WORLD TRADE  
ORGANIZATION  WT/GC/W/546 
TN/C/W/25 18 May 2005 
 
 
(05-2027) 
General Council Trade Negotiations Committee  
 
 
 
ISSUES RELATED TO THE EXTENSION OF  THE PROTECTION OF GEOGRAPHICAL 
INDICATIONS PROVIDED FOR IN ARTICLE 23 OF THE TRIPS AGREEMENT TO 
PRODUCTS OTHER THAN WINES AND SPIRITS 
 
Compilation of Issues Raised and Views Expressed
 
 
Note by the Secretariat  
 
 
 
     
 
  
1. As requested at the technical level cons ultations held by Deputy Director-General 
Thompson-Flôres on 25 April 2005, the purpose of this note is to present a factual compilation of the 
issues raised and views expressed on issues related to  the extension of the protection of geographical 
indications provided for in Article 23 of the TRI PS Agreement to products other than wines and 
spirits since the matter was put on the Doha Wo rk Programme (WT/MIN(01)/DEC/1, paragraph 18). 
2. The work undertaken on this subject since the Doha Ministerial Conference includes the 
consideration given to this matter in both formal and informal meetings of the Council for TRIPS in 
2002, the consultations held by the Director-Gen eral in Spring 2003 and the technical level 
consultations held by Deputy Director-Gener al Thompson-Flôres at the request of the 
Director-General from December 2004 to April 2005, as well as certain statements made in the TNC 
and the General Council.  A list of the formal and informal meetings at which a discussion dedicated 
to extension issues has taken place can be found at Annex 1.  These discussions were organized 
around, respectively, a Checklist of Issues, dated 17 September 2002, prepared by the Chairman of the 
Council for TRIPS (JOB(02)/117), suggestions made  by the Director-General reflected in a "non-
exhaustive list of possible topics for discussion" which was circulated on 25 June 2003 and suggestions circulated by Deputy Director-General  Thompson-Flôres on 13 January 2005;  copies can 
be found at Annex 2.  The compilation describes issues raised and points made, both in writing and orally, at the various meetings referred to above.  A full list of relevant documents can be found at 
Annex 3. This document has been prepa red under the Secretariat's own 
responsibility and without prejudice to the positions of Members 
and to their rights and obligations under the WTO.  WT/GC/W/546 
TN/C/W/25 Page 2 
 
 3. This note is organized under the following headings: 
  Paragraph Nos. 
I. GENERAL POINTS 
 6-19
II. ISSUES RELATING TO PROTECTABLE SUBJECT-MATTER 
 20-36
III. THE IMPACT OF EXTENSION ON PRODUCERS IN THE AREA 
DESIGNATED BY A GEOGRAPHICAL INDICATION  37-46
IV. THE IMPACT OF EXTENSION ON PRODUCERS NOT IN THE 
AREA DESIGNATED BY A GEOGRAPHICAL INDICATION  47-53
V. IMPACT OF EXTENSION ON THE RELATIONSHIP BETWEEN 
TRADEMARKS AND GEOGRAPHICAL INDICATIONS 
 54-57
VI. IMPACT OF EXTENSION ON THE TREATMENT OF 
HOMONYMOUS GEOGRAPHICAL INDICATIONS  58-60
VII. THE IMPACT OF EXTENSION ON CONSUMERS 
 61-63
VIII. THE ADMINISTRATIVE COSTS AND BURDENS OF THE 
PROCEDURES ASSOCIATED WITH ANY EXTENDED PROTECTION AND ANY OTHER IMPACTS ON GOVERNMENTS 64-72
 
4. Sources for the points reflected in the compilation are contained in footnotes.  Where the 
footnote refers to a consultation or to TRIPS C ouncil minutes, the point was made orally.  In many 
cases, the same point has been made more than once;  the footnotes do not purport to contain 
references to all such occasions. 
5. In the discussions, objections ha ve been lodged to the use of certain terminology, such as 
references to the "illegitimate" use of a GI, "usurpation" and "free-riding", on the ground that such 
terminology is inappropriate when applied to activiti es that are legal and conducted in good faith.  The 
delegations that have used these terms have said th at they reasonably convey in concise form their 
views.  In this note, the terminology used by those Members whose views are being recorded is 
reflected.  This should not be taken to imply any endorsement by the Secretariat of the use of that 
terminology. 
I. GENERAL POINTS 
6. The mandate in paragraph 18 of the Doha Declaration and in the paragraph on 
Implementation in the General Council Decision  of 1 August 2004 for addressing issues related 
to the extension of the protection of geographica l indications provided for in Article 23 of the 
TRIPS Agreement for products other than wines and spirits has been discussed.  One view has 
been that negotiations on this matter, pursuant to paragraphs 12 and 18 of the Doha Declaration, like 
on other outstanding implementation issues, formed an  integral part of the Doha Work Programme.
1  
GI extension was an essential element of  a balanced outcome to the Doha Round.2  It was an 
                                                      
1 WT/GC/W/540/Rev.1 and TN/C/W/21/Rev.1, para. 1;  TN/C/4, page 1. 
2 TN/C/4, page 1;  Bulgaria and Hungary, DG consultations, 22 May 2003;  Pakistan, 
IP/C/M/36/Add.1, para. 104;  Switzerland, DDG consultations, 10 March 2005.  WT/GC/W/546 
 TN/C/W/25 
 Page 3 
 
 implementation issue as it related to asymmetri es and imbalances resulting from the Uruguay Round.
3  
It was not just a European issue;  most advocates of extension were developing countries.4  The matter 
had been extensively and exhaustively discussed.  Gi ven that in the Doha Round important decisions 
in other fields of negotiations would need to be  taken, the General Council and TNC should make a 
decision in favour of extension.  A proposal for how extension could be implemented had been made 
in the Annex to document TN/C/W/14.5  In response, the view has b een expressed that paragraphs 12 
and 18 of the Doha Declaration did not constitute  a commitment to negotiate on GI extension.  
Moreover, treating the matter as a development issu e was inappropriate given that the differences on 
this matter were not betw een developed and de veloping countries.  As there was no existing provision 
in the TRIPS Agreement granting additional protecti on of geographical indications to products other 
than wines and spirits nor any agreed mandate to ne gotiate the extension of th is additional protection, 
this issue could not be treated as an implementation issue.6  The discussions had not led to a 
consensus to recommend initiation of negotiations on ex tension;  rather, it was clear that a substantial 
number of Members were opposed for several reasons, including, but not limited to, the fact that there 
had been no demonstration that existing protectio n for geographical indications under Article 22 of 
the TRIPS Agreement was not sufficient.7 
7. Views have been exchanged about the interrelationship of the extension proposal  with the 
other two GI initiatives that are being pursued by some Members in the WTO – a multilateral 
system of notification and registration of GIs for wines and spirits in the Special Session of the Council for TRIPS and the so-called "claw-back" pr oposal tabled by the European Communities in 
the Negotiating Group on Agriculture.  One view has been that all these proposals related to 
intellectual property issues and to rights and ob ligations under the TRIPS Agreement and must be 
considered when discussing the objectives, scope and content of the proposal for GI extension, for the 
following reasons: 
 - Proposals on claw-back, extension and the mu ltilateral register were slightly different 
procedural means to achieve the same po licy end.  First, under "claw-back", the 
proponents sought to go back in time and pr ohibit the use of certain terms, some of 
which had become generic in nature or had been trademarked, by requiring WTO 
Members to give up their rights to use the exceptions contained in Article 24 of the TRIPS Agreement.  Second, they sought to ensure that the use of all terms they considered to be GIs "in the future" w ould also be further circumscribed or 
effectively prohibited (so-called extension).  Third, they sought, via a legally binding 
and compulsory multilateral register, to prohi bit the use of terms by legitimate users 
and users/owners of gene ric terms and trademarks. 
  - Proposals to prohibit certain Members from using specific terms would upset the 
balance of rights and obligations containe d in the TRIPS Agreement.  Currently, 
many WTO Members enjoyed the right to the on-going use of the terms which the 
proponents had suggested should be included on the claw-back list.  These rights to 
use the terms were guaranteed by the TRIPS Agreement.  The fact that these terms 
could continue to be used was fundamental  to the agreement reached on geographical 
indications at the end of the Uruguay Round and to the balance found in the 
Agreement between the protection of GIs a nd other public policy interests.  Under 
                                                     
 
3 India, DG consultations, 30 June 2003. 
4 Hungary, DG consultations, 22 May 2003. 
5 JOB(05/61;  TN/C/W/14. 
6 WT/MIN(01)/W/8;  Argentina, DG consultations, 22 May 2003. 
7 IP/C/W/395. WT/GC/W/546 
TN/C/W/25 Page 4 
 
 
claw-back, all the exceptions now carefully set out in the TRIPS Agreement would be clearly and immediately forfeited.
8 
 8. In response, the following has been said: 
 - Extension was a forward-looking initiative that sought to establish an adequate 
framework of protection for GIs not yet c onsidered as generic or registered as 
trademarks.  Conversely, the limited GI list, which had been proposed to be 
negotiated in the Agriculture Committee, wa s an initiative that sought to claw-back 
the exclusive use of certain GI names for the relevant WTO Member, even if they 
were currently considered generic or trademarks in other WTO Members.  This was a 
market access issue.  Claw-back was clo sely linked to many other issues of the 
negotiating package, not just extension.  Since claw-back, market access, extension 
and many other issues were part of the single undertaking, the appropriate framework to address these linkages would be in the TNC, where Members would be able to 
discuss the linkages between the different elements of the single undertaking, after 
Members had done the technical work on GI extension and reported to both the 
General Council and the TNC.
9 
 9. The rationale for the two levels of protection for GIs under the TRIPS Agreement  has 
been discussed: 
 - One view has been that the protection provided by Article 22 of the TRIPS 
Agreement, which was the only one ava ilable for geographical indications for 
products other than wines and spirits, w as insufficient and the imbalance between 
those GIs and GIs for wines and spirits should be eliminated by extending the protection accorded to wines and spirits to  all products, while preserving through the 
exceptions allowed in Article 24 the necess ary balance between the interests of 
affected parties.
10  GIs were an intellectual property right equal to trademarks, designs 
or patents.  None of these intellectual property rights discriminated among categories of products in granting effective protecti on.  There were no commercial, economic or 
legal reasons to limit effective protection only  to GIs for wines and spirits or not to 
provide such protection also to GIs for all other products.
11 
 
 - Another view has been that the protecti on provided for in Article 23 was more than 
was necessary to achieve the legitimate objectives of GI protection set out in 
Article 22.2 and its extension would accentuate the imbalance resulting from the departure in Article 23 from the balance f ound in Article 22 between the interests of 
consumers, producers and the general public .  The differential treatment was not 
based on economic or any other form of logic,  but rather was the result of historical 
negotiation and specific circumstances that were particular to the wine sector.  It had been agreed as a significant concession in  the Uruguay Round, not because of any 
belief in its inherent merits.  It also had to be recalled that under the GATT and the 
                                                     
 
8 JOB(05)/8, paras. 7-8;  Argen tina, Brazil, Chile, Colombia, New Zealand and the United States, 
DDG consultations, 7 February 2005;  Singapore, DDG consultations, 10 March 2005. 
9 JOB(03)/119, page 2;  EC, DDG consultations, 7 February 2005. 
10 IP/C/W/353, paras. 4 and 12;  Slovak Republic, IP/C/M/38, paras. 137-138;  JOB(03)/119, 
pages 5-6. 
11 TN/C/W/14, page 1.  WT/GC/W/546 
 TN/C/W/25 
 Page 5 
 
 
GATS there was frequently different treatm ent of different products and services.12  If 
the differential level of protection was considered a problem, it would best be remedied by removing the Article 23 level.
13  Moreover, the seriousness with which 
some Members claimed to regard the issue of discrimination was to be doubted when 
those same Members were seeking to introduce new discrimination between products 
through their claw-back proposal.14 
 10. The issue of the effect of extension on the balance of rights and obligations and the 
distribution of benefits between Members  has been discussed.  Concern has been expressed that it 
could lead to imbalance.  In this regard, the vi ew has been expressed that some Members might have 
very few GIs but might be obliged to protect hundr eds or thousands of GIs from other Members.  
Extension could create an additional dichotomy be tween the benefits WTO Members with many GIs 
receive and the costs borne by Members with few GIs.
15  Under the Lisbon Agreement, very few of its 
developing country Members had registered GIs.   On the other hand, France had registered 
77 per cent of the GIs protected under this Agreement.  In sum, European countries had registered 
784 GIs out of a total of 834 registered GIs.16  The EC proposal on claw-back would negatively affect 
the Uruguay Round balance by taking away all the exceptions.17 
11. In response, it has been said that there wa s no evidence of this alleged "imbalance in 
numbers".  On the contrary, concrete examples of countries already applying extension in which very 
few foreign right holders had attempted to prot ect their GIs showed that this argument was 
unfounded.  Since 1996, for example, Brazil had regist ered or received applications for only five GIs 
from the EC and Paraguay none.  In neither country had there been any GI related litigation.  The 
argument did not recognize the fundamental principle that GI protection within the TRIPS Agreement 
was an "on-demand" protection, i.e. right holders had to invoke such protection in third country courts.  Right holders only went to a third country to benefit from that protection when they had the 
export capacity to make the investment worthwhile, and when they had an interest.  Moreover, the 
issue of "imbalance in numbers" was not relevant when assessing the economic benefits of an "extended" GI protection and resulting market oppor tunities.  What was important was the existing 
and potential trade flows regarding each individual GI, the value of which varied greatly.  A single 
GI, for example that on "Basmati" rice which ge nerated some US$300 million in exports, could be 
much more important than many GIs which were not used for export.  If it was felt that "imbalance in 
numbers" was an issue, this would suggest radical so lutions when it came to trademarks or patents.  
For example, the USPTO had registered more than 2.5 million trademarks and yet no one had claimed 
that, because the United States was the biggest benefi ciary of trademark protection, that section of the 
TRIPS Agreement should be abolished.
18  Moreover, since the issue fe ll within the single undertaking, 
                                                      
12 IP/C/W/386, para. 3;  United States IP/C/M/38, para. 174;  Uruguay, IP/C/M/37/Add.1, para. 127;  
Australia, DG consultations, 22 May 2003;  Argentina, DDG consultations, 7 February 2005;  Canada, DDG consultations, 10 March 2005. 
13 Chile, IP/C/M/36/Add.1, para. 164;  Argentina, IP/C/M/38, para. 156. 
14 JOB(05)/8, paras. 13-14. 
15 Uruguay, IP/C/M/37/Add.1, para. 172;  IP/C/W/386, paras. 3-4;  United States, DG consultations, 
30 June 2003;  Singapore, DDG consultations, 10 March 2005;  Chinese Taipei, DDG consultations, 25 April 2005. 
16 Argentina, DDG consultations, 7 February 2005;  Australia, IP/C/M/38, para. 177. 
17 Canada, DDG consultations, 25 April 2005;  JOB(05)/8, paras. 7-8;  Argentina, DDG consultations, 
7 February 2005;  Australia, DG consultations, 30 June 2003. 
18 EC, Hungary and Malta, IP/C/M/37/Add.1, respectiv ely, paras. 142 (also citing annex, pp. 77-79), 
148 and 157;  EC, JOB(03)/119, page 3;  EC, DG consultations, 30 June 2003. WT/GC/W/546 
TN/C/W/25 Page 6 
 
 it was not appropriate to raise issues of the balance of rights and obligations or of advantages and disadvantages in just one area;  the right a pproach was to consider the overall balance.
19 
12. Views have been exchanged about the way the extension proposal relates to the rationale 
for the protection of IPRs .  One view has been that there were serious doubts about the proposition 
that governments should grant monopoly rights in pe rpetuity based on an accident of history and 
geography, as the demandeurs  were proposing.  IP rights were normally granted to those who had 
discovered or created something and for a certain pe riod of time.  Protection was given to creators, 
scientists, inventors, authors and researchers in or der to reward them for having come up with new 
products, new processes and new works of art.  At the same time, they, and thei r investors, were given 
an incentive to continue doing so.20  The GI issue should be examined in the light of the WTO's work 
on competition policy.  Proponents had to accept, at a minimum, that the extension proposal was to 
extend monopoly rights in certain geographical terms to  certain of their producers, and that there was 
an anti-competitive element to the creation of such rights.21 
13. In response, it has been said that to claim that GIs should not be protected as IPRs because 
such rights were intended to protect innovation an d creativity was not correct because IPRs went 
beyond those two criteria.  In fact, there were ma ny examples in the TRIPS Agreement of categories 
of IPRs that did not protect either innovation or creativity, e.g., the protection of undisclosed information for marketing approval of pharmaceutical products.
22  Moreover, GIs were not 
monopolistic in the same way that patents and copyrights were because, unlike patents and 
copyrights, nobody would be prevented from producing and selling the product itself.  Therefore, the 
incentive effect of GIs was directed to a much greater extent at small producers looking for niche 
markets, as opposed to big companies which more frequently made use of patents and copyrights.  
The implication that the efforts i nvested in the reputation of any famous product in relation to its 
geographical origin would not be creative failed to recognize that sometimes this reputation was based 
on decades or even centuries of cr eativity, including in the development of traditional knowledge.23  
Moreover, it was incorrect to say that there were  no other IPRs without limits to the duration of 
protection;  trademarks and trade secrets were cases in point.24 
14. Views has been expressed on the implications of GI extension for the preservation of 
cultural diversity .  One view has been that, since a number of Members had received many 
immigrants who had brought with them their cultu ral traditions, including name s and terms, it would 
be culturally insensitive for Members, predominan tly those from which these people had migrated, to 
try to claim back terms that had been used for decades without being contested.25  Under such culinary 
traditions, these terms were, for immigrants in their new and adopted country, simply generic 
descriptions for food produc ts and food preparation.26  Members should acknowledge the entitlement 
of governments to regulate to achieve legitimat e policy objectives to enhance cultural diversity.27  
Immigrants' customs were acquired rights which Members could not wipe out in the course of 
negotiations.28  In response, it has been said that the gr andfathering exception under Article 24 was of 
particular relevance in light of this important ag ricultural non-trade concern, namely, the preservation 
                                                      
19 Hungary, DG consultations, 30 June 2003;  Bulgaria, DDG consultations, 10 March and 
25 April 2005. 
20 Australia, IP/C/M/38, para. 72;  DG consultations, 22 May 2003;  DDG consultations 
7 February 2005;  Argentina, DG consultations, 30 June 2003. 
21 New Zealand, IP/C/M/36/Add.1, para. 152;  Canada, DDG consultations, 7 February 2005. 
22 EC, IP/C/M/38, para. 130. 
23 Bulgaria, IP/C/M/38, para. 125;  Switzerland, DDG consultations, 7 February 2005. 
24 India and Switzerland, DDG consultations, 7 February 2005. 
25 Australia, IP/C/M/35, para. 146. 
26 Canada, DG consultations, 22 May 2003. 
27 Australia, IP/C/M/35, para. 146. 
28 Argentina, IP/C/M/36/Add.1, para. 86.  WT/GC/W/546 
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 of cultural identity.  The continued availability of all the exceptions, including the grandfathering 
exception, would adequately take care of that c oncern.  Article 23.3 on homonymous GIs provided 
additional proof that extensi on was not contrary to the pr eservation of cultural diversity
29  It has also 
been argued that the names of the teas, coffees, rice, bananas, carpets and handicrafts of the 
proponents were at stake and cultural heritage that GI extension sought to protect.30 
15. The question of whether the technical work necessary to clarify fully the objectives, 
scope, content and implications of the extensio n proposal has been adequately accomplished  has 
been discussed. 
 - One view has been that these issues have  been discussed extensively for a number of 
years and that the questions related to them  had been posed and answered repeatedly.  
There had been a thorough examination a nd an exhaustive discussion on GI extension 
since the start of the Doha Round.  Evidence of this could be found in the numerous 
communications and proposals made by several WTO Members and in the minutes of the TRIPS Council, including some detailed presentations that pre-dated the Doha 
Round, such as in documents IP/C/W/204/Rev.1, W/247/Rev.1, W/289 and 
W/308/Rev.1.  Under this view, the consu ltations held by Deputy Director-General 
Thompson-Flôres, acting as a Friend of the DG, concluded the technical work on GI 
extension.
31 
  - Another view has been that there was as  yet not a full understanding of these matters 
and that many questions put had not been adequately answered.
32  The adoption of 
panel reports by the DSB in April 2005 showed that there was not yet full implementation of existing obligations.  Th is should precede any effort to change 
them.
33  It was proposed that a good way of elucidating the issues at stake would be to 
study a practical example of what would be the implications in a specific case of 
doing everything that the proponents were suggesting.  The example of "feta" cheese 
might be used for this purpose, in the light of the ongoing European controversy and litigation regarding the costs and implica tions of designating this name as a GI.
34  
There was some discussion about the possible implications in the Canadian market. 
 16. In response to the suggestion for the carrying out  of a case study, the view was expressed that 
nowhere else in the WTO had such a study been requested or attempted.
35  By way of reaction, it was 
said that all negotiators had to look, at least dom estically, at what might be the market and welfare 
impacts of possible results of negotiations.  In rega rd to intellectual property, it was necessary also to 
factor in the whole public policy balance, including the rights of consumers and producers, the effects 
on innovation, etc.36 
17. The view has been expressed that independent research carried out in recent years, such as 
papers produced by UNCTAD, ICTSD, the UK Commission on Intellectual Property Rights and by 
the WTO Secretariat, had indicated that the costs and benefits of GI extension were not clear.  The 
                                                      
29 Hungary, IP/C/M/37/Add.1, paras. 150 and 151. 
30 India, IP/C/M/36/Add.1, para. 59. 
31 JOB(05)/61, paras. 3-4 and Annex;  Switzerland, DDG consultations, 25 April 2005. 
32 Australia, Malaysia, New Zealand and the Unite d States, DDG consultations, 25 April 2005. 
33 Australia, DDG consultations, 25 April 2005. 
34 Canada, DDG consultations, 10 March 2005;  Australia, Canada, Chile, New Zealand, South Africa 
and the United States, DDG consultations, 25 April 2005. 
35 EC, DDG consultations, 25 April 2005. 
36 Canada, DDG consultations, 25 April 2005. WT/GC/W/546 
TN/C/W/25 Page 8 
 
 burden was on the proponents to show that there wo uld be net economic benef its to all if extension 
were to be accepted.
37 
18. In response, the view has been expressed th at, since empirical economic analysis was only 
possible retrospectively, it was not possible to show empirically what would be the advantages 
flowing from a change in the legal framework.  This  was the reason behind the lack of clarity in the 
results of these studies.  There were however studies, including by UNCTAD and by UNCTAD-ICTSD, which pointed to a positive effect.
38  A meeting of some African Members had 
concluded that the issue of costs and benefits shoul d not be viewed in purely mathematical terms;  
there was also a need to look at the costs of "non-ex tension" as well as at the role that GIs could play 
in relation to "country branding " and addressing questions of biop iracy and traditional knowledge.39  
Moreover, the task in the technical consultations w as not to overcome a burden of having to prove the 
merits of extension and thereby reach consensus, but to elucidate options which would be available 
when finding the appropriate balance at the e nd of the day in the wider Doha negotiations.40 
19. Concern has been expressed about the desirability  of extending the higher level of protection 
to all products when the TRIPS provisions on GI s had yet to be fully implemented by all WTO 
Members.  The TRIPS Agreement had only entere d into force in 1995, some Members had only 
recently implemented their obligations and others had yet to do so.  The TRIPS Council had yet to 
complete a full assessment of how Members had im plemented their obligations with regard to 
geographical indications.  The adopti on of two reports by the DSB in 2005 showed that one of the key 
demandeurs  had yet to fully implement its obligations.  Those reports had raised important issues 
relating to the interpretation of th e TRIPS Agreement that needed to be fully taken into account by the 
TRIPS Council.41  In response, it has been said that the ex tension proposal did not intend to create any 
new level of protection but aimed merely at exte nding the already existing level of protection of 
geographical indications for wines and spirits as pr ovided by Article 23 of the TRIPS Agreement to 
all other products.  Thus, the goal of  the extension proposal was to create a level playing field for the 
protection of geographical indications in the TRI PS Agreement so that all Members could benefit 
equally from the more effective level of protection fo r their products.  Further, matters relating to the 
protection of geographical indica tions under the TRIPS Agreement had been discussed exhaustively 
in the TRIPS Council and subsequently.  It w as important not to mix up distinct matters.42 
II. ISSUES RELATING TO PR OTECTABLE SUBJECT-MATTER 
20. Two main views have been put forward regard ing the scope of the definition of a GI under 
Article 22.1 and its impact on the eligibility of indications that would benefit from extension: 
 - Extension would have no implications fo r the definition contained in Article 22.1, 
since it did not distinguish between produc t areas and, therefore, constituted a basis 
for balanced protection of geographical i ndications for all products alike.  The 
definition in Article 22.1 was flexible enough to serve the purposes of extension.43  
The specific extension proposal contained in the Annex to document TN/C/W/14 did 
not envisage any change to Article 22.1. 
 
                                                      
37 Australia, DDG consultations, 10 March 2005. 
38 Sri Lanka and Switzerland, DDG consultations, 10 March 2005. 
39 Kenya, DDG consultations, 10 March 2005. 
40 Bulgaria, DDG consultations, 10 March and 25 April 2005. 
41 JOB(02)/95;  Australia, DDG consultations, 25 April 2005;  Chile, IP/C/M/37/Add.1, para. 145. 
42 JOB(05)/61;  TN/C/W/14;  Switzerland, IP/C/M/36/Add.1, para. 190. 
43 IP/C/W/353, paras. 7 and 8;  Sri Lanka and Jama ica, IP/C/M/36/Add.1, respectively, paras. 135 
and 160;  Czech Republic, IP/C/M/37/Add.1, para. 109.  WT/GC/W/546 
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 Page 9 
 
  - There were divergent and varied inte rpretations of the definition of a GI.
44  This was 
important because WTO Members that were looking towards extension of Article 23 
to provide protection for specific terms in the territory of other WTO Members might discover that those terms did not receive protection because other WTO Members 
concluded that the terms did not meet the definition of a geographical indication or 
were not protectable because they were covered by one of the exceptions in Article 24.  Thus it was unlikely that ex tension of Article 23 to geographical 
indications for other goods would provide the promised protection for all terms in all 
WTO Members.
45  Discussion of the difference between what many countries 
appeared to understand as being or not being covered by the Article 22 definition and, 
in practice, what protection was actually pr ovided would be helpful to ensure that 
expectations of possible benefits flowing from extension would be in fact realistic.46  
The question of what would or would not fa ll within Article 22.1 was fundamental to 
assessing what benefits producers would obtain from increased protection in export 
markets.47 
 21. The view has been expressed that it is partic ularly important to ha ve a common understanding 
of the definition in Article 22.1 when products other than wines were being considered since they had 
usually been protected by trademarks and without any collective control system - unlike in the case of 
wines, which in some European countries had been mostly protected by appellations of origin or 
similar systems strictly controlled by the government or community in question.
48 
22. The question of the applicability of the principle of territoriality  towards the definition of 
geographical indications eligible for protection has been discussed.  In this regard, the following 
points had been made: 
 - Only the national legislation of each country could further elaborate the scope, 
coverage and nature of what  was covered by Article 22.1.  This was the right of 
Members according to the Agreement, whic h left them free to determine the 
appropriate method of implementing it with in their own legal system and practice.49 
  - There was a need to explore further the qu estion of whether the criteria for eligibility 
of a term for protection as a GI were to be determined by the country of origin of the 
GI or by the country where the protection was sought.
50  Were the proponents of 
extension seeking a unique global outcome for an individual geographical indication or were they prepared to maintain excep tions for different linguistic and cultural 
applications, and to allow for different  perceptions among different consumers?
51 
 
 - The principle of territorial application,  i.e. the right of each Member to decide 
whether a given indication was a geographical indication or not, should not be taken away and exchanged for a complicated pr ocess of international registration, 
challenges, disputes and arbitration, which would be performed by people that would 
                                                     
 
44 Australia, DDG consultations, 7 February 2005;  Canada, IP/C/M/38, para. 82. 
45 IP/C/W/386, para. 5;  Chinese Taipei and Malaysia, DDG consultations, 25 April 2005;  Guatemala, 
IP/C/M/37/Add.1, paras. 101-102. 
46 New Zealand, IP/C/M/37/Add.1, para. 163;  Argentina, TRIPS Council consultations, 10 November 
2002. 
47 Australia, IP/C/M/38, para. 74. 
48 Korea, IP/C/M/37/Add.1, para. 141. 
49 Australia, Argentina and Paraguay, IP/C/M/37/Add.1, respectively, paras. 112, 161 and 183. 
50 Australia, IP/C/M/36/Add.1, para. 99. 
51 Australia, IP/C/M/35, para. 141. WT/GC/W/546 
TN/C/W/25 Page 10 
 
 
not be officers of the governments of the Member where protection was being sought.
52 
 23. In response, it has been said that  the principle of territoriality did indeed apply to the TRIPS 
Agreement and its provisions on geographical indica tions.  It assumed that WTO Members accepted 
at face value the claim of a Member in whic h a geographical indication originated that the 
geographical indication met the definition in Article 22.1 and was thus entitled to the "legal means for 
interested parties" that the TRIPS Agreement requi red.  However, such entitlement did not determine 
whether the particular GI would eventually be pr otected.  For example, this would be the case of a 
claim for protection of the name "telephone" for a wine GI.
53 
24. The question of the extent to which country names  would be accepted by trading partners as 
being eligible to be geographical indications has b een discussed.  In this regard, the view has been 
expressed that, while many of the proponents of exte nsion seem to be interested in securing protection 
for their countries' names as geographical indica tions, the extent to which other Members would 
accept this was unclear: 
 - The legislation of a Member limited r ecognition of country names as geographical 
indications to "exceptional circumstances".  The question has been raised whether, as 
a matter of practice, terms like "Bulgarian yoghurt", "Chinese tea", "Kenyan coffee", "Colombian coffee", "Hungarian salami" or  "Jamaican rum" would be recognized as 
geographical indications?
54 
 
 - Another piece of legislation of that Member stated that imported wines with 
indications "serving exceptionally to identify a wine as originating in the territory of a 
third country" could only be used if liste d in an annex, but as yet the annex was 
blank.55  Terms such as "Australian Chardonna y" and "New Zealand Chardonnay", 
had been refused protection under that Member's system on the ground that they 
referred to geographical areas that were too big to satisfy the second part of the Article 22 definition, i.e. that a given quality, reputation or other characteristic of the 
good was essentially attributable to its geographical origin.
56 
 25. In response, the following points have been made: 
 - The names of  localities, regions and even countries could be geographical indications 
under Article 22.1, provided that they met the conditions set out therein, in particular 
regarding the existence of a link betw een the quality, reputation or other 
characteristics of a product and its geographical origin.  Any name or sign that conveyed geographical origin and fitted the de finition in Article 22.1 was eligible for 
protection as a geographical indication.  Because of the necessity to establish the 
linkage between the quality, reputation and other characteristics and the geographical 
origin of goods, the question of whether a certain name fitted the definition could 
only be determined on a case-by-case basis, taking into account all the relevant specifics of individual situations.  Many of the misunderstandings regarding which 
                                                     
 
52 Australia, IP/C/M/37/Add.1, para. 156;  Chile, DG consultations, 30 June 2003. 
53 EC and India, IP/C/M/37/Add.1, respectively, Annex, page 83 and para. 159. 
54 Australia, IP/C/M/37/Add.1, para. 152;  IP/C/W/386, para 11. 
55 Australia, IP/C/M/37/Add.1, para. 152. 
56 New Zealand, IP/C/M/37/Add.1, para. 163.  WT/GC/W/546 
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names or signs would or would not fit the definition in Article 22.1 could be traced back to a failure to keep in mind the importance of this linkage.
57 
  - Some Members had registered country names as GIs.  Examples were "Luxembourg" 
for meat products and "Swiss" for watches.  Such registrations had not been limited to 
small countries nor even to the area of foodstuffs.  Examples of protected country GIs in the area of wines and spirits were:  Martinique Rhum, Guadeloupe Rhum, Réunion 
Rhum, Guyane Rhum, Irish Whiskey, Whis ky Español, Brandy Italiano, Deutscher 
Weinbrand (German Brandy), Eau-de-vie de marc or de pomme or de poire or de 
kirsch or de quetsch or de mirabe lle, or de prunelle – marque national 
luxembourgeoise, Dansk Akvavit (Danis h Aquavit), Anís Español, Ginjinha 
Portuguesa, Anís Português.
58 
  - The question of country names would only be  relevant to the debate if Members were 
suggesting that something in the Article 22.1 definition be changed, which was not 
the case.  If some Members believed that Ar ticle 22.1 was insufficient, they should 
table proposals to clarify it in the way desired.
59 
 26. It has been asked whether certifica tion marks can protect country names.
60  In response it has 
been said that country names, such as Thailand for a particular type of rice, would be eligible for 
protection as a certification mark.61 
27. It has been said that the definition c ontained in Article 22.1 would not cover rules of origin 
or indications of source , since they did not indicate any quality, reputation or other characteristic of a 
product but just its geographical origin.  Rules of or igin were a tool for tariff classification and had to 
be distinguished from geographical indications within the meaning of the TRIPS Agreement.62 
28. The question has been raised as to wh ether geographical terms applied to blended products , 
such as Kenyan coffee or mixtures of Jasmine and other rice or Darjeeling and other tea, would qualify as GIs.
63 
29. In regard to non-place names or  non-geographical names  (i.e., terms that are not names of 
a locality, a region, etc.), such as Jasmine or Basmat i rice, the question has been raised as to whether 
they would be accepted as qualifying under the definition contained in Article 22.1.64  In response, it 
has been said that non-geographical names were el igible for protection as long as they identified a 
product as coming from a certain territory.  For example, "Jasmine rice" clearly evoked Thailand and could be a GI irrespective of its non-geographical  nature.  Other examples were "Vinho Verde", 
"Cava" and "Tête du Moine" (a Swiss traditional ch eese).  Geographical indications could also take 
the form of symbols or emblems, such as the Taj Ma hal to designate Indian products of that region, 
                                                     
 
57 Hungary, IP/C/M/37/Add.1, para. 147;  EC, IP/C/M/38, para. 139;  IP/C/W/353, para. 7;  India, 
IP/C/M/36/Add.1, para. 62;  Jamaica, IP/C/M/37/Add.1, para. 136.;  EC, IP/C/M/37/Add.1, Annex, pages 83-84. 
58 EC, IP/C/M/37/Add.1, Annex, pages 83-84;  Jamaica, IP/C/M/37/Add.1, para. 136. 
59 Bulgaria, IP/C/M/38, para. 135;  Bulgaria, DDG consultations, 7 February 2005. 
60 Thailand, TRIPS Council consultations, 10 November 2002. 
61 United States, TRIPS Council consultations, 10 November 2002. 
62 IP/C/W/353, para. 7. 
63 Australia and the United States, TRIPS Council consultations, 10 November 2002;  Australia, 
IP/C/M/38, para. 74. 
64 Australia, IP/C/M/35, para. 144;  New Zealand, IP/C/M/35, para. 157;  United States, 
IP/C/M/36/Add.1, para. 74;  Australia, IP/C/M/37/Add.1, para. 155;  IP/C/W/386, para. 11. WT/GC/W/546 
TN/C/W/25 Page 12 
 
 the Eiffel Tower for products from the region of Pari s, or the map of Jamaica for coffee or sugar 
originating in that country.
65 
30. The question of the extent to which so-called traditional expressions , such as "vintage", 
"quality liqueur wine", "sweet", "dry", "fine", "r uby", "tawny" or "château", would fall within the 
definition of geographical indications has been discussed.66  The view has been expressed that the 
very claim that the definition in Article 22.1 was fl exible raised concerns that such terms might be 
thought protectable as geographical indications.67  Countries should be cautious about agreeing to 
extension as they did not know where the demands  would end, even though such terms had no 
specific connection with a geographical source.68  In this regard, the following points had been made: 
 - Doubt has been sown by an official  press statement of a Member saying that 
traditional expressions were geographical indications.69 
  - There was no reason why, for example, wine producers from France should enjoy 
exclusive rights to the use of  the word "château" when that was a common descriptive 
word in other countries as well.
70 
  - Some Members claimed ownership of certain bottle shapes.  In a few years time the 
champagne-type bottle, which had been used all over the world, could suddenly be 
declared as a traditional expression or a traditional shape.
71 
 
31. In response, it has been said that: 
 - Traditional expressions cannot be protected as geographical indications because they 
were not associated with a specific geographical origin.72  In fact, since traditional 
expressions did not qualify for the geographical  indication definition of Article 22.1, 
they were not an issue for the discussion on extension.73 
 
 - Since traditional expressions were not prot ected as geographical indications in their 
country of origin, in accordance with Article 24.9 they would not be eligible for protection in other Members.
74 
  - Because terms like "vintage", "sweet", "dry " and "fine" were all related to wines and 
spirits, they were not relevant to th e debate on the extension to products other  than 
wines and spirits.
75 
 
                                                      
65 IP/C/W/353, para. 7;  Sri Lanka, IP/C/M/36/Add.1, para. 136;  Jamaica, India and EC, 
IP/C/M/37/Add.1, respectively, paras. 136, 159 and Annex, page 84;  Switzerland, TRIPS Council 
consultations, 10 November 2002. 
66 Australia, IP/C/M/36/Add.1, para. 101;  JOB(02)/95, page 5. 
67 Australia, IP/C/M/36/Add.1, para. 184. 
68 Australia, IP/C/M/35, para. 201. 
69 Australia, IP/C/M/37/Add.1, para. 155;  Australia, IP/C/M/36/Add.1, para. 88. 
70 Canada, IP/C/M/36/Add.1, para. 126. 
71 Australia, IP/C/M/36/Add.1, para. 185. 
72 Kenya, IP/C/M/35, para. 175. 
73 Switzerland, TRIPS Council consultations, 10 November 2002;  EC, DDG consultations, 
7 February 2005. 
74 EC, IP/C/M/37/Add.1, Annex, pages 84-85;  Switzerland, TRIPS Council consultations, 
10 November 2002;  Jamaica, IP/C/M/37/Add.1, para. 136. 
75 EC, IP/C/M/35, para. 183.  WT/GC/W/546 
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 32. Questions have been raised as to whether plant varieties and plant names, terms without 
any consumer recognition, and fanciful terms  could fall within the definition of a GI and be 
eligible for protection.
76  It has also been asked whether it was proposed that non-product-related 
process and production methods  would be covered.77  In response to the last point, it has been said 
that according to the definition in Article 22.1 of  the TRIPS Agreement, a geographical indication 
could for example be based on local human factors pr esent at the place of origin of the products (such 
as certain manufacturing techniques or a traditional production method).78  Therefore, if local 
producers, especially small and medium sized en terprises, had a reputation for a production method 
which they had developed over time, it was their legitimate right to enjoy the benefits of it.79 
33. The question has been asked as to whether the proponents were advocating that services  be 
covered by extension.80  In response, it was stated that the pr oposal of the proponents of extension did 
not cover services.81 
34. Greater clarity as to the product scope of th e extension proposal has been sought.  Would 
traditional handicrafts and artworks  be excluded as seemed to be  the case for the claw-back 
proposal?82  What non-agricultural products  would be covered?83  In response, it has been said that 
the goal of extension was to allow more effective pr otection to be afforded not only to GIs for wines 
and spirits but also to all other products, such as, for illustrative purposes, rice, silk, coffee, tea, 
tobacco, apples, pineapples, cotton, vanilla, honey, b eef, palm oil, cinnamon, carpets, ceramics, silver 
or wooden handicrafts, etc.84 
35. It has been argued that one reason why many of  the benefits that the proponents of extension 
sought may not be achieved was that geographical indi cations of importance to them might fall within 
one of the Article 24 exceptions  and thereby not be eligible for pr otection.  Certain terms that had 
been referred to as of importance in connection with  extension were already generic in some other 
countries and would thus fall within the excepti on provided in Article 24.6.  Examples included 
Bukhara carpets in the United States, Bulgarian yo ghurt in France or Ceylon tea and Basmati rice.85 
36. In response, it has been said that it should be borne in mind that, if a geographical indication 
should prove to have become generic in one Member , this did not mean it had lost all its economic 
value in other Members.  Exceptions applied on a Member-by-Member basis, meaning that extension 
would offer legitimate producers an effective legal m eans to enable them to prevent the degeneration 
of their geographical indications into generic terms in new markets.86 
                                                      
76 Australia and the United States, DDG consultations , 7 February 2005;  New Zealand, IP/C/M/35, 
para. 157;  IP/C/W/386, para. 5. 
77 New Zealand, DDG consultations, 7 February 2005;  Uruguay, TRIPS Council consultations, 
10 November 2002. 
78 IP/C/W/353, para. 6. 
79 Turkey, IP/C/M/35, para. 165. 
80 Australia, DDG consultations, 7 February 2005;  Australia, IP/C/M/35, para. 141. 
81 Switzerland, DDG consultations, 7 February 2005;  Kenya, IP/C/M/35, para. 174. 
82 New Zealand, DDG consultations, 7 February 2005. 
83 Colombia, DDG consultations, 7 February 2005. 
84 WT/GC/W/540/Rev.1 and TN/C/W/21/Rev.1, para 4 and footnote 2;  Switzerland, DDG 
consultations, 7 February 2005;  TN/C/4, page 2. 
85 IP/C/W/386, paras. 10-11;  Guatemala, IP/C/M/37/Add.1, para. 102. 
86 Switzerland, IP/C/M/37/Add.1, para. 133. WT/GC/W/546 
TN/C/W/25 Page 14 
 
 
III. THE IMPACT OF EXTENSION ON PRODUCERS IN THE AREA DESIGNATED BY 
A GEOGRAPHICAL INDICATION 
37. The issue of the impact of extension on produ cers in the area designated by a geographical 
indication has been extensively discussed.  In their draft legal proposal contained in the Annex to 
document TN/C/W/14, the proponents have proposed that Article 23 be amended to require each 
Member to provide the legal means for interested parties to prevent use of geographical indications 
identifying "goods for such goods not originating in  the place indicated by the geographical indication 
in question..." rather than only for geographi cal indications identifying "wines for wines not 
originating in the place indicated by the geographical indication in question or identifying spirits for 
spirits not originating in the place indicated by th e geographical indication in question...".  The view 
has been expressed that this should be done for the following reasons: 
 - Legitimate producers of a product identified by a geographical indication would be 
better protected against illegal use of the ge ographical indication of such category of 
products.  Competitors not producing such a product within the indicated 
geographical area would be prevented from illegitimately using the geographical 
indication for such products.  Hence all pr oducers would have a clear view of the 
situations in which use of a geographical indication for products of the same category 
was lawful or not.
87 
  - The existing provisions of Article 22 did not prevent free-riding on the reputation of a 
product which displays unique features and a specific quality due to its geographical 
origin by other products bearing the same  geographical indication but produced in 
other regions and not possessing the same qua lities.  For example, it was perfectly 
legal under the TRIPS Agreement to sell yo ghurt of Bulgarian taste or feta of 
Bulgarian type.
88  On the other hand, Article 23 provided protection against the use of 
a geographical indication with a " délocalisant " indicating the true origin and against 
use in translation or with expressions such as "kind", "type", "style", "imitation" or 
the like.89 
 38. In response, it has been argued that: 
 - The protection afforded for geographical  indications by Article 22 of the TRIPS 
Agreement, and its implementation throug h certification trademarks, adequately 
addressed the concerns about protecting nam es and connotations of national heritage 
and quality.  In this regard, a Member said  that it offered a transparent, easy-to-use 
system for the protection of GIs, for example for "Stilton" for cheese, "Parma" for ham, "Roquefort" for cheese, "Swiss" for chocolate, "Colombian" for coffee from 
Colombia, "Halloumi" for cheese from Cypr us, "Darjeeling" for tea from India, 
"Parmigiano-Reggiano" for cheese from Italy, "Jamaica Blue Mountain" for coffee from Jamaica, and "Banshu Somen" for noodles from Japan.  Many developing 
countries were already taking advantage of the certification mark system to benefit from such protection.
90  Another Member said that it offered such protection under 
the provisions of its trademark act, for example to "India" for spices, "Ceylon tea" 
and "Freiburger cheese".91 
                                                      
87 IP/C/W/353, para. 13. 
88 Bulgaria, IP/C/M/37/Add.1, para. 115.  Sri La nka, DDG consultations, 10 March 2005;  TN/C/4, 
page 2;  JOB(03)/119, page 4. 
89 IP/C/W/353, para. 13;  TN/C/W/14, page 2;  JOB(05)/61, page 4. 
90 United States, DG consultations, 30 June 2003. 
91 Canada, IP/C/M/35, para. 171.  WT/GC/W/546 
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   - Any perception that Article 22 protection was insufficient was largely due to the 
failure of Members to implement fully a nd appropriately existing obligations under 
Article 22.  Further, the low level of regist rations by foreigners in some countries in 
order to obtain Article 23 protection seemed to indicate that producers currently felt 
that Article 22 provided sufficient protection.   A further constraint on the ability of 
many Members to use the existing prot ection under the TRIPS Agreement resulted 
from their failure in many cases to protect GIs domestically.
92  It has not been 
adequately demonstrated why Article 22 protection was insufficient.  The Council 
should be provided with conc rete examples of the problems Members have had, or 
were currently encountering, in obtaining satisfactory protection under that provision.
93 
  - As to the free-riding argument made by the proponents, indications of geographic 
origin used in one country began to be  used in other countries not because the 
indications were well-known world-wide and the users sought a "free-ride", but 
because citizens of the first country had em igrated to the second and used the same 
terms for their products that they had used  in their home countries.  Much of that 
emigration had taken place from the 17
th to the mid-20th centuries, in many cases 
before appellation of origin  protection had even been established in the territories of 
those Members that now claimed those terms.  Immigrants had invested heavily in the 
development, production and advertising of products using these familiar terms, 
creating broad demand in both domestic a nd global markets, and meeting with 
tremendous commercial successes.  So it coul d be more accurately said that those old 
world producers wishing to reclaim those names were the real "free-riders" trying to 
exploit the marketing success of new world producers.94 
 39. It has been said that reliance on the system for the protection of collective or certification 
marks had the disadvantage that regular renewal fe es would have to be paid, in addition to the 
problem of not securing Article 23-level protection.
95  In response, it has been said that this cost 
should be balanced against those that would be incu rred as a result of a GI extension system.  Some 
Members were advocating a costly multilateral regist ration system that would probably be based on a 
fee-for-service cost.96 
40. The question of whether extension would help prevent GIs becoming generic terms has 
been discussed.  One view has been  that, since in the current situation, geographical indications of 
products other than wines and spirits could be usurped and free-ridden upo n by products not having 
the respective origin or quality, th ey risked, by such illegitimate use,  to become generic, to lose all 
their economic potential and economic value and to deceive consumers.97  Because under extension, 
unlike under Article 22, use of a geographical indication with a " délocalisant " indicating the true 
origin (e.g., so-called semi-generics) or use in tr anslation or with expressions such as "kind", "type", 
"style", "imitation" or the like would be prevente d for all geographical indications alike, extension 
                                                      
92 IP/C/W/386, para. 6;  New Zealand, IP/C/M/37/Add.1, para. 166;  Australia, IP/C/M/38, para. 76. 
93 Canada, IP/C/M/37/Add.1, para. 121;  New Zealand, DDG consultations, 7 February 2005;  Chinese 
Taipei, DDG consultations, 25 April 2005. 
94 IP/C/W/386, para. 7;  United States, TRIPS Council consultations. 10 November 2002;  Chile, DDG 
consultations, 10 March 2005;  Argentina, DDG consultations, 25 April 2005. 
95 Sri Lanka, IP/C/M/38, para. 144. 
96 Australia, IP/C/M/38, para. 149. 
97 TN/C/4, page 2. WT/GC/W/546 
TN/C/W/25 Page 16 
 
 would help prevent more geographical  indications from becoming generic.
98  The need to do so was 
ever more important since, with globalization and the fast flow of goods and information, worldwide 
awareness of a new geographical indi cation could develop very quickly.99 
41. In response, it has been argued that Article 22 protection was sufficient to ensure that a 
geographical indication did not become generic.  W ith a GI regime that fully implemented the TRIPS 
Agreement as currently written, it was to be doubted that there were examples of products that, while 
fully exploiting the protection available, had lost thei r distinctive nature and become generic.  If this 
did happen, it would be because the owner of the GI had not used the means available pursuant to 
Article 22 to prevent use of the GI by others.100  For example, the term "parmesan" had been used 
worldwide for many decades as the generic term fo r hard white cheese.  In fact, the term was so 
generic that the Members of the Codex Alimentarius  wished to establish product-identity standards so 
that anyone worldwide could produce parmesan to internationally established standards.  If 
"parmesan" was really such an important geographi cal indication, the purported owners could have 
tried to protect it in the United States as a certif ication mark, as had the owners of "Roquefort".101  In 
reaction, it was said that, while certification mark protection had been obtained for "Parmigiano 
Reggiano", this had not helped in providing prot ection for "Parmesan" since such protection would 
have conflicted with several pre-existing local tradem arks consisting of stylistic versions of the term 
"Parmesan", even if that term was not itself protected.102 
42. The question of whether Article 23 protection would reduce the burdens and costs, and 
increase the effectiveness, of enforcement of  GIs compared to Article 22 protection  has been 
discussed.  One view has been that, by providing greater clarity and legal certainty as to the situations 
in which use of a geographical indication was lawful or not, Article 23 protection would mean that legitimate users of geographical indications woul d not have to undergo costly procedures to 
demonstrate that the consumer was confused, involvi ng expensive, often inconc lusive, opinion polls.  
The test under Article 23 was more objective and judicial decisions would be more uniform and 
harmonious as the final decision was not left to th e judge's appreciation on whether the "public" was 
actually misled.
103  On the other hand, the "misleading the public" test of Article 22 was not clear 
enough and was likely to lead to long legal discussions.104  Offering small producers and associations 
the less-costly and legally-secure protection of Artic le 23 would give them a better way to prevent the 
abusive use of their GIs in a foreign country than  the difficult and burdensome proof that the public 
has been misled, or that there was an act of unfair competition.105 
43. In response, it has been said that: 
 - Extension would not obviate the need for producers to take action to enforce their 
rights and bear the associated costs.  This was entirely consistent with the protection 
of other types of IPRs.  Producers benefiti ng from those rights must bear the costs of 
protecting them.  Thus, the extent to wh ich producers would actually benefit from a 
                                                      
98 IP/C/W/353, para. 13;  Sri Lanka, DDG consultations, 10 March 2005;  WT/GC/W/540/Rev.1 and 
TN/C/W/21/Rev.1, paras. 7 and 13;  JOB(02)/32, para. 15;  JOB(05)/61, para. 4;  Switzerland, IP/C/M/38, 
para. 69. 
99 Switzerland, IP/C/M/37/Add.1, para. 131. 
100 IP/C/W/386, para. 7;  United States, DDG consultations, 7 February 2005;  Paraguay, IP/C/M/38, 
para. 128. 
101 United States, DG consultations, 30 June 2003. 
102 EC, IP/C/M/38, paras. 152 and 171. 
103 IP/C/W/353, para. 13;  TN/C/W14, page 2;  Switzerland, DDG consultations, 7 February 2005;  
WT/GC/W/540/Rev.1 and TN/C/W/21/Rev.1, para. 12. 
104 Turkey, IP/C/M/35, para. 166;  IP/C/W/353, para. 4. 
105 Pakistan, IP/C/M/37/Add.1, para. 167;  WT/GC/W/540/Rev.1 and TN/C/W/21/Rev.1, para. 6.  WT/GC/W/546 
 TN/C/W/25 
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higher level of protection would also depe nd on the extent to which producers would 
be willing and able to enforce their rights.106 
  - The argument regarding clarity and legal certainty overlooked the fact that, in order 
to pursue rights under Article 23, the comp lainant would bear the burden of rebutting 
claims that one of the exceptions to pr otection provided in Article 24 applied. 
  - It was incorrect to suggest that th e tests of misleading the public and unfair 
competition in Article 22 as applied in domes tic jurisdictions led to inconsistent 
decisions.  Application of these tests led to decisions about whether use in a particular 
case was misleading or unfair by applying the same standard of misleading conduct or unfair competition in each case.  It wa s the application of the same rules and 
standards at the national level in each ca se that provided consistency and certainty. 
 
 - To gain legal certainty from Article 23 su ch that producers would be certain of what 
terms they could use and what they could not, the result of extension would have to 
be that those using a particular term identifying goods from their geographic location would not have to compete with anyone us ing that term to identify goods coming 
from another area.  If this was what the demandeurs  were seeking, it would raise a 
number of points:  would this require a prohi bition on the use of the term on any other 
goods;  would this also require a prohibition on  the use of the term in any language;  
how would WTO Members know which translations the GIs users felt were appropriate translations of the GI and thus  should be prohibited;  would a list of GIs 
that included all possible translations of the terms be necessary to accomplish this;  
and, how would this be compatible with some of the flexibilities under Article 1.1 of 
the TRIPS Agreement?
107 
  - Producers also needed to be aware that es tablishing rights to a GI domestically would 
entail costs.  Domestic producers wishing to  establish a GI needed to mobilize other 
producers in the region to create a consen sus.  Reaching intra-domestic consensus 
could be a difficult process because producers would need to settle the territorial 
limits within which the essential link to a qua lity, reputation or other characteristic of 
a product would apply, and also decide what would be the criteria that would apply in determining when a GI could be used.  These processes could cause conflicts between domestic producers that would need to be ad judicated.  Such efforts would also likely 
require government lobbying and studies to  demonstrate the geographical boundaries, 
including to defend against claims by producers who would be left outside of the 
boundaries.  Such costs could not be easily  borne by developing countries' producers 
or industries which were dominated by small and medium-size enterprises.
108 
 44. The question of the extent to which extension would a ssist beneficiary producers market 
their products and increase their trading opportunities  has been discussed.  One view has been 
that improved legal security at the multilateral le vel would encourage producers to use GIs as an 
efficient marketing tool.  It would constitute an incentive for producers to market their goods 
internationally, thus prom oting international trade.
109  Basing investment and export decisions on 
potentially contradictory and changing judicial interpre tations was a risk that GI producers, especially 
those of developing country Members, could not af ford.  Uncertainty about the conditions in which 
                                                      
106 Australia, IP/C/M/38, para. 78. 
107 United States, DDG consultations, 7 February 2005;  Canada, DDG consultations, 10 March 2005;  
Japan, IP/C/M/38, para. 183. 
108 Australia, IP/C/M/38, para. 77;  Guatemala and Chile, IP/C/M/38, paras. 111 and 113, respectively. 
109 Switzerland, IP/C/M/38, para. 69;  WT/GC/W/540/Rev.1 and TN/C/W/21/Rev.1, para. 8. WT/GC/W/546 
TN/C/W/25 Page 18 
 
 producers operate was bad for trade and investment and, therefore, bad for development.
110  
"Extension" would open new market opportunities by  preventing trade distortions.  The benefits 
resulting from "extension" would foster developm ent of local rural communities and encourage a 
quality-oriented agricultural and industrial policy.   As was the case for products protected via 
trademarks, those benefiting from adequate geogra phical indication protection would be in a better 
position to benefit from an enhanced access to third country markets.111  In a time of globalizing and 
highly competitive trade, the added-value of a GI would create new and better opportunities for 
quality products, especially for smaller and devel oping Members and a valuable alternative to the 
benefit of economies of scale.112  An investigation made by a Sw iss institute (IHA/GfM Institut für 
Marktanalysen) had showed that consumers paid a great  deal of attention to the geographical origin of 
products when buying a product.113  As a GI was an asset belonging to a certain community residing 
in a particular area, such communities should be entitled to use their GIs for additional commercial 
advantage.  Geographical indications were partic ularly important for developing countries and could 
add value to their export trade.114 
45. In response, it has been said that: 
 - Extension could not in itself make geogr aphical indications for quality products a 
valuable marketing tool.  It was the hard  work of establishing a quality product and 
promoting that product in the marketplace that would turn a GI from simply a place name into a valuable marketing tool.  It  was the perception of the consumer that 
would make a GI valuable, and that coul d only be established through efforts by the 
GI right holders who use the term to mark et quality products to the consumer.  Were 
the demandeurs  expecting GI extension to leap over those critical steps of marketing 
and producing quality products in export markets?
115  A recent European study 
focusing on the effectiveness of GIs suggested that GIs were not working very well in 
terms of clarifying consumer  understanding.  According to these experts, GIs were 
not used extensively by consumers to diffe rentiate between products, since they did 
not recognize them.  Moreover, the consumers that did recognize GIs did not rely on GIs alone to provide them with the inform ation on the origin and qualities of goods.  
Consequently, consumer demand for goods b earing a GI did not rise and prices, in 
reaction, remained unchanged.  Therefore,  producers were not necessarily benefiting 
from their use of a GI.
116 
 
 - None of the examples cited had shown that GIs had been the causal factor of any 
increase in market share, which could be ma ny and varied.  A full and proper analysis 
would have to weigh up the relative contribu tion of various factors in this regard, and 
it would, therefore, be very difficult to see how many of the statistics presented could 
convincingly attribute increased prices and market share to a GI.117 
 
                                                      
110 TN/C/W/21/Rev.1, paras. 5-6. 
111 IP/C/W/353, para. 4;  JOB(03)/119, page 6;  JOB(02)/32, para 6. 
112 TN/C/W/14, page 2;  JOB(02)/32, para 10. 
113 Switzerland, IP/C/M/38, para. 108. 
114 India, DG consultations, 30 June 2003;  WT/GC/W/540/Rev.1 and TN/C/W/21/Rev.1, para. 8. 
115 New Zealand and Chile, IP/C/M/38, paras. 87 and 113, respectively;  United States and New 
Zealand, DDG consultations, 7 February 2005. 
116 Canada, IP/C/M/38, para. 84. 
117 Australia, IP/C/M/38, para. 73.  WT/GC/W/546 
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  - The recognition of a product with a ge ographical indication pr otection could never 
guarantee market access because such recognition did not eliminate tariff barriers nor technical regulations nor any other type of non-tariff measure.
118 
 
 - Many terms of potential interest to demandeurs were likely to be ineligible for 
protection because they would not fall with in the definition of a GI used in the 
jurisdiction where protection was claimed or would fall within an exception of 
Article 24, having been used in international markets for decades.119 
 
46. It has also been said that Article 23 of TRIPS was not a panacea for wines and spirits 
producers.  In fact, commentators were now saying that the highly regulatory approach in Europe was a factor explaining the difficulty European wine producers had in marketing and innovating in a way 
that attracted consumers, to match the success of the New World wine producers.
120  On what studies 
and facts were developing countri es supporting extension basing their view that this proposal would 
benefit them?121  In response, it has been said that, while extension would help all producers of 
traditional quality products of par ticular geographical origin to adequately protect their investment 
and compete in the global market against bulk produc ts, GIs were only one of the marketing strategies 
available to them;  they were neither a guarantee of success nor a panacea for all problems.122 
IV. THE IMPACT OF EXTENSION ON PRODUCERS NOT IN THE AREA 
DESIGNATED BY A GEOGRAPHICAL INDICATION 
47. The impact of extension on producers not in the area designated by a geographical indication 
but which have been using the term in question h as been discussed.  One view that has been expressed 
is that such producers might face considerable ad justment and other cost s and burdens, including: 
 - Marketing costs associated with deve loping substitute terms and changing current 
packaging, and getting consumers to rec ognize them.  The re-naming and marketing 
process would be complicated by the fact that, in many cases, producers would have 
to try and market what would appear to be  "new" products (because they had different 
names), but without the benefits of those products actually having any new characteristics.
123  These costs should not be underestimated, particularly when there 
was a need to launch a marketing campaign in an overseas market.124  Stakeholders 
were asking what names could be used if th ey were deprived of using the normal term 
for that product, would all affected produ cers use the same new term and who would 
be responsible for bearing the costs of developing new names, re-labelling and 
educating consumers.125  As regards translations of GIs, a large number of terms in 
the local language might be excluded if th eir equivalents in other languages were 
recognized as GIs.126  The following were examples of terms that producers were 
concerned about losing because they could be eligible for protection under an 
extended Article 23:  asiago cheese, balsamic vinegar, camembert cheese, edam 
                                                      
118 Ecuador, IP/C/M/35, para. 188;  Argentina, Chile and Uruguay, IP/C/M/36/Add.1, paras. 85, 148 
and 164, respectively;  Guatemala, IP/C/M/37Add.1, para. 100. 
119 Australia, IP/C/M/38, para. 75;  Chinese Taipei and Malaysia, DDG consultations, 25 April 2005;  
IP/C/W/386, para. 10. 
120 Argentina and Australia, DDG consultations, 10 March 2005. 
121 Argentina, DDG consultations, 10 March 2005. 
122 Switzerland, DDG consultations, 10 March 2005. 
123 New Zealand, IP/C/M/38, para. 89;  Unite d States, DG consultations, 30 June 2003. 
124 Australia, IP/C/M/38, para. 80. 
125 Canada, DDG consultations, 10 March and 25 April 2005. 
126 China, IP/C/M/37/Add.1, para. 139. WT/GC/W/546 
TN/C/W/25 Page 20 
 
 
cheese, emmentaler cheese, feta cheese, gouda cheese, kalamata olives, parmesan 
cheese and pilsner.
127 
  - Costs would include: 
 
  (i) the loss of revenue, as prices would have to be lowered in order to encourage 
 consumers to buy these "new" products; 
   (ii) the costs of alterations to  the production and labelling processes; 
 
  (iii) the costs resulting from disruption to consumer relationships, especially as 
 the TRIPS Agreement did not include transition periods to allow producers  sufficient time to adjust.  For exampl e, how would consumers know that the 
 quality of the newly named products had not changed
128; 
 
  (iv) losses associated with a potential lo ss of market access, particularly into 
 markets with quotas or tariffs that related to specific product types or product  names.
129 
  - Unlike in the case of a company required to change a trademark, these costs might 
apply to a multitude of companies since the terms affected were generally used by 
many producers.
130 
  - Furthermore, there were the costs of u ndertaking a country-by-country analysis of 
every export market to determine whether producers outside the area indicated by the 
GI would be able to continue to use ex isting packaging and marketing material in 
those markets.  If these producers failed to do this kind of research, they would risk subjecting themselves to sanc tions or court actions in export markets accusing them 
of breaching another producer's GI.
131 
  - Since one of the major incentives for the demandeurs  was a belief that extension 
would enable them to enhance market share in their own countries for products 
protected by GIs, it had to be recognized that, to the extent this took place, other suppliers would be excluded.
132 
  - An example of the effects of Article 23 concerned a small domestic producer of 
sparkling wines.  After EC producers ha d successfully brought an action before a 
New Zealand court to stop this producer from using the term "Champagne" to designate its wine, the producer had been  faced with costs of US$250,000 for a new 
marketing campaign.  In the first year after it had been prohibited from using the indication "Champagne" its revenues had dr opped 40 per cent and it had taken four 
years before it went back to a profitable situation.
133  An example of the difficulty in 
finding alternative names was in regard to "Port", the use of which had been stopped 
following a bilateral agreement with the EC .  However, the EC had objected also to 
                                                      
127 IP/C/W/386, para. 25. 
128 Canada, DDG consultations, 10 March 2005. 
129 Australia, IP/C/M/38, para. 80. 
130 Chile, DDG consultations, 7 February 2005. 
131 Australia, IP/C/M/38, para. 80. 
132 New Zealand, IP/C/M/38, para. 88. 
133 New Zealand, DG consultations, 30 June 2003;  New Zealand, DDG consultations, 
7 February 2005.  WT/GC/W/546 
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the use of some English adjectives such as "tawny" and "ruby", putting producers in a 
difficult situation in finding alternative ways of describing their product.134 
 48. In response, the following points have been made: 
 - The concern that extension would necessita te substantial re-labelling of products by 
producers outside the designated area, whic h would result in administrative costs and 
consumer confusion, was unsubstantiated.  Such re-labelling would not be necessary 
because the exceptions containe d in Article 24 would apply mutatis mutandis  to the 
extended protection under Article 23.
135  The extension proposal was designed to 
have effects only for the future and would not affect the existing uses of names that 
coincided with protected geographical indications to the extent that they were in conformity with the TRIPS Agreement, along the lines of what was embedded in 
Article 24.
136  Extension did not demand rollback protection.137  These exceptions 
would take due account of prior good fa ith use of GIs for products without the 
relevant origin.  If, however, such use had taken place in bad faith, with the intention 
to free-ride on the reputation of a GI, the Article 24 exceptions would not apply.  In that case, the obligation to  re-label a specific product seemed an appropriate 
consequence.  The economic long-term bene fits of extension would, in any case, 
outweigh the costs of a few cases where re-labelling might be necessary.
138 
 
 - The provisions of Article 24 generally a pplied to all products (i.e., including wines 
and spirits) alike, with the exception of Artic le 24.4 and, to a certain extent, that of 
Article 24.6 which may need to be adapted.139  Whatever adjustments to Article 24 of 
the TRIPS Agreement may be necessary, if ad equately justified, should be guided by 
the following principles:  (i) they should not go to the detriment of the principle of 
"extension" of additional protection to a ll products;  (ii) they should be crafted 
restrictively and allow only for restrictive in terpretations as inherent in the nature of 
exceptions;  (iii) they should enable a flexib le solution taking into account the interest 
of the various market participants.  Use in  good faith, uses for a long period of time, 
not misleading the consumer should be key criteria when looking at the use of geographical indications qualifying for excepti ons;  (iv) they should not diminish the 
level of protection previously ava ilable to geographical indications.
140 
  - If some delegations considered that the ex ceptions in Article 24 would be insufficient, 
they should make proposals for how they might be adjusted.
141 
 
 - Was there any evidence that experien ce with the TRIPS provisions on wines and 
spirits since they had come into force had s hown that they had required re-labelling or 
had led to products disappearing from the market?  Given that the exceptions under 
Article 24 were so broad, the claim of re -labelling was not credible without such 
examples.142  In fact, some of the countries expr essing the most concern were also 
                                                      
134 Australia, DDG consultations, 10 March 2005. 
135 IP/C/W/353, para. 41;  EC, DDG consultations, 10 March 2005;  WT/GC/W/540/Rev.1 and 
TN/C/W/21/Rev.1, para. 13;  JOB(03)/119, page 2. 
136 IP/C/W/353, para. 3;  Czech Republic, IP/C/M/37/Add.1, para. 169;  JOB(05)/61, para. 5. 
137 TN/C/W/14, page 2. 
138 Switzerland, IP/C/M/38, para. 70. 
139 IP/C/W/353, para. 36. 
140 IP/C/W/353, para. 39. 
141 Bulgaria, EC, Hungary and Switzerland, DG consultations, 30 June 2003; JOB(05)/61, para. 7;  
JOB(03)/119, page 5. 
142 EC, IP/C/M/38, para. 197;  JOB(03)/137. WT/GC/W/546 
TN/C/W/25 Page 22 
 
 
claiming that their industries had been particularly successful in the period in export markets.
143 
  - The concern that producers outside the designated area would have to perform 
extensive examinations to determine whethe r they would be allowed to use a GI was 
without foundation.  Extension would e liminate legal uncertainties by requiring 
producers and traders to answer only one simple question when deciding whether to use a GI on a product:  did the product come from the place and have the given quality designated by the GI in question?  This was easy to examine and would not 
result in any additional costs.
144 
  - Rather than expressing concern about the burden on producers outside the GI area in 
having to check market by market, concern should be had for similar costs that GI 
right holders currently had to bear, especi ally as most were small communities of 
producers with few resources.
145 
 49. In reaction, caution has been expressed about placing too much reliance on Article 24 
exceptions, for the following reasons: 
 - Reference has been made to the need fo r adjustments to Article 24.6, the crucial 
exception on generics.
146 
 
 - The removal of the consumer deception and unfair competition tests would reduce the 
ability of producers from outside the geographi cal area to use the courts to objectively 
test whether terms were eligible for protecti on or had in fact become generic, and thus 
diminish their ability to avail themselves of the Article 24.6 exception.147 
 
 - The availability of any Article 24 excep tion would have to be determined case by 
case in each WTO Member and, depending on the determination in each country, 
could make it necessary for a producer to vary  its labels from one market to the next, 
or, as an alternative, to cease using a ge ographical term altogether, including in 
markets where the use of that term would not mislead consumers.  In either case, the 
costs would be considerable.148 
  - The position in the negotiations on the establishment of a multilateral system of 
notification and registration of GIs for win es and spirits of the same Members that 
were advocating extension should be borne in mind.  In that context, Members' ability 
to apply Article 24 exceptions under their na tional legislation and jurisdiction would 
be curtailed through an o pposition procedure to be set up under the wine registry 
system suggested by those delegations.
149 
  - In negotiating bilateral agreements, th e practice of some Members had been to 
demand elimination of the use of the TR IPS exceptions, such as the exception that 
allowed the continued use of terms like "f eta" that had become generic in many 
                                                     
 
143 Czech Republic, DG consultations, 22 May 2003. 
144 Switzerland, IP/C/M/38, para. 71. 
145 Hungary, DG consultations, 30 June 2003. 
146 New Zealand, IP/C/M/37/Add.1, para. 165. 
147 New Zealand, IP/C/M/37/Add.1, para. 165. 
148 United States and Chile, IP/C/M/38, paras. 96 and 113, respectively. 
149 Argentina and Chile, IP/C/M/38, paras. 97 and 113, respectively.  WT/GC/W/546 
 TN/C/W/25 
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countries.  This pressure could only be expected to increase in a multilateral 
setting.150 
  - The assurances about the willingness to pr eserve the exceptions in Article 24 in 
extension negotiations were of little comf ort given the proposals that ignored 
Article 24 exceptions in order to obtain ex clusive use of certain GI names that had 
been made in the Agriculture negotiations.
151 
 50. In response, it has been said that the argument that the type of registration system that a 
Member was suggesting would take away the right  of WTO Members to determine whether a term 
was eligible for protection was simply not the corr ect interpretation of that Member's proposal.  The 
proposal was to create a registry in which there would be a rebuttable presumption of eligibility for 
protection.  While the burden of proof before local  courts would be reversed, the ultimate decision 
whether a term had met the definition would remain at the national level.
152 
51. The impact of extension in third country markets , i.e. markets in which producers using a 
GI are not based but in which their products are actua lly or potentially traded and marketed, has been 
discussed.  One view has been that  the implications will depend on a number of variables including: 
 - The extent of local acquisition of rights  and their enforcement by GI right holders.  
Experience in countries already applying extension showed that this was low. 
 
 - Whether the term was protected as a GI in its country of origin.  Some terms about 
which concerns had been expressed, e.g. "mozzarella", were not so protected. 
  - The applicability of Article 24 exceptions  and the scope of these exceptions as they 
would result from the negotiations.  For example, "extension" as already applied to 
wines and spirits under TRIPS had not stopped the use of the term "Port" by 
producers in the United States. 
  - The volume and value of production in thir d countries using names considered as GIs 
in other WTO Members and the amount export ed to third countries.  The evidence 
pointed to the effects being minimal, if any.  According to information provided by 
third country companies in the cheese sector for example, it would appear that the 
potential affected production would not exceed  94,000 tons, of which only 2,600 tons 
were exported outside the country of production.
153 
 52. In response, it has been said that the implicati ons for producers' rights in third markets was a 
key concern, for the following reasons: 
 - Article 24 exceptions would only apply in the markets where producers had been 
using a term for some time.  If the term had not yet been used in the export market, the company would forfeit its future ability  to use that term in that market.
154 
  - In accordance with Article 24.6, whether a term was considered to be generic was 
determined by each Member within its te rritory.  The exceptions under Article 24.6 
                                                     
 
150 IP/C/W/386, para. 12;  United States, DG consultations, 30 June 2003. 
151 United States, DG consultations, 30 June 2003;  Argentina, Australia and Chile, DDG consultations, 
7 February 2005;  JOB(05)/8, para. 11. 
152 Hungary, IP/C/M/38, para. 131. 
153 EC, JOB(03)/119, page 5. 
154 United States, DG consultations, 30 June 2003. WT/GC/W/546 
TN/C/W/25 Page 24 
 
 
applied on a per-Member basis.  Thus, even if a term was generic (Article 24.6 exception) in one WTO Member, it could be a protected GI in other WTO Members.  
For example, if Member X had concluded su fficient bilateral agreements for absolute 
protection of the term "XYZ," producers in a WTO Member where "XYZ" was a 
generic term would nonetheless be precl uded from exporting to any WTO Member 
with whom Member X had concluded such a bilateral agreement.  Therefore, due to 
that bilateral agreement, the producers in the WTO Member where the term was 
generic would not be able to export that  product using the generic term to other 
markets.
155 
 
 - The argument that the impact in third markets would be minimal because these rights 
were "on-demand rights" that private parties were required to enforce was contradicted by what the EC was saying in the Agriculture and register negotiations.  
The EC was attempting in the Agriculture  negotiations to establish a worldwide 
regime to make all WTO Members responsib le for protecting the GIs of European 
producers.  Therefore, Members could expect the EC to claw-back other Members' use of familiar terms such as parmesan, feta , burgundy, port and many others.  In the 
TRIPS Special Session, the EC had propo sed a register that would require all 
Members to provide absolute protection to  names on that register to save their 
producers the trouble of seeking protecti on "on-demand" country-by-country.  
Governments would have to expend the r esources to challenge each and every one of 
the EC's names within an 18-month time-fra me or lose their rights to invoke TRIPS 
exceptions.
156 
  - The impact of extension on third country markets would be anything but trivial and it 
was not clear how the statistics provided in relation to potential impact on the cheese 
sector had been derived.  Calculations b ased on the same data produced significantly 
different conclusions.
157 
 53. The view has been expressed that it was not only  the impact on producers outside the GI area 
that had to be taken into account but also that on  their downstream processors and distributors.  This 
would cover, inter alia , traders involved in the import, bulk-breaking, repackaging, transhipment and 
distribution, including in third countries.  Thus, the number of businesses and industries affected by 
extension would be greater than the number of tr aditional primary producers affected.  When these 
downstream producers were considered, the number of  businesses and industries affected by the costs 
of extension increased exponentially.
158 
V. IMPACT OF EXTENSION ON THE RE LATIONSHIP BETWEEN TRADEMARKS 
AND GEOGRAPHICAL INDICATIONS 
54. The impact of extension on the relationship be tween trademarks and ge ographical indications, 
especially the consequences for prior trademark rights in the products affected , has been discussed.  In 
their draft legal proposal contained in the A nnex to document TN/C/W/14, the proponents of 
extension have advocated that Article 23.2 of  the TRIPS Agreement apply to all products.159  
Consequently, the first reference to "wines" in paragraph 2 of Article 23 should be replaced by a 
reference to "goods" and the second reference to "wines" by the expression "such goods".  
                                                      
155 IP/C/W/386, para. 12;  United States, DG consultations, 30 June 2003. 
156 United States, DG consultations, 30 June 2003. 
157 New Zealand, DG consultations, 30 June 2003. 
158 Singapore and the United States, DDG consultations, 10 March 2005. 
159 TN/C/W/14 and Add.1-2 and Corr.1, Annex;  India and Romania, IP/C/M/36/Add.1, respectively, 
paras. 65 and 111.  WT/GC/W/546 
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 Furthermore, the reference to "spi rits" should be deleted and the thir d reference to "wines or spirits" 
replaced by a reference to "goods.
160  This would mean that, unlike in the present situation under 
Article 22.3, the registration and validity of regi stered trademarks containing or consisting of 
geographical indications would be precluded even if they did not mislead the public.161  These 
Members have expressed the view that th is would have the following advantages: 
 - It would facilitate the examination of trademarks by administrative authorities, 
trademark registrars or judges.  They would refer to a simple, objective criterion (i.e., do the products identified by a trademark,  which contains or  consists of a 
geographical indication, really have th e geographical origin referred by the 
geographical indication?) when deciding whether or not to refuse the registration of a 
trademark, if their legislation so permits, or to invalidate the trademark for products 
not originating in the indicated region. 
  - Producers from the geographical location, representative associations from those 
areas, or even associations of consumers, as well as other interested parties would 
obtain a more effective and less costly protection of their geographical indications against trademarks.  Trademark holders a nd applicants would also have a clearer 
vision of whether a trademark containing a geographical indication could be used or 
not.  This would also be instrumental in clarifying the relationship between trademarks and geographical indications.
162 
 
 - Prior trademarks would continue to bene fit from the exception currently included in 
Article 24.5 of the TRIPS Agreement.  Th e proponents of extension were open to 
explore how to adjust such an exception (e.g. relevant dates) to the entry into force of 
the "extended" protection, if needed.  In  this way, the balanced result that was 
obtained for wines and spirits at the end of the Uruguay Round could be replicated in 
the Doha Round.163 
  - In the EC, no GI had ever been used as th e basis for the removal of a trademark.  The 
same was probably true in other Members.
164  Were there any cases where GI 
protection had led to the cancellation of a trademark?165 
 
55. In response, the following points have been made: 
 - Geographical indications and trademarks  have similar objectives, such as providing 
consumers with accurate source informati on and avoiding consumer deception, and 
should be entitled to similar protection in many respects.  A fundamental concept of 
international trademark law, including under TRIPS, was that owners of registered 
trademarks should be able to prevent unau thorized third parties from using identical 
or similar signs for identical or similar goods if such use would be confusing.  
Identical or similar signs could certainly include words or marks that might fall within the Article 22 definition of a geographical indication.  Thus, a geographical indication established after a trademark s hould not detract from, or prejudice, the 
rights of a trademark owner under Article 16.  Any discussion of geographical 
                                                     
 
160 Bulgaria, IP/C/M/36/Add.1, para. 118 and footnote 3;  JOB(05)/61, annex;  TN/C/W/14, annex. 
161 IP/C/W/353, para. 18. 
162 IP/C/W/353, para. 20;  India, IP/C/M/36/Add.1, para. 65. 
163 EC, JOB(03)/119, page 4. 
164 EC, DG consultations, 30 June 2003. 
165 EC, JOB(03)/137. WT/GC/W/546 
TN/C/W/25 Page 26 
 
 
indications had to recognize that fundament al concept which was simply a matter of 
fairness.
166 
  - The demandeurs  appeared to wish to give geogr aphical indications precedence over 
established trademarks for all products, not ju st for wines and spirits.  There was no 
reason why one form of IP should take precedence over another, especially in instances where a trademark had been establishe d first.  The justification of providing 
legal certainty had been given, but this  applied only to the GI owner and the 
proposals could cause considerable legal and market uncertainty for the trademark 
owner.  When talking about uncertainty, one  also needed to consider the consumer.
167 
  - GI extension would create troublesome c onflicts with trademarks, causing trademark 
owners either to have to cease using their marks or be unable to stop other 
manufacturers from using similar terms that confused or misled the consumer.  In the 
EC, geographical indications enjoyed a superi or position where they were allowed to 
coexist with pre-existing trademarks, despite  the possibility of confusion.  This was 
true even if the trademark had been regist ered or used for years, or even decades, 
before the geographical indications.  The promise that under the extension proposal 
trademarks would continue to benefit from the Article 24.5 exception for prior 
existing trademarks did not provide the necessary reassurances if the view was that 
Article 24.5 forced trademark owners to co exist with confusingly similar GIs – with 
prejudice to their exclusive trademark rights.
168 
  - As one should not discriminate among diffe rent types of products, one should also 
not discriminate between different categories of intellectual property.  Consequently, 
there was no reason to eliminate the requi rements for the general protection of 
Article 22 for geographical indications, i.e.  the need to prove that the public was 
misled or that unfair competition had occurred, and not to do this, for instance, for trademarks.
169 
 56. In response, it has been argued that it is not fair to suggest that Articles 16 and 22 are parallel 
provisions.  Article 16 should be compared with Articl e 23.1 to a certain extent.  Under Article 16, if 
the goods or services were identical, the confusion of the consumer was presumed and confusion did 
not need to be proved.
170 
57. The view has been expressed that the exclusion by the EC of mineral waters from the scope of 
its GI regime for foodstuffs dem onstrated the possible conflicts between GIs and trademarks and, in 
this case, the desire of EC producers of mineral waters to give priority to their trademarks.171  I n  
response, it was said that mineral waters had been excluded because they were eligible to benefit from 
protection under a different regime.172 
                                                      
166 United States, IP/C/M/35,  para. 155. 
167 United States, IP/C/M/36/Add.1, para. 155;  Argentina, DG consultations, 30 June 2003. 
168 United States, DG consultations, 30 June 2003. 
169 Chile, IP/C/M/37/Add.1, para. 144. 
170 EC, IP/C/M/35, para. 182. 
171 IP/C/W/386, para. 22;  United States, IP/C/M/36/Add.1, para. 77. 
172 EC, TRIPS Council consultations, 10 November 2002.  WT/GC/W/546 
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VI. IMPACT OF EXTENSION ON TH E TREATMENT OF HOMONYMOUS 
GEOGRAPHICAL INDICATIONS 
58. In their draft legal proposal contained in th e Annex to document TN/C/W/14, the proponents 
of extension have proposed that the reference to wi nes in Article 23.3 of the TRIPS Agreement should 
be removed so that the provision would apply to homonymous geographical indications for all 
products.173  Article 22.4 of the TRIPS Agreement w ould continue to apply in cases where two 
geographical indications of two WTO Members were  similar but not identical, if one of these 
indications falsely represented to the public th at the good which it designated originated in the 
territory of the other Member.  Article 22.4 of the TRIPS Agreement would also apply where the 
name of a territory, region or locality of a country , protected as a geographical indication, entered into 
conflict with the same or a similar name that evoke d a geographical origin in another country but did 
not correspond to an existing location within its territory.174 
59. In the view of the proponents, this would have the following advantages: 
 - it would mean that the trade-fostering solution found in Article 23.3 by which 
markets are kept open in the case of hom onymous geographical indications by 
finding adequate solutions for their coexistence would apply to all products175; 
  - it would deal with the effects of histori cal colonization or immigration flows in terms 
of their resulting city, region and locality na mes that were identical to the ones used 
in the home countries of immigrants, thus providing additional proof that extension 
was not irreconcilable with the idea of adequately addressing genuine concerns 
related to the preservation of cultural di versity.  However, keeping the possibility 
open for domestic manufacturers to start se lling products under names that free-rode 
under the geographical indications of others did not seem to fall within these legitimate concerns.
176 
 
60. In response, it has been said that  the claim that Article 23.3 was "trade fostering" was open to 
serious challenge.  Under the level of protection afforded by Article 22, producers who wished to use 
a GI from one location and producers who wished to use the same GI from another location were both 
able to do so when those locations shared the same or similar names, including in translation, provided they ensured that the goods produced in eith er location did not deceive consumers as to their 
actual origin.  This seemed a practical, non-burdensom e approach to ensure that consumers received 
the information that they needed, and that producers retained the right to use names fairly and in good 
faith.  Article 23, on the other hand, said that th ere needed to be additional conditions imposed on 
producers seeking to use a shared term.  This le d to a number of questions in relation to the 
implementation of Article 23.3 of the TRIPS Agreem ent and whether this may be another example of 
the way, when implemented, extension could lead to r estrictions to trade.  For example, what practical 
conditions should be complied with by third countries?  Who determined these practical conditions?  
Did the provision require exports to be held up un til these "practical conditions" were agreed?  How 
long could these delays be?
177  Additionally, it was fundamental to discuss what would be the 
implications of the claw-back proposal on the TRIPS provisions related to homonymous GIs in 
Articles 22.4 and 23.3.  The claw-back proposal in troduced other conditions to the coexistence of 
homonymous GIs.  For example, the proposal in document JOB(03)/12 and Add.1 said that two GIs 
                                                      
173 Bulgaria, IP/C/M/36/Add.1, para. 118 and footnote 3;  JOB(05)/61, annex;  TN/C/W/14, annex;  
IP/C/W/353, para. 25. 
174 IP/C/W/353, para. 28. 
175 IP/C/W/353, paras. 23-24. 
176 Hungary, IP/C/M/37/add.1, para. 151. 
177 Australia, TRIPS Council consultations, 10 November 2002. WT/GC/W/546 
TN/C/W/25 Page 28 
 
 could coexist if they were "trad itionally and consistently used" or "if its use for that purpose is 
regulated by the country of origin".
178 
VII. THE IMPACT OF EXTENSION ON CONSUMERS 
61. With regard to the impact of extension on c onsumers, one view that has been expressed was 
that one of the basic principles of a market-oriented economy was consumers' right to be able to 
choose in the full knowledge of what they consumed.  It was also their right to enjoy the particular 
characteristics of the product they wished to cons ume.  The reputation of a product should not be 
subject to abuse simply because it was not a wine or  a spirit.  Any potential impact of extension on 
consumers would be positive, as it would enable them to make better choices with more accurate 
information on the product they wished to buy.  Consumers were free to decide whether to buy a 
product with a specific geographical origin indicatin g specific charact eristics and qualities or to buy a 
similar, maybe cheaper, product without these character istics.  Extension, however, would ensure that 
consumers would be able to trust in thei r choice when opting for a product using a GI.179 
62. In response, the following points have been made: 
 - Consumers currently were not confused regarding the products they were buying 
because the use of terms that misled c onsumers was already dealt with under an 
Article 22 standard.  Article 22 allowed in terested parties to protect geographical 
indications for all goods in instances wh ere their use could confuse consumers.180  It 
would be helpful to have clarified why it was considered that Article 22 was not 
adequate for this purpose, and also how Article 23 might provide a guarantee of 
quality that Article 22 did not.181 
  - Were an Article 23 standard to be applied for all goods, the increase in costs to 
industry to rename, re-label and repackag e would be passed on to consumers resulting 
in higher priced goods.  Also, consumers w ould no longer be able to recognize the 
products that they were used to purchasing.
182 
  - Extension would lead to a smaller number  of producers making a particular product.  
It was basic economics that, as the supply of the named product would fall, prices 
would likely rise and consumers would be wo rse off.  The concentration of market 
power and the scope for anti-competitive prac tices consequent on IPRs would have a 
damaging effect on consumers becau se it would result in higher prices.
183  
Additionally, there was no guarantee that the quality of what was available to 
consumers would be higher.  In fact, the quality could be even worse in a situation of lesser competition because there would be little incentive to improve upon a product.
184 
 
 - Consumers would also have diminished c hoice.  Previously they had been able to 
choose from a variety of brands of similar products, increasing the chance of finding a product that would meet their own needs in terms of quality, price and process.  
                                                     
 
178 Chile, DDG consultations, 7 February 2005. 
179 Turkey, IP/C/M/35, para. 166;  Switzerland, IP/C/M/38, para. 110;  WT/GC/W/540/Rev.1 and 
TN/C/W/21/Rev.1, para. 16;  JOB(03)/119, page 6. 
180 IP/C/W/386, para. 26;  Australia, IP/C/M/38, para. 81. 
181 New Zealand, DDG consultations, 7 February 2005. 
182 IP/C/W/386, para. 26;  Australia, IP/C/M/38, para. 81. 
183 Argentina, DDG consultations, 7 February 2005. 
184 New Zealand, IP/C/M/38, para. 90.  WT/GC/W/546 
 TN/C/W/25 
 Page 29 
 
 
Alternatively, it could be argued that cons umers would not have a diminished choice 
but that they would have to increase their sear ch costs to find their preferred price and 
quality combination since a crucial product d escriptor would no longer be available to 
them.  Either way there would be a cost to consumers.185 
 
 - Extension could also diminish choice by  discouraging innovative products in favour 
of products meeting specifications define d in the country of origin of the GI.186 
  - The approach to consumer protection th at extension would entail was quite at odds 
with consumer policies of a number of countries, such as in those possessing a system 
of food standards and regulation designed to give consumers maximum choice while 
protecting their right of choice and variet y.  Regulators should and would want to 
invest their time, energy and resources in ma king sure that products were safe.  This 
objective had nothing to do with a geographic indication.
187 
 
 - Trademark protection was in no way inferior to GI protection.  In fact, it was 
questionable whether, in practice, GI protection in Europe did in fact fully protect the consumer from being misinformed and misled with respect to the true origin of the 
product.
188 
 
63. In reaction to the above responses, th e following views have been expressed: 
 - As to the question of whether the extens ion of Article 23-level protection would lead 
to consumer confusion, it was not possi ble to understand how consumers could be 
confused if it had been agreed that only a product that had in fact originated in a given geographic territory could bear a term which identified the product as 
originating from a territory where a given quality, reputation and other characteristic 
of the good was essentially attributable to its geographical origin.
189 
  - Extension could indeed result in higher prices for the products bearing GIs and this 
would ultimately be paid by consumers.  Consumers would, however, not necessarily have to pay those prices, as would be the case for patents or copyrights.  They would 
always be able to choose to pay the lowe r prices of the "generic" products.  Those 
prices could even fall, so consumers would have increased choice and maybe lower prices.
190 
  - GI-extension would increase consumers' choice by providing, through a more reliable 
international protection, an incentive for produ cers, in particular SMEs, to invest in 
the production of more GI-pr oducts which owe their partic ular quality, reputation or 
other characteristic to their geographical origin.
191 
  - The argument according to which consumers would not be able to recognize the 
products after extension was unsubstantiate d as the example of the Catalan-Spanish 
GI "Cava" demonstrated.  In 1986, following the entry of Spain into the European 
Communities, producers in that region had agreed to give up the use of the term 
                                                     
 
185 New Zealand, IP/C/M/38, para. 90. 
186 Canada and Singapore, DDG consultations, 10 March 2005. 
187 New Zealand, IP/C/M/38, para. 93. 
188 United States, DG consultations, 30 June 2003. 
189 Hungary, IP/C/M/38, para. 117. 
190 Bulgaria, IP/C/M/38, para. 124 and DDG consultations, 25 April 2005. 
191 TN/C/W/21/Rev.1. WT/GC/W/546 
TN/C/W/25 Page 30 
 
 
"Champagne" and had started to use a ne w denomination called "Cava".  In 1987 the 
exports of "Cava" had increased by 31 per cent and in 1988 by 16 per cent.  In the next ten years, the exports of "Cava" ha d increased by 1,000 per cent.  This did not 
suggest any difficulty on the part of consumers in identifying the product.
192 
 
 - If it was argued that, for consumer policy purposes, it would be desirable for 
Members to retain the possibility to use the GI s of others when the real origin of the 
product was also indicated, why had no simila r argument been made in respect of any 
other field of IPRs.  For instance, in the area of trademarks, no suggestion had been 
made that a particular trademark used shoul d be allowed to be copied and used on the 
products of another manufacturer so as to keep this product affordable to 
consumers.193 
 
VIII.  THE ADMINISTRATIVE COSTS AND BURDENS OF THE PROCEDURES 
ASSOCIATED WITH ANY EXTENDED PROTECTION AND ANY OTHER 
IMPACTS ON GOVERNMENTS 
64. It has been suggested that it would be helpfu l to have a breakdown of the administrative and 
other costs associated with the actual experience of  some of the proponents with GI-related internal 
issues194, for example in regard to "Feta" in the EC or "Champagne" and "Emmental" in 
Switzerland195 or information on the grounds for and level of  expected additional costs of extension in 
WTO Members which either already provided such ex tended protection at the national level, or which 
disposed of a national register of wines and spirits.196 
65. In regard to the extent to which extension would re quire new or modified legislation and 
institutions , one view has been that: 
 - Since all Members were already obliged to provide protection to GIs according to 
Articles 22 and 23, extension would imply only minimum administrative changes.  
These might be limited to a modification of legislative provisions so that the protection of GIs for wines and spirits would be extended to GIs for all other 
products.
197 
  - A comparison of what the TRIPS Agreement required under Articles 22 and 23 
showed that the differences were minimal fro m the legal point of view and that they 
only referred to the criteria to grant prot ection – the public being misled or the 
existence of unfair competition, present in Article 22 but not in Article 23.  Therefore, the implementation of protection envisaged  in Article 23 for all GIs would not 
necessarily require the establishment of a completely new protection system.
198 
 
 - Many countries, including Brazil, Costa Rica, Cuba, Venezuela, Colombia, Peru, 
Paraguay, India, Uruguay and the Bangui Agreement African countries already provided for extension in their domestic legislation.
199 
                                                      
192 EC, IP/C/M/38, para. 143. 
193 Hungary, IP/C/M/38, para. 117. 
194 New Zealand, DDG consultations, 7 February 2005. 
195 Australia, DDG consultations, 10 March 2005. 
196 EC, JOB(03)/137. 
197 Switzerland, IP/C/M/38, para. 203;  TN/C/W/14, page 2;  EC, JOB(03)/119, page 5;  
WT/GC/W/540/Rev.1 and TN/C/W/21/Rev.1, paras. 10-11. 
198 Switzerland, IP/C/M/38, para. 203. 
199 EC, DG consultations, 30 June 2003.  WT/GC/W/546 
 TN/C/W/25 
 Page 31 
 
  66. In response, the following points have been made: 
 - Extension of Article 23 would require mo re complicated implementation than was the 
case for Article 22 implementation;  countries would have to institute a system that 
protected a wide variety of products and ma y have to change funda mental concepts in 
their laws.  Members that had not ye t implemented Articles 22 and 23 or had 
implemented them by reproducing the langua ge of these Articles verbatim in their 
laws would have to implemen t them substantively by creating mechanisms to define 
and enforce these provisions.
200 
 
 - In some Members, Article 23-level protection could not be provided for GIs for 
products other than wines and spirits merely by extending what they currently did with respect to GIs for wines and spirits.  Were Article 23 level protection extended 
to GIs beyond those currently regulated, new statutory authorities would have to be 
given to agencies that currently did not ha ve such authority, or new agencies would 
have to be created, adding even greater costs.
201 
  - If Article 23 were extended to cove r geographical indications for all goods, the 
traditional trademark standard and confusion analysis would not be sufficient because 
Article 23 required implementation of an "a bsolute" standard – if the goods did not 
come from the place named, the GI was invalid regardless of whether its use would 
mislead the public.  To require the trademark regime to begin using a different standard - one not based on consumer conf usion - would necessitate, at least in the 
trademark regimes of some Members, a f undamental philosophical change.  This 
would necessitate a substantial overhaul of the entire trademark and unfair 
competition regime, a cost that must be acknowledged.
202  Amending the trademark 
and unfair competition laws to provide Artic le 23-level protection for all GIs would 
be to stand those laws on their heads.203  Requiring Members to rewrite fundamental 
concepts and rework existing structures might  be inconsistent with Article 1 of the 
TRIPS Agreement.204 
 
 - Apart from intellectual property legislation, it might also be necessary to amend 
legislation relating to agricultural product sta ndards.  If terms used in that legislation 
could no longer be used, how could gove rnments regulate the products concerned, 
with some producers having to use new and, as yet, unknown names.205 
 
  As to the point that the domestic legislation of many countries already provided for 
extension, the discussions should focus on substantive issues and not refer to the legislation of other countries.  Article 1 of the TRIPS Agreement provided that 
Members' legislation could offer greater protection than that stipulated in the Agreement.  This did not mean that Member s were obliged to agree internationally to 
a greater protection than provided in the Ag reement, nor that they had agreed to 
extend the obligations they had through it.
206 
 
                                                      
200 IP/C/W/386, para. 14. 
201 United States, IP/C/M/38, para. 174. 
202 IP/C/W/386, paras. 16 and 20. 
203 United States, IP/C/M/38, para. 175. 
204 United States, DDG consultations, 10 March 2005. 
205 Canada, DDG consultations, 7 February 2005. 
206 Brazil, IP/C/M/37/Add.1, para. 179;  Paraguay, IP/C/M/37/Add.1, para. 182. WT/GC/W/546 
TN/C/W/25 Page 32 
 
  - Article 7 bis of the Paris Convention required that Paris Union members provide 
protection for collective marks.  That ob ligation was incorporated into the TRIPS 
Agreement via its Article 2.1.  Therefor e, protecting GIs through registration as 
collective marks would use a system that was already required to be in place under 
TRIPS.
207 
 67. With regard to the costs and burdens on governments that might be associated under 
extension with procedures for acquiring protection , one view that has been expressed is that: 
 - Among the ways of implementing the prot ection of domestic and foreign GIs were 
systems, like the Swiss system, where GIs were protected independently of 
registration.  This type of protection presen ted several advantages.  First, it ensured 
general protection for all GIs, both national and foreign, at a lower cost.  Secondly, it did not entail specific burdens on national administrations, other than that of 
developing legislation concerning the subject -matter and extension of the protection 
of GIs at the domestic level, as well as providing the means for interested parties to 
stop the abusive use of GIs.  Thirdly, the costs linked to the protection of GIs would be borne by the legitimate producers and c onsumers' associations and not the national 
administration.  Therefore, extension would not necessarily entail costs and administrative burdens that would be out of proportion.
208 
 
 - Information provided at TRIPS Council mee tings showed that in various developing 
countries with formal systems of GI protection very few holders of foreign GIs had sought such protection.
209 
  - In a country providing protection on the basis of registration, an income for the 
administration would be generated because GI  owners would have to pay fees for GI 
registration.  It was true that this in come was not as significant as it was from the 
registration of trademarks, for which the payment of renewal fees was necessary.  The administration's burden of maintaining the GI protection system did not, however, exceed that of the trademark systems.  Th e burden was, in fact, much lower and did 
not increase in relation to the number of GIs protected.  What did increase was the 
income from fees.  The more applications for GIs, the more revenue flowed to the 
government.  Therefore, the argument of higher administration costs, made by those who provided GI protection through the trad emark system, was not relevant to this 
issue.
210 
 
 - Extension would facilitate the task of tr ademark examiners faced with an application 
for the registration of a trademark including a GI for a product other than wines and spirits, and having to determine whethe r such a trademark would mislead the 
consumer or not.  Such a determination was often made on the basis of the examiner's 
information of what an average consumer did or did not think.  However, such a determination could be challe nged before domestic courts on the basis of evidence 
such as consumer surveys, which were ofte n unavailable at the time that trademark 
examiners needed to make their decisions.  With extension, trademark examiners would simply have to assert whether a trad emark application contained or consisted 
of a protected GI and would only allow regi stration to proceed if the trademark was 
                                                     
 
207 United States, IP/C/M/38, para. 176. 
208 Switzerland, IP/C/M/38, paras. 204-205;  WT/GC/W/540/Rev.1 and TN/C/W/21/Rev.1, 
paras. 10-11. 
209 EC, IP/C/M/38, para. 179. 
210 Czech Republic, IP/C/M/38, para. 191.  WT/GC/W/546 
 TN/C/W/25 
 Page 33 
 
 
entitled to use the geographical indication fo r its products.  There would no longer be 
the need to make a costly and difficult de termination of whether the consumer would 
be misled by the registration of a trademark, including a GI.  It would be clear to producers whether they could use a term or not.  Consequently, they would not use 
GIs that belonged to others or that were used  by others in other countries.  This would 
result in a greater clarity and certainty of legal protection, which would diminish litigation and related costs.
211 
 68. In response, the following points have been made: 
 - Once the Article 23.4 multilateral system negotiations were completed, it was likely 
that some Members would enforce implementation through dispute settlement proceedings based upon Articles 22 and 23 an d the Article 23.4 multilateral system.  
Because Article 23, in the view of some  delegations, essentially required a labelling 
regime wherein all labels were policed  for compliance with the Article 23 
requirements, the implementation burdens  of such a system became very 
complicated.  Were Article 23 to be extende d to cover geographical  indications for all 
goods, the number of labels to be reviewed and policed would increase exponentially.
212 
  - The replacement of national systems not involving registration by one consequent on 
a multilateral register would shift the burden of administering and enforcing 
geographical indication rights from right holders to governments, contrary to the principle that right holders should bear the costs of protecting and enforcing their rights.
213 
 
 - The workload of trademark offices would be affected by the fact that Article 23 
applies "even where the geographical indicati on is used in translation".  This would 
create a considerable extra burden.  In case of extension, Members would need to consider how to translate into their own language geographical indications from various languages of the world.  It w ould be necessary to prepare a database of 
translations to be used by trademark exam iners.  Also, regarding GIs from countries 
in whose languages Members would not have a great deal of experience, 
pronunciation data of the translated ge ographical indication itself might not be 
sufficient for the reference purposes of trad emark examiners.  The examiner would 
have to prepare translated data concerni ng the name of the region of production and 
the product itself related to the geographical indication.
214 
 
 - Rescinding prior trademarks would be lik ely to result in right holders in prior 
trademarks defending their rights in nationa l courts, thus raising questions of the 
consequent litigation costs.215 
 
                                                      
211 EC, IP/C/M/38, para. 188;  IP/C/W/353, para. 20;  EC, DDG consultations, 10 March 2005. 
212 IP/C/W/386, para. 15. 
213 Singapore, DDG consultations, 10 March 2005. 
214 Japan, IP/C/M/38, para. 183. 
215 Singapore, DDG consultations, 10 March 2005. WT/GC/W/546 
TN/C/W/25 Page 34 
 
  - A Member's use, to protect GIs, of the trademark regime that it was already required 
to have under the TRIPS Agreement would involve only the use of that Member's resources already committed to the trademar k system for applications, registrations, 
opposition, cancellations, adjudication, and enforcement.
216 
 
 - Contrary to assertions made by some of the demandeurs , obtaining and reviewing 
rights under a trademark system was not expe nsive, as evidenced by the vast numbers 
of trademarks that were maintained by small and large producers alike.217 
 
 - Under the multilateral registration system proposed by the demandeurs for extension, 
if a Member were to claim that a term is generic, it could be obliged to go through an 
arbitration system.  This would be a very costly exercise, as sh own by the costs in 
challenging GIs in the EC system, for example, which were massive.  Therefore, Members should weigh up the costs for re-registering certification marks with the 
costs of the disputes they would be involved with in challenging whether a country 
could use a generic term.
218 
 69. In regard to the impact of extension on costs and burdens on governments associated with 
enforcement , one view has been: 
 - There was cause for concern that, because sy stems for the recognition of GIs of some 
Members provided for government recogniti on, oversight and enforcement of the 
standards established for the use of GIs, the governments of Members that did not 
have such a system might be called upon to assume such responsibilities.  It would require considerable resources to set up the system and ongoing resources to maintain it.
219 
 
 - If the view that extension would reduce right holders' costs of enforcing GIs was 
dependent on having a registration system in place along the lines of that proposed by the demandeurs  in the TRIPS Council Special Se ssion and on Member governments 
monitoring and enforcing GIs on behalf of right holders, the effect of what the 
demandeurs  were seeking would be to shift costs from right holders to governments 
at the tax payers' expense.
220 
  - Enforcement obligations in respect of IP Rs could be some of the most costly and 
difficult aspects of implementing intellectual property protection.  The TRIPS Agreement obligated governments to provide  necessary legal means to right holders 
and to play a role in enforcing the regi me.  For example, Article 23.2 required a 
government to refuse or invalidate registra tion of a trademark that contained or 
consisted of GIs for wines and spirits with respect to wines and spirits that did not 
have this origin.  Article 23.3 require d governments to determine the practical 
conditions under which homonym ous GIs could be used.  Some of the enforcement 
provisions contained in Part III of the Agreemen t also had application to rights in GIs.  
For example, Section 2 of Part III requi red application of certain civil and 
administrative procedures to rights covered by TRIPS, including GIs.  It was impossible to isolate the discussion of extens ion in this context from the negotiations 
for a multilateral system of registering wines and spirits GIs.  Under some Members' 
                                                     
 
216 United States, IP/C/M/38, para. 176;  Singapore, DDG consultations, 10 March 2005. 
217 United States, DG consultations, 30 June 2003. 
218 Australia, IP/C/M/38, para.149. 
219 IP/C/W/386, para. 17. 
220 United States, DDG consultations, 10 March 2005.  WT/GC/W/546 
 TN/C/W/25 
 Page 35 
 
 
proposals, WTO Members would have to play an even more active role in enforcement in the following ways:  notifying domestic GIs;  examining GIs by other countries;  engaging in bilateral negotiations  and, possibly, in dispute resolution to 
either defend or to object to a notification of a particular GI.
221 
 
70. In response, the following points have been made: 
 - Although the system of GI recognition of some Members provided for governmental 
enforcement, this was not the case for the protection of GIs under TRIPS.  Extension, or for that matter GI protection, did not require government enforcement.  The TRIPS 
Agreement did not state that governments must police third countries' GIs.  The 
TRIPS Agreement was a minimum-standard ag reement and in regard to GI protection 
it was quite clear that enforcement was left to right holders.  Some Members had however made a choice of protecting GIs via government enforcement.  Certainly 
other Members could choose differently.
222 
 
 - Regarding the costs for administrations relating to enforcement of protected GIs, all 
such costs on national legal systems had already been imposed by the enforcement 
provisions of the TRIPS Agreement.  With exte nsion, costly proof in civil or criminal 
courts or administrative bodies would no longe r be necessary in order to show that 
either the public was misled or an act of unfair competition had occurred in relation to 
the use of a GI.  From this point of view , the additional level of GI protection would 
represent not only a simplification of the enforcement process but would also represent a cost-saving possibility.
223 
 71. The view has been expressed that if, under exte nsion, producers were to be prohibited from 
using a certain term and that use was treated as a kind of property, this might be seen as a form of 
expropriation by the government that might give rise to an obligation to compensate the affected producers.  It could be seen as a breach of a cons titutionally protected right, which could be invoked 
by foreign as well as domestic investors, maybe on  the basis of investment protection agreements.
224 
72. It has been suggested that it would be useful to  have an exchange of views on what kind of 
technical assistance  would be necessary to help Members that do not have domestic systems and 
infrastructures in place to cope with extension.225 
                                                      
221 Australia, IP/C/M/38, para. 178;  Argentina, IP/C/M/38, para. 208. 
222 EC, IP/C/M/38, para. 190;  JOB(03)/119, page 5;  WT/GC/W/540/Rev.1 and TN/C/W/21/Rev.1, 
para. 10. 
223 Czech Republic, IP/C/M/38, para. 192;  WT/G C/W/540/Rev.1 and TN/C/W/21/Rev.1, paras. 7 
and 12;  TN/C/W/14, page 2. 
224 Chile, DDG consultations, 7 February 2005. 
225 New Zealand, DDG consultations, 7 February 2005. WT/GC/W/546 
TN/C/W/25 Page 36 
 
 
ANNEX 1 
 
LIST OF FORMAL AND INFORMAL MEETI NGS AT WHICH DISCUSSION DEDICATED 
TO EXTENSION ISSUES HA S TAKEN PLACE (2002-2005) 
 
 
Chairpersonship Title Meeting Date 
2005 
Deputy Director-General Third Technical Level Consultation on GI 
Extension 25 April 2005 
Deputy Director-General Second Technical Level Consultation on 
GI Extension 10 March 2005 
Deputy Director-General First T echnical Level Consultation on GI 
Extension 7 February 2005 
2004 
Deputy Director-General Technical Level Consultation on GI 
Extension (organizational matters) 16 December 2004 
2003 
Director-General Informal Heads of Delegation 
Consultation on Issues Related to the Extension of the Protection of Geographical Indications 30 June 2003 
Director-General Informal Heads of Delegation 
Consultation on Issues Related to the 
Extension of the Protection of Geographical Indications 22 May 2003 
2002 
Chair of the TRIPS Council TRIPS Council - Regular Session 25-27 and 
29 November and 20 December 2002  
Chair of the TRIPS Council Informal Meeting of the TRIPS Council 
on the Extension of the Protection of 
Geographical Indications Provided for in Article 23 to Products Other than Wines and Spirits 10 November 2002 
Chair of the TRIPS Council TRIPS C ouncil - Regular Session 8 November 2002 
Chair of the TRIPS Council TRIPS Coun cil - Regular Session 10 September 2002 
Chair of the TRIPS Council TRIPS Council - Regular Session  5-7 March 2002 
  WT/GC/W/546 
 TN/C/W/25 
 Page 37 
 
  
ANNEX 2.1 
 
CHECKLIST OF ISSUES
* 
 
Note by the Chairman  
   
 The issues that could be discussed can be grouped into three main categories: 
 
- the legal issues relating to the differences between the general protection for 
geographical indications provided for in the TRIPS Agreement and the additional 
protection for geographical indications for wines and spirits; 
 
 - broader policy issues such as the impact on producers and consumers of any extended 
protection;  and 
  - the administrative costs and burdens of the procedures associated with any extended 
protection and any other impacts on governments. 
 
In addition, it will be necessary for the Council to gi ve thought to the way in which it should report to 
the TNC by the end of this year.   It is suggested that the Council might focus on th e first of the above baskets of issues at its 
September 2002 meeting and address the remaining tw o at its November 2002 meeting, at which time 
an opportunity would also be provided to revisit th e basket one issues.  If Members so wish and the 
meeting schedule permits, an additional info rmal meeting could also be organized. 
  It is emphasized that the purpose of the checklist is not to limit discussion but rather to facilitate its rational organization.  All issues that are of significant concern to delegations must be 
open to discussion.  The checklist is therefore, nece ssarily, non-exhaustive.  In particular, it might be 
noted that the topics identified for discussion unde r each of the main baskets are illustrative and do 
not prevent delegations from raising add itional questions under those headings. 
  With regard to relevant work under way in othe r contexts, it is suggested that, in considering 
the issues on the checklist, the Council should take a dvantage of and avoid duplication of work done 
under other agenda items and in  other fora, such as WIPO. 
 
The legal issues relating to the differences be tween the general protection for geographical 
indications provided for in the TRIPS Agreemen t and the additional protection for geographical 
indications for wines and spirits 
 
 A basic starting-point for the discussion would seem to be an adequate appreciation of the 
differences between the general level of protection for GIs and the additional protection required in 
the area of wines and spirits.  This is necessary for a proper understanding of the implications of any 
extended protection.  There has been a fair am ount of discussion of these differences, with some 
emphasizing the importance of the general level of  protection and the limited significance of the 
additional protection given the exceptions of Article  24 and others emphasizing the need to prevent 
new unauthorized usages of GIs.  
                                                     
 
* Extracted from JOB(02)/117, dated 17 September 2002. WT/GC/W/546 
TN/C/W/25 Page 38 
 
  Topics that might be considered in this discussion would include:   - Issues relating to protectable subject-matter
.  While some delegations have expressed 
the view that this matter does not need discussion in this context given that no change 
to the definition contained in Article 22.1 is envisaged, some ot her delegations have 
indicated that, given the different implicati ons of extended protection, it is difficult to 
discuss this matter without greater clarity as to the nature and num ber of terms that 
might be eligible for protection, including in  regard to such matters as to the relative 
role of the country of origin and the country where protection is sought in 
determining the criteria for eligibility for pr otection, the eligibility of country names, 
non-place names and of so-called "traditional expressions", etc. 
  - Issues relating to the protection to be granted
.  This could include discussion of: 
 
  - the difference in the level of protection taking into account the exceptions 
 provided for in Article 24; 
   - the difference in the treatment of the relationship between trademarks and 
 geographical indications;  and 
 
  - the difference in the treatment of homonymous geographical indications. 
 
Broader policy issues such as the impact on pro ducers and consumers of any extended protection 
 
 On the producers' side, there are two sets of producers whose concerns might be analysed: 
 
 - The producers that produce the product in the area that is designated by the term that 
benefits from enhanced protection.  Building on the discussion of the legal differences, to what extent would such pr oducers benefit from such protection in the 
marketing of their product in other countries? 
 
 - The producers of the product in other ar eas who might be prevented from making use 
of the protected geographical indication.  To what extent would such producers be adversely affected in the marketing of their product and what kind of adjustment costs/burdens might they be faced with? 
 
 With regard to consumers, further discussion might be considered to establish the relative 
importance of the claimed benefits from greater cl arity in the geographical origin of the products 
concerned against claimed confusion and higher pri ces that might arise from disruption to existing 
marketing practices.  
The administrative costs and burdens of the pro cedures associated with any extended protection  and 
any other impacts on governments  
 These issues have been raised at a number of levels:   - Adaptation of legislation and institutions
.  Issues that might be discussed include the 
extent to which existing models for win es and spirits could be extended to other 
product areas and the extent to which a thorough review of trademark and unfair 
competition legislation would be entailed. 
  - Use of procedures for acquiring protection
.  Issues that might be discussed include 
the extent to which use of these procedures might put burdens on governments and  WT/GC/W/546 
 TN/C/W/25 
 Page 39 
 
 
commercial interests, for example because of the number of likely applications, the 
difficulties of dealing with differences as to  eligibility for protection, claimed likely 
pressures to observe criteria applicable in the country of origin, etc. 
 
 - Enforcement .  Issues that could be discussed incl ude the extent to which the burden 
for ensuring compliance would rest on the commercial interests concerned or 
governments might be required to monitor compliance and get involved in litigation 
at the national level and, potentially, disput e settlement proceedings at the multilateral 
level. WT/GC/W/546 
TN/C/W/25 Page 40 
 
 
ANNEX 2.2 
 
NON-EXHAUSTIVE LIST OF PO SSIBLE TOPICS FOR DISCUSSION
* 
 
Fax from the Director-General  
   1. Topics mentioned by the Director-General at the May consultation: 
(a) the relationship between the extension proposals put forward in the TRIPS context 
and the proposals made on geographical indica tions in the context of the negotiations 
on agriculture; 
(b) the scope of the extension proposals, in  terms of the range of products and the 
number of geographical indications; 
(c) the potential implications of extension fo r prior trademark rights and for the TRIPS 
Agreement's provisions on the protection of trademarks; 
(d) the potential implications of extension in third country markets. 
2. At the May consultation, reference was made to the advantages and disadvantages for the 
different parties that might be affected by extension, notably: 
(a) producers in the area identified by the geographical indication, having regard to the 
protection already available under Article 22 of the TRIPS Agreement and/or the 
trademark system; 
(b) other producers using the GI; 
(c) consumers; 
(d) governments. 
3. A number of questions relating to the way in  which possible extension might interface with 
the WTO system more generally were raised, including:   (a) the distribution of rights and obligatio ns, or advantages and disadvantages, between 
WTO Members, including for developing country and least-developed country Members; 
 
 (b) the implications for the WTO objec tive of promoting trade liberalization. 
 
                                                     
 
* Sent as an attachment to a fax, dated 25 June 2003, inviting Members for an Informal Heads of 
Delegation Consultation on Issues Related to the Extension of the Protection of Geographical Indications on 
30 June 2003.  WT/GC/W/546 
 TN/C/W/25 
 Page 41 
 
 
ANNEX 2.3 
 
IMPLEMENTATION ISSUES:  TECHNICAL LEVEL CONSULTATION 
ON GI EXTENSION, 7 FEBRUARY 2005 
 
Fax from the Deputy Director-General* 
   
 You are invited to a technical level consulta tion on issues related to the extension of the 
protection of geographical indicati ons provided for in Article 23 of the TRIPS Agreement to products 
other than wines and spirits, to be held on the mo rning of 7 February 2005 in Room D, starting at 
10 a.m.  
 At the end of the organizational consultation held on 16 December, I indicated that, in the 
light of the views expressed, I would put to you a number of suggestions for topics for discussion at 
the February consultation – topics which coul d be added to as the work progresses.   
  I would suggest therefore that, at the Februa ry meeting, discussion might initially seek to 
clarify: 
 
 - the objectives, scope and content of the extension proposal put forward by some 
delegations, 
  - the implications (including costs and benefits) of such a proposal, including for 
(a) producers benefiting from a GI;  (b) other producers;  (c) consumers;  and 
(d) government authorities.   
  In addressing these topics, delegations may wish to discuss, inter alia , points referred to by 
the Director-General in the "Non-exhaustive List of  Possible Topics for Discussion" he circulated in 
June 2003. 
 
 Delegations having any comments on the above su ggestions are invited to let me have them 
by c.o.b., Thursday 27 January.  
 
 
                                                     
 
* Extracted from a fax sent to WTO Members on 13 January 2005. WT/GC/W/546 
TN/C/W/25 Page 42 
 
 
ANNEX 3 
 
DOCUMENTS ON GI EXTENSION  ISSUES SINCE DOHA  
MINISTERIAL CONFERENCE 
 
 
Document  
Symbol Communicated 
by Title Distribution Date 
2005 
JOB(05)/61 and 
Add.1-2 Bulgaria, the European 
Communities, Guinea, India, Kenya, the Kyrgyz Republic, the Former Yugoslav Republic of Macedonia, Jamaica, 
Liechtenstein, Madagascar, 
Romania, Sri Lanka, Switzerland, Thailand, Tunisia and Turkey Doha Work Programme – The 
Extension of the Additional Protection for Geographical Indications to Products Other than Wines and Spirits 22 April 2005 
JOB(05)/8 Australia Technical Level Consultations 
on GI Extension 4 February 2005 
2004 
WT/GC/W/540/ 
Rev.1 and Add.1 
TN/C/W/21/ Rev.1 and Add.1 Bulgaria, the European 
Communities, Guinea, India, 
Jamaica, Kenya, Liechtenstein, Madagascar, Moldova, Romania, Switzerland, Thailand and Turkey Doha Work Programme – The 
Extension of the Additional 
Protection for Geographical Indications to Products Other than Wines and Spirits - Revision 14 December 2004 
TN/C/4 Switzerland on behalf of the 
"Friends of GIs" Statement made by Switzerland 
on behalf of the "Friends of GIs" at the TNC meeting of 30 June 2004 13 July 2004 
2003 
TN/C/W/14 and 
Add.1 and 2, and 
Corr.1 Bulgaria, Cyprus, the Czech 
Republic, Estonia, the European 
Communities, the Former 
Yugoslav Republic of Macedonia, Georgia, Hungary, India, Jamaica, Kenya, the Kyrgyz Republic, Latvia, Liechtenstein, Malta, Morocco, 
Poland, Romania, the Slovak 
Republic, Slovenia, Sri Lanka, Switzerland, Thailand and Turkey Geographical Indications;  the 
Significance of "Extension" in 
the TRIPS Agreement and its 
Benefits for WTO Members 9 July 2003 
JOB(03)/137 European Communities The Extension of the Additional 
Protection for Geographical 
Indications to Products Other than Wines and Spirits - List of Questions for Follow-Up at Subsequent Meetings 8 July 2003  WT/GC/W/546 
 TN/C/W/25 
 Page 43 
 
 
Document  
Symbol Communicated 
by Title Distribution Date 
JOB(03)/119 European Communities The Extension of the Additional 
Protection for Geographical 
Indications to Products Other 
than Wines and Spirits 23 June 2003 
IP/C/M/38 Secretariat Minutes of the meeting of 25-27 
and 29 November, and 20 December 2002 (Agenda Item D - paras. 65-216) 5 February 2003 
2002 
IP/C/W/395 Argentina, Australia, Canada, 
Chile, Chinese Taipei, 
Colombia, the Dominican 
Republic, El Salvador, Ecuador, Guatemala, Honduras, New Zealand, Panama and the United States Proposed Report from the 
Council for TRIPS to the TNC 
Regarding Article 23 of the 
TRIPS Agreement - Issues Related to the Extension of the Protection of Geographical Indications Provided for in 
Article 23 to Products Other than 
Wines and Spirits 10 December 2002 
JOB(02)/194 Bulgaria, Cyprus, the Czech 
Republic, the European Communities, Georgia, Hungary, India, Jamaica, Kenya, Liechtenstein, Malta, Mauritius, 
Pakistan, Romania, the Slovak 
Republic, Slovenia, Sri Lanka, Switzerland, Thailand and Turkey Proposal for Inclusion in the 
Report of The Council For TRIPS to the Trade Negotiations Committee (TNC) - Issues Related to the Extension of the 
Protection of Geographical 
Indications Provided for in Article 23 to Products Other than Wines and Spirits 26 November 2002 
IP/C/W/386 Argentina, Australia, Canada, 
Chile, the Dominican Republic,  El Salvador, Guatemala, 
New Zealand, Paraguay, the 
Philippines,  Chinese Taipei and the United States Implications of Article 23 
Extension 8 November 2002 
IP/C/M/37/Add.1 Secretariat Minutes of the meeting of 17-
19 September 2002 (Agenda Item D - paras. 97-194 and Annex, pp.77-88) 8 November 2002 
JOB(02)/117 Chairman of the TRIPS Council Issues Related to the Extension 
of the Protection of 
Geographical Indications 
Provided for in Article 23 to Products Other than  Wines and Spirits - Checklist of Issues - Note by the Chairman 17 September 2002 
IP/C/M/36/Add.1 
and Corr.1 Secretariat Minutes of the meeting of 
25-27 June 2002 (Agenda 
Item D - paras. 57-193) 10 September 2002 WT/GC/W/546 
TN/C/W/25 Page 44 
 
 
Document  
Symbol Communicated 
by Title Distribution Date 
JOB(02)/95 Australia Statement of Australia at the 
TRIPS Council Meeting of 
25-27 July on the Extension of 
Protection of Geographical Indications Provided for in Article 23 to Products Other than Wines and Spirits 26 July 2002 
IP/C/W/360 Australia, Canada, Guatemala, 
New Zealand,  
Paraguay, the Philippines and 
the United States Implications of Article 23 
Extension  26 July 2002 
IP/C/W/353 Bulgaria, Cuba, Cyprus, the 
Czech Republic, the European Communities and their member States, Georgia, Hungary, Iceland, India, Kenya, 
Liechtenstein, Malta, Mauritius, 
Pakistan, Romania, the Slovak Republic, Slovenia, Sri Lanka, Switzerland, Thailand and Turkey The Extension of the Additional 
Protection for Geographical Indications to Products Other than Wines And Spirits 24 June 2002 
JOB(02)/32 Sri Lanka Non-Pa per on the Extension of 
Geographical Indications 
Provided for in Article 23 of the 
TRIPS Agreement to Products Other than Wines and Spirits 11 April 2002 
IP/C/M/35 Secretariat Minutes of the meeting of 
5-7 March 2002 (Agenda Item D - paras. 139-205) 22 March 2002 
2001 
WT/MIN(01)/ 
W/11 Bulgaria, the Czech Republic, 
the European Communities and 
their member States, Hungary, 
Liechtenstein, Kenya, Mauritius, Nigeria, Pakistan, the Slovak Republic, Slovenia, Sri Lanka, Switzerland, Thailand and Turkey Communication from Bulgaria, 
the Czech Republic, the 
European Communities and their 
member States, Hungary, Liechtenstein, Kenya, Mauritius, Nigeria, Pakistan, the Slovak Republic, Slovenia, Sri Lanka, Switzerland, Thailand and 
Turkey Regarding Paragraphs 18 
and 12 of the Draft Ministerial Declaration 14 November 2001 
WT/MIN(01)/ 
W/9 Bulgaria, Kenya, India and 
Sri Lanka Communication from Bulgaria, 
Kenya, India and Sri Lanka Regarding Paragraphs 18 and 12 of the Draft Ministerial 
Declaration 
 13 November 2001  WT/GC/W/546 
 TN/C/W/25 
 Page 45 
 
 
Document  
Symbol Communicated 
by Title Distribution Date 
WT/MIN(01)/ 
W/8 Argentina Communication from Argentina 
Regarding Paragraphs 18 and 12 
of the Draft Ministerial 
Declaration 12 November 2001 
 
__________