WORLD TRADE  
ORGANIZATION  RESTRICTED 
WT/ACC/SAM/24 
25 July 2011 
 (11-3779) 
Working Party on the 
Accession of Samoa Original:   English 
 
 
 
ACCESSION OF SAMOA 
 
Additional Questions and Replies 
 
 
 The following submission, dated 23 July 2011, is being circulated at the request of the Government of Samoa.  
_______________ 
  WT/ACC/SAM/24 
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  TABLE OF CONTENTS 
 
II.  ECONOMIC POLICIES .......................................................................................................... 1  
-  Investment Regime.............................................................................................................. ...... 1 
-  State Ownership and Privatization;  State-Trading Entities ................................................ 2  
IV.  POLICIES AFFECTING TRADE IN GOODS ..................................................................... 3  
-  Trading Rights ................................................................................................................ .......... 3 
A.  IMPORT REGULATIONS ...................................................................................................... 3  
-  Application of internal  taxes to imports ................................................................................. 3  
-  Quantitative import restrictions, includi ng prohibitions, quotas and licensing 
systems ....................................................................................................................... ................ 4  
-  Customs valuation ............................................................................................................. ........ 5 
-  Anti-dumping, countervailing duties, safeguard regimes ..................................................... 9  
C.  INTERNAL POLICIES A FFECTING FOREIGN TRADE IN GOODS ........................... 9  
-  Industrial Policy, including export subsidies .......................................................................... 9  
-  Technical barriers to trade, standards and certification ..................................................... 10  
-  Sanitary and phytosanitary measures ................................................................................... 10  
-  Agricultural policies.......................................................................................................... ...... 11 
V.  TRADE-RELATED INTELLECTUAL  PROPERTY REGIME ....................................... 11  
-  GENERAL ....................................................................................................................... ........ 11 
-  SUBSTANTIVE STANDARDS OF PROTECTION, INCLUDING 
PROCEDURES FOR THE ACQUISITION AND MAINTENANCE OF 
INTELLECTUAL PROPERTY RIGHTS ........................................................................... 12  
-  Geographical indications, including appellations of origin ................................................. 12  
-  ENFORCEMENT ...................................................................................................................  13 
VI.  POLICIES AFFECTING TRADE IN SERVICES .............................................................. 14  
VII. TRANSPARENCY ................................................................................................................. 14  WT/ACC/SAM/24 
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  II. ECONOMIC POLICIES 
- Investment Regime Question 1 Question 2 of document WT/ACC/SAM/21 states that the incentives conferred by the 
Enterprises Incentives and Export Promotion Act 1992/1993 had been eliminated on 
11 July 2010. 
Please include this information in the Draft Working Party Report. 
Answer: 
Samoa agrees to include information in the Draft Working Party Report. 
Question 2 
Concerning the response to Question 7 of document WT/ACC/SAM/21: 
This confirms that "no provisions of the Foreign Investment Amendment Bill 2011 (FIAB) will 
affect Samoa's services commitments", we underst and that there are concerns in this area, 
i.e. that the provisions in the Foreign Investment Regulations 2011 and the FIAB both establish criteria for the modification of the Restricted a nd Reserved Lists attached based on the impact 
of competition from foreign service provi ders and other economic needs tests.  
Any future modification of the Reserved or Rest ricted Lists based on these criteria that would 
include a services sector for which Samoa ha s taken GATS commitments could contradict 
Samoa's WTO obligations.  We view this possibility with the utmost concern.  
We seek assurances from Samoa concerning these laws, in the Draft Working Party Report, 
that after accession to the WTO, Samoa shall comp ly with the requirements of the GATS and its 
commitments set out in Samoa's Schedule of Specific Commitments in Services. 
We suggest the following text for incorporat ion in a revised Draft Working Party Report: 
xx. Some Members expressed concern that the provisions in the drafts of the 
Foreign Investment Regulations 2011 and the Foreign Investment Amendment Bill 2011 
established criteria for modification of the R estricted and Reserved Lists based on the 
impact of competition from foreign servi ce providers and other economic needs tests. 
They observed that modification of the Res erved or Restricted Lists based on these 
criteria to include a services sector for which Samoa had taken GATS commitments could contradict Samoa's WTO obligations and would be viewed with the utmost 
concern. These Members sought assurances fr om Samoa that after accession to the 
WTO, Samoa would observe WTO requirements , including its GATS commitments.  WT/ACC/SAM/24 
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  xx. The representative of Samoa took no te of Members' concerns and confirmed 
that, from the date of accession, Sam oa would comply with WTO requirements 
including its commitments set out in Samoa's Schedule of Specific Commitments in Services.  Specifically, for an y services subsequently added to the reserve lists in the 
Foreign Investment Regulations 2011 or th e Foreign Investment Amendment Bill 2011 
or other legislation, Samoa would respect acqui red rights of existing investors and, if 
covered by commitments established in Samoa's GATS Schedule, would follow procedures under Article XXI of the GATS to modify its schedule, including compensatory adjustment.  The Working Party took note of this commitment. 
Answer: 
Samoa accepts the suggested texts for incorpor ation into the Draft Working Party Report. 
Question 3 
The draft Foreign Investment Regulations 2011 a nd the FIAB specify conditions to modify the 
Restricted and Reserved List through adding sectors and conditions.  We have some doubts 
about schedule 2 in the FIR, which sets crit eria for adding sectors to the Reserved and 
Restricted List, such as: "The economic activi ty is sufficiently taken care of by domestic 
investors and that additional entries would rende r unprofitable returns to existing operators" 
or "When there is sufficient local suppliers of a particular activity/service and a healthy 
competition exist". These possi bilities may decrease legal certai nty for foreign investors in 
Samoa as their investment may become prohibited or  restricted if it is found, for example, that 
"there are sufficient local suppliers".  Moreover, modifying the conditions of the reserved list or 
including a services sector for which Samoa has taken mode 3 commitments on one of the lists 
may contradict the commitments taken in the services schedule. 
We acknowledge that every WTO Member retains the right to modify its regulation, including 
in a way that contradicts its GATS commitment s, as long as it follows the procedures under 
Article XXI of GATS (Modification of Schedules) if such a contradiction arises.  
Answer: 
We note the Member's concerns on the foreign investme nt draft laws but in order to find a solution for 
the concerns that the Member has provided, can th e Member please identify the specific parts of the 
draft legislation that the Member has concerns with.  This is in relation to the criteria for the addition 
and removal of restricted and reserve list. 
Please note that Samoa agrees to the commitment text, see Question 2. - State Ownership and Privatization; State-Trading Entities Question 4 We note that in paragraphs 27 and 31 of do cument WT/ACC/SPEC/SAM/4/Rev.4 still indicates 
that privatization is "expected" in 2011.  The response to Question 9 of document WT/ACC/SAM/21 indicates that the privatization is actually targeted to be completed by 
June 2012. 
Please include this information in the Draft Working Party Report.  WT/ACC/SAM/24 
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  Answer: 
Samoa agrees to include information in the Draft Working Party Report. 
Question 5 
The response to Question 12 of document WT/ACC/SAM/21 indicates that Samoa has accepted 
the commitment in paragraph 38 of document  WT/ACC/SPEC/SAM/4/Rev.4 and the removal 
of the brackets.  We thank Samoa for this commitment. 
Answer: 
Noted. 
IV. POLICIES AFFECTING TRADE IN GOODS 
- Trading Rights  
Question 6 
The response to Question 16 of document WT/ACC/SAM/21 deletes reference to domestic 
companies with foreign share-holding from paragraph 60 of document WT/ACC/SPEC/SAM/4/Rev.4.  Please amend it. 
Answer: 
The reference will be restored. Samoa agrees to th e proposed text earlier suggested by the Member. 
A. IMPORT REGULATIONS 
- Application of internal taxes to imports Question 7 Concerning Samoa's responses to Questions 29 to 31 of document WT/ACC/SAM/21: 
We suggest the following revisions to Samoa' s proposed commitment text on the issue of 
exemption from VAGST, seeking a shorter transition  of three years if Samoa cannot at this time 
indicate that producers whose output exceeds SAT 78,000 minimum will not be eligible for the 
exemption.   
83. The representative of Samoa confirmed that its primary producers eligible for 
exemption from the VAGST were, in all cases, small subsistence producers who sell 
their produce at the local market and a re not required to keep account of their 
turnover.  He also confirmed that the prop osed detailed analysis of Samoa's domestic 
agricultural sector with respect to the VAGST exemption will would address the 
concerns of WTO Members and based on that analysis, his Government would eliminate 
or amend Section 15 of the VAGST Act 1992/1993 to bring Samoa's tax treatment of imported and domestic primary products in to conformity with WTO provisions within 
[three] [five] years of accession.  At the end of this period, Samoa would report to the 
General Council of the WTO on the amendment or elimination of this tax exemption.  
The Working Party took note of these commitments. WT/ACC/SAM/24 
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  Answer: 
Samoa accepts the suggested revision to paragraph 83. 
- Quantitative import restrictions, including prohibitions, quotas and licensing systems  
- Import Ban on Used Vehicles Older than 12 years  
Question 8 
We thank Samoa for accepting our suggested transi tion period and suggested text.  The last line 
proposed by Samoa for paragraph 96 should, however, be removed from the commitment 
paragraph, and either moved to a descriptiv e paragraph or eliminated, as follows: 
95. The representative of Samoa said th at his Government would require a long 
transition period of five years to phase out th e current import prohibition, in light of the 
work that was required to develop the new sy stem together with the necessary legislative 
changes to ensure WTO consistency.  Sa moa would require technical and financial 
assistance to develop this system. 
96. The representative of Samoa confirmed that within five years of accession 
Samoa would establish a nation-wide vehicle safety inspection system for automobiles 
older than 12 years that would require the suspension of the vehicle's right to use public 
roads if the criteria of the inspection were not met.  From the same date, Samoa would repeal its current import ban on vehicles ol der than 12 years and replace it with a 
non-automatic import licence that enforced in spection of imported vehicles older than 
12 years to the same standards.  Importation would be denied only to those vehicles that 
could not meet the mandated safety and enviro nment requirements.  If it develops that 
Samoa needs more time, it can return to the WTO Council and seek a waiver, after 
demonstrating progress made in the period to wards the fulfilment of the commitment.  
The Working Party took note of this commitment. 
Answer: 
Samoa agrees to the deletion of the line in paragr aph 96 as every WTO Member has the right to seek a 
waiver. 
- Import Ban on Left-Hand Drive (LHD) Vehicles 
Question 9 We appreciate Samoa's confirmation that LHD vehicles are still allowed for special 
circumstances and its willingness to provide a commitm ent to that effect, as has been suggested. 
Please include the suggested text in th e revised Draft Working Party Report. 
Answer: 
Samoa agrees to include the suggested te xt in the Draft Working Party Report.  WT/ACC/SAM/24 
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  - Import Ban on Turkey Tails  
Question 10 
We appreciate the proposals made by Samoa to rep lace the ban on imports of turkey tails with a 
measure that addresses its policy goals of impr oving the general health of the Samoan 
population and is, at the same time, WTO consistent.   
We accept the suggested re-drafting of paragraph 103 with the addition of the word "months" 
after "12" and the new paragraph 102 bis., and thank Samoa for its acceptance of the 
commitment in paragraph 106. 
Answer: 
Thank you for accepting the suggested re-drafting and agree to the inclusion of the word "months". 
Question 11 We believe excise tax is the best way to address th e issue.  An alternative would be science based 
evidence that turkey tails have negative health effects.  If these two favoured avenues could not 
be followed, we could contemplate a cap of tariffs up to 100 per cent. 
Answer: 
Samoa and Members have agreed that Samoa maintains a 300 per cent import duty for two years.  
Thereafter, Samoa lowers the import duty to 100 per cent.  
- Customs valuation  
Question 12 
We appreciate Samoa's efforts to implement WTO provisions in this area.  We are reviewing 
the amendments to the Customs Valuation Re gulations 1998.  These comments will be provided 
by the end of July. 
Answer: 
Samoa acknowledges the comments received from the Member on 11 July 2011 on the draft Customs 
Valuation Regulations 2011. 
Question 13 
Concerning Customs Valuation Regulations 2011, Regulation 8(2)(b):  An earlier version of 
Customs Valuation Regulations 1998 included the underlined phrase below to indicate that the computed value of the goods being valued is the aggregate of the amount equal to: 
"the amount, determined in accordance with  sub-regulation 4 for profit and general 
expenses, considered together as a whole, ge nerally reflected in sales for export to 
Samoa of goods of the same class or kind as the goods being valued, made by the 
producers of the goods to buyers in Samoa wh o are not related to the producers from 
whom they buy the goods at the time the goods are sold to them." WT/ACC/SAM/24 
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  This phrase, which brings the issue of related pa rties into computed value, is inconsistent with 
the WTO Customs Valuation Ag reement.  The phrase is not found in the 2011 draft amended 
version. 
Please confirm that this phrase will not to be included in the final Customs Valuation 
Regulations 2011. 
Answer: 
Samoa confirms that this phrase has been exclude d from Regulation 8(2)(b) in the final Customs 
Valuation Regulations 2011. 
Question 14 
Concerning Customs Valuation Regulations 2011, please clarify the citation for the following 
text, is it Regulation 8(5): 
 "No Member may require or compel any person not resident in its own territory to 
produce for examination, or to allow access to, any account or other record for the 
purposes of determining a computed value.  However, information supplied by the 
producer of the goods for the purposes of determining the customs value under the 
provisions of this Regulation may be verified in another country by the authorities of the 
country of importation with the agreement of the producer and provided they give sufficient advance notice to the government of the country in question and the latter 
does not object to the investigation." 
Answer: 
Regulation 8(5) reflects Article 6.2 of the Customs Valuation Agreement and we do not see any 
inconsistency between both of them. 
Question 15 
Concerning Customs Valuation Regulations 2011, Regulation 13:  An earlier version of 
Customs Valuation Regulations 1998 provided for detention of the merchandise for any period reasonably necessary if the Comp troller were not satisfied with the correctness of entry 
documents.  The Regulation di d not allow for posting of a su rety bond or security to allow 
withdrawal of the goods from customs pending resolu tion of the dispute.  This is inconsistent 
with the provisions of Article 13 of the WTO Customs Valuation Agreement, but has been omitted from the draft Customs Valuation Regulations 2011. 
Please confirm that Regulation 13 of the fina l Customs Valuation Regulations 2011 will provide 
that: 
 "If, in the course of determining the customs value of imported goods, it becomes 
necessary to delay the final determination of such customs value, the importer of the goods shall nevertheless be able to withdraw them from customs if, where so required, 
the importer provides sufficient guarantee in the form of a surety, a deposit or some other appropriate instrument, covering the ultimate payment of customs duties for 
which the goods may be liable."  WT/ACC/SAM/24 
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  Answer: 
Samoa confirms that Regulation 13 of the final Cu stoms Valuation Regulations 2011 is identical to 
the provisions of Article 13 of the WTO Customs Valuation Agreement. 
Question 16 
Concerning Customs Valuation Regulations 2011, Re gulation 16 indicates that the Comptroller 
may alter assessments if he "has reason to believe or suspect that the amount of duties declared 
by any person is less than the amount payable  under the Customs Acts or regulations, [and] he 
may assess the duties payable at such amount as he thinks proper."   
We do not understand what does this provision pertains to, and considering the provisions of 
Regulation 10 and subsequent regulations, we are not sure what purpose it serves.   
- How and when this situation might arise and how it is consistent with the rest of the 
Regulations which lay out a detailed course of evaluation to determine the valuation of 
the imported good? 
- Is it contemplated that the Comptroller wo uld exercise this authority before or after 
determined the appropriate method of valuation and pursuing it to a conclusion? 
- The Regulation states that this determination of the Comptroller will have to be 
"proved" to be in error for the duties to be  rescinded.  Is this before or after the 
importer may have exercised his rights to administrative or judicial appeal? 
- Does the right provided for in Regulation 13 still apply? 
Answer: 
We consider that Regulation 16 concerns "procedur e" rather than "substance".  Therefore, this 
provision is not harmful if used in accordan ce with the WTO Customs Valuation Agreement. 
Question 17 
Concerning Customs Valuation Regulations 2011, the key concerns of Customs and Border 
Protection centre around the fact that the draft Customs Valuation Regulations 2011 do not address Article 4 of the WTO Customs Valuation Agreement, that is, the reversal of the 
sequential order of the application of Articles 5 an d 6.  This is a core part of the Agreement and 
Customs and Border Protection consider that this  must be incorporated within the Samoan 
legislation in order to comply with  the WTO Customs Valuation Agreement. 
Answer: 
Article 4 has already been incorporated into Samoa' s legislation, and is contained in Sub-Regulation 6 
of Regulation 3.  
 
Question 18 
Concerning Customs Valuation Regulations 2011, Part One - Introduction:  This section of the 
draft Customs Valuation Regulations 2011 intro duces the definitions, with some definitions 
adopted directly from the WTO Customs Valuat ion Agreement.  The draft Customs Valuation 
Regulations 2011 have utilized bullet points in a number of the definitions and this makes 
referencing difficult.  It is recommended that the bullet points are replaced with a numbered or alphabetical reference. The docume nt also introduces a numbering system that is used WT/ACC/SAM/24 
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  inconsistently throughout the en tire document:  referencing to regulations and sub-paragraphs 
is unclear and at times, references are made  to sub-paragraphs that do not exist. 
Answer: 
The referencing difficulties will be dealt with when  Samoa reformats the regulations to remove the 
bullet points and use numbered references. 
Question 19 Concerning Customs Valuation Regulations 2011, Part Two - Rules on Customs Valuations:  
With respect to this Section, Customs and Bo rder Protection note the following issues with 
respect to individual regulations:   
The initial sub-heading "Transaction Value as th e primary basis for regulation" indicates that 
this is Regulation 1.  However, within the do cument itself, it appears to refer to this as 
Regulation 3. This highlights the issues associ ated with an inconsistent numbering system 
(outlined above). 
Answer: 
The referencing difficulties will be dealt with when  Samoa reformats the regulations to remove the 
bullet points and use numbered references.  
 
Question 20 
Concerning Customs Valuation Regulations 2011, Part Two - Rules on Customs Valuations:  
Regulation 12 - "Time tolerance for the accepta nce of invoice prices" appears to be a very 
restrictive condition and further information on  this regulation should be provided in the 
Interpretative Notes. 
Answer: 
To further clarify Regulation 12, the appropriate Interpretative Note will be added as this is not 
currently included in the draft Customs Valuation Regulations 2011.  
 
Question 21 Concerning Customs Valuation Regulations 2011, Pa rt Two - Rules on Customs Valuations:  In 
Regulation 17 - "Production of Valuation Declar ation on first entry" sub-paragraphs 4 and 5 
appear to conflict with one another as sub-par agraph 4 stipulates that documents will be kept 
"for a period not exceeding seven years" wher eas sub-paragraph 5 states that "shall keep 
information for a period of not less than te n years".  To remove ambiguity, Customs and 
Border Protection recommends these time periods be aligned. 
Answer: 
Samoa will align the provisions of Regulation 17 by  taking seven years for both sub-regulations 4 
and 5.  
  WT/ACC/SAM/24 
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  Question 22 
Concerning Customs Valuation Regulations 2011 , Annex One - Interpretative Notes:  
The inclusion of Interpretative Notes in the draft Customs Valuation Regulations 2011 is an 
integral part of the regulations and Samoa has ad opted the majority of the Interpretative Notes 
from the WTO Customs Valuation Agreement.  These notes provide guidance to the words and 
phrases used in the regulations and, by adopti ng these Interpretative Notes, the regulations 
need to be consistent with the text of the Ag reement.  In some cases in Samoa's draft Customs 
Valuation Regulations 2011, this is not the case - hence, amendment is required. 
Answer: 
The draft Customs Valuation Regulati ons 2011 will be ame nded to ensure that it is  consistent with the 
text of the Agreement. 
- Anti-dumping, countervailing duties, safeguard regimes 
Question 23 The response to Question 58 of document WT/ACC/SAM/21 states that Samoa will amend 
Section 9 of the Customs Tariff Act 1975 to ensure compliance with the WTO Agreement. 
Please indicate what changes are contempl ated and when the Law will be enacted. 
Answer: 
Section 9 of the Customs Tariff Act 1975 will be  amended.  The amendment will remove the 
unconditional authority to impose dumping duties and re place it with a provision that is in accordance 
with Article VI of the GATT 1994.  A copy of th e draft amendment has been circulated to the 
Working Party (see document WT/ACC/SAM/23). 
Question 24 We accept Samoa's draft paragraph 123 provide d in response to Question 59 of document 
WT/ACC/SAM/21. 
Answer: 
Noted. 
C. INTERNAL POLICIES AFFECTING FOREIGN TRADE IN GOODS  
- Industrial Policy, including export subsidies Question 25 Paragraph 138:  We thank Samoa for its acceptance of this commitment. 
Answer: 
Noted. WT/ACC/SAM/24 
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  - Technical barriers to trade,  standards and certification 
Question 26 We thank Samoa for its re-drafting of paragraph 142, as noted in the response to Question 62 of 
document WT/ACC/SAM/21. 
Answer: 
Noted. 
- Sanitary and phytosanitary measures 
Question 27 Follow-up question to Question 72 of document WT/ACC/SAM/21:  Samoa informs "However, 
plant and plant products not listed will be considered prohibited until an IRA has been 
completed."  
What is the foreseen timeframe for an IRA to be conducted?  What is the foreseen timeframe 
for an application to export a "new" product to  go through the entire chain of procedures need 
to allow import? 
Answer: 
The minimum period for a single IRA is three mont hs per application.  This period allows for 
gathering information on the commodity, including its original surroundings.  
The average timeframe for our local exporter s after securing their market is one month.  
Question 28 
Follow-up question to Question 72 of document WT/ACC/SAM/21:  Samoa informs "However, 
plant and plant products not listed will be considered prohibited until an IRA has been 
completed." 
Could Samoa inform of the average timeframe for an IRA, e.g. by informing of number and 
timeframe for the IRAs performed within the two most recent years? 
Answer: 
The average timeframe for an IRA is three months but can be less if enough information are available 
and satisfy the procedure of completing the IRA.  For the last two years, a total of 23 IRAs were 
completed, with six in the first year and 17 in the second year. 
Question 29 
Could Samoa inform if applications to export  "new" products to Samoa are pending, before 
entering into IRA?  And if so, how long (in time) is the waiting list? 
Answer: 
Two applications are pending and expected  to be completed in September 2011.  WT/ACC/SAM/24 
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  Question 30 
What is the foreseen timeframe for an applicat ion to export a "new" product to Samoa to go 
through the entire chain of procedures needed to  allow import into Samo a (from the request has 
been received in Samoa to import can take place)? 
Answer: 
Three months but can be earlier if all the necessary information is available to satisfy the procedure 
requirements. 
Question 31 
We continue encouraging Samoa in its effo rts to implement progressively the SPS Agreement 
and kindly ask Samoa to keep Members inform ed about the commitments Samoa has taken. 
Answer: 
Noted. 
- Agricultural policies  
Question 32 Paragraph 177 of document WT/ACC/SPEC/SAM/4/ Rev.4:  We continue to seek Samoa's 
agreement to this commitment. 
Answer: 
Samoa accepts the commitment in paragraph 177. 
V. TRADE-RELATED INTELLECTUAL PROPERTY REGIME 
- GENERAL Question 33 
We are reviewing Samoa's draft revised Copyright and Intellectual Property Bills.  
Our comments will be provided by the end of July. 
Answer: 
The second drafts of the IP Bills have been ci rculated to Members on 6 July 2011.  We seek the 
support of Members to ensure Parliamentary p assage of these Bills in October 2011 through the 
receipt of Members' comments as soon as possible. 
Question 34 
Paragraphs 217, 218 and 219 and Table 12 of document WT/ACC/SPEC/SAM/4/Rev.4:  We 
seek Samoa's agreement to these commitments. 
Answer: 
Samoa accepts the commitments in paragr aphs 217, 218 and 219,  as well as Table 12. WT/ACC/SAM/24 
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- SUBSTANTIVE STANDARDS OF PROTECTION, INCLUDING PROCEDURES 
FOR THE ACQUISITION AN D MAINTENANCE OF INTELLECTUAL PROPERTY 
RIGHTS 
- Geographical indications, including appellations of origin 
Question 35 
In addition to Samoa's response to Question 89 of document WT/ACC/SAM/21 and after 
having examined the draft of the Intellectual Pr operty Bill, in particular Section 82, we would 
appreciate Samoa's clarifications on situations wh en an application for a registration of a later 
in time trademark is filed, while there already  exists a similar or identical Geographical 
Indication (GI).  Section 82 of Samoa's draft of the Intellectual Property Bill very explicitly 
illustrates the situations when a trademark can be registered or continue to be used despite the 
registration of a later in time GI.  Similarly, we would very much appreciate information about 
conditions under which a later in time trademark is  refused or invalidated due to an existing 
registered GI. 
Answer: 
Thank you for drawing our attention to the om ission of a provision dealing with refusal or 
invalidation of later in time trademarks that confli ct with an existing registered GI.  The omission of 
such a provision was a drafting oversight and will be corrected in the next draft of the legislation. 
Question 36 
Could Samoa explain the reasons behind the intro duction of a new Section 66.  As this section 
cannot be found in the previous draft, it would be  useful to understand the origin of the need to 
define a limit to three cases "misleading character" of a GI. 
Answer: 
The Intellectual Property Bill adopts a three-tiered appro ach to protect GIs.  This is designed to take 
into account common law concepts, as applied by the cour ts in Samoa.  The first level of protection is 
a cause of action in relation to misleading GIs.  This  cause of action is broad, as it does not require the 
prior registration of a GI.  However, registration accords certain benefits in any enforcement action 
(see below).  The Bill contains a prohibition ag ainst the use of misleading GIs (Section 68).  
Any interested person can take action in the Suprem e Court to enforce this provision and prevent the 
use of misleading GIs.  Section 66 supports Section 68, as it provides further detail about when a GI will be taken to be misleading.  A reorganisati on of these sections may make this clearer.   
The second level of protection is to allow GIs to be re gistered.  Registration of a GI results in certain 
presumptions about the existence and validity of the GI.  These presumptions will assist the plaintiff with any court action to prevent the use of misleading GIs, as outlined above. 
The third level of protection for GIs is to preserve the operation of common law actions of the tort of 
passing off and unlawful competition, and other statutory schemes dealing with unfair competition 
and consumer protection.  WT/ACC/SAM/24 
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  Question 37 
On the draft of the Intellectual Property Bill:  Wa s it Samoa's intention to be silent on whether 
the registration of a posterior trademark can be re fused or invalidated due to an existing GI?  
See Article 22.3 and Article 23.2 of the TRIPS Agreement. 
Answer: 
This is the same issue as the first ques tion above.  Please see the response above. 
- ENFORCEMENT 
Question 38 
Section 115(5) of the revised Intellectual Prop erty Bill 2011 requires the court to take into 
account the legitimate interests of the allege d infringer in not disclosing manufacturing and 
business secrets when requiring the production of  evidence.  Please explain what Samoa would 
consider to be the "legitimate interests of the alleged infringer" and what kinds of "manufacturing and business secrets" would be covered by this provision. 
Also, please explain how this section complies wi th Article 43(1) of the TRIPS Agreement, which 
gives judges the authority to order production of evidence necessary to substantiate a party's 
claims where that party has been unable to obta in evidence that lies within the control of the 
opposing party.  
Answer: 
The intention of this provision is to allow the Supr eme Court in infringement proceedings to consider 
whether or not an alleged infringer should have to pr oduce documentary evidence  in the event that the 
plaintiff (who may be a competitor) may then be nefit from having access to the alleged infringer's 
confidential business information.  Further definition of these terms is best left to the courts in light of 
common law precedents about the meaning of "legitim ate interests".  The court would also consider 
the meaning of "manufacturing and business secrets" having regard to the ordinary meaning of the 
terms and in light of the context of each matter.  The scope of this prov ision is limited to court 
proceedings for infringement, subject to the ordina ry rules of precedent and evidence, and is not a 
provision of broad application. 
This section complies with Article 43.1.  The section is not compulsory, as it does not require the 
court to order or not order the production of such evid ence.  It is rather a discretionary matter for the 
court to consider in the light of the circumstances of each case and having regard to ordinary rules of 
precedent and evidence.  This is consistent with the provision in Article 43.1 that the provision may 
be "subject in appropriate cases to conditions  which ensure the protection of confidential 
information". 
Question 39 
Section 122 of the revised Intellectual Property Bill 2011 appears to establish a criminal offence 
for "groundless threat of legal proceedings".   
Please explain if Samoa's laws also provide judges authority to order the payment of adequate 
compensation to parties injured as a result of being wrongfully enjoined or restrained, including 
attorney's fees and expenses, in those cases where the party requesting enforcement measures 
has abused such procedures, in compliance with Article 48(1) of the TRIPS Agreement. WT/ACC/SAM/24 
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  Answer: 
These issues would be addressed as a civil matter by the wronged party.  The wronged party would be 
able to claim for costs incurred as a result of it bei ng wrongfully enjoined to proceedings or subject to 
an injunction.  These remedies are found in Samo a's Supreme Court Civil Procedures Rules and are 
consistent with the approach adopted in other common law jurisdictions.  The wronged party could 
also counterclaim for compensation for economic loss a ssociated with the proceedings or institute its 
own proceedings on a tortuous basis.  This a pproach complies with Article 48.1 of the 
TRIPS Agreement. 
VI. POLICIES AFFECTING TRADE IN SERVICES  
Question 40 
We have noted the need for additional te xt concerning the draft Foreign Investment 
Regulations 2011 and the Foreign Investment Amendment Bill 2011. 
Answer: 
Noted.  Please refer to Samoa's response in Question 2. 
VII. TRANSPARENCY 
Question 41 
We thank Samoa for its acceptance of the sm all edits we proposed for paragraph 237. 
Answer: 
Noted. 
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