WORLD TRADE  
ORGANIZATION  TN/IP/19 
25 November 2009 
 (09-5943) 
Council for Trade-Related Aspects  
of Intellectual Property Rights Special Session  
 
  
MULTILATERAL SYSTEM OF NOTIFICATION AND REGISTRATION OF 
GEOGRAPHICAL INDICATIONS FOR WINES AND SPIRITS 
 
Report by the Chairman, Ambassador  C. Trevor Clarke (Barbados)
 
 
 
1. This report on the negotiations on the establis hment of a multilateral system of notification 
and registration ("Register") of geographical indica tions for wines and spirits is submitted on my own 
responsibility and is without prejudice to the position  of any delegation and to the outcome of the 
negotiations. 
2. On 29 October 2008, the twentieth formal meeting of the Special Session of the Council for 
TRIPS confirmed my appointment as Chairman in  replacement of Ambassador Manzoor Ahmad 
(Pakistan), who had relinquished his post at the end of July 2008.  The report made by my predecessor 
in document TN/IP/18, dated 9 June 2008, remains va lid in many respects.  This new report focuses 
on the work done since I have taken up my task as Chairman of the Special Session.   
PART A – WORK UNDERTAKEN 
 
3. As reported on previous occasions, three formal proposals have been tabled.  Document 
TN/IP/W/8, tabled in April 2003, contains the proposal by Hong Kong, China and remains 
unchanged.  Document TN/IP/W/10, tabled in March 2005, contains the "joint proposal" and has been 
revised to reflect additional co-sponsors.  The list of Members currently co-sponsoring 
TN/IP/W/10/Rev.2, dated 24 July 2008, is as fo llows:  Argentina, Australia, Canada, Chile, 
Costa Rica, Dominican Republic, Ecuador, El Salvador, Guatemala, Honduras, Japan, Korea, Mexico, New Zealand, Nicaragua, Paraguay, South Africa, Chinese Taipei and the United States ("Joint Proposal Group").  Document TN/C/W/52, dated 19 July 2008, and its A ddenda 1-3 contains a 
proposal for "Draft Modalities for TRIPS Related Issu es", co-sponsored by Albania, Brazil, China, 
Colombia, Croatia, Ecuador, the European Communiti es, Georgia, Iceland, India, Indonesia, the 
Kyrgyz Republic, Liechtenstein, Moldova, the Fo rmer Yugoslav Republic of  Macedonia, Pakistan, 
Peru, Sri Lanka, Switzerland, Thailand, Turkey, the ACP Group and the African Group.  Under the 
sub-heading "GI-Register:  draft Modality text", paragraphs 1-3 of document TN/C/W/52 specifically 
address the issues relating to the Register of geographical indications for wines and spirits.  
Paragraph 9 of TN/C/W/52 refers to  special and differential treatment. 
4. At the meeting of 29 October 2008 Members called for an "intensification of work" of the 
Special Session.  Following that session I held a seri es of informal meetings and consultations in 
various formats during which useful clarifications  were made, in particular by the European 
Communities in respect of its earlier proposals.  At an open-ended in formal consultation on 
1 December 2008 the European Communities circul ated a statement that paragraphs 1-3 of 
document TN/C/W/52 superseded all previous EC proposals, i.e. TN/IP/W/11 of 2005 and the 
so-called "new thinking" of November 2007.  On 4 December, several Member s of the Joint Proposal 
Group circulated a list containing 64 questions  to the European Communities and the other TN/IP/19 
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  co-sponsors of TN/C/W/52.  Singapore also circulated  a list of questions.  At an informal meeting on 
4 and 5 December, as well as at the formal mee ting on 5 March 2009, there were intensive exchanges 
of questions and replies on the basis of the questions posed.
1  Speaking on behalf of the proponents of 
TN/C/W/52, the European Communities grouped its an swers into the three cat egories identified by 
my predecessor in his report in document TN/IP/18, namely:   
(a) the two key issues of consequences/legal effects of registration and participation 
where fundamental differences remain;   
(b) issues of notification and registration;  and  
(c) issues such as fees, costs and administrative burdens, in particular  for developing and 
least-developed country Members, and special and differential treatment.    
5. In 2009 I held four formal meetings, on 5 March, 10 June, 23 (con tinued on 28) October2, and 
27 November.  Between those formal meetings, I he ld informal consultations, including open-ended 
meetings for transparency purposes.  At the Marc h and June meetings, discussions were structured 
around the three categories or clusters of issues men tioned above in paragraph 4.  In order to move 
from a repetition of positions and proposals to a discussion on the substantive issues and negotiations, 
I suggested that delegations focus on a list of four questions that I posed on my own responsibility.  
The four questions are:  
(i) What legal obligations would be acceptable for the Register to facilitate the protection 
of geographical indications for wines and spirits, as mandated by Article 23.4 of the 
TRIPS Agreement?   
(ii) When making decisions regarding the re gistration and protection of trademarks and 
geographical indications, what significan ce and weight should national authorities 
give to the information on the Register?   
(iii) Are there any options regarding particip ation, other than voluntary and mandatory 
participation?  If so, what criteria could be envisaged?   
(iv) What form could special and differential treat ment take with regard to the Register?    
6. In my view the substantive discussions on the b asis of this list of questions were extremely 
useful in focusing Members' interventions on subs tantive questions, particularly in the areas of  
participation and consequences/legal effects of registration.  Severa l delegations usefully explained 
what the implementation of the Register proposals would entail in their current domestic systems.  The point has been made that the issue of particip ation is linked to the con sequences/legal effects of 
registration. 
7. This report does not describe the range of views that have been expressed on issues of linkage 
between work in the Special Session and work on the relationship between the TRIPS Agreement and 
the Convention on Biological Diversity and on GI ex tension, including in regard to the coverage of 
the Register and in regard to procedural para llelism between these three TRIPS issues.  This is 
because the issues of GI extension and TRIPS/CBD relate to matters whic h go beyond the mandate of 
                                                     
 
1 A record of the exchanges at the meeting on 5 March 2009 can be found in document TN/IP/M/21 of 
28 May 2009. 
2 A record of the exchanges at the meetings on 10 June and 23 and 28 October 2009 can be found in 
documents TN/IP/M/22 and TN/IP/M/23, respectively.  TN/IP/19 
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  the Special Session, including its limitation to GIs for wines and spirits.  I repeatedly made the point 
that the mandate of the TRIPS Special Session is limited in that way.  
PART B – STATUS OF ISSUES 
8. The three proposals by Members currently on the table are the proposal by Hong Kong, 
China, the joint proposal and the proposal on modalities.3  With respect to the status of issues, the 
work undertaken since my predecessor's report has continued to be structured around the three 
categories of elements he had identified.  
(a) Consequences/Legal Effects of Registration and Participation 
With respect to the first category, the issues of  consequences/legal eff ects of registration and 
participation remain the central questions of this negotiation where fundamental differences 
of view continue to exist among Members.  The detailed discussion of the new position in 
paragraphs 1-3 of TN/C/W/52 as a modalities propos al vis-à-vis the two proposed legal texts 
in TN/IP/W/8 and TN/IP/W/10/Rev.2, as well as Members' responses to questions (i)-(iii) of my list of questions, have further deepened the understanding of where these differences lie.  
With respect to the consequences/legal effects of  registration, in my view there seems to be 
scope for convergence on the expectation that consulting the information on the Register 
would include taking that information into  account "when making decisions regarding 
registration and protection of tradem arks and geographical indications"
4 in the relevant 
domestic procedures.  Differences remain as to  what significance and weight should be given 
to the information on the Register.  With r espect to participation, while Members have 
discussed different ideas in this regard, Members' views remain unchanged.  
(b) Notification and Registration 
With respect to the second category, the issues of  notification and registration, a considerable 
amount of detailed work has been done in the p ast.  The assessment of points of convergence 
and divergence on these issues re flected in TN/IP/18, in par ticular paragraphs 4 and 12–20, 
remains valid.  
(c) Other Issues 
With respect to the third category, the issues of fees, costs and administrative burdens, in 
particular for developing and least-developed c ountry Members, and special and differential 
treatment depend substantially on the key polic y choices to be made, in particular on the 
questions of participation and consequences/legal effects.   
Of those issues, Members discussed special and differential treatment in response to 
question (iv) of my list.  Some developing country Members emphasized the need for special 
and differential treatment and mentioned tr ansitional periods and registration fees as 
examples. Members held on to their long-sta nding positions, namely on the one hand, that 
special and differential treatment was embodied  in the proposed voluntary nature of the 
Register and, on the other hand, that devisi ng rules on special and differential treatment 
would best be left for discussions at a later st age after the main elements of the Register had 
been agreed.  
                                                      
3 The texts of the three proposals can be found in documents TN/IP/W/8, TN/IP/W/10/Rev.2 and in 
paragraphs 1-3 of TN/C/W/52, respectively. 
4 This text appears both in TN/IP/W/10/Rev.2, paragraph 5 and in TN/C/W/52, paragraph 2. TN/IP/19 
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  PART C – THE WAY FORWARD 
9. The mandate for the negotiations on the sy stem of notification and registration of 
geographical indications for wines and spirits is contained in Article 23.4 of the TRIPS Agreement 
and the first sentence of paragraph 18 of the Doha Ministerial Declaration.  Article 23.4 provides as 
follows: 
"In order to facilitate the protection of  geographical indications for wines, 
negotiations shall be undertaken in the Council for TRIPS concerning the 
establishment of a multilateral system of notification and registration of geographical 
indications for wines eligible for protection in those Members participating in the system." 
The first sentence of paragraph 18 of the Doha Mini sterial Declaration indicates that the negotiations 
on the Register are not limited to GIs for wi nes, but also extend to GIs for spirits. 
10. Several Members have called for a greater focus on the mandate.  I therefore revisit the two 
crucial issues of participation and consequences/legal effects of regist ration in light of the mandate to 
further examine the elements thereof that give rise to the different positions in critical areas of the 
negotiations.  The purpose of this examination is to make suggestions which may be capable of 
moving the negotiations forward when Members feel the time is right. 
Participation  
 
11. With respect to the issue of whether participation in the system should be voluntary or 
mandatory, some Members interpret th e reference in the mandate to " a multilateral system " to mean 
that the system should apply to all Member s.  Other Members in terpret the words " those Members 
participating in the system " to mean that not all Members are expected to participate. 
12. There are several areas of WTO negotiations where some Members are excluded from certain 
obligations for a variety of reasons.  It is th erefore my view that the use of the words " a multilateral 
system " does not necessarily mean that participation must be mandatory for all Members.  It is also 
my view that the formulation " those Members participating in the system " does not necessarily mean 
that participation must be voluntary.  Against this background, I would encourage Members to 
continue searching for an acceptable solution that would determine a participation of Members in the 
Register that renders it a useful and meaningful t ool in line with its purpose to facilitate protection.
  If 
the system of notification and registration is to have some meaning and significance, as Members seem to accept, then I would propose that some crit eria or some other approach be determined to 
identify Members for participation. 
Consequences/Legal Effects of Registration 
 
13. With respect to the consequences/legal effects of  registration, all Members seem to accept an 
obligation to consult the informati on on the Register.  Members also seem to be willing to take the 
information on the Register into account "whe n making decisions regarding registration and 
protection of trademarks and geographical indications"
5 under their national procedures.  However, 
views differ significantly as to how such informa tion should be taken into account, what weight and 
significance should be given to it, and whether there should be a specific legal obligation to take the 
information into account.  While some Members are of  the view that the mere obligation to consult 
the Register is not enough to ensure meaningful fac ilitation of protection of wine and spirit GIs, others 
are concerned about extra-territorial effects of GI protection. 
                                                      
5 This text appears both in TN/IP/W/10/Rev.2, paragraph 5 and in TN/C/W/52, paragraph 2.  TN/IP/19 
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  14. A number of Members have explained how the proposals on the table would technically be 
implemented in their domestic legal systems.  In the course of these explanations, some Members 
have indicated that implementing an obligation to  consult the Register in their domestic systems 
would in fact ensure at the same time that the information was duly taken in to account and given the 
appropriate weight in their domestic procedures.  Other Members have expressed the view that it 
would be necessary to agree minimum guidelines as to how the information in the Register would be 
taken into account and what weight would be appropriate. 
15. In light of the above, I feel that negotiating e fforts could find an acceptable formulation for an 
obligation capturing the realities highlighted by Members regarding how domestic authorities would 
treat information they have derived from a consulta tion of the Register, and that further negotiations 
are required to determine guidelines for such an obligation. 
Guiding Principles for Future Work 
16. In order to advance these negotiations, I sugg est that some broad acceptance of "Guiding 
Principles" would be helpful.  Building on the cont ributions of various Members, I therefore propose 
that future work should be guided by the following principles, it being understood that this is without 
prejudice to the position of any delegation and to the outcome of the negotiations: 
(i)  The purpose of the Register is to facilitate, not to increase, the protection of GIs for wines 
and spirits. 
 
The establishment of the Register is intended to facilitate, rather than to increase, the level 
of substantive protection, which exists under the TRIPS Agreement.  At the same time, it 
seems reasonable to expect that "facilitation" would make obtaining such protection easier.  
It is also clear that the Register is intended to facilitate protection of wine and spirit GIs, 
not only the examination process.  In my view, Members' negotiations should focus on the 
crucial question of what are acceptable means of facilitating achievement of the existing level of protection, while ensuring that the substantive level of protection remains the 
same.  
(ii) The Register should be useful and meaningful  to both notifying Members and consulting 
Members. 
 
The Register should be an accurate, reliable and authentic source of information.  The 
primary responsibility for providing such informa tion to the Register should rest with the 
notifying Member.  It should also be explored how the nature and quality of the information on the system may influence th e manner in which Members may take this 
information into account in their domestic legal systems. 
 
(iii) The territorial nature of intellectual property rights should be preserved. 
 
The territorial nature of intellectual property rights embodies the accepted view that 
intellectual property rights are valid only in the territory for which they have been 
established or granted.  While this concep t is not questioned by Members in these 
negotiations, the question is whether and under what circumstances Country A is prepared 
to give recognition to a protected GI from Count ry B, or recognize the facts that gave rise 
to such protection in Country B.  Such r ecognition of legal or factual elements from 
another jurisdiction is practised under vari ous international agreements and is the 
consequence of a sovereign decision by countries to do so. 
 TN/IP/19 
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  (iv) The Register should not impose undue financia l and administrative burdens on Members. 
 
 With respect to financial and administra tive burdens, Members seem to accept that some 
financial and administrative burden may be necessary to fulfil the mandate, but that it 
should as much as possible be proportionate to  the use and benefits of the Register.  
 
(v) Special and differential treatment should be precise, effective and operational. 
 
Special and differential treatment should be  provided through precise and effective 
provisions targeting developing and least-develope d countries, including those that wish to 
benefit from participating in the system. 
 
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