 
new thinking might mean in practice.  He suggested that the Chairman invite Members to come prepared for a discussion at a future meeting of the Special Session.  
28. Another question for the EC, which could be followed up in writing, was whether or not 
domestic procedures were paramount.  If they were paramount, would it be correct to assume that the 
WTO dispute settlement mechanism would not apply?  Should it apply, on what basis could a dispute 
be brought to the WTO, assuming that do mestic procedures were  TRIPS-consistent? 
29. As regards the term "proof", he said that it w as a stronger requirement than "evidence".  It 
could be read to mean that any evidence provided must conclusively prove that the term did not 
satisfy the definition of a GI.  That would effec tively tie the domestic authorities' hands, requiring 
them to accept the name on the register as a GI un less there was conclusive proof to the contrary.  
This would remove the domestic authorities' discre tion when evidence fell below the standard of 
proof, which in his view would interfere with th e current domestic procedures.  While acknowledging 
that the EC had, on page 8 of its paper, attempte d to address this uncertainty by stating that this 
negotiating group could have a debate later about what "proof" meant or  that the term might be left 
open for domestic authorities to define, his delegati on continued to have con cerns about that term, 
particularly in light of the reference to "evide nce" in the modality proposal.  His delegation would 
therefore definitely want to see this term furt her elaborated in a full legal text proposal. 
30. The EC paper was not clear on who might provid e the required proof.  On the one hand, it 
referred to examination of the proof upon request and, on the other, it said that domestic authorities 
would be able to find out information on their own in itiative.  He asked the EC to confirm that its new 
thinking would allow domestic authorities to gene rate their own information as part of their TN/IP/M/21 
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  assessment of whether a GI met the definition in th eir own territory, and that a third party with a 
legitimate trading or systemic interest could provide  domestic authorities with relevant information.   
31. On the issue of whether a na me on the register enjoyed prima facie  evidence that the 
registered GI met the definition of a GI under Article  22.1, the EC paper provided useful clarifications 
that the reference to "that Member" in the second sentence of paragraph 2 of  TN/C/W/52 related to 
the Member consulting the register.  For his delegati on, this had clarified that the proposal cut across 
the key principle of territoriality, which applied to other IP rights.  TN/C/W/52 would therefore 
require New Zealand to accept that the term recogni zed as being a GI in one jurisdiction would be a 
GI in all other jurisdictions.  This was expressly ack nowledged in the EC paper, which suggested that 
Article 23.1 of TRIPS need not be applied territori ally.  Was this view supported by all the other 
proponents of TN/C/W/52?  His de legation agreed with the statements made by the representatives of 
Brazil, India and China in the regular session of the TRIPS Council  that the principle of territoriality 
was the cornerstone of the international IPR sy stem, including the TRIPS Agreement.  For his 
delegation, the territoriality principle was partic ularly important for GIs as the domestic context 
would be highly relevant and coul d lead to quite different outcomes in different territories:  a term 
might meet the definition of a GI in the EC but not in New Zealand.  The EC had sought to rebut this 
territoriality argument on page 7 of its  paper, which stated that "the entry of a GI in the GI Register 
will not result in automatic protection in any WTO Me mber".  While the decision on the protection of 
a name would continue to remain entirely in th e hands of domestic authorities and TN/C/W/52 no 
longer contained an irrebuttable presumption, domest ic authorities would still have their hands tied.  
They would be required to accept that a term was a GI without undertaking the domestic examination 
process which currently was required and which was at the heart of the principle of territoriality to 
which many delegations attached importance.  So , while it had been said that domestic authorities 
would be the ones to take decisions, the decisions  would actually be made for them unless there was 
"proof to the contrary".  As a result, the abandonm ent of the territoriality principle would elevate the 
status of GIs above all other IPRs, which would cause New Zealand serious concerns.   
32. The proposed presumption would also cause problems in the case of conflicting claims on 
homonymous GIs.  Members would be required to do  the impossible, namely consider two mutually 
inconsistent presumptions. 
33. His delegation had serious concerns about th e EC new thinking regarding genericness in 
TN/C/W/52.  This element would upset the delicat e balance between Articles 23 and 24.  The EC 
paper had claimed that the proposal did nothing mo re than encapsulate a general principle of good 
administration and common procedural requirements in  Members' systems.  He disagreed with this 
assertion, and said that, even if it were the case, why would it be necessary to amend the TRIPS 
Agreement with a new requirement on "substantiation"? 
34. The EC had for some reason isolated the gene ricness exception as the only exception within 
Article 24 and added new requirements.  His dele gation would welcome details from the EC, India, 
Brazil and Switzerland regarding any enforcement probl ems that they were currently facing in relation 
to wines and spirits GIs due to the lack of an e xplicit requirement for subs tantiation of genericness. 
He asked whether the EC had the same concerns for the other exceptions of Article 24 as for the 
genericness one.  The proposed new requirement regarding the exception of Article 24.6 on 
genericness would, in his delega tion's view, alter the ba lance of rights and obligations within the 
TRIPS Agreement, which his delegation would oppose. 
35. Finally, on participation or Member coverage, he said that there would still be a significant 
number of Members who would be very uncomfortable  with the EC proposal for participation by all 
Members.  The proposal would require them to establish a process to effectively provide protection for terms relating to products which they had cho sen for economic, religious or moral reasons not to 
trade.  To avoid any misunderstandings, his de legation wished to ask all the co-sponsors of  TN/IP/M/21 
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  TN/C/W/52 to confirm that they supported mandatory participation in the register of GIs for wines 
and spirits. 
36. His delegation associated itself with Canada's characterization of the joint proposal:  it was 
fully consistent with the mandate given by minister s and would also deliver good benefits in terms of 
the central focus of this Round, namely developmen t.  All of the problems his delegation was raising 
regarding legal consequences would be avoided by the joint proposal, which would fully respect the 
cornerstone of the TRIPS Agreement, namely the principle of territoriality.  The joint proposal 
provided for voluntary participa tion, consistent with the manda te, and would also be more 
development-friendly as it would not force Members w ith no, or limited, capac ity to, trade in wines 
and spirits to take on the costs and burdens of implementing a register. 
37. Finally, he reminded the Special Session that its mandate was limited to wine and spirit GIs.  
38. The representative of Korea  thanked the EC delegation for having provided a paper compiling 
elements of its oral replies given last Decemb er and for giving additional explanations on the 
questions.  The Joint Proposal Group had posed many questions which it thought were essential to understand the EC's idea.  It seemed, however, that so me of the answers to the key questions were still 
hiding behind the ambiguous term of "modalities".  Fo r example, the EC had, on page 5 of its paper, 
given the following response to questions 23 and 24 on the definition of "proof":  "At this stage we 
see no need in agreeing a precise definition of 'proof'.   Should this appear necessary, we may do so 
when entering legal drafting after Modalities".  It would therefore seem that this negotiating group 
should first agree on modalities before discussing any point.  This was an approach his delegation 
could not accept.  Although the EC delegation ha d given additional clarif ications regarding " prima 
facie  evidence", "proof" and "substantiate", the matt er remained still unclear.  In that light, his 
delegation would ask the EC to submit a full draft legal text to enable a discussion of all the key 
concepts paragraph by paragraph and line by line.  As Canada ha d pointed out, there were still 
unanswered or partly answered questions.  He woul d therefore ask the EC to reorganize the answers 
number by number to the questions of the joint proposal. 
39. The representative of Argentina
 thanked the EC delegati on for having given a written 
compilation of its oral replies of December 2008.  Referring to a general comment made by the EC 
representative regarding the supporters of TN/C/W /52 and the development dimension in that 
proposal, he said that Argentina and many other de veloping countries did not share the content of the 
proposal and considered that some of its elements were against the developmen t dimension.  The EC's 
comment that document TN/C/W/52 should be considered as a whole and the explanations it had 
given on registration, put together with the refere nce to extension to othe r products, were creating 
serious concerns for his delegation.  While recogni zing that there had been some evolution in the 
thinking of the European Communities, which had clar ified a few points, he said that in substance the 
EC approach had not changed regarding the main elements.   
40. As regards the explanations given by the EC in relation to certain new terms, he said that the 
EC had actually not departed from its initial pos ition and that his dele gation could not accept a 
mandatory register.  To compare the terms "rebuttal presumption" and " prima facie  evidence", he said 
that, in the case of a presumption, legal proof to the contrary could be given while prima facie  
evidence would be based on facts as mentioned by the EC.  If the entry into a register was to be 
considered a "fact", then his delegation would ha ve a serious problem.  This would deprive his 
authorities of the authority they currently had under Argentina's legal system to decide whether or not 
the registered name was a GI.  If the respective authorities of two Members arrived at two different 
decisions regarding the definition of a GI put on the register, there would be some conflict.  So, the 
main problem was the legal nature of the register:  what would be the legal st atus and the actual legal 
effects of the GIs registered on the register and what should be taken into account as prima facie  
evidence? TN/IP/M/21 
Page 10  
 
  41. As regards the EC's comment that its position on mandatory participation was final, he 
recalled that, in an earlier proposal made in 2005 in WT/GC/W/547-TN/C/W/26-TN/IP/W/11, the EC had referred to "participating" and "non-participating Members".  He al so referred to two earlier ideas 
put forward by the EC:  one was to make particip ation mandatory for those Members above a certain 
share in the world trade in wine and spirits (idea of November 2007);  the second one, reflected in 
WT/GC/W/547-TN/C/W/26-TN/IP/W/11, was to provide  for a transition period for LDCs.  Would the 
new proposal in TN/C/W/52 cover all Members, including LDCs? 
42. The representative of the United States
 said that her delegation, which had only received the 
EC written statement last week, reserved its right to  raise any additional questions and comments at a 
later time.  Her delegation had ques tions similar to those posed by Canada, New Zealand and others.  
She would also like to address some differences be tween the joint proposal and the EC paper, in 
particular on the issues of territoriality and ad ministrative burden and costs.  The joint proposal 
respected the principle of territoriality and mini mized administrative burden and costs.  The paper 
circulated by the EC and others did not appear to do the same.   
43. As regards the question of proving prior rights, the United States was concerned that, under 
the EC paper, prior rights, including trademarks, might be disregarded when a Member determined 
that a designation on the register should be protected.  In the United States and in some other countries, priority of rights, in keeping with the prin ciple of territoriality, would be determined in the 
context of the domestic territory a nd domestic consumers.  Generally, priority could be established in 
the following ways:  (i) by the filing day of an application to register the designation with the 
domestic or regional trademark offi ce;  (ii) through prior use in commerce in the United States - 
including interstate commerce or commerce between the United States and a foreign country - which, 
in accordance with the American Constitution, was regulated by the United States Congress;  or (iii) 
by the date of established reputation in the c ountry where protection was sought such that the 
domestic consumer would not be misled or deceived by  the unauthorized use of the designation.  Most 
notably, no priority, no rights and no presumptions w ould be created in the Unit ed States, based solely 
on an entry on an international list that would neither serve as an application nor show use in 
commerce nor establish reputation in the United States.  The system as described in part on page 5 of 
the EC paper appeared to require countries to establish a right or presumption as well as priority 
merely by virtue of a determination that a GI was protected as such in the country of origin and had 
been notified to the WTO and put on the register.  The EC paper appeared to disregard the principle 
that protection was granted, based on a determinatio n by the domestic law of the country in which 
protection was sought, such as use in commerce, as well as on the basis of what would be likely to 
confuse, mislead or deceive the domestic consumer.  She asked whether or not, in the system proposed by the EC and others, priority in the country where protection would be sought would be 
established solely based on the placement of a GI on the register.   
44. Another key concern that related to territoria lity was how the definition of a GI would be 
handled.  The joint proposal specifically allowed c ountries to define GIs according to their domestic 
system.  It had been stated that the system set forth in the EC paper would also allow countries to define GIs in accordance with their national laws.  However, the proposed system appeared to require 
that any designation on the register must be consid ered as a GI by all WTO Members, and the burden 
would be shifted to other countries to prove the contra ry.  In other words, if a GI were notified by the 
EC to the GI register and registered at the WTO, unless rebutted by proof to the contrary it would be a 
GI in all 153 WTO Members.  This was reflected on page 6 of the EC's response, where it was noted 
that "a name on the Register shall be considered as a prima facie  evidence that, in that Member, the 
registered GI meets the definition of 'geographical indication' laid down in TRIPS Article 22.1".  The 
EC had further clarified that by putting a name on th e register it would be on its face a fact that the 
designation met this definition.  Indeed, the EC res ponse had made clear that, in the case of a GI in the 
EC, it was the European domestic authority that had made the determination.  That system, if  TN/IP/M/21 
 Page 11 
 
 
  implemented, would effectively superimpose the EC domestic authorities' determination of what 
constituted a GI on all WTO Members. 
45. In addition to the legal consequences that woul d result from the system described in the EC 
paper there would also be considerable costs and resource issues arising from such a system.  This 
was particularly important when considering that, as clarified on page 8 of the response, the EC was 
proposing a mandatory system as opposed to the voluntary system of the joint proposal.  Specifically, 
in order to implement this legal burden, countries might be required to devot e considerable additional 
resources.  For example, countries would effectivel y be required to administer and enforce hundreds, 
maybe thousands, of foreign GIs through their domestic system.  There would also likely be a significant increase in litigation, thereby increasing the burden on the judicial system in each country.  
Implementing the system as proposed in the EC paper might require legislative as well as 
administrative changes.  Her delegation was inte rested in hearing from other countries how they 
envisioned implementing this system.  In contrast , the joint proposal would not create this legal 
presumption that would give rise to these additional costs.   
46. The representative of Chinese Taipei
 thanked the EC for providing the written version of the 
interventions made last December.  It was importa nt for all Members to get a better understanding of 
the EC's new thinking, as elaborated in the releva nt paragraphs of document TN/C/W/52.  While his 
capital was still examining the responses, his delega tion would air some preliminary questions and 
comments to the EC and the co-sponsors of TN/C /W/52.  The questions and comments would be 
given to the EC in written form in order to facilitate the discussion. 
47. Regarding the time-frame issue mentioned on page  4, where it had been said that "For 
instance, if there is a time-frame for the authority to gather information before taking a decision, the 
consultation of the register will occur within th at time-frame.  Failing any time-frame for decision-
making, there will be none for the consultation either".   Did this mean that, if the authorities failed to 
make a decision within the time-frame under their domestic laws, there would be no other chances for 
them to fulfil the obligation of "consulting the regist er", and therefore they would never be regarded 
as having fulfilled that obligation?  If the answer is "yes", this might have an impact on the authorities' 
allocation of resources between examining GI applica tions and other work.  In contrast, there would 
not be any such impact from the joint proposal, b ecause Members would be deemed to have fulfilled 
their obligations once they had ensured that thei r examination procedures included the provision to 
consult the database. 
48. Through page 6 to the middle part of page 7, the EC had tried to explain why it was 
reasonable that a name on the register should enjoy the legal effect of prima faci e evidence that the 
registered GI met the GI definition in Members other than the notifying Member.  His delegation 
could reasonably understand why the registered GI met the definition in the notifying Member, but 
failed to understand why the notified GI should enjoy prima facie  evidence in another Member's 
territory.  The EC seemed to suggest that, because the notifying Member had conducted an 
examination of the notified GI in its own territory , all other WTO Members should be bound by this 
examination to give the notified GI a certain legal e ffect in their territories.  For his delegation this 
seemed to contradict the principle of territoriality .  One of the EC’s arguments seemed to be that 
recognition of prima facie  evidence was not the same as, or equa l to, eligibility for protection, and 
therefore its new thinking still respected that prin ciple.  His delegation had some reservations about 
this argument, and wished to bring it up fo r reconsideration by the whole Membership. 
49. His delegation had been advocating that the EC and other co-sponsors table a complete 
proposal for a GI register of wines and spirits, based  on the related paragraphs  in TN/C/W/52.  This 
call was not a tactical way of trying to break up the alliance behind TN/C/W/52, because the different 
positions of the proponents on the linkage or so-calle d "parallelism" issues were already well known.  
The only reason was that, without a complete propo sal, it would be difficult to fully understand the TN/IP/M/21 
Page 12  
 
  impact and benefits of the EC's new thinking.  Th e EC kept saying that many other issues could be 
discussed or negotiated after the decision on the so-ca lled "modalities" or "key parameters".  But, to 
use an old saying, his delegation feared that the dev il would be in the detail.  A complete proposal by 
the EC and the other co-sponsors would give other Members a full picture in order to properly compare it with the other two proposals. 
50. The representative of Hong Kong, China
 thanked the European Communities for the written 
compilation of the oral replies of last December.  She said that the EC's flexibilities and concessions 
as highlighted were much appreciated and that it was encouraging to see Members’ active participation and level of engagement in the recen t discussions and the questions and answers process.  
Although Members had not been able to resolve the issues, notably the key issues of participation, 
legal effects and product coverage, which were still at stalemate, the process had at least helped forge 
a better understanding of the pr oposal and Members' positions. 
51. She recalled that Hong Kong, China had submitted its own proposal in TN/IP/W/8 back in 
April 2003 on the basis of its own interpretation of the negotiating mandate under Article 23.4 of the 
TRIPS Agreement and paragraph 18 of the Doha Ministerial Declaration.  Hong Kong, China's 
position, systemic interest and objectives in these nego tiations were already set out in a statement at 
the last formal meeting on 29 October 2008, and reflected in paragraphs 28 and 29 of document 
TN/IP/M/20.  Hong Kong, China had proposed a vol untary register with limited legal effects 
necessary to facilitate protection of GIs.  Non-par ticipating Members would no t be required to bear 
any costs of the register.  Hong Kong, China's proposal and the other two proposals on the table did share some common features on the proposed notification and registration system of GIs for wines 
and spirits, even with respect to the key i ssues of participation and legal effects.   
52. She expressed support for the Chair's suggestion to  proceed with the discussions by clusters.  
She further said that Members should keep the p ace of the negotiations in the coming months and 
continue technical discussions on the key issues an d other elements dependent on the key issues.  
More importantly, the negotiating group should st art to make progress and preserve that already 
made, however limited, with a view to reaching a final compromise solution as early as possible. 
53. The representative of Switzerland
 said that it was not because it was a new year that all of the 
work done since the beginning of this negotiation coul d be forgotten.  There had been many reports, 
compilations, exchanges of questions and replies on th e various proposals put forward.  Agreeing with  
Hong Kong, China' comments on process, she said that  it would be useful for this negotiating group to 
move to a more substantive phase of work as soon as possible, since the essential elements that should 
be included in the register had been put on the ta ble, including those in the compromise proposal of 
TN/C/W/52.  With the EC's replies given in Decemb er 2008 and received in writing last week, the co-
sponsors of the TN/C/W/52 proposal, including Swit zerland, hoped that they had now clarified the 
thrust of their register proposal. 
54. She said that the compromise proposal for the re gister was an integral part of a broader 
compromise proposal covering two other TRIPS-related issues, namely the extension of protection of 
Article 23 to GIs for all other products and the re quirement for a disclosure of genetic resources and 
associated traditional knowledge in patent applic ations.  Her delegation welcomed the Director-
General's forthcoming consultations on these two issues and hoped that they would be just as 
productive in the future.  A process which would help  these three issues move together in parallel was 
necessary in view of the substantial linkages betw een these three elements but also to understand the 
full meaning of the proposals. 
55. Recalling an informal consultation early this w eek where it had been explained how much the 
co-sponsors of TN/C/W/52 had move d towards each other in order to reach a compromise proposal, 
she highlighted the changes her delegation had accep ted, downsizing its initia l demands regarding the  TN/IP/M/21 
 Page 13 
 
 
  register in order to establish a notification and registration system which would be as simple as 
possible and would, as mandated, facilitate the protec tion of GIs as compared to the current situation 
without increasing that protection.  She recalled the key elements of the mandate:  to respect the principle of territoriality;  to facilitate the protection of GIs without increasing it;  to preserve the existing balance of rights and obligations in the TR IPS Agreement;  and to respect Members' freedom 
to determine the appropriate met hod of implementing the provisions of the TRIPS Agreement within 
their own legal system and practice.  Those elem ents had continued to be at the fore of her 
delegation's thinking and had made it support the pro posal contained in TN/C/W/52.  She pointed out 
that Switzerland had over the years accepted to lowe r its ambitions, namely, to give up the idea of 
creating an international arbitration system as orig inally proposed by Hungary for conflicting notified 
geographical indications, and to renounce the proposal for a rebuttable presumption regarding 
misleading identical names or genericness following a period of 18 months.  Th at should be taken into 
account to see the movement leading up to TN/C/W/52.   To be able to negotiate, both sides had to 
move.  For her delegation, it was not clear to wh at extent the proponents of TN/IP/W/10/Rev.2 had 
moved towards convergence.  Her de legation was still confronted with a proposal which provided for 
the creation of a simple database that Members' au thorities might or might not consult, and which was 
unclear about the effect to be given to the inform ation contained in that database if the authorities 
consulted it. 
56. As regards Canada's offer to answer questions regarding the joint prop osal, she said that the 
proposal had already been discussed in detail over the years so that there were no further questions to 
address.  In her delegation's view, the parameters  contained in TN/C/W/52 remedied some of the 
shortcomings of the joint proposal. 
57. On the issue of the mandate "to facilitate" the protection of GIs, her delegation was of the 
view that it had become indispensable that consulta tion should be made obligatory, that there should 
be some clear assurances that th e domestic authorities dealing with geographical indications - be they 
trademark examiners, judges or other administrative authorities - would not only have an obligation to 
consult the information contained in the multilateral register when taking any decision but that they 
would also take due account of this information in their decision.  In other words, they should give the 
necessary weight to that informati on.  Only such a procedure would truly facilitate the protection of 
GIs.  The elements contained in TN/C/W/52 reflected  such a procedure.  In other words, the effect 
would be a prima facie  evidence that the GI met a definition, whose elements might be challenged at 
any time.  Document TN/C/W/52 also stated that a genericness claim could be maintained only if it 
was substantiated.  These two elements would fac ilitate the right holders' recognition of their rights 
without affecting the exceptions of Article 24 while respecting the principle of territoriality since the 
decision would be taken at a national level in each country providing protection according to the 
procedures it had in place.  Recalling that some of  the proponents of TN/IP/W/10/Rev.2 had indicated 
at the last November and December meetings that they would be willing to commit themselves to take 
account of the information contained in the datab ase proposed, she asked why this commitment could 
not be put down in writing as it was done in TN/C/W/52. 
58. On participation, she said that it would be necessary to go beyond the plurilateral systems of 
WIPO, such as the Lisbon Agreement, and to be ab le to establish in the WTO a system which would 
give full meaning to the word "multilateral" as mandated in Article 23.4 of the TRIPS Agreement.  This was an essential element for her delegation.  The logical consequences of this mandate would be 
that all WTO Members, who would be free to notif y their domestic GIs or not, would have to take 
account of the registrations placed on the multilateral register.  She reminded delegations that there 
was no attempt to increase the protection for geogr aphical indications and that all WTO Members 
already had an obligation under Articles 22 and 23 to  provide protection to geographical indications, 
subject to the transitional period for least-develope d countries.  Her delegation had proposed that 
under S&D the needs of developing countries be taken into account. TN/IP/M/21 
Page 14  
 
  59. The representative of Japan
 said that technical discussions were necessary given the 
complexity of a GI registration system.  He said that his delegation wished to reserve its right to make further comments at a later stage as the EC pa per had been circulated at short notice.  
60. He noted that the EC had replaced the term "rebuttable presumption" by prima facie  evidence, 
but the difference between the two notions remained unc lear.  It seemed to his delegation that the EC 
wanted to keep the definition of some terms am biguous.  However, precise definitions would be 
indispensable to understand the GI registration system  as proposed by the EC.  He further said that the 
joint proposal in TN/IP/W/10, which his country ha d co-sponsored, was a clear er and more pragmatic 
approach. 
61. The representative of Ecuador
 thanked the EC for the written compilation of the oral 
statements made at last December's meeting.  He said that his country, regardless of its participation 
in the alliance on TRIPS-related issues, expressed fu ll support to the proposal in TN/IP/W/10/Rev.2.  
As was stated by the representative of Argentina,  the joint proposal, co-sponsored by Ecuador, fully 
reflected the developmental dimension and ther efore the development concerns of developing 
countries in the Doha Round.  His delegation was con cerned by the fact that the EC's new thoughts of 
establishing legal presumptions, such as the prima facie  evidence that a name put by a Member on the 
register would comply with the definition of GI in another Member where protection was being sought, or that any claim that the name was gene ric should be substantiated.  For Ecuador, such 
assumptions would undermine the principle of territoriality, as already stated by the delegation of the United States.  The principle of territoriality,  guaranteed by the TRIPS Agreement, had been 
intensively defended during this week's regular session of the TRIPS Council.   
62. His delegation was concerned by commitments of  such a magnitude that would limit the legal 
capacity of the intellectual property authorities in Ec uador.  The legislation of Ecuador stated that a 
name that did not comply with the definition co ntained in the national legislation could not be 
declared a "geographical indication".  It would run counter to tradition or mislead the consumers as to 
the characteristics, features and qualities of the pr oducts concerned if that name was decl ared a GI 
while it was a generic term for the sp ecialists in the area or for the public at large.  The new approach 
developed by the EC would definitely imply that  Ecuador's current legi slation would make the 
principle of territoriality negotiable, and would, th erefore, limit the legal capacity of the national IP 
authorities to assess the merits of an application fo r GI protection by reversing the burden of proof.  
He asked the EC to further clarify the issues, and associated his delegation with the question raised by 
the delegation of El Salvador on final decisions by national courts. 
63. As regards participation, the clear proposal  presented by the European Communities was 
exactly what Ecuador did not want.  Participation should be voluntary. 
64. The representative of Australia
 thanked the delegation of the European Communities for 
having elaborated on the ideas it had set out on the register in TN/C/W/52.  He expressed his delegation's satisfaction to see th is negotiating body make progress on the technical discussions that 
were required to fulfil its mandate after rather slow progress in previous years, when the joint 
proposal and Hong Kong, China's proposal had been  tabled without attracting the attention and 
discussion they should have deserved.  He said that  the relevant agencies in Australia were still 
considering the EC paper. 
65. His delegation endorsed many of the comments ma de by other delegations, e.g. Canada and 
New Zealand, on some of the areas where his dele gation's understanding remained incomplete.  These 
delegations had identified some key areas where the EC paper seemed to have left some gaps in 
understanding, such as mandatory participation, par ticularly in relation to special and differential 
treatment.  TN/IP/M/21 
 Page 15 
 
 
  66. In response to a general comment made by the European Communiti es that the register 
proposal was a "development proposal", and that it included a special mention of special and 
differential treatment for developing and least-devel oped country Members, he said that logically the 
most effective means of special and differentia l treatment would be voluntary participation as 
proposed in the joint proposal.  He noted the contention made by several developing country 
proponents of the joint proposal that this proposal was fully in line with the Doha Round's 
development focus.  This was supported by the impression from reading the EC paper that there could be a considerable administrative burden if participat ion in such a system were to be mandatory.  The 
first reaction of his IP agencies, which was already telling, was that there would certainly be considerable resource implications and that th e processing of thousands, or potentially tens of 
thousands of applications, would be rather demanding, to say the least. 
67. Another area where his delegation shared many of the concerns expressed at this meeting 
related to the issue of legal effects.  It conti nued to have some doubt as to whether the use of the 
concept of " prima facie  evidence", which could be rebutted by proof to the contrary, was very 
different from the concept of "rebuttable presumption". 
68. A point related to the structure of the EC's el aborated ideas and also to the structure of the 
discussion was that the matters to be notified to a re gister had an intrinsic relationship to what legal 
effects would be reasonable for the information on the register.  According to the EC's ideas, 
Australian domestic authorities should take this evidence as prima facie  evidence, and they would 
have to seek proof that was contrary to the evidence of the register to rebut it or to decide against it.  It 
would therefore be important to know what that evid ence might be.  This was all the more relevant to 
the issue of legal effect because of the nature of the GI definition.  The Lisbon Agreement contained a 
definition of "appellation of origin", which argua bly would include the name of a place and which 
would entail finding some objective characteristic that linked a product to that name.  It seemed to his 
delegation that the definition of GIs in the TRIPS Agreement had purposely been made rather broader 
and therefore included a subjective element, for ex ample with regard to reputation.  A subjective 
element could only be assessed by a Member in regard to its own territory.  GI applications submitted 
in countries that had dedicated GI registration systems had not always shown that they were completely relying on objective grounds that a court could consider as prima facie evidence.  So, the 
evidence to be notified, and therefore what was notified and what was registered, would be very 
important and not a matter to be left for a later st age.  The issue of linkag es between all the areas and 
all the key subjects brought to the fore the fact that what this negotiating group really needed to have 
would be a fully developed proposal as the next st ep towards the substantiv e discussion that Members 
had called for. 
69. He further said that the EC's example of "Bordeaux" presupposed a domestic GI registration 
procedure.  Recalling the comment made by the EC that, once the name "Bordeaux" had been 
registered, the competent authority of another Me mber would examine the registration and decide 
whether or not to register it, he asked whethe r or not all Members, including all those Members 
supporting TN/C/W/52, actually had a dedicated GI registration procedure for wines and spirits.  
While many had one, many others might not have any.  It was difficult to see how the EC's ideas would work in those Members that had chosen not  to set up such a system.  His delegation would 
therefore be interested in hearing from the propone nts of TN/C/W/52 how they would implement the 
system. 
70. Finally, he said that he was reassured by Swit zerland's characterization of its needs on legal 
effects.  What was perplexing was that Switzerland's characterization of its needs did not seem to match his delegation's unders tanding of the effects of the EC's el aborated ideas.  Switzerland and no 
doubt other proponents of the ideas in TN/C/W/52 see med to require more than an obligation to 
consult, a clear assurance that domestic authorities concerned would have to take due account of the 
information in the register and that they would give it its necessary weight.  He assured the Special TN/IP/M/21 
Page 16  
 
  Session that in Australia – as well as in other Member s - that would be exactly the effect of the joint 
proposal.  In other words, any information in an  international register for which there was an 
obligation to consult and to give the necessary weig ht would be a matter of domestic procedure as the 
proponents of TN/C/W/52 had proposed and the EC and Switzerland had explai ned.  He said there 
had been many interesting ideas raised at  this meeting and in the EC paper.  
71. The representative of India
 said that India, as one of the proponents of TN/C/W/52, supported 
the key parameters for a register as explained by th e EC delegation and would like to see reflected in a 
ministerial decision the key parameters for the three TRIPS issues of GI register, TRIPS/CBD and GI extension.  As had been mentioned several times in the past, the process of finalization of 
TN/C/W/52 had necessitated intens ive negotiations between some 110 Members.  His delegation 
would support negotiations on the GI register on that basis, and did not see any need for clarifying its 
support element by element.  The elements proposed by the EC in TN/C/W/52 were not a proposal on the GI register alone, but on all three TRIPS issues.  He expressed his delegation's concerns about the lack of progress and the absence of a process on TRIPS/CBD and GI extension since July 2008.  
However, it was satisfied that, as called for in the Hong Kong Ministerial Declaration of 2005, 
Director-General Lamy had decided to resume co nsultations at his level on TRIPS/CBD and GI 
extension.  His delegation looked forward to mean ingful and constructive engagement by Members in 
Director-General Lamy's consultations so that the three TRIPS issues could progress apace. 
72. The representative of Brazil
 said that he was perplexed by the continuous calls for 
manifestation of support from all the proponents of TN /C/W/52.  As in every other negotiating group 
in the WTO, if a proposal had been submitted in writing by a number of delegations, and if those 
delegations attended a meeting, it could be assumed that, in the absence of proof to the contrary, there 
was a prima facie  evidence that it was supported by those who had signed that proposal.  It seemed 
purposeless to keep asking whether or not every partic ular item of TN/C/W/52 had been agreed to by 
each and every co-sponsor. 
73. He further said that, as always in the WTO, discussions were a mixture of technical and 
political issues.  This was the case for terms such as "proof", "evidence" or "burden".  As was clearly 
stated in the EC's replies, "proof" for example w ould take the form that was provided under domestic 
law.  Terms like that one would very often be tran slated with the same words, as would be the case in 
Portuguese.  However, the concept of and require ments for "proof" could be different depending on 
whether it was an administrative, an intellectual prope rty or a criminal issue.  He asked whether this 
negotiating group really wanted to negotiate a common definition of "proof", or  would rather delegate 
the matter, as was currently the case, to domestic pr ocedures, statutory law and customary law.  He 
found some contradiction among those who upheld the principle of territoriality - which Brazil also 
did – but who, at the same time, wanted a full agreement among all Members on a unique concept, 
applicable to all possible circumstances.  What  should be done would be to go beyond that phase and 
actually engage in a negotiation of a solution acceptable to all. 
74. He said that he felt encouraged by the statemen t made by the delegation of Australia that his 
authorities would "take into account" the informati on on the register.  This would be a quite 
substantial point.  He therefore thought that it shoul d not be impossible for all Members to get to a 
language which would translate the matter into an obligation acceptable to all. 
75. He also felt encouraged by those delega tions that had expressed concerns about the 
administrative burdens that would follow from the im plementation of the system.  He recalled that 
Brazil was concerned with that too and this should al so be adequately taken into account in devising 
the register.  He pointed out that this question w as not limited to the register and that the issue of 
administrative burdens was a horizontal one in th e TRIPS area.  The sensitivity shown by some 
delegations was a positive sign.  TN/IP/M/21 
 Page 17 
 
 
  76. Finally, he said that this negotiation was a very important part of an even greater political 
issue, which was the updating of the TRIPS Agreemen t in a manner that would ensure its continued 
relevance in the future.  His delegation would theref ore be looking forward to the Director-General's 
consultations the following week on the other two TRIPS issues, which were essential to Brazil. 
77. The representative of Costa Rica  expressed his country's commitment to the mandate of the 
register for GIs for wines and spirits.  The register  must be of a voluntary nature, be simple and 
straightforward, should not disrupt the current bala nce of rights and obligations, and should facilitate 
the protection of GIs as mandated in Article 23.4 of the Agreement.   
78. He thanked the European Communities for the doc ument that they had distributed last week 
on their new ideas on "modalities".  He said that the paper was circulated at short notice in English 
only.  While regretting that it was a systemic problem to have a formal meeting discussing an 
informal document in one WTO official language on ly, he would not object to it since his delegation 
had really been looking forward to this discussion for a long time.  He would, however, request the 
European Communities to come forward with a le gal draft text in a formal way, as had been 
suggested by Australia.  This would really help Members to make a better analysis and comparison 
with the joint proposal and the Hong Kong, China proposal. 
79. He further said that his country had the same c oncerns and questions ra ised by New Zealand, 
El Salvador and Canada regarding lega l effects.  The EC's new idea of " prima facie  evidence" would 
actually lead to the same effects as a rebuttable presumption. 
80. His delegation did not agree with the EC's statement that its proposal did abide by 
development principles because it also covered the TRIPS/CBD issues.  While the TRIPS/CBD issues 
were within the development dimension, they were not, however, part of the mandate of this Special 
Session.  In response to the comment made by th e EC that TN/C/W/52 was the only document having 
S&D components regarding the register of GIs for wi nes and spirits, he concurred with the delegation 
of Australia that the best way to ensure speci al and differential treatment would be to make 
participation voluntary.  His delegation had co-s ponsored the joint proposal in TN/IP/W/10/Rev.2 
because it proposed a voluntary system, which w ould best meet the development objectives. 
81. The representative of Guatemala  thanked the European Communities for circulating the main 
elements of its statements made in the informal me etings of last December.  She noted the European 
Communities' statement that special and differentia l treatment would be an integral part of the 
negotiations, and the European Communities' willi ngness to adopt special measures in favour of 
developing countries and in particular the least-d eveloped countries.  Guatemala welcomed this 
positive message from the European Communities and re quested more concrete indications regarding 
what special measures were being considered, speci fically with regard to the multilateral register 
rather than with regard to the TRIPS/CBD. 
82. She said that Guatemala as a developing country supported the joint proposal which contained 
favourable elements and practical answers to the developing countries' probl ems.  In addition to 
recognizing voluntary participation in the register, the joint proposal also provided a practical and 
realistic mechanism for consultati on, which guaranteed the facilitation of protection of GIs for wines 
and spirits.  The fact that countries were encouraged  to consult the system or database would ensure 
that developing countries could become familiarized  with the system without having to take on 
obligations immediately.  This was particularly useful for countries such as Guatemala that did not 
have a tradition in geographical indications and that did not have trained human resources with 
experience in this area. 
83. The representative of Chile  reiterated his delegation's suppor t for the joint proposal and for 
the statements made by other co-sponsors of the propo sal, in particular that of Costa Rica.  As his TN/IP/M/21 
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  delegation had received the EC pape r only a few days ago, and only in English, analysing it would 
take more time.  His delegation also  requested that the proposal be put in the form of a legal text, as 
was the case with the joint proposal or with the EC's proposal of 2005.  That would make it easier to 
compare and analyse the different proposals.  As Chile had stated at the last meeting, the supporters of 
TN/C/W/52 had reached agreement on these four simple paragraphs close to a year ago.  Thus, the 
108 Members who had signed the proposal should now be able to reach an agreement and come out 
with a more elaborated text. 
84. He recognized that there had been an improve ment and movement on the EC side, but that 
was simply because the EC's initial position had been so  extreme that it had been easy for it to move.  
The same comment applied to Switzerland, who had also referred to Hungary's proposal, when it said 
that it had moved several times.  
85. He had been surprised to hear that the EC had claimed its proposal to be the only one 
containing special and differential treatment provision s.  He reiterated that the joint proposal provided 
for voluntary participation, which was the best form  of S&D that any WTO Member could enjoy.  His 
delegation believed that the EC proposal would involve considerable costs, particularly for developing 
countries.  It had already been raised in previous meetings that for Chile, which was not party to the 
Lisbon Agreement, obtaining oppositions by some Li sbon members to the registration – by another 
country party to the Lisbon Agreement – of a geogra phical indication to which Chile considered to be 
entitled, had involved huge financial and human resources.   Furthermore, this effort to protect Chile's 
rights, which were finally recognized by the Lisb on Agreement members, had only been successful 
three days before the time-limit expired.  This experience showed how difficult it was to apply rules 
that were already 40 years old, and that was the reason why those members would initiate a process of 
revising the text of the Lisbon Agreement.  Agai nst that background his delegation considered it 
important to define the concepts contained in the EC proposal.  While he agreed with Brazil that it 
was not a good idea to define every term, he believe d that the current proposal was bad for Members 
as it was too vague.  
86. The representative of China
 thanked the European Communities for having clarified the 
flexibilities of the register proposal.  His delegation was of the view that the GI multilateral register 
should cover GIs for all products to correct the cu rrent imbalance in the TRIPS Agreement.  Noting 
the difficulties that developing country Members, particularly least-developed country Members, 
might encounter in dealing with applications from the future GI multilateral register and in making 
full use of it, his delegation believed that special and differential treatment should be fully addressed 
in any solutions.  
87. China, as a co-sponsor of TN/C/W/52 which was now supported by 108 Members, believed 
that after nine years of discussion, the three TRIPS-related issues, namely the relationship between TRIPS and CBD, GI extension and the GI multilater al register, were politically and technically 
mature to enter into text-based negotiations.  Therefor e, his delegation preferred that these three issues 
be dealt with in parallel. 
88. The representative of South Africa
 thanked the European Communities for the responses and 
said that he had been heartened to hear the European Communities make several comments about 
S&D.  His delegation reserved its right to make more detailed comments at a later stage.  His 
preliminary comment was that South Africa shared the same concerns as El Salvador, New Zealand 
and Canada, and that the questions posed by the Joint Proposal Group had not been answered 
adequately, if at all.  He believed that the informa tion requested was vital for the debate to go forward, 
and like other co-sponsors of the joint proposal, his delegation urged the European Communities to submit this document as a formal legal negotiating proposal so that the register issue could be 
discussed more constructively.  TN/IP/M/21 
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  89. In response to the question from El Salvador, the representative of the European Communities  
said that the status of a final decision on GI protection in a Member would not be a problem, as the proposal in TN/C/W/52 fully respected the principle of territoriality.  He underlined, in view of 
questions by other delegations, that such decisions would be up to the respective national authorities.  
The word "authorities" was used purposefully becau se in the diverse legal systems around the world, 
"authorities" could be courts, trademark offices, GI  offices or IP offices.  The proposal left each 
Member fully free to use its own authorities, syst ems and procedures, and to  have its own findings, 
which by definition could be differe nt from one country to another. 
90. In response to the questions on participation by Canada, Australia and ot her Members, he said 
that, for his delegation, the reason why all Member s should be using the register lay in the world 
"multilateral" of Article 23, paragraph 4.  Some de legations might disagree, but this was the reading 
of 108 Members of the WTO, including the EC. 
91. He said that Canada had also claimed that so me of its questions remained unanswered without 
pointing out which ones.  He would answer four open  questions that he had noted with the hope that 
he would then have exhausted Cana da's questions.  First, Canada had mentioned question 27 on what 
would happen if two countries made different deci sions regarding a registered GI.  He had already 
answered this question with regard to consequen ces for other countries.  Regarding consequences for 
the register, he said that the GI would remain on the register as long as it was protected in the country of origin.  The mere fact that the GI remained on the register did not bind the Canadian authorities in 
any way regarding the consequences for the pr otection of this GI in their territory. 
92. He said that Canada had also specifically mentioned question 32 asking the co-sponsors of 
TN/C/W/52 to confirm that their intention was to require the party opposing the GI to bear a greater 
evidential burden than the party seeking to register a term.  In response, he said that it would again be 
up to the domestic authorities to evaluate the in formation they had, which might sometimes be 
contradictory.  It would also be for the domestic  authorities of a national jurisdiction to determine 
what exactly would be required to invalidate the prima facie  evidence and to establish proof to the 
contrary, showing that the registered name did not meet the definition.  He noted the Brazilian 
intervention, which had eloquently shown the contra diction between complaining on the one hand that 
the system was extraterritorial, and at the same time complaining that national authorities might arrive at different findings.  His delegation fully agreed that  there should not be any extraterritorial effect.  
This was why the proposal left national authorities free to make determinations according to their law, 
which could result in different findings in different Members. 
93. He said that Canada had further referred to  question 34 on whether it was the proponents' 
intention to change the established WTO jurispruden ce on the burden of proof.  The answer was no.   
94. Finally, Canada had specifically mentioned question 9 on whether the system proposed by 
TN/C/W/52 would cover GIs protected through trad ition or by convention, for example, through 
common law systems.  The answer was yes.  The register, as proposed, did not prejudge, in any 
manner, the form of protection used by Members. 
95. On the issue of costs and burdens that had b een raised several times, he said that the 
proponents of TN/C/W/52 had not demanded that as a consequence of establishing the WTO register 
Members would have to create national registers or national administrations of GIs.  The proposal did not change anything as to the existing TRIPS requirements in this regard. 
96. The EC representative said that New Zealand had referred to question 23 on the difference 
between a rebuttable presumption and prima facie  evidence.  This question might be to some extent 
academic since the concept of "rebuttable presumptio n" no longer existed in the TN/C/W/52 proposal.  
Prima facie  evidence was a concept that everybody unders tood.  If there were various understandings TN/IP/M/21 
Page 20  
 
  of its meaning, this would not be a problem as the proposal left the national authorities of each 
Member completely free to interpret this concept. 
97. He said that New Zealand had further asked why "genericness" assertions needed to be 
substantiated by those who made them in order to be taken into account.  This requirement addressed 
an issue that several right holders had reported bein g confronted with in third countries.  While the 
TRIPS Agreement mentioned "genericness" as an exception to the protection of GIs, these right 
holders had actually been faced with the impossibility  of proving that their terms were not generic.  
While it was possible to positively prov e the existence of an element, it was not possible to prove that 
it did not exist. There were two possibilities with re gard to these reported difficulties.  Either such 
situations did not exist, in which case there was no problem with requiring those claiming a right to 
benefit from an exception like "genericness" to substan tiate it, or such situa tion did exist, in which 
case the proposal was aiming at redressing the situation. 
98. He recalled that Argentina had also asked questions on the concept of prima facie  evidence, 
and had asserted that the proposal would deprive nati onal authorities of making their own findings or 
determinations.  He hoped that he had been sufficien tly clear in explaining that the mere fact of a 
name having been placed on the register would in no  way deprive national authorities of the right to 
make such interpretations precisely because it were  those national authorities that would interpret 
what prima facie  evidence would mean. 
99. Argentina, as well as other delegations such as Guatemala and Australia, had also asked 
questions on S&D provisions.  He confirmed that, as  was written in black and white in the proposal, 
there would be S&D provisions, and that they would be discussed after modalities. 
100. With regard to the comment made by the Un ited States that under the TN/C/W/52 proposal 
prior trademark rights could be disregarded, he sai d that this was not written anywhere, and that the 
proposal did not change anything regarding the possibility of claiming the exception of prior trademarks.  On the comment made by the United St ates that countries would need to establish a 
priority as for the other IP rights, he asked for further clarification. 
101. He said that the United States delegation had further said that the proposal would mean that a 
GI notified to the register by a Member would thus  become a GI in all other WTO Members.  This 
was incorrect.  His delegation had explained at length that the mere fact that a GI was notified to the 
register only meant that there was prima facie  evidence that it met a definition, that such prima facie  
evidence could be challenged in any manner of the na tional authorities' choice, and that, even if a GI 
was considered as meeting the definition, it could s till be denied protection on the basis of all the 
exceptions existing in the TRIPS Agreement, such as prior trademarks, prior use or "genericness". 
102. It had been asserted that the TN/C/W/52 pro posal would require considerable resources and 
that it would force Members to create a register of GIs.  He said that all that would be required of national authorities was to click on the website of th e WTO to know whether or not the GI was on the 
register, and then they would be free to make any de termination.  In his dele gation's view, this would 
fulfil the mandate which was to "facilitate" the prot ection of GIs, not the protection of trademarks. 
103. Japan had said that the concept of prima facie  evidence was ambiguous.  He agreed that it 
might be ambiguous in the sense that it could mean different things in different countries.  Such was 
the principle of territoriality.  It would be the Japanese author ities that would determine what prima 
facie  evidence meant in Japan. 
104. In response to the request for an illustrative exam ple he said that if the producers of "Chianti" 
had successfully requested Italy or the European Communities to notify the "Chianti" name to the 
register and then sought protection in Ruritania, they would first of all have to approach the  TN/IP/M/21 
 Page 21 
 
 
  Ruritanian authorities.  Secondly, they could point out to the Ruritanian authorities that they should 
consult the register to see that "Chianti" was on the register.  This would mean  one click, which would 
be the only cost and burden for the Ruritanian authorities.  With regard to what would happen next, there were two options.  Either nobody challenged th at "Chianti" was a GI, in which case "Chianti" 
would be determined by the national authorities of Rur itania to be a GI.  This did not yet mean that it 
would be protected in Ruritania.  Under the se cond option, a producer from Ruritania, any other 
person or any third country could claim that "Chian ti" did not meet the definition of a GI, in which 
case there would be a debate or a litigation about this  case in Ruritania.  There would not be greater 
debate or litigation under the register because this would, in any event, take place under the existing 
TRIPS provisions.  On the contrary, the fact that a GI was on the register might help the Ruritanian 
authorities to make their own findings.  At the end of this debate, the Ruritanian authorities would 
decide whether or not "Chianti" was a GI in Ruritania, and not anywhere else.  On the question of whether this GI "Chianti" should be protected a nd whether the "Chianti" producers should have the 
exclusive right to use the GI, he said that here again there would be a debate in Ruritania.  If there was 
a producer from a third country or from Ruritania that  claimed that "Chianti" was generic, it would be 
up to the Ruritanian authorities to decide.  But w hoever was claiming "Chianti" to be a generic would 
have to prove it.  His delegation believed that th is was the normal application of the genericness 
exception.  Furthermore, if any person had registered  or used  the name "Chianti" in Ruritania as a 
prior trademark, the protection of the GI "Chianti" c ould still be denied in Ruritania.  As could be 
seen from this example, it was up to the Ruritani an authorities to make their own determinations, 
using their own procedure, without having to creat e any register, without any extra burden or extra 
cost.  Such determinations would, of course, only be valid in Ruritania. 
105. Finally, in response to Chile's complaint that the paper had only been received three days 
before the meeting, he underlined that nothing in this paper was ne w compared to what his delegation 
had already said orally in December 2008. 
106. The representative of Canada
 thanked the European Communities for the additional 
information and said that his delegation would stud y its notes and wait for the written version so that 
it could study the details.  In addition to the questi ons from the list, Canada had included a request for 
information on how the system would be applied by Canada's trading partners.  While the example on 
Ruritania was informative, his delegation wished to  request that the European Communities and, to 
the extent appropriate, its member States, provide Members with how they would interpret terms such 
as "prima facie  evidence", "proof" and "substantiation" and how this would work in a real life 
situation.  He urged other co-sponsors to also pr ovide such information.  To know how these requests 
would be dealt with in each system for wine and spirit GIs would be very beneficial to understanding 
how the EC's ideas would work in reality.   
107. Like other delegations, his de legation reserved its right to  come back with additional 
questions or requests for clarification, as it ha d only received the written document a short time ago 
and its experts were still studying it.  His delegation also agreed wi th the suggestion of other Members 
that the European Communities' ideas  be turned into a detailed written proposal so that it could be 
compared with the joint proposal. 
108. The representative of Australia , in response to Brazil's comment on requests for 
manifestations of support for the various elements of the register section of TN/C/W/52, said that it 
was not his delegation's wish to have the Special S ession spend its time in declarations of support, but 
to understand how the system would be implemente d, not only by the TN/C/W/52 proponents but by 
all significant trading partners.  Under a TN/C/W/ 52-like system would there be, for instance, an 
opposition process in Ruritania, in which Australian producers could participate and contribute to the 
debate that would occur under option 2 of the Eu ropean Communities' answer?  There would be no 
option 2 unless there was some process by which ot her voices could be heard on the question of 
whether or not a particular registered GI met the definition.  It was not an unreasonable demand to TN/IP/M/21 
Page 22  
 
  want to know how something would work in practi ce and it should not be too controversial.  In 
negotiations elsewhere in the WTO a Member woul d also wish to know how many more widgets 
would be shipped to Ruritania under a particular NA MA coefficient, so that it could judge whether it 
was in its own interest or not. 
109. The representative of the United States
 said that her delegation's intervention might have been 
misheard or misunderstood.  As had been explained earlie r, one of the ways that a priority date for an 
IPR could be established was by a filing date of an  application in the country where protection was 
sought.  Priority was an important factor because the applicant that benefited from an earlier priority 
date could stop later attempts by others to obtain a registration on a similar designation.  The question 
was, in the system proposed by th e European Communities, whether or not a priority date would be 
established solely on the basis of placing a designation on the register.  To be more specific, under the 
proposed system, would the prior listing of a designa tion on the register prevent a later applicant from 
seeking registration of that designation in the count ry where protection was sought despite the fact 
that this later applicant was the first to file the application in that country?  If that was not the case, 
she asked the EC to confirm that placement of a d esignation on the register would have no effect on a 
determination of priority in the country where protection was sought if the domestic law of the 
country did not consider it as a basis for determination of priority. 
110. Her delegation also agreed with others that  had requested that the European Communities 
prepare a written proposal that could be compared with the joint proposal. 
111. The representative of New Zealand  thanked the European Comm unities for its explanations 
and said that some of the questions had still not b een fully answered, and so me of the answers given 
had left his delegation with funda mental questions about other issues, in particular legal effect. 
112. In the "Chianti" example, the European Co mmunities had suggested that if the GI was 
disputed in Ruritania there would be a debate, a nd at the end the authorities would decide whether 
"Chianti" was a GI in their jurisdiction.  He asked the European Communities to confirm that 
domestic authorities could only decide that the term was not a GI in their jurisdiction if there was 
proof to that effect.  In other words, would it al so be acceptable to refuse to recognize the GI on the 
basis of evidence even if that did not amount to proof? 
113. He said that the European Communities ha d not answered the question regarding the 
application of the WTO dispute settlement rules with respect to decisions on GIs.  Could the European 
Communities confirm that, given that domestic proce dures would be used to make the determinations, 
such decisions would not be subject to the WTO dispute settlement system? 
114. With regard to the EC's comment that his de legation's question about the difference between a 
presumption and prima facie  evidence in the absence of proof to the contrary was somewhat academic 
and was therefore left unanswered, he said that th e question had value for his delegation and that a 
reply would be welcomed. 
115. It had been suggested that Members should not be too worried about the difference between 
the various terms used in TN/C/W/52.  While New Zealand, like other delegations, fully respected the 
principle of territoriality, he said it would be ex tremely imprudent for Members to move ahead on the 
basis of important terms when the commercial c onsequences of those terms had not been fully 
understood. 
116. His delegation echoed the calls of other delega tions that Members should come to the next 
meeting with the information on how the Europ ean Communities' new ideas would operate in the 
context of their own domestic procedures.  While  this would not necessarily need to cover all  TN/IP/M/21 
 Page 23 
 
 
  Members, his delegation believed it would be important for major im porters and exporters of wines 
and spirits to be able to explain how this would work. 
117. New Zealand appreciated the European Communitie s' attempt to answer the questions about 
why they had singled out the genericness excepti on.  He invited the European Communities to 
provide the Special Session with further details a bout the particular cases which had been brought to 
their attention by right holders, to explore whethe r there were other solutions which did not alter the 
balance of rights and benefits in the TRIPS Ag reement and could at the same time address these 
concerns.  He further said that the European Communities had not answered the second related 
question, that was whether or not it shared similar concerns about the application of other exceptions 
of Article 24.  
118. As had been stated by Australia, his delegation shared the Swiss assessment of what the legal 
effect of the register should be, namely, for the na tional authorities to consult the register, take the 
information into account and give appropriate weight to the information on it.  He said for the record 
that this was exactly what the joint proposal would require under New Z ealand's existing domestic 
procedures.  In that regard, it could be said that pos itions were close together , but the legal effect of 
prima facie  evidence in the absence of proof to the cont rary would go some considerable distance 
further than that. 
119. He said that some questions were still outsta nding from New Zealand's perspective.  While 
Members could hear more answers from the European Communities at this meeting he believed it would be more efficient to provide these ques tions to the European Communities through the 
Secretariat so that other Members could see and unde rstand how this issue was unfolding.  There were 
four areas where his delegation continued to have concerns, mainly arising from policy differences.  
These were legal effect, territoriality,  genericness, and participation.  
120. New Zealand would also join others in reques ting that the European Communities put its new 
ideas into a text proposal which would allow Member s to compare it with the joint proposal and to 
understand how it would work in practice. 
121. The representative of Chinese Taipei
 thanked the European Communities for its responses 
and said that his delegation's ques tion regarding the time-frame issue described on page 4 of the EC 
paper had not been answered.  The explanation seeme d to imply that there would be no means for the 
authority to fulfil the obligation of consultation after that time-frame.  This would lead to the 
conclusion that it would be better for domestic auth orities to remove any time-frame they might have 
in their current system, which his delegation be lieved would not be practical under the current 
situation of many Members.  He said that no su ch risk of misallocating resources existed under the 
joint proposal.  
122. The representative of the European Communities  said that Canada's question regarding how 
the Ruritania example would be implemented in 27 member States of the EC, and in the other WTO 
Members, would require a consultation of several m onths with several institutions in 153 Members, 
which would result not only in confusion, but also in a long delay of this negotiation, which was not 
the objective.  While it was not possible to answer in advance how these concepts would be applied, 
he pointed out that the concepts of " prima facie  evidence" or "absence of proof to the contrary" in the 
proposal were nothing new.  
123. The delegation of the United States had asked a technical question on the priority date which 
he might not have fully understood.  However, while  there would certainly be a date when the GI was 
notified to the register, this date would not be the date of automatic protection in the national system, 
because there would be no automatic protection. TN/IP/M/21 
Page 24  
 
  124. New Zealand had asked whether domestic author ities could refuse a term as non-compliant 
with the definition of a GI without proof of the contrary.  The answer was no, because "the prima 
facie  evidence" meant evidence "in the absence of proof to the contrary".  Therefore, if there was no 
proof to the contrary, there was indeed evidence th at the term met the definition.  This did not, 
however, mean that the GI would be protected b ecause other elements such as exceptions could still 
apply. 
125. New Zealand had further requested examples of European GI producers that had encountered 
problems.  In this respect he said that, first of a ll, these were private company matters for which this 
meeting was not the proper arena of  debate.  Secondly, and more im portantly, he believed that it was 
not really relevant.  As he had explained, eith er there were no cases where the burden of proof had 
been put on the GI right holder to prove that a term was not a generic, in which case the proposal 
would not change anything, or if it were these cas es, then it did not matter where, when, and by 
whom, and the TN/C/W/52 proposal was correct in addressing this issue. 
126. Regarding the question by New Zealand on why the proposal addressed only genericness and 
not the other exceptions of the TRIPS Agreement, he  said that his delegation could not be accused of 
upsetting the checks and balances of GI protection with the other exceptions.  However, the main 
reason to single out the genericness had been th e cases reported by European producers of the 
problem of reversal of burden of proof regarding genericness. 
(ii) Cluster 2 (Notification and registration) 
127. The representative of th e European Communities
 said that his delegation had received fewer 
questions on the second cluster.  Regarding notifica tion, the proposal entitled each Member to notify a 
GI on the condition that it was protected in th e notifying Member in accordance with the TRIPS 
Agreement.  The proposal did not impose any details as to the form of such protection and thus left 
Members free to determine the appropriate method for implementing the relevant GI provisions of the TRIPS Agreement.  It also did not require the setting up of national registers. 
128. He said that the content of the notification woul d therefore be fairly simple.  Two elements 
should be included at a minimum, but more coul d be included at the discretion of the notifying 
Member.  The two minimum elements would be to  provide:  (i) all the information necessary to 
enable a verification that the GI met the GI defin ition;  and (ii) the elements which would allow a 
verification that the GI was protected in the country of origin, i.e. in the notifying country. 
129. With regard to the issue of opposition, he said that this element had been eliminated in 
response to complaints by Members that an opposition procedure would entail burdens, costs and 
administrative work.  This elimination was also logi cal because, contrary to other systems such as the 
Lisbon and Madrid Agreements, under the TN/C/W/52 proposal a mere notification to the register 
would not entail any automatic protection of the term.  He said that this addressed the major concerns 
that had been raised regarding the ex cessive government involvement and costs. 
130. The representative of Australia
 said that, if there were no opposition procedure at the time of 
considering whether or not a GI met th e definition, then a debate about " prima facie  evidence" and 
"proof to the contrary" became rather hollow, as there would be no opportunity for anyone to establish 
such proof to the contrary. 
131. In response, the representative of the European Communities  said that the point made by the 
delegation of Australia on opposition was a misunde rstanding in the sense that there were two 
different issues.  The proposal had eliminated the opposition procedure at the register level, but not 
the opposition procedures that could take place at the national level to challenge the definition of the  TN/IP/M/21 
 Page 25 
 
 
  GI and to claim the application of any exceptions  under Article 24 of the TRIPS Agreement at any 
time after protection had been sought at national level. 
132. The representative of Canada  said that the European Co mmunities' proposal that the 
registration of a GI constitute prima facie  evidence would create a burden on others to refute this 
evidence.  His delegation's concern was:  firstly, how it could be assured that a notified GI actually 
met the criteria for being a GI in its home country, including that it was a GI for a wine or a spirit;  
secondly, how it could be assured that the informa tion continued to be up-to-date as addressed in 
question 15;  and thirdly, how it could be assured th at the registration system was not being misused.  
He noted that the joint proposal provided the same in formation to be used by domestic authorities but 
did not create new legal presumptions and did not impose significant new costs.  Members should also 
consider whether or not greater legal effects of  the register would possibly necessitate greater 
safeguards against misuse.  While the European Co mmunities' ideas did include greater legal effects 
without any balancing proposals for protection agains t misuse, the joint proposal did not create this 
kind of problem. 
133. He said that question 17 regarding sub-appella tions and question 59 on removal from the 
register remained unanswered. 
134. The representative of New Zealand  said that in regard to notification and registration there 
were a couple of issues that his delegation would wa nt to take up not only under cluster 2 but also 
under cluster 3, e.g. the status of GIs that we re no longer in use and how these would be removed 
from the register.  He said that, rather than getting into too much detail at this meeting, it would be 
preferable to examine the European Communities' a pproach to those issues in the context of a full 
proposal that could be compared with the exis ting provisions in the joint proposal, which were 
comprehensive and simple to understand.  
135. The representative of Australia  said that with respect to  notification the European 
Communities had stated that one of the crucial elem ents to be notified woul d be the information to 
verify that the GI met the definition of a GI.  This related to a point Australia had made earlier that the 
content of that information was quite relevant to  whether the proposed model would be viable and 
consistent with the principle of territoriality.  In his delegation's view, the definition of a GI was not a 
purely objective standard.  Some elements were quite  explicitly subjective and related to a particular 
territory of a particular Member.  Therefore, while in the country of origin a particular kind of wine 
might have a reputation and be felt to have certain characteristics, some of which might be found 
through chemical analysis while others might relate  to an association with the name or the place of 
origin, that might not be the case in another country.  His delegation would appreciate clarification 
from the European Communities rega rding what sort of information Australia, for instance, should 
provide to the register to allow another country, taking that information as prima facie  evidence, to 
establish that a particular location of a wine had meaning in that other country.  
136. The representative of Switzerland  said that, in order to provide a simple system which could 
be used by all, the proposal in TN/C/W/52 le ft to the notifying countries the responsibility for 
deciding what to do at the national level.  They were the ones who would decide what should be protected and what would represent a GI in their territory.  It was also the responsibility of the notifying countries to keep their lists up to date a nd to inform third countries as to the GIs that they 
were protecting.  As had been said several times, this did not mean that there would be automatic 
protection in other countries.  In other words, other Members would have ample room for manoeuvre 
to look at the definition when deciding whether or not a GI should be protected in their country, and 
whether this should have any effect, for exam ple, in relation to a prior trademark.  
137. She said that an opposition procedure had been provided for in an earlier EC proposal, but 
most delegations had felt that it was complicated, expensive and cumbersome, so it had been TN/IP/M/21 
Page 26  
 
  eliminated.  Therefore, it was somewhat contradict ory to now claim that the absence of international 
means of checking whether one of the elements of  the definition was being respected would be a 
problem.  The idea was to leave it up to every Member , under the principle of territoriality, to have 
the responsibility of deciding for themselves whether or not they wanted to protect a GI.  The register 
was there only to facilitate the work by providing  information, including at the national level. 
138. The representative of the European Communities
 said that, with regard to the Canadian 
questions on prima facie  evidence and how it could be verified, this would be done by the authorities 
of all Members if the protection was sought by th e right holders in all Members, which would be 
unlikely.  It would, of course, depend on the determ ining element included in a notification.  While it 
could not be presumed what the notifying Member would include, there would be an incentive for that 
Member to include information as comprehensive as possible and to provide as much evidence as 
possible that the GI met the definition. 
139. Regarding the question on the so-called "misuse" of the system, he said that he was not sure 
what "misuse" meant in this context.  He could only think of the example of GIs that did not exist in the country of origin.  While that would be easy to  verify, he said that sufficient safeguards had been 
put into the system by requiring that it be a state,  not a private party, a company or a producer, that 
would notify a GI to the register, that the GI met th e definition, and that it be protected as a GI in the 
notifying country.  As Members knew, the IP legislation of the notifying country could be scrutinized by other Members.  Furthermore, the fact that the GI was protected in the country of origin would be 
easily verifiable information as it was impossible to  protect a name without making this protection 
publicly known. 
140. Regarding Canada's question 17 on sub-appellations, such as  the appellation "Coteaux du 
Languedoc" followed by the name of a sub-division of the Coteaux du Languedoc, he said that it 
would be mutatis mutandis  the same as for any other notified GI.  As long as such a sub-appellation of 
an existing GI met the definition of Article 22.1, it would be eligible for protection. 
141. Regarding the removal of a GI, he referred to  the answer already given by Switzerland on 
updating the lists by Members.  It would be up to each notifying Member to remove a GI which was 
either no longer protected in its own territory or which no longer met the definition of a GI. 
142. Regarding Australia's question on what elemen t the national authorities of Members would 
use to verify whether the definition was met or not , he said that there was no single answer.  Some 
countries would presumably refer to books, atlases, or surveys, but it was up to each country to determine which instruments or means to use.  Similarly, it was up to the notifying country to provide 
the information necessary for this verification to be made, because otherwise it would be penalized as 
its producers, when seeking protection in other Me mbers, would possibly lose the so-called "debate" 
before the national jurisdictions.  For example, th e same product could enjoy a different reputation in 
different countries, and this would have to be verified by each national jurisdiction. 
(iii) Cluster 3 (Other elements such as costs and burdens and special and differential 
treatment) 
143. The representative of the European Communities
 said that his delegation believed that 
progress on these other issues, including costs, coul d only be made once the so-called "key policy 
choices" had been made on issues in the first cluste r of legal effects and participation because they 
would flow from those issues.  For that reason, th e proposal in TN/C/W/52 did not enter into these 
details at this stage.   
144. The representative of Canada  recalled that the European Communities had noted in its written 
answers that a fair amount of detailed work had been  done and that there was no need to look at these  TN/IP/M/21 
 Page 27 
 
 
  issues.  He said that he agreed that a fair amount  of work had been done on the joint proposal and 
previous proposals, but the European Communities'  new ideas created the need for more work to 
understand how the new concepts could affect the areas mentioned in this cluster.  Canada was 
prepared to engage in that work to better unders tand the implications of the European Communities' 
new ideas and their relation to the joint proposal. 
145. On the question of "modalities", the European Communities had said that a number of issues 
needed to wait until key decisions had been taken.  His delegation did not agree with that point.  If, as 
with the joint proposal, a full written proposal from the European Communities and the co-sponsors 
were made available, Members would be in a good pos ition to look at all of the issues in this third 
cluster.  It behoved Members to take advantage of the time available to do th is work when there was 
time for it. 
146. His delegation had flagged a number of questions for the European Communities, some of 
which had been addressed elsewhere and under other issues.  Regarding questions 11 and 19 on costs, 
his delegation had given some indication of what it believed would happen in the realm of costs, and 
would be interested in other countries' assessments of how this proposal would affect their costs.  
Questions on dispute settlement had not receive d a satisfactory response from the European 
Communities, and his delegation would appreci ate a response in that respect as well. 
147. The representative of Chile  said that, in response to the Eu ropean Communities' comment that 
TN/C/W/52 had taken on board the issue of special  and differential treatment, several delegations, 
from developing countries in particul ar, had spoken in favour of the joint proposal in the context of 
costs and S&D, because it basically contained S&D in the form of its strictly voluntary nature.  This 
issue was also related to the two principal issues of  legal effects and partic ipation and his delegation 
would therefore appreciate hearing more from th e European Communities on S&D and on the costs 
that the TN/C/W/52 proposal involved.  It would be  useful to have a more elaborate written proposal 
so that these issues could be looked into. 
148. In response to Canada's questions on costs, the representative of the European Communities  
said that costs could be understood in two ways:  as costs related to the register itself at the WTO 
Secretariat level;  or costs at national level.  His delegation believed that the costs at the level of the 
WTO Secretariat would simply be the cost of main taining a list of notified names received, which was 
negligible compared to the numerous daily notifi cations and communications already received by the 
WTO Secretariat now.  As to the costs at national level, it would basically be the cost of a click 
because Members did not need to set up a register at national level, did not need to change their law, 
did not need to maintain procedures that they woul d not currently be obliged to maintain, and did not 
need to have debates if they currently did not prov ide for such debates in case of disputes related to 
GIs.  The proposal in TN/C/W/52 was not inventing a new TRIPS system for GIs.  For the cost of a 
click, the protection of GIs would be  facilitated and the mandate fulfilled. 
149. Regarding Chile's intervention, he underlined th at no change of law would be required in any 
Member as a consequence of the TN/C/W/52 proposal. 
150. The representative of Chile  clarified that he had simply asked the European Communities to 
better explain S&D treatment in their proposal because many developing country delegations had 
referred to the fact that the joint proposal cl early covered it, at least through the voluntary 
participation aspect.  He asked what aspect of S&D was proposed in TN/C/W/52 apart from the fact 
that it was a marriage of convenien ce with the issue of TRIPS/CBD. 
151. On the issue of costs, the European Comm unities had referred to possible costs for the 
Secretariat and costs for Members in consulting the list of GIs on the WTO web page.  He asked whether the European Communities ha d foreseen any cost for consumers,  or for the users of European TN/IP/M/21 
Page 28  
 
  geographical terms which were for example being used  in Chile and Argentina.  Would there be costs 
for changes?  Would the Chilean producer using a ge ographical name of European origin incur greater 
costs than was currently the case in demons trating that the name was a generic term? 
152. On S&D, the representative of the European Communities
 said:  (i) that his delegation could 
confirm that S&D provisions would certainly be include d in the final proposal or final text;  (ii) that 
such S&D provisions would concern the three TRI PS issues mentioned in TN/C/W/52 together, and 
not only the register;  and (iii) that it was not the in tention of TN/C/W/52 to deal exhaustively with all 
these issues.  TN/C/W/52 was a paper for modalities,  and details would be discussed after modalities. 
153. On costs, he said that there would be no co sts for consumers or producers as a consequence of 
the register.  One could even argue that the cost s would be reduced for the national administrations 
because the register would simplify their requests for information.  Regarding the option where a 
party claimed that a notified GI was a generic and therefore did not deserve protection, he confirmed 
that such a claim would have to be substantiate d.  Since this might already be the case in many 
instances, he believed that th is would not add any cost.  
154. The representative of Canada  said that his delegation had posed question 44 regarding 
disputes in domestic courts under "other issues".  However, as it had been raised in the meantime by 
other delegations, he would appreciate it if he c ould have a response on dispute settlements both at 
national and WTO levels. 
155. The representative of New Zealand  recalled that his delegation had asked whether or not it 
would be correct to assume that the WTO disput e settlement mechanism would not apply to the 
register if domestic procedures were – as explaine d by the European Communities – paramount in the 
proposal.  If the WTO dispute settlement mechanism did apply, on what basis could a dispute be 
brought, assuming that domestic pr ocedures were TRIPS-consistent? 
156. The representative of the European Communities  said that question 44 from Canada was not 
so clear, as it requested the co-sponsors of TN/C/W/ 52 to clarify that disputes would be addressed in 
domestic courts by domestic authorities.  The disputes on whether or not the GI met its definition 
would of course be addressed by domestic courts, or  authorities, or chambers of disputes, whatever 
the country provided for.  
157. Regarding the question of New Zealand on the application of the WTO dispute settlement 
system, he said that this was not a topic touched upon by the TN/C/W/52 proposal, and that one could 
only reason logically in this regard.  Determinati ons by countries whether or not an exception applied 
were sovereign decisions of the relevant national authorities.  They would, however , have to apply 
WTO definitions where these existed.  If a national authority claimed for example that a name on the 
register did or did not meet the three criteria of the definition of Article 22.1, it could not take a 
decision on that name on the basis of only two criteria.  If a GI registration by a Member was considered not to be WTO-compatible, or if a Member's legislation did not apply the TRIPS 
Agreement, it could be subject to the WTO dispute settlement system.  This, however, would not be a 
change brought about by the TN/C/W/52 proposal as that was already the case now. 
158. The representative of New Zealand
 said that his delegation disagreed with the European 
Communities' assessment that these i ssues needed to wait for a new m odalities decision.  He said that 
the ministers had already given clear guidance, twi ce, on modalities for this negotiation.  The mandate 
was clear.  Members had spent a lot of time debating the mandate in the past and were now in a situation where there was good momentum in the negotiations.  He would therefore welcome the 
European Communities giving some thought to how they would see the cluster 3 elements unfold 
under their approach to the cluster 1 elements.  That would allow delegations to carefully think 
through how their proposal would work.  TN/IP/M/21 
 Page 29 
 
 
  159. The representative of Chinese Taipei  said that his delegation was concerned that, if the only 
obligation were to simply maintain a list, this list could become a shortcut for the GI owners to get 
applications approved in foreign countries because the registered name would enjoy, under the EC 
proposal, the prima facie  evidence effect.  When the owners of "Bordeaux" applied for protection in a 
foreign country, they would submit an application to  the domestic authority of that country and refer 
to the register, which the authority would then exam ine, and find that the name was on the register.  
Such a list would become a shortcut because, accord ing to what the European Communities said, if 
there was no opposition or any prior rights in that country, it would be recognized as meeting the definition of a GI.  It would not just be a simple WTO list that the Secretariat maintained, but actually 
a shortcut for GI owners to get their applications through.  
160. The representative of Australia
 said that his delegation's thoughts were similar to those 
expressed by the delegation of Chinese Taipei.  These other issues needed to be considered 
holistically as part of a fully developed proposal b ecause domestic costs would affect implementation 
and the way that the legal effects would operate in practice. 
161. He said that an implementing authority or an implementing system might face a choice that 
some Members who had no particular interest in wine  and spirit trade would perhaps rather avoid.  It 
was an invidious choice between having a system that  allowed the debate mentioned in the examples 
of "Chianti" in Ruritania, or "Bordeaux" in Aust ralia, and not having such a system.  Some Members 
might have procedures providing for debates when  considering whether a GI met the definition, 
whether the prima facie  evidence could be turned down by proof to the contrary, but other Members 
might not have such rather costly procedures a nd might accept a term that was on the list as a matter 
of course.  In the latter case, there would in fact be an almost automatic approval of any listing of a 
GI.  While that might not seem of great conseque nce and would probably be referred to as "a matter 
for domestic systems", the WTO Members should be  mindful that granting monopolies that should 
not exist would in fact raise costs to consumers,  since monopolies, even on a geographical term, 
would create pricing power.  His delegation was con cerned about the risk of setting up unwarranted 
barriers to trade through introducing the system th e European Communities had outlined.  In contrast, 
under the joint proposal, a Member with no interest in the register would not need to participate:  
Members would therefore have an extremely low-co st alternative, which would not create monopolies 
that would not have been granted if there had been a procedure to examine the cases. 
162. In response to the comment made by the delegation of Chinese Taipei on shortcuts, the 
representative of the European Communities  said that there had again been a misunderstanding.  
Firstly, it was not the "Bordeaux" producers who would notify the "Bordeaux" name to the register, 
but the Member where this GI originated.  This Member could only do so in full respect of its IP 
legislation, which had to be WTO-compliant.  Othe rwise the other Members might take it to the WTO 
dispute settlement system.  Secondly, the mere fact that "Bordeaux" was in the register did not entitle 
"Bordeaux" to be protected in Ruritania.  With  regard to the option that, where there was no 
opposition to that GI, it would be deemed to meet the definition, he said that would not be a problem.  
If there was nobody opposing "Bordeaux" in the Member where protection was being sought, where would be the problem?  If there was an opposition, th en there would be a debate.  "Bordeaux" might 
be considered not to meet the definition in Ruritani a despite its registration in the register.  If it was 
found to meet the definition, that would still not m ean that it would be protected:  any third party 
could still claim the exceptions of genericness, prio r trademark or prior use.  Therefore the system 
would not create shortcuts but would facilitate  protection in accordance with the mandate. 
163. Finally, he said that he did not follow Austra lia's reasoning that the proposed system would 
entail costs for a country at domestic level.  The TN/C/W/52 proposal did not change the current 
situation:  all Members were already obliged, if th ere was a dispute on a GI, patent or trademark, to 
provide assistance in settling a dispute.  His delegation did therefore not see any extra cost in that 
regard.  TN/IP/M/21 
Page 30  
 
  164. The Chairman
 said that the discussion had been excellent and that more sessions like this 
would be useful in getting to the bottom of the technical issues. 
165. The Special Session took note  of the statements made. 
C. OTHER BUSINESS  
166. The Chairman  recalled that, as agreed by Members at the TNC meeting last year, all the 
negotiating groups should be moving forw ard.  As for other Chairs, his task was to ensure that this 
group was working at the right pace and that it did not find itself in the situation where it would be the only negotiating group unable to deliver "at the cr unch time" because the technical issues had not 
been addressed in time.  While he was not looking to  go faster than any other negotiating groups that 
were supposed to be ahead of this group, at the same time he wanted to constantly encourage 
Members to keep the right pace so that the rightful position in the overall negotiation scheme would 
be maintained.  In his view, the most appropriate approach would be to continue with these technical 
discussions and to try to bridge the gaps wherev er possible.  He believed that Members should 
continue to take advantage of the participation of  the capital-based experts that would come for the 
regular session of the TRIPS Council.  He therefore foreshadowed that the next formal meeting 
should take place back to back with the mee ting of the regular session of the TRIPS Council 
scheduled for 8 and 9 June.  In view of the long pe riod until the June meeting, he believed that these 
issues should not be allowed to rest for such a l ong time.  If Members agreed, he would suggest to 
engage in some technical consultations in the period between March and June, and to pace them 
consistently with what was happeni ng elsewhere in the Doha Round. 
167. The representative of th e European Communities
 said his delegation supported the suggested 
way of moving forward.  This issue should not slee p until June and he fully agreed with the proposal 
to have meetings in between.  He added that the issue discussed at this meeting were part of a 
proposal which also touched on two other topics.  His delegation welcomed the Director-General's 
decision to hold technical consultations on those two other topics the following week. 
168. The representative of the United States  reiterated the request for a written proposal from the 
European Communities and the other co-sponsors of TN/C/W/52, and said that it would help to see 
with more clarity what the proposal would look like and how it would compare with the joint 
proposal.  Until then, she said, it would be premature to have inter-sessional meetings. 
169. The representative of New Zealand  said that, in light of the ambiguous European 
Communities' statement that TN/C/W/52 superseded earlier positions with regard to those aspects in 
earlier proposals that might contradict them, it really would be easier and permit work in a more 
structured fashion to have a full text proposal.  While his delegation was committed to moving the 
process forward and agreed with the suggested speed  at which it should move, it also believed a 
written proposal would now be the way forward.  
170. The representative of Korea  said that many developing countries had raised the issue of 
special and differential treatment at this mee ting.  In his delegation's view, the European 
Communities' stance that special and differential trea tment would be dealt with in a final text did not 
enable developing countries to compare the different  proposals on special and differential treatment.  
In this context, his delegation requested the Euro pean Communities to give a full explanation of the 
special and differential treatment propositions  in the TN/C/W/52 at the next meeting. 
171. The representative of Chile  said that his delegation also supported the request that the 
TN/C/W/52 proposal be put in writing to enable a comparison with the joint proposal.  This could 
help this negotiating group to have a discussion that  would also focus on the joint proposal, which the 
European Communities and Switzerland had consistent ly refused to address, apart from saying that it  TN/IP/M/21 
 Page 31 
 
 
  was just a database.  His delegation would welcome an opportunity to explain how the joint proposal, 
unlike the one in TN/C/W/52, would facilitate pr otection of GIs for wines and spirits without 
necessarily increasing their protection.  In this c onnection, he welcomed the EC representative's 
comment that putting names in a database facilitated protection of GIs.  This comment took away a slight discrepancy with Chinese Taipei and Au stralia.  Putting names on a database did have a 
de facto effect.  With a full written proposal from the sponsors of TN/C/W/52, it would be interesting 
to hear the exact position of Chile's important tradi ng partners supporting that proposal.  Like Korea, 
Chile thought that it was important to see the speci al and differential treatment provisions in the 
European Communities' proposal, and that this is sue was linked to the costs issue.  Unlike the 
European Communities, Chile believed that the cost s for the current users of names of European 
origin would be affected.  
172. The representative of Brazil
 said that he had difficulty understanding the request made by 
Chile and other countries that the proposal should be put in writing.  TN/C/W/52 already was a 
proposal in writing.  If they were asking for an additional text, he said, such work could be done together with 108 Members, but it was his understa nding that the opponents had already agreed on the 
basic elements regarding the GI register. 
173. With respect to the Chair's suggestion, his delega tion believed that it would help to have more 
sessions between this meeting and June.  Parallelism was of the essence.  As the Director-General would hold consultations on GI ex tension and on TRIPS/CBD, it could be agreed that all TRIPS-
related issues would be dealt with in parallel. 
174. The representative of Costa Rica
 said that, while TN/C/W/52 was a written proposal, it was 
not really a legal text such as the joint proposal in TN/IP/W/10/Rev.2, the Hong Kong, China proposal 
in TN/IP/W/8, or the former European Co mmunities' proposal in WT/GC/W/547-TN/C/W/26-
TN/IP/W/11.  His delegation believed that the propone nts of TN/C/W/52 should be able to come up 
with a legal text in order to facilitate the discussion of the Special Session.  
175. The representative of Japan  said that his delegation would like to confirm that the joint 
proposal was still on the table and should received new consideration. Japan was also ready to further 
discuss the European Communities' proposal. 
176. The representative of Chile  said that, while his delegation could obviously not force any 
delegation to come forward with a document, it believed that a legal te xt should normally be 
submitted, even when others did not accept it.  In other WTO bodies such as the negotiating group on 
trade facilitation, Members were now going through  third generation proposals.  Initial ideas had 
become legal texts even if Members did not all lik e them.  A full legal text proposal would be very 
helpful for important issues for developing countri es, including Brazil.  He recalled that Brazil had 
made a very strong statement a year ago on the im portance of analysing the costs for developing 
countries, and since then the cost for developing countries had not become clearer.  As regards the 
European Communities' comment on cost to the S ecretariat, his delegation agreed that it would 
probably be more or less the same as that for the jo int proposal, i.e. the cost of having a website and 
translating it.  He also agreed with the Europ ean Communities on costs for governments when they 
consulted this database, but his delegation did not yet see what the costs would be for developing 
countries, for consumers and for producers who were  using terms considered  as generic in Chile.  
That was why it was important to have a legal text to compare with the joint proposal.  
177. The representative of India  said that his delegation did not understand the insistence on legal 
texts.  There had been legal texts on the GI register and on TRIPS/CBD for a long time, and there had 
been exhaustive discussions on these issues over th e years.  Document TN/C/W/52 basically 
contained key parameters for ministerial decisions, so that Members should be able to somehow move 
out of this impasse and engage in constructive text-based negotiations. TN/IP/M/21 
Page 32  
 
  178. Regarding the pace of work, his delegation c ould agree with the suggestion made by the 
Chairman.  Its concern was that the consultations on the other two issues should definitely proceed at 
a fast pace. 
179. The Chairman
 said that he would consult with Members on the best way to structure 
discussions in the future, but that he would certainly not want to lose this momentum.  The 
momentum, based on the papers on the table, had been  very good at this meeting.  He was not in a 
position to make a decision on whether there should be  more or fewer papers, or a different kind of 
paper.  He thought that Members had a fairly good grasp of the issues and that there was room for 
further discussion on the technical issues.  While he  would agree with the general comment that ideas 
put in writing would help, he had also been made aware that some of these issues had been discussed 
for a long time and that Members understood these issues well enough to go a little further without 
more papers.  He said, however, that he was not the person to make the judgement as to whether or 
not more papers would be required.   He was satisfied that this negotiating group had the competence 
and the interest to address the issues in the serious and technical way that they had been discussed at 
this meeting.  Whether it be in the form of add itional papers, questions, answ ers or explanations on 
how some legal effects would affect the domestic situ ation, all of these could be brought to the table 
and the Special Session would proceed on whatever b asis Members agreed to proceed.  He said that 
there was one source of papers th at had not been mentioned:  he as Chairman could produce a paper 
with the help of the Secretariat at the time when it  was deemed necessary.  He did not believe that this 
was necessary yet.  This was how he saw the options  for moving forward, and he was confident that 
with the same goodwill and spirit displayed at this m eeting Members would continue to find ways of 
working on the register and moving the work forward at the right pace. 
180. The Special Session took note  of the statements made. 
 
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