RESTRICTED  WORLD TRADE  
ORGANIZATION  TN/IP/M/22 
19 October 2009 
 
 (09-5174) 
Council for Trade-Related Aspects 
of Intellectual Property Rights Special Session  
 
   
MINUTES OF MEETING 
 
Held in the Centre William Rappard
 
on 10 June 2009  
 
Chairman:  Ambassador C. Trevor Clarke (Barbados) 
  
Subjects discussed
  
  Page No . 
 
A. ADOPTION OF AGENDA ...............................................................................................................1  
B. NEGOTIATION ON THE ESTABLISHMENT OF A MULTILATERAL SYSTEM OF 
NOTIFICATION AND REGISTRATION OF GEOGRAPHICAL INDICATIONS FOR WINES AND 
SPIRITS ............................................................................................................................... .........1  
C. OTHER BUSINESS ......................................................................................................................30  
 
_______________ 
 
 A. A
DOPTION OF AGENDA  
1. The Chairman  proposed that under "Other business" the Special Session briefly discuss its 
future work. 
2. The twenty-second Special Session agreed  to adopt the agenda as set out in WTO/AIR/3370. 
B. NEGOTIATION ON THE ESTABLISHMENT OF A MULTILATERAL SYSTEM OF NOTIFICATION AND 
REGISTRATION OF GEOGRAPHICAL INDICATIONS FOR WINES AND SPIRITS  
3. The Chairman  recalled that, at its last formal meeting of 5 March 2009, the Special Session 
had discussed, by clusters, the various elements  of a multilateral system of notification and 
registration of geographical indications ("GIs") for wines and spirits (hereafter "the register").  These 
clusters were based on the categorization made by  his predecessor in paragraph 4 of his report to the 
Trade Negotiations Committee in document TN /IP/18, dated 9 June 2008.  They were:  
(1) consequences/legal effects of re gistrations and participation in the system;  (2) notification and 
registration;  and (3) other elements such as costs and fees, administrative and other burdens, and special and differential treatment.  Delegations di scussed, in particular, paragraphs 1-3 and 9 of TN/IP/M/22 
Page 2  
 
  document TN/C/W/52, as well as a written compilation
1 of the oral replies from the European 
Communities in December 2008 to questions posed  by several delegations.  This compilation 
document and the additional clarifications provide d by the European Communities and some other 
co-sponsors of TN/C/W/52 were welcomed by othe r delegations.  The inte rventions made at the 
March session had been reflected in doc ument TN/IP/M/21 of 28 May 2009.   
4. The Chairman said that in his view delegations  had deepened their understanding of several 
issues, and had clarified some stances and concerns.  He thanked all delegati ons, in particular those 
which had actively and substantively contributed to  the discussion.  While he recognized the progress 
made, he was also aware that ther e was still a long way to go, and that some proponents felt that their 
proposals deserved more attention and discussion.   
5. He further recalled that, at the open-ended informal meeting of 20 May 2009, he had 
informed all participants in the negotiations of the informal consultations he had had since March with 
some delegations, in particular on the issue of process.  At that open-ended meeting, the EC 
delegation gave some additional clar ifications to several questions posed at the March session.  The 
Chairman said that for this formal session he woul d encourage delegations to move – as suggested by 
the Swiss delegation in the informal consultations  – "from the understanding phase to the substantive 
discussion" on the issues.  He believed that such a discussion would help the Special Session progress 
further in its mandated work.  He therefore propo sed that the Session use th e same structure as the one 
used at the 5 March meeting, i.e.:  (1) consequences /legal effects of registrati ons and participation;  
(2) notification and registration;  and (3) other el ements such as costs and fees, administrative and 
other burdens, and special and differential treatment.  
6. He further recalled that in a fax sent the prev ious day, 9 June, he had asked delegations' 
preliminary views on a tentative list of four questio ns with a view to a more focused discussion on 
these issues at the next formal meeting.  The first three questions related to the issues of cluster 1, 
legal effects and participation, and the last  one, to special and differential treatment.2  There had been 
some preliminary comments made at the short ope n-ended informal meeti ng he had convened just 
before this formal meeting. 
7. He said that, before the substantive discussion of elements, it might be useful for participants, 
in particular those who had recently joined the ne gotiations, to hear a brief overview of the main 
elements of the proposals on the table, some of which had been tabled for quite some time.   
8. The Special Session  so agreed. 
9. The representative of Canada said that his country considered it would be useful to have more 
precise information on what each of these proposals w ould mean in practice.  To that end it had 
                                                      
1  Fax of  25 February 2009 
2 The "Communication from the Chairman" faxed on 9 June contains the following tentative list of four 
questions:  
 - What minimum legal effects would be acceptable for a GI register to facilitate the protection of 
geographical indications for wines and spirits, as mandated by Article 23.4 TRIPS? 
- If the obligation under a register were for natio nal authorities to "take the information on the 
register into account", on what basis would national authorities decide what significance and weight 
to give to information on the register? 
- Are there any options regarding participation, other than voluntary and mandatory?  If so, what 
criteria could be envisaged? 
- What form could special and differential treat ment with regard to a GI register take? 
A revised list was faxed to all participants in the negotiations on 2 October 2009. 
 
  TN/IP/M/22 
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  examined its current domestic procedures and c onsidered what changes would be needed to 
implement the joint proposal in TN/IP/W/10/Rev.2 a nd what changes this would mean to its existing 
procedures.  It wished to share its analysis w ith this negotiating group in the hope that it would 
advance delegations' mutual understa nding of the joint proposal.  As the purpose of this presentation 
was to give Members an example of how the join t proposal would be implemented in practice, it 
would be different from the more theoretical re sponses provided by the co-sponsors of the joint 
proposal in document TN/IP/W/9 of April 2004.  It would show Members how relatively easy it 
would be to implement a joint proposal-based register  within their domestic regimes, should this form 
of register be agreed as the most appropriate way to "facilitate the protection" of wine and spirit GIs 
pursuant to TRIPS Article 23.4, and should Member s eventually decide to participate in it.  
10. As a short background, he outlin ed Canada's current system.  Canada had a dual regime for 
protection of GIs under its Trade-marks Act.  Geogra phical indications for products other than wines 
and spirits were principally protected as certificati on marks.  Other methods of protection such as 
bringing a "passing off" action were also possible,  while GIs for wines and spirits were protected 
through GI provisions of the Trade-marks Act.  In essence a party wishing to obtain protection for a 
wine and spirit GI in Canada must:  (1) submit an  application to the Trademarks Branch of the 
Canadian Intellectual Property Office (CIPO);  (2) provide proof, for example a copy of the 
appropriate legislation that the GI was protected as such in the country of origin;  and (3) pay the 
requisite fee 450 Canadian dollars.  The current process was as follows: 
 - The Department of Agriculture and Ag ri-Food Canada would determine whether or 
not the indication met the definition of a GI (the definition of a GI in the Trade-marks 
Act was similar to that in the TRIPS Agreement) and would make a recommendation 
to the Ministry of Industry to enter the indication on Canada's list of protected GIs. 
 - Once the recommendation was accepted by the Ministry of Industry, the name would 
then be published in the Canada Gazette, which was Canada's official journal in 
which public notices and proposed regulations were published. 
 - If no objection had been made during the three-month period that followed,  the name 
would be entered on the list of protected GIs.  The only ground of objection under the Trade-marks Act was that the indication did not meet the definition of a GI.   
11. He noted that, with respect to cluster 1 regard ing consequences/legal effects of registrations 
and participation,  the provisions of the joint proposal as set out in document TN/IP/W/10/Rev.2 
relating to participation were pa ragraph 2 ('Participation') and  paragraph 9 ('Termination of 
Participation').  The provisions relating to legal e ffects were paragraph 5 ('Procedures to be Followed 
by Participating Members'), paragr aph 6 ('Access for Other Members'),  paragraph 7 ('Modifications of 
Notifications and Registrations of Geographical Indications'), and paragr aph 8 ('Withdrawals of 
Geographical Indications').  Paragra ph 9 ('Termination of Participati on') might also have some legal 
implications.  
12. As regards participation, he said that Cana da, like any other Member, would be free to 
determine whether or not it wished to participate in the system.  However, as a major producer and 
exporter of spirits, and increasingly a major exporter of  wine, Canada would have an interest in an 
effective and efficient register of GIs for wines a nd spirits as demonstrated by its co-sponsorship of 
the joint proposal.  Some might ask why a Member  would participate in the register if such 
participation were voluntary.  The joint proposal was about facilitating the protection of wine and 
spirit GIs and would be effective in doing so.  It  would provide WTO Members with a new tool to 
help them meet their TRIPS obligations with regard  to GIs for wines and spirits, and there would be 
minimal costs in administrative burdens associated with its implementation.   TN/IP/M/22 
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  13. The other provision of the joint proposal that c oncerned participation, paragraph 9, dealt with 
termination.  Normally, the termin ation of another WTO Member's participation in the system would 
have no impact on that Member's list of protected GIs in Canada.  For example, if Greece were to 
participate in the database and later terminate its pa rticipation, this would not impact on Greece's list 
of protected GIs in Canada.  However, such termin ation might have an impact on a Member's list of 
protected GIs in Canada if for any reason it was the result of a modification to that Member's 
domestic regime on GIs that would affect the validity of  its GIs, both domestically and internationally.  
14. Paragraph 5 of the joint proposal dealt with lega l effects of the register.  One of the key points 
where the database would have effect would be  through each participating Member's domestic 
procedures.  Under that paragraph, "Each Participa ting Member commits to ensu re that its procedures 
include the provision to consult the Database when making decisions regarding registration and 
protection of trademarks and geographical indicati ons for wines and spirits in accordance with its 
domestic law".  Canada had been examining this proposal, which mi ght necessitate changes to its 
legislation, regulations or administrative procedures to require its authorities to consult the database 
when making such decisions.  Recalling the principle of territoriality, he described the procedures that 
were expected to apply, should Canada participat e in the system, adding that other participating 
Members might have different procedures to achieve the same ends.   
15. His delegation understood Paragra ph 5 as being twofold.  It required Members to consult the 
database when examining new trademarks and new GIs.   As regards trademark applications for marks 
used in association with wines or spirits, examin ers from CIPO would consult the database.  As 
regards new GIs, the examiner would also consult the database.  The notifications on the database 
would provide useful information to the examiner  as well as contact information to obtain additional 
information or clarifications of the notified info rmation if needed.  Canada's examination would 
proceed under Canadian law and would include whet her the proposed term was a GI, whether the 
product was a wine or a spirit, whether any of th e TRIPS exceptions, as incorporated into Canadian 
law, applied.  The Canadian authorities would also  examine whether the responsible authority met the 
definition of "responsible authority" under the Trade-marks Act. 
16. What would happen if a GI was already regi stered by another WTO Member?  The notifying 
authority consulting the database would contact the responsible authority applying for the GI and 
inform it that the same GI had already been regist ered in the international database by another WTO 
Member.  
17. Turning to paragraph 6 ('Access for Other Member s'), he said that, contrary to the TN/C/W/52 
proposal, the joint proposal did not go beyond the scope of the TRIPS Agreement;  in other words, it 
would not be "TRIPS plus".  It would not cr eate any binding legal effects of any kind on non-
participating Members, who would simply be encour aged to consult the database in making decisions 
involving protection or registration of trad emarks and GIs for wines and spirits.  
18. As regards paragraph 7 ('Modification of Notifi cation and Registration of GIs'), whether or 
not there was an effect within the Canadian  national system would depend on whether the 
modification of the notified registered GI related to a GI protected in Canada.  If that were the case, 
there would be no automatic effect.  This would have to be examined according to Canada's own 
principles. 
19. As regards paragraph 8.2 ('Withdrawals of Ge ographical Indications'), the mere withdrawal 
by a WTO Member of one or more of its GIs would have no impact of any kind on that Member's list 
of protected GIs in Canada.  For example, if Greece were to register a GI on the database and later 
withdrew it, that GI would remain on the list of protected Greek GIs in Canada.  However, if the 
reason for the withdrawal was that the GI was not or had ceased to be protected or fallen into disuse in  TN/IP/M/22 
 Page 5 
 
 
  its country of origin, Canada would no longer, under TRIPS Article 24.9, have the obligation to 
protect that GI.   
20. He then turned to cluster 2 (notification and re gistration).  He said that the notifying authority 
under paragraph 3.1 ('Notification') could be a governmental body and that producers would not be permitted to make notifications directly.  This w ould ensure that the notification process would be 
standardized, which would in turn ensure timely, e fficient and fair treatment of all notifications.   
21. In Canada, much of the information required under Paragraph 3.2 would be available on the 
website of CIPO for GIs registered in Canada.   
22. There would be an authority in charge of re gistered GIs, which would be responsible for 
providing any missing information, i.e. informati on that was not available or was not obvious from 
the name of the GI itself.  Using some Canadian examples, he observed that for the GIs "Pelee Island" 
and "Prince Edward County", the territory or region  referred to was obvious.  By contrast, it was not 
obvious from the GI "Short Hills Bench" itself whic h "territory" or "region" (as mentioned in 
Paragraph 3.2(c)) was referred to as the origin of the wine.  Whereas "Pelee Island" and "Prince 
Edward County" corresponded to actual wine appe llations in the province of Ontario and actual 
geographically identified areas, "Short Hills Be nch" was only a sub-appellation, whose main 
geographical territory was not part of the GI's name  and was not available on CIPO's website.  In this 
case the responsible authority for the task of registering "Short Hills Bench" would be responsible for 
specifying in more detail the territory or region, as required under Paragraph 3.2(c). 
23. Would there be an opposition procedure since responsibilities for enforcing protection would 
remain grounded in national law?  To examine this  would not be necessary under the joint proposal.  
As mentioned in document TN/IP/W/9,  where ther e were objections to a GI notified by a Member, 
the existing rights and obligations under the TRIPS Agreement would apply.  Requests for protection 
of a notified GI in another Member's territory would be assessed by that Member pursuant to its 
domestic legislation and procedures.   Any party could choose to br ing a challenge under the national 
law of the Member where the request was being made. 
24. He turned to cluster 3 (other elements, such  as fees, costs and administrative burdens, and 
special and differential treatment).  On costs, he said that the costs of implementing the joint proposal 
would be minimal.  They would include the cost of  sending notifications, e.g. the initial notification of 
participation and any subsequent notif ications of GIs, to the WTO;  the cost of providing the notifying 
authority with the appropriate resources to make no tifications and to consult the database.  In most 
cases, each Member's national IP office would already be well equipped to assume these 
responsibilities. 
25. As mentioned in Paragraph 4.3, there would be no charge for consulting the database for 
either participating Members or non-participa ting Members.  There would also be minimal 
administrative burdens associated with implementing the joint proposal.  Participating Members would have to designate the notif ying authority and contact point, a nd notify these to the WTO and, if 
necessary, amend their domestic legislation and/or administrative procedures to include the provision 
to consult the database when making decisions on th e registration and protection of trademarks and 
GIs. 
26. In conclusion, he reminded Members of some of the advantages of the joint proposal.  The 
joint proposal would help "facilitate the protection"  of wine and spirit GIs.  Although there would be 
no legal implications of consultin g the database, his delegation belie ved the protection of wine and 
spirit GIs would be facilitated by the mere fact that Members, by being required to consult the 
database, would become aware of the existence and protected status of particular GIs in other 
Members' territories.  As such, while there woul d be increased transparency, there would be no TN/IP/M/22 
Page 6  
 
  increased costs or charges to right holders.  The jo int proposal would therefore serve as a new tool to 
help national intellectual property offices search fo r information on wine and spirit GIs.  Under the 
joint proposal both examination and opposition procedures would remain at the national level, and 
consequently the balance and rights of obligations , as carefully negotiated in the TRIPS Agreement, 
would not be disrupted.  The joint proposal provided real benefits to both producers and consumers.  
It respected the mandate and would be easy to implement.  
27. The representative of the European Communities
 said that TN/C/W/52 was a proposal 
capturing the flexibilities shown by all its co-s ponsors.  It was a comprehensive proposal, 
encompassing not only the register issue but also t hose of TRIPS/CBD and of GI extension.  This 
meant that all the co-sponsors had made considerable efforts to reach a compromise covering all three  
issues.  TN/C/W/52 therefore captured a balance of interests with special attention devoted to avoid 
any costs and burdens.  This spirit of compromise was very fruitful:  TN/C/W/52 had received the support of 108 Members,  i.e. a two-thirds majority of the organization.  It was important for the co-
sponsors that all three TRIPS-related issues be discussed in parallel.   
28. As regards the register and its process, the co-sponsors had adopted a pragmatic approach.  
After years of negotiations bogged down in technical de tails, they focused on the key parameters to be 
agreed at political level.  This would be a fundament al milestone:  first to define a skeleton and then 
flesh it out.   
29. As regards substance, he said that, while his de legation believed that the clusters would be the 
best way to handle discussions, he would rather follow the structure of TN/C/W/52 for ease of 
reading.   
30. Regarding participation, he said that the regi ster would be open to any WTO Member to 
consult the register to take its information into  account, as indicated in paragraphs 1 and 2, which 
stated that "Each WTO Member shall provide ...".  Given the huge efforts made to reduce the 
consequences of the register, it was reasonable th at the register should apply to all Members.  
31. On notification and registration, he addressed first the issue of procedure:  any Member might 
notify a GI as long as that GI was protected as per TRIPS.  The notifying Member would have to 
ensure that the name was a GI.  Members would re main free as to the form of protection in their 
territory:  the proposal in TN/C/W/52 did not plan to  change any type of protection of GIs applied in 
Members.  It might be a sui generis  system, a trademark-based system  or a judicial decision-based 
one.  Following receipt of the notification, the WTO S ecretariat would have to register the notified GI.  
TN/C/W/52 proposed a simple mechanism whereby the WTO Secretariat would compile the 
information and merely put it on the WTO website in an organized manner.    
32. As regards the content of the notification and registration, he said that his delegation had 
always favoured detailed notificati ons and registrations as the best way to support protection of GIs 
and provide transparent information to all Member s.  However, in accordance with its objectives, 
namely to focus on key issues, document TN/C/W/52 had not entered into technical details.  These 
would be sorted out after the key parameters were agreed. 
33. The issue of consequences of a registration on the register was a key area where his 
delegation had made major concessions to addr ess the concerns expressed in the past.   
34. The first one related to the consultation of th e register by domestic authorities when making 
decisions on registration and protection of tradem arks and GIs.  The TN/C/W/52 proposal gave 
careful consideration to domestic systems:  it woul d be up to the domestic authorities to act within the 
framework of their domestic system in accordance with their own law.    TN/IP/M/22 
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  35. The second concession related to the proposal that domestic authorities would take the 
information on the register into account.  In this connection, he recalled that the proponents of the 
joint proposal had also indicated that, under that proposal, the information should be taken into account although that requirement was not expressly mentioned in the proposal.  TN/C/W/52 went 
further than the joint proposal by indicating how th e information should be taken into account.  This 
was fundamental to ensure a minimum level of c onvergence in the implementation of the register.  
The account taken of the register would be limited to two consequences:   
 - The register would be considered prima facie evidence that a geographical name met 
the definition of a GI in TRIPS Article 22.1.  As explained at previous meetings, it was a prerequisite that the GI be protected in the notifying Member.  This meant that 
the notifying Member would have checked th at there was a product, a place of origin, 
and, for example, a characteristic of th at product linked to that origin.  This 
consequence was very reasonable, the more so as it would apply "in the absence of proof to the contrary".  In other words, domestic authorities might decide that they 
would consider that a notified GI did not meet a GI definition in their country.  
 - The second consequence of a registration on the register was even more reasonable:  
as genericness was an exception, it would be  normal that those who claimed it had to 
substantiate the alleged genericness.  His delegation understood th at this was already 
the case in many Members and therefore believed that it should not pose a problem. 
36. He indicated that the proposed register would not be an automatic protection system.  GI right 
holders would still have to go th rough the procedures provided by each country, meaning that all 
exceptions would remain available and that it woul d be the national authorities who would decide to 
grant protection, hence entailing no administrative costs or burdens.   
37. On the form of the outcome of the negotiations , he said that, as for the other parts of the 
TN/CW/52 proposal, namely TRIPS/CBD and GI extension, the co-sponsors had proposed an 
amendment to the TRIPS Agreement.   
38. On special and differential treatment, he said that TN/C/W/52 essentially contained the 
commitments that special and differential treatment woul d be an integral part of the negotiations in all 
the three TRIPS issues, as well as special measur es in favour of developing countries, and in 
particular least-developed countries.   He said that, in order to know  what measures would be the most 
appropriate, this negotiating group mu st first know what the main features of the register would be.  
Special and differential treatment would be part of  the second step of negotiations, i.e. after the 
modalities. 
39. To show how the register proposed under TN/C /W/52 would work, he took the example of 
the Italian "Chianti" wine.  Before notifying that  GI, the European Communities would have ensured 
that the name was protected in the European Co mmunities, and would provide information to show 
that the name "Chianti" identified a wine origina ting from the Chianti region and had a given quality, 
characteristic or reputation attributed to that origin .  The GI "Chianti" right holder wished to protect it 
in a third country, Ruritania.  The right holder woul d have to go to the Ruritanian competent authority 
to seek the protection that was provided in the form  provided for in that country, e.g. through a sui 
generis  system, a certification or a collective mark system or any other one.  This meant that the 
existing system in Ruritania would in no way ha ve to be changed.  During the course of the 
procedure, the Ruritanian authority would consult th e register and see that the name "Chianti" was on 
the register.  If the Ruritanian authority had no further information and no party had submitted 
opposition, the authority would not look further into th e issues of GI definition or genericness.  This 
would, however, not exclude that the authorities might deny protection on other grounds, for example 
the existence of a prior trademark in Ruritania incl uding the term "Chianti".  If, on the contrary, the TN/IP/M/22 
Page 8  
 
  Ruritanian authorities had evidence that "Chianti" did not meet the Article 22.1 definition or that 
"Chianti" was generic in Ruritania, or if a third party provided information that the name was generic 
in Ruritania, then the Ruritanian authorities would most probably ask the right holder of the Italian GI 
"Chianti" to bring evidence to support their stance.  On the basis of all th e evidence provided, the 
Ruritanian authorities would then decide whether or no t, in the light of the situation in Ruritania, the 
name "Chianti" was generic in Ruritania, and whet her or not it could be protected under its national 
law.  If there was a system of appeal, the d ecision might be challenged under the applicable 
procedure.  
40. Finally, he said that the proposal in TN/C/W /52 was a very reasonable one.  It struck a 
balance between different interests and would be th e appropriate tool towards a register which would 
truly facilitate GI protection, and not duplicate wh at would already be available on the Internet under 
the "Google" system.  The proposal would not en tail any automatic protection, would not oblige 
Members to change their system of protection, and would not generate administrative costs and 
burdens, which made it enjoy the support of two thirds of the WTO Members. 
41. The representative of Hong Kong, China
 welcomed the opportunity of the Special Session 
meeting to provide an overview of her delegati on's proposal on the establishment of a multilateral 
system of notification and registration of geogra phical indications for wines and spirits.  She hoped 
that this contribution would help Members refresh their memory and reflect on the relevant elements 
of Hong Kong, China's proposal TN/IP/W/8, together with the other two proposals on the table.  
42. As stated at previous meetings, Hong Kong, China had no interest in GIs, but had a systemic 
interest in fulfilling the negotiating mandate under Article 23.4 of the TRIPS Agreement and 
paragraph 18 of the Doha Ministerial Declaration.  With this objective in mind and with a view to 
facilitating the negotiations for the GI register for wines and spirits, Hong Kong, China had tabled the 
alternative proposal TN/IP/W/8 six years ago at the TRIPS Special Session on 29 April 2003. She 
highlighted the guiding principles of Hong Kong, China's proposal as set out in section 2 of TN/IP/W/8, entitled "Purpose".  First, the purpose of the system would be to facilitate the protection 
of GIs for wines and spirits.  Secondly, Members sh all be free to determine the appropriate method of 
implementing the provisions of the TRIPS Agreement.  Thirdly, the territorial nature of intellectual 
property rights should be preserved.  Fourthly, th e system should not impose additional substantive 
legal obligations or confer add itional legal rights on Members beyond the TRIPS Agreement.  Fifthly, 
the system should not impose undue financial and ad ministrative burdens on participating Members, 
in particular those Members who would not have many GIs to notify.  The principles were set in 
response to the comments made by Members at the time.  Hong Kong, China's proposal aimed at the 
establishment of a transparent and simple notification and registration system for GIs, capable of facilitating protection of such GI s without being burdensome.  
43. As regards participation, Hong Kong, China pr oposed that Members be able to choose to 
freely participate.  In other words, participation would be entirely voluntary.  
44. Participating Members would be obliged to gi ve legal effects to the registrations.  The 
proposed multilateral system would involve a formality examination of the notified GIs.  A GI would 
be entered on the register by the administering au thority upon submission of some basic information, 
such as details of the GI, ownership and the basi s on which it was claimed to be protected in the 
country of origin, and payment of the requisite f ee.  The formality examination would only involve 
checking of the documents submitted by a Member  to ensure they met the minimum formal 
requirements.  The register would contain the info rmation of the registered GIs and would be made 
available to participating Members, e.g. through the Internet website.  
45. The registration would then be accepted by any do mestic courts, tribunals or administrative 
bodies of the participating Members as prima facie ev idence for proving three issues:  (i) ownership;   TN/IP/M/22 
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  (ii) that the indication was within the definition of GI under Article 22.1 of the TRIPS Agreement;  
and (iii) that the GI was protected in the country of origin.  These three issues would be deemed to 
have been proved unless evidence to the contrary was produced by the other party to rebut the same.  
In other words, the registration would give rise to a rebuttable presumption on these three issues.  The 
legal effects as proposed would only affect the legal burden of proof of the parties to the proceedings.  
The intention was to assist the owners of the regi stered GIs to discharge their burden of proof on the 
three relevant issues in domestic proceedings, whic h her delegation believed w ould in turn facilitate 
protection of GIs as mandated under Article 23.4 of the TRIPS Agreement.  
46. "Prima facie evidence" and "rebuttable presump tion" referred to in HKC's proposal were the 
same in operation. "Prima facie evidence" referred to the evidential value of  the information, which 
would be accepted by the court or administrative aut hority as sufficient proof of a fact unless rebutted 
by evidence to the contrary.  "Rebuttable presumptio n" was a legal term related to burden of proof.  
When such a presumption arose, an assumption w ould be made by the court or administrative 
authority in which a fact would be taken as prove d unless some person who contested the fact proved 
otherwise.  
47. Her delegation was of the view that the balan ce of Members' rights and obligations under the 
TRIPS Agreement would not be affected under the pr oposed system.  Questions on conformity of GIs 
and competing claims for GIs would continue to be  dealt with under Members'  domestic legal system.  
The registration would not be conclusive as it could be challenged in national courts and before other 
authorities.  The obligations and exceptions unde r Articles 22-24 of the TRIPS Agreement would 
continue to be applicable and decided in accordance  with Members' domestic regimes, having regard 
to the local circumstances.  Parties' substantiv e rights under the domestic proceedings would remain 
unchanged and territoriality would be respected. 
48. She said that her delegation would be open-mi nded as to the designation of the authority 
responsible for administering the register, e.g. the WTO Secretariat as proposed in TN/C/W/52 and 
the joint proposal or any other suitable international organization.  It would be open-minded as to the 
location of the register.  If Hong Kong, China's m odel were accepted, her de legation would consider 
hosting the register in Hong Kong.  Under the pr oposed mechanism, the legal effects of the 
registration would be limited in scope and there would be no lega l effects for non-participating 
Members. 
49. As regards other elements of Hong Kong, China's proposal, such as notification and 
registration, she referred Members to Annex A of th e proposal for details, such as form and contents 
of notifications and process of registration.  As  noted in previous discussions, these elements would 
all depend on the eventual outcome of the two key elements, participation and legal effects. 
50. She highlighted two other specific aspects of Hong Kong, China's proposal, the updating 
mechanism and costs.  A GI registration would have  to be renewed every ten years to remain on the 
register in order to ensure that the register woul d be up-to-date.  The costs of operating the system 
would be shared among participating Members on th e basis of the user-pays system, i.e. on the 
number of applications they had filed.   
51. Turning to process, she said that Hong Kong, Ch ina,  like other Members, would like to see 
further progress in these negotiations.  Recent discuss ions on the proposals, the one in TN/C/W/52 in 
particular, were very useful for enhancing unders tanding of positions and clarifying the key issues for 
the establishment of the register.  However, admittedl y, the efforts put in by Members had yet to bear 
any fruit.  She recalled that, in December 2005, Mi nisters had pledged at Hong Kong "to intensify 
these negotiations in order to complete them with in the overall time-frame for the conclusion of the 
negotiations that were foreseen in the Doha Mini sterial Declaration".  Her delegation would urge TN/IP/M/22 
Page 10  
 
  Members to continue working towards the target of early conclusion of the negotiations on the 
register.  
52. On the intention of some Members to discuss other TRIPS-related issues, GI extension and 
TRIPS/CBD, in parallel with the issue of the GI register, she said that Hong Kong, China was not 
opposed to Members' having serious discussions on t hose two issues, but would like to caution that 
such an approach might not be conducive to the substantive discussions on the register.  
53. On the establishment of the register, she recal led that the Special Session had already gone 
through a number of phases, studying, understanding , clarifying and technical question and answer 
discussions.  All it would need at this stage was a compromise.  Hong Kong, China was prepared to 
work with other delegations to find a compromi se solution as early as possible and would welcome 
any questions the Chair or Members might have on its proposal with a view to advancing these 
negotiations.   
54. The Chairman
 reminded delegations that  he had suggested discussing the elements of the 
future register cluster by cluster.  The first cluste r would be consequences/lega l effects of registrations 
and participation.  These two key issues had been  addressed in the Chair's report TN/IP/18, in 
paragraphs 4(b) and 8-11 for partic ipation and in paragraphs 4(b) a nd 21-28 for legal effects.  These 
two issues had been discussed in the light of th e new proposal in TN/C/W/52 and the clarifications 
made, in particular, by the European Communiti es and the Joint Proposal Group delegations since 
November 2008 as well as the statements which had just been made.   
55. He said that, in order to proceed with a more  substantive discussion on the issues, he would 
like to refer to the questions faxed on the previous  day which were an attempt to commence a more 
focused discussion on the issues at stake.  Three of th ese questions related to the first cluster, where in 
the words of his predecessor "fundamental differences  remain".  As indicated by Hong Kong, China, 
this group had been studying, questioning, answeri ng and clarifying, and the time had come to begin 
to look at where compromises could be made.    
56. On the first three questions of the list rela ting to cluster 1, he recognized that some 
delegations were not comfortable with the language of the questions.  He reassured delegations that 
there was no intention to imply anything in these questions.  More significantly, the answers which 
would be given by Members would serve as his gui de.  Ultimately, as the process moved forward to 
the "end game", he, as the other Chairs, would have to take into consideration Members' views. He 
encouraged delegations to make any comments for the record and not to feel constrained by his 
questions and views.  He asked, however, delega tions to focus on cluster 1 and, if they felt 
comfortable enough, to give preliminary views on the first three questions of the tentative list.   
57.  The representative of Canada  said that question 4 of the Chairman's list regarding special and 
differential treatment should be e qually relevant.  The reason was th at the joint proposal had proposed 
the most effective special and differential treatment, namely voluntary participation. 
Cluster 1 (consequences/legal effects of registrations and participation)  
58. The representative of th e European Communities  said that he would like to concentrate his 
interventions first on legal effects, which was the core  issue.  In response to concerns expressed in the 
past, his delegation had put forward a proposal wh ich would both respect the domestic systems and 
provide a register with clarity as to its effect.  Consultation of the register would integrate within each Member its own legal system and practice:  TN/C/W/52 stated, for example, that "domestic authorities will consult the Register and take its  information into account when making decisions 
regarding registration and protecti on of trademarks and geographical indications in accordance with 
its domestic procedures".  This clearly circumscribed  the field of consultation of the register.  He  TN/IP/M/22 
 Page 11 
 
 
  pointed out that the proposal did not interfere with the form of the protection of GIs chosen by each 
Member, be it one as in the European Communities or  a trademark system or any other one.  This 
feature was very important:  it meant there would be no need to establish new procedures or new 
authorities.  In his delegation's view, this  feature would  facilitate implementation. 
59. He said that TN/C/W/52 also provided clarity on how the information would be taken into 
account.  He recalled that, while the joint proposal in TN/IP/W/10/Rev.2 did not expressly mention it, 
its co-sponsors had indicated they also meant that th e information on the register would have to be 
taken into account.  This was a point where there was convergence.  At a previous meeting, the 
delegation of New Zealand had rightly underscored that it would like to avoid uncertainties for its 
exporters and producers regarding their key foreign ma rkets.  His delegation agreed on this point and 
believed that it was important to have a clear view  on how the information in the register would be 
taken into account.  The TN/C/W/52 proposal met that objective by reasonably limiting it to two 
aspects.   
60. The first legal effect was that the registered GI, which should be duly supported by elements 
provided by the notifying Member, would constitute the "prima facie evidence" that it met the TRIPS 
Article 22.1 definition of a GI, i.e. that it w as a product with a quality, reputation and other 
characteristic that were essentially attributable to its  geographical origin.  This effect fully respected 
the principle of territoriality.  Before being placed on the register on the basis of Article 22.1, which 
had been agreed by all Members, the GI had to go through a domestic legal process that was deemed 
to be compliant with the TRIPS Agreement.  More  importantly, in any third country it would be the 
domestic authorities of that third country who would ha ve full latitude to decide whether or not the GI 
met the definition as long as they were in possession of proof to that effect.  "Proof to the contrary", 
i.e. that a name did not meet the Article 22.1 defi nition, could be brought by a third party or by the 
domestic authorities on their own initiative.  As requir ed under the principle of territoriality, the final 
decision would remain in the hands of the domestic authorities.  
61. The second legal effect proposed in documen t TN/C/W/52 related to the genericness 
exception, on which the proposal brought clarity.  Stressing that the TN/C/W/52 proponents did not 
challenge the principle of genericness exception, he said that it was precisely because it was an 
exception that it had to be substantiated, while the domestic authorities remained the ones to have the 
final determination.  This solution was the result of  a fruitful spirit of compromise, therefore reflecting 
the wide support of the sponsors of TN/C/W/52.   
62. The representative of Australia  said that, like Canada, his delegation was ready to discuss 
how the joint proposal's legal effects would be impl emented in Australia and what the obligation to 
consult would entail, how it would genuinely assist GI right holders in obtaining protection and how it 
would help a variety of decision makers, including courts, trademark authorities and those who administered wine legislation, in arriving at correct decisions.  This offer was on the table. 
63. As regards the Chair's second question, if there we re an obligation to consult the register, then 
under Australian administrative law, a decision ma ker would have to give due regard to the 
information on the register and take it into account pr operly.  This might be what the representative of 
the European Communities had been referring to, when saying that some Members of the Joint 
Proposal Group had explained it withou t putting it in writing.  He said that this was a different point 
as it resulted from an operation of administrative law that ensured proper decision making.  Indeed, it 
was the objective of ensuring proper domestic de cision-making that lay behind his delegation's 
concerns with the extraterritorial effect of the pr esumptions that had been pr oposed by the European 
Communities, and similarly in the Hong Kong, China proposal.  
64. He said that there was an important element in  the Hong Kong, China proposal that remained 
more nebulous in the TN/C/W/52 proposal, namely th at the information on the register be taken as TN/IP/M/22 
Page 12  
 
  prima facie  evidence that a term met the definition of a GI.  As Hong Kong, China, like Australia, had 
a common law system, he would invite the delegation of Hong Kong, China to explain why it felt this 
would make no substantive difference and leave dom estic decision-making procedures intact.  As the 
definition of a GI contained subjective elements a nd elements that were bounded by time and place, it 
was important that, for an element to meet the defi nition of a GI, it had to indicate an origin.  When 
reading the 2000-odd names on the wine GI list of  the bilateral agreement between the European 
Communities and his country, most Australians had never heard of the great majority of them and 
those terms might connote nothing in Australia.  This  would also be a matter for a decision maker to 
take into account.  It would seem inappropriate to be  required to treat as proven that a particular word 
had any meaning at all on the basis of a decision taken in another Member. 
65. The representative of the United States
 said that her delegation appreciated the establishment 
of a multilateral system for notification and re gistration of geographical indications and was 
committed to fulfilling the mandate by engaging and thinking creatively with other Members as to how to achieve that objective.  As one of the num erous co-sponsors of the joint proposal the United 
States continued to support that text as the best  means by which the TRIPS Special Session could 
fulfil the negotiating mandate.     
66. Regarding the possibility of a Chair's text, sh e recalled that in July 2008 there had been 
preliminary discussions by senior and technical officials about the possible generation of a new text by the Chair of the Special Session.  This had been  considered as part of what might have been a 
broader set of outcomes from the July 2008 "Mini Mini sterial" meeting.  However, this proposal was 
never discussed by Ministers and the meeting conc luded without an outcome to which this proposal 
might have been attached.  Given the divergen ces characterizing the negotiation, which had been 
highlighted again in the context of the July 2008 meetings, and in light of the continuing absence of a broader package of negotiating modalities for the next stages of the DDA, the United States was of 
the view that the development of a new text would be premature and unsuccessful at this stage.   
67. Referring to a point made by the European Communities regarding other TRIPS-related 
issues, she said it was important to note that the agenda of the meeting of the Special Session was 
limited to the negotiation on "the establishmen t of a multilateral system of notification and 
registration of geographical indications for wines and spirits".  Therefore, her delegation strongly 
objected to any discussion on other TRIPS-related issues in the Special Session's context.  As 
previously indicated, her delegation believed it was neither appropriate nor productive to endeavour to 
tackle the serious technical issues in the negotiati on by lumping them in a broader process linked with 
other TRIPS issues.   
68. She thanked the delegation of Canada for th e detailed description of how Canada would 
implement the joint proposal and asked how Cana da's implementation would provide predictability 
for right holders and other interested parties, a nd how it would be an improvement for examiners in 
Canada in deciding on the regist ration of geographical indications. 
69. Turning to some questions for the European  Communities, she said that it was well known 
that Members had taken different approaches to implementing the TRIPS provisions on geographical 
indications in their domestic legislation.  While he r delegation might have concerns with the way that 
some Members had implemented Article 22.1, the t ask at hand was not to criticize those approaches, 
but to develop a multilateral system of notification and registration to facilitate protection that was 
useful and meaningful for all participating Memb ers.  Against that bac kground her delegation had 
questions on how implementation would occur u nder the TN/C/W/52 proposal, considering the 
different national approaches to the implementation of Articles 22 and 23. 
70. She said that it was important to discuss the s ubstantive issues when considering ways to 
facilitate the protection for wines and spirits under Ar ticle 23.  For her delegation, those issues related  TN/IP/M/22 
 Page 13 
 
 
  to whether participation would be mandatory or vo luntary and what would be the legal effect of 
putting a term on the register.  
71. On participation in the multilateral system, the language of Article 23.4 of the TRIPS 
Agreement had made clear that it should be voluntar y.  Accordingly, one problem her delegation had 
with the proposal of some Members was that it went  beyond what had been agreed in the mandate.   
72. On legal effect upon notification of a term, the substantive issue was whether or not there was 
any need for any legal effect.  This issue was raised  in TN/C/W/52 with respect to the definition of a 
geographical indication and her delegation shared the c oncerns of Australia in this regard.  Under the 
TN/C/W/52 proposal, it appeared that a notified term should be considered as prima facie  evidence 
that the term met the definition of a geographical indication in Article 22.1 of the TRIPS Agreement, 
"in the absence of proof to the contrary".  If a te rm met the definition of a geographical indication 
under Article 22.1, the obligations and exceptions unde r Articles 23 and 24 were applicable.  It was 
therefore important to understand the scope of TN/C /W/52.  It was her delegation's understanding that 
the notification of a term woul d be considered prima facie  evidence that it met the definition of a 
geographical indication in the notifying Member, and,  therefore, met the definition of a geographical 
indication in the Member consulting the register ("consulting Member").  A fundamental question for 
her delegation was the basis on which an authority in the notifying Member would determine that a 
term that was a geographical indication in its te rritory also met the definition of a geographical 
indication in the consulting Member.  In other word s, what was the basis for the presumption that a 
term considered as a geographical indication in the notifying Member would serve to identify the 
good, both to the consulting Member and to its consumers, as originating in the territory of the 
consulting Member.  Her delegation would appreciate an explanation of why more evidentiary weight 
should be afforded to findings by authorities in a notifying Member than to evidence considered by 
domestic authorities in the consulting Member when  making decisions on protection and registration 
of IPRs.  It was also unclear why there should be any such presumption and what would constitute "proof to the contrary".  Would it be sufficient proof to the contrary that to consumers in the 
consulting Member a term did not identify the good as originating in the territory of the notifying 
Member?  Could the owner of a notified term preven t the use of an identical  term in the consulting 
Member, even if that term was not protected or u tilized in the territory of the consulting Member?  
Conversely, when the owner of a notified term had not previously sought protection or utilized the 
term in the consulting Member, could a user of a term identical with the notified one seek protection 
in that consulting Member?  
73. Along with the other co-sponsors of the joint pr oposal, her delegation had proposed a useful 
and meaningful mechanism to protect geographical indications in a manner that respected the determinations by authorities in both the notifying  and the consulting Members on their own merits, 
and at the same time provided for optional par ticipation, thereby allowing each WTO Member the 
opportunity to consider when domestic implementati on of the system was feasible.  She emphasized 
the importance of understanding issues, such as the ones raised by her delegation, and said that 
resolving the issue of the intended scope and app lication of the multilateral system was critical for 
moving forward.  
74. The representative of Japan
 said that, as a co-sponsor of the joint proposal, his delegation 
would like to give a preliminary view of how Japan would implement paragraph 5 of the joint 
proposal on the procedures to be followed by par ticipating Members and, more specifically, the 
provision to consult the database.  He emphasized that this was just one possible option for the 
implementation without prejudice to the actual method of implementation in the future.   
75. With respect to the examination of trademark a pplications, notified and registered data on GIs 
for wines and spirits under the established system woul d be introduced into the database for trademark 
examiners, who would search those notified and regi stered GIs for wine and spirits when examining TN/IP/M/22 
Page 14  
 
  trademark applications.  In other words, examin ers would consult the database for all trademark 
applications.  If relevant GIs were found as a resu lt of the search, examiners would consider whether 
the trademark application should be rejected or  not, based on the GIs found through their searches. 
This meant that trademark examiners would necess arily take into account the GIs found during the 
search in the examination process.  Therefore, the act of "taking into account" inevitably followed the 
act of consultation.   
76. One possible option for implementing the joint proposal was that examination manuals or 
guidelines could simply state that examiners should consult the database and take into account the 
search results, without further stipulation in th e manuals or guidelines.  Regarding trademark 
examination, a sentence such as "the result of search is taken into considerati on" could be added to the 
standard.  Apart from trademark examination or regi stration, the use of GIs for wines and spirits was 
being regulated by standards placed under the jurisd iction of the Japanese national tax agency.  These 
standards could also simply be revised to provide  that the database should be consulted.  His 
delegation hoped that th is explanation on possible options for the implementation would assist 
Members to understand how the joint proposal c ould facilitate the protection of geographical 
indications for wines and spirits. 
77. The representative of New Zealand
 said that he would follow Canada and Japan in the 
exercise of outlining how the joint proposal would be implemented, with a view to providing Members with a better understanding of the legal effect of the joint proposal in New Zealand. 
78. He said that, when he read the minutes of th e last TRIPS Special Session, he took some 
comfort from the fact that there had been some c onvergence upon what the legal effects of the register 
should be.  He recalled that the Swiss delegation had provided a succi nct summary of what might be 
considered the ambition of TN/C/W/52 proponents as to  the legal effects of the register:  domestic 
authorities dealing with GIs would not only have an obligation to consult the register and the 
information it contained when making any decision, but they would also take due account of this information in their decision.  In other words,  they should give the "necessary weight" to that 
information. 
79. Regarding the joint proposal, he said that pa ragraph 5 proposed that Members ensure that 
their domestic procedures required the relevant authorities to consult the register when making 
decisions on the registration of trademarks and GIs for wines and spirits.  In the New Zealand context, this language in the joint proposal would require the re gister to be consulted, for the information on it 
to be taken into account, and for necessary weight  to be given to that information.   
80. The explanation he was going to give was inte nded to illustrate the legal effect of the 
implementation of the joint proposal in New Zeal and and was provided without prejudice to the 
position of his delegation in the negotiation on the establishment of a multilateral system of 
notification and registration of geograph ical indications for wines and spirits. 
81. Under Paragraph 5 of the joint proposal, Me mbers would agree to the establishment of a 
searchable register of all geographical indications  for wines and spirits notified by participating 
Members.  Participating Members would commit to consult the register when making decisions on the 
registration or protection of trademarks and GIs fo r wines and spirits in accordance with their national 
legislation.  Since all decisions on the protection of  GIs would continue to be made in accordance 
with the domestic law of each WTO Member, the lega l effect of the joint proposal would be of a 
procedural nature and would de pend upon the national legislation of each participating Member. 
82. In New Zealand, protection for wine and sp irit GIs was provided under the Trade Marks Act 
of 2002, including collective and certification marks, as well as under the common law tort of  TN/IP/M/22 
 Page 15 
 
 
  passing-off, and consumer legislation, the Fair Tr ading Act of 1986.  He would outline the potential 
usefulness of the joint proposal in re lation to each of these instruments.   
83. Starting with the Trade Marks Act of 2002, he said that GIs could be protected in 
New Zealand as certification marks and collective marks under this Act.  Indeed, a number of EC 
wine producers had already protected their GIs in New Zealand as registered certification marks.  
Implementation of the joint proposal would pr ovide examiners from all WTO Members with a 
multilateral register which did not exist at this mo ment.  This register would provide credible and 
up-to-date information about foreign GIs.  The joint proposal register would assist examiners' 
consideration of whether or not applications for certification or collective marks met the relevant 
requirements.  This would facilitate  the protection of GIs of wine and spirits by assisting GI right 
holders to establish, for example, that they were  lawfully entitled to apply for registration of the 
certification or collective mark and that the GI in question was capable of being distinctive. 
84. As provided by the Trade Mark Act of 2002, a trademark could not be registered in New 
Zealand if it was not capable of being distinctive.  A mark that contained or consisted of a wine or 
spirit GI might not be distinctive, and may theref ore be unregistrable.  Implementation of the joint 
proposal would provide trademark examiners with information about foreign GIs and assist in 
preventing inappropriate registrations  of trademarks containing GIs.  In practice, implementation of 
the joint proposal would involve a binding requireme nt in the procedures of the trademark office in 
New Zealand for examiners to consult the intern ational register when assessing registrability of 
certification and collective marks and trademarks.  It  followed from this requirement that examiners 
must take due account of, or give the necessary weight to, the information on the register when 
making their decision. 
85. If the examination record, which was attainable  under the Official Information Act, showed 
that this requirement had not been complied with, review proceedings could be initiated on the basis 
of that process.  Moreover, the examiners' notes detailing their reasoning on a determination would also be discoverable and could be submitted as eviden ce in any administrative or judicial challenge of 
an examination decision. 
86. He said that the joint proposal would facilitate the protection of GIs in New Zealand by 
making consolidated information available to exam iners on geographical terms used to identify the 
origin of wines and spirits from around the world.  The register would have a substantive effect in 
New Zealand as it might assist GI right holders in registering their GIs as certification or collective marks, and help to prevent the inappropriate regi stration of GIs as trademarks.  Examiners would be 
required to consult the register, to take the info rmation into account, and to  give due weight to 
relevant information.  The joint proposal w ould essentially meet the ambition for legal effect 
articulated by the Swiss delegation during the meeting last March.   
87. For his delegation, this exercise showed the benefit of these technical discussions because it 
demonstrated that the joint proposal would indeed deliver the desired legal effect in New Zealand.  
His delegation would therefore be interested to hear  what were the "shortcomings" in the context of 
the joint proposal that the Swiss delegation claimed, in paragraph 56 of the minutes of the last Special 
Session meeting (document TN/IP/M/21), would be fixed by the TN/C/W/52 proposal?  A clear outline of these shortcomings would be most useful to  the sponsors of the joint proposal.  It would be 
particularly useful if the European Communities and its co-sponsors would be able to identify either at 
this meeting or another one of the Special Session, the specific provisions which they considered to be 
shortcomings in the joint proposal and, ideally, if they could suggest text amendments to the joint 
proposal which would address these shortcomings to their satisfaction.  Identifying the specific 
problems with elements of the joint proposal would be a practical means of moving beyond mischaracterization of the joint proposal and building a common understanding of those areas where the Special Session would need to focus discussions and further technical work. TN/IP/M/22 
Page 16  
 
  88. The representative of El Salvador
 recalled that her delegation was a co-sponsor of the joint 
proposal and that the mandate contained in Article  23.4 provided that, "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 pr otection in those Members participating in the 
system".  Paragraph 18 of the Doha Ministerial Declaration stated that, "in order to complete the work 
started in the Council for TRIPS on the implementati on of Article 23.4, Members agreed to negotiate 
the establishment of a multilateral system of notific ation and registration of geographical indications 
for wines and spirits".   
89. Moving to specific aspects, she said that with re gard to legal effects, the joint proposal had 
suggested a voluntary system.  This would preserve the existing balance of rights and obligations in 
the TRIPS Agreement and, moreover, would preser ve the territorial nature of geographical 
indications, enabling WTO developing-country Me mbers to develop an appropriate method of 
implementing the provisions of the TRIPS Agreement within their own legal system and practice, as provided under Article 1.1 of the TRIPS Agreement.   Among such solutions there could be trademark 
and GI systems.  Canada, New Zealand and the Un ited States had already described the way in which 
the future register would be utilized in accordan ce with their own systems for the protection of 
geographical indications.  GIs for wines and spirits  should meet the requirements established by the 
TRIPS Agreement, e.g. the principle of territoria lity and the requirement for a GI to identify the 
territory or region in which the good originated.   
90. On the database proposed in the joint proposal, she said that the information should be taken 
into account.  The register should record the inform ation notified - on a voluntary basis in line with 
the mandate - on the GIs to be protected. The data base would be an online database with a search 
mechanism that would be freely accessible to Me mbers and the public, with a mechanism to access 
the original notifications.  The database woul d be available in the three WTO languages. 
91. Under the joint proposal, each Member would be  committed to ensure that its procedures 
included the provision to consult the database when  making decisions relating to the registration and 
protection of trademarks and GIs for wines and spir its in accordance with its domestic law.  For those 
Members that had chosen not to participate in th e system, they would be encouraged, but would not 
be obliged to consult the database.  She said that, in the case of El Salvador, the competent authorities 
would be obliged to substantiate their decisions as prescribed by the national uniform procedural laws. 
92. On the issue of special and diffe rential treatment, she said that the joint proposal provided for 
voluntary participation and protection through the system  that each Member already had.  This would 
avoid administrative burdens.  
93. In light of some of the previous statem ents, her delegation requested the TN/C/W/52 
proponents to explain what effects a notified GI would have for Members' national authorities when 
the holder of that GI would like to register it na tionally.  While it had been reassured that under the 
TN/C/W/52 proposal a GI notified to the WTO would be  considered prima facie a GI, and that further 
assessment and discussion would always take place on a national basis, it was not clear at what point in time nationals could submit their opposition to the notified GI and when the validity of this GI 
would be presumed. 
94. The representative of Hong Kong, China
 thanked the Chairman for the questions that had 
been sent to delegations prior to this meeting.  Th ey were very relevant to the discussions and might 
offer some insights for filling some gaps.   
95. As regards the Chair's first question on minimum legal effects, her delegation considered that 
the minimum legal effect for a GI register shoul d be that the GI register was internationally  TN/IP/M/22 
 Page 17 
 
 
  recognized as the international GI register of GIs for wines and spirits within the framework of the 
WTO.  There was also the possibility that Members could set up a system with minimum legal effects 
and leave the longer-term arrangement for review afte r the system had been in operation for a certain 
period of time. 
96. As regards the Chair's second question, her de legation considered that the basis on which 
national authorities would decide what significance and weight to give to information on the register 
would be that the information was factually releva nt and legally admissible, and that due weight 
should be given to its probative value. 
97. As regards the Chair's third question, she reca lled that her delegation had proposed that the 
system should be voluntary at the beginning.  The scope of participation could be revisited in a 
review, after a few years, when Members had had some experience on the operation of the system. 
98. Referring to questions posed by the delegation of Australia, she said that Articles 22-24 of the 
TRIPS Agreement set out the norms for protection of GIs in WTO Members.  These included a definition of GIs in Article 22.1 and the requirement  under Article 24.9 that the GIs be protected in 
their country of origin and had not fallen into disuse there.  She noted that under the Hong Kong, 
China proposal the notifying Member was required to  support a notification by a statement to the 
effect that both Articles 22.1 and 24.9 were fulfilled.   
99. She referred to her delegation's proposal (TN/ IP/W/8), where the notification requirements 
were clearly set out in paragraph 2 of Annex A.  A notification would have to set out the details of the 
notified GI:  the name and contact details of the ow ner of the GI;  the participating Member making 
the notification; details of the office competen t to receive correspondence from the administering 
body;  a statement executed under seal by the gove rnment of the notifying Member that the GI 
conformed with the definition in Article 22.1;  and that the GI was protected by law and had not fallen 
into disuse in the territory of the notifying particip ating Member.  Another alternative was that the  
participating Member could submit a notification of the GI based on the relevant domestic legislation 
or judicial decision protecting the GI in the terr itory of the notifying participating Member.  Under 
this system, her delegation trusted that Memb ers would exercise due diligence in submitting 
GI notifications for registration and in maki ng sure that the statements were correct. 
100. As regards the evidential value and the notion of  rebuttable resumption, she said that, if any 
of the three issues in respect of which a presumpti on would be created by the register, including that 
of complying with the GI definition under Article 22.1, was in dispute in proceedings before a 
domestic authority in connection with an applica tion for registration at the domestic level, the 
applicant or the owner of the GI could rely on a certificate of registration as prima facie evidence to 
prove the issues in question.  The production of a certificate of registration would then give rise to a rebuttable presumption on the three relevant issues in  domestic proceedings.  In other words, if the 
other party did not adduce evidence in rebuttal, the three relevant issues would be treated as proved.  
101. If the party adduced evidence to the contrary, then the court or the relevant authorities would 
take into account the evidence a nd weigh the totality of the evid ence adduced by both sides and 
decide whether the issues in question were proved to the standard required under a particular legal 
system.  In this regard she stressed that there was no extraterritorial effect in her delegation's proposal 
and that the decision on what constituted sufficient evidence to rebut the presumption would be made 
at the domestic level according to the domestic regimes. 
102. The representative of Korea
 said that his delegation would like to share with other Members 
the legal problems that Korea would face if the le gal effect of prima facie evidence given to the 
multilaterally registered GIs was to be incorporat ed into its domestic administrative and judicial 
system. TN/IP/M/22 
Page 18  
 
  103. He understood from the communication of the European Communities that conflicting GIs 
with identical or similar names could coexist in  the multilateral register as long as each GI was 
protected in, and registered in the register by, the respective Member.  Based on this understanding, 
he presented a hypothetical situation:  Country A protected a GI for a wine originating in its territory by the name of  "A Plus".  Country B also protected  a similar or identical name as a GI, "A Plus", for 
a wine produced in its own territory.  It happene d that these two different products, under the same 
names, had been registered in the multilateral re gister.  What should Korea do in a case where the 
right holders of country A and country B respectivel y applied for protection in Korea?  If the EC's 
example of "Bordeaux" were to be applied in this  case, there would be three options.  First, Korea 
might ask both GI right holders to provide more  supporting information and, on the basis of the 
collected elements, the authorities could decide whic h "A Plus" met the GI definition to be protected 
in Korea.  Secondly, Korea could give protection to the right holders of both countries A and B because the two GIs had already been registered in the multilateral register.  Thirdly, Korea might not 
give protection to any GI "A Plus" if its authoriti es were of the view that the name "A Plus" was 
generic in Korea, according to TRIPS Article 24.  
104. In practice, option 1, which would the most f easible, would pose a problem to Korea with its 
current domestic system.  If there were no prima facie evidence resulting from the multilateral registration, the Korean authorities would have discre tion to give more weight to the information from 
one country over the information from the other on e, based on the examination of the relevant 
information provided by the applicant or gathered ex officio.  However, as each of the GIs registered 
in the multilateral register would be prima facie evidence, it would be impossible for the Korean 
authorities to determine which GI could apply for pr otection because equal weig ht should be given to 
the information provided by each side.  Therefore, Korea would not be able to give protection to 
country A's "A Plus" while there was no substantia ted assertion as to the ineligibility of country B's 
"A Plus" for protection, and vice versa.  In the light of the above, it is likely that the first option would 
not be chosen.  The remaining options would then be the second and the third ones:  either to give 
protection to both "A Plus" of both country A and country B, or not to give protection to any GI "A 
Plus".  He said that there had certainly been such cases in the world.  Had the idea of having 
conflicting GIs in the same register been envisaged ?  He could imagine a case with GIs in Korea, 
China and Japan, which used Chinese characters in the name of a region.  He asked the sponsors of 
TN/C/W/52 whether they had considered such cases a nd, if so, whether they preferred the second and 
third options over the first one.  His delegation w ould like to know whether it was envisaged that 
conflicting GIs could coexist in the same register, and whether it was possible for a Member to give 
protection to GIs from certain countries while not pr otecting the same GI from another country which 
already was on the register. 
105. He said that, in the case of identical GIs from different Members, there would be no problem 
of confusion or contradiction under the joint proposal  since the register would give no legal effect to 
one Member's decision and the competent authority in each Member would discretionally decide 
which GI should be protected in its territory, in accordance with its domestic law and the existing 
TRIPS provisions. 
106. The representative of Switzerland
 thanked Canada, Hong Kong, China and the European 
Communities for the overviews of the proposals a nd for the presentations on the implementation of 
the proposed systems.  Referring to the Chair's co mment that it was high time to make commitments, 
she said that the proponents of TN/C/W/52 had alr eady taken such commitments in the form of the 
proposal as a whole.  The three TRIPS-related i ssues, namely the relationship between TRIPS and 
CBD, GI extension and the GI multilateral register, had been put together to form a commitment.  With regard to the register, she said that TN/C /W/52 also reflected the whole journey that the 
European Communities had made since it had tabled its first proposal.   TN/IP/M/22 
 Page 19 
 
 
  107. She said that, although the comments by some dele gations had been discouragingly repetitive, 
the last statement made by New Zealand had pr ovided some reassurance that her delegation's 
concerns had partially been taken into account.  In her delegation's view, this might lead to a 
compromise decision to set parameters for a multila teral system that would satisfy everyone.   
108. She said that her delegation was still confronted  with the joint proposal which only provided 
for the establishment of a database that Member's authorities might or might not consult, and which 
remained unclear about whether the information cont ained in that database would have to be taken 
into account if the authorities consulted it.  She was concerned about Australia's statement on how 
information on the register would be taken into acco unt in a case where a name considered as a GI in 
the country of origin was not known in the country where protection was sought.  It was for that 
reason that careful attention had to be paid to  the objective that the register should facilitate 
protection.  It was important to know how the in formation would be taken into account to prevent 
abuses in the context of trademark registrations.  
109. On the issue of the mandate "to facilitate" the pr otection of GIs, she said that, after years of 
negotiations, consultations and refl ections, it was essential to go be yond the mere consultation of a 
register as a source of information.  In her delega tion's view, clear assurances had to be given that 
domestic authorities dealing with geographical indica tions, be they trademark examiners, judges or 
other administrative authorities, would not only ha ve an obligation to consult the information 
contained in the multilateral register when taking an y decision, but that they would also take due 
account of this information when taking such decision.  
110. She said that, just as Hong Kong, China had expl ained one way of taking the information into 
account as prima facie evidence and Japan how its  trademark examination guidelines would be 
modified nationally to implement a register, her delegation also felt the need to find suitable ways to take the information on the register into account .  Her delegation believed that Members were 
beginning to move towards a consensus.  It w ould therefore be important to have a modalities 
decision to establish the obligation to take this  information into account, before moving on to a 
decision on the detailed establishment of the register. 
111. It had been proposed in TN/C/W/52 that the information on the register be taken into 
consideration as prima facie evidence with respect to  the GI definition.  If the issue of genericness 
arose in a country, this would have to be dealt with  before a name was granted GI protection.  This 
would facilitate the protection of rights in view of  Article 23.4 without questioning the principle of 
territoriality and would ensure that decisions woul d be taken at a national level, in accordance with 
the procedures in force in each country.  TN/C /W/52 bore witness to this on several occasions. 
112. As regards participation, referring to the volunt ary system proposed by the joint proposal and 
the Hong Kong, China proposal, she said that it would be necessary to go beyond the plurilateral systems of WIPO, such as the Lisbon Agreement, a nd to be able to establish in the WTO a system 
which would give full meaning to the word "multil ateral" as mandated in Article 23.4 of the TRIPS 
Agreement.  This was an essential element for he r delegation.  The logical consequences of the 
mandate was that all WTO Members would have to take account of the registrations placed on the 
multilateral register, while being free to notify or not to notify their domestic GIs.  She pointed out that the obligation that the information on the re gister be taken into account by all Members was 
already more limited in the TN/C/W/52 proposal than in previous proposals. 
113. She reminded delegations that Article 23.4 aimed to facilitate, without increasing, the 
protection of GIs that all Members were already required to provide under Articles 22-24, subject to 
the transitional period for least-developed countries.   TN/IP/M/22 
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  114. With respect to special and differential treatme nt, she said that this issue could be further 
considered once the various elements of the GI register had been established.  
115. The representative of Brazil
 said that his delegation endorsed the responses provided by the 
European Communities and Switzerland to the Chair's questions.   
116. On the issue of legal effects addressed in questions 1 and 2, he recalled that document 
TN/C/W/52 fully satisfied the mandate of the Speci al Session, which was to establish a system of 
notification and registration of GIs for wines and spir its in order "to facilitate" the protection of GIs.  
In contrast to TN/C/W/52, the other proposals would only establish a system for providing information.  If Members were co mmitted to the mandate of establishing a system "to facilitate" the 
protection of GIs, they would need to give some assurances that the information on the register would 
be relevant and be taken into account.  Otherwise, it would only create a mere shortcut to obtain 
information.  
117. He said that paragraphs 1-3 of TN/C/W/52 prov ided, in addition to the consultation of the 
register, the obligation to take its information into account when making decisions as prima facie 
evidence that the GI met the definition of geogra phical indication laid down in TRIPS Article 22.1. 
The information contained in the register had to  be conducive to facilitati ng protection in national 
jurisdictions.  The TN/C/W/52 proposal fully respected the principle of territoriality and the notion that prima facie evidence could be defeated in natio nal jurisdictions, and hence safeguard the diversity 
of domestic procedures.   
118. As regards question 3 which dealt with the issue of participation, he said that the mandate of 
Article 23.4 referred to the establishment of a "multilateral" system.   
119. On special and differential treatment, he sai d that it was important to highlight that 
TN/C/W/52 was the only proposal that provided for special and differential treatment in its 
paragraph 9.  Special and differential treatment could take various forms but one which had been 
already envisaged would be to assist developing coun tries to develop their own GIs in order to obtain 
international protection.  The development aspect re lated to GIs could be illustrated by the fact that 
for the last eight years in Brazil, a number of local community-based projects, involving small 
farmers, had been put in place with the aim of a dding value to local products.  As a consequence, 
Brazil had now registered a few national GIs for wines, coffee, meat and Cachaça.  After consolidation in the national market, these small fa rmers might wish to export and Brazil would then 
need to assist them to facilitate the protection of  their GIs.  The TN/C/W/52 proposal envisaged this 
assistance and would facilitate such protection. 
120. He said that TN/C/W/52 was an inclusive a nd balanced proposal because it encompassed the 
main demands and concerns expressed by all Members on the three TRIPS issues, namely the GI register, TRIPS/CDB and GI extension, and that it was a sincere attempt by 108 Members to deliver 
on the mandate of the Doha Development Round. 
121. The representative of Argentina
 said the wording of the questions presented by the Chairman 
should be more neutral and not use language from one of the proposals.  In particular, she said that 
question 2 should avoid the wording "take the info rmation on the register into account", which had 
been taken from TN/C/W/52.  
122. On the issue of a possible Chair's paper, she said that this would be premature and was 
therefore not favoured by her delegation.   
123. Her delegation also rejected the artificial para llelism that had been made between the three 
TRIPS issues in TN/C/W/52.   TN/IP/M/22 
 Page 21 
 
 
  124. She said that the joint proposal, co-sponsored by Argentina, enjoyed a high level of 
acceptance amongst WTO Members.  It complied with the mandates in Article 23.4 of the TRIPS Agreement and paragraph 18 of the Doha Declaration.  It proposed the establishment of a multilateral 
system of notification and registration of geographi cal indications for wines and spirits, which would 
facilitate protection of geographical indications for wines and spirits.   Likewise, it would preserve the 
principle of territoriality for GIs.  As stated in Ar ticle 23.4 of TRIPS, the participation in the register 
would be "strictly voluntary".  The joint propo sal had therefore taken special and differential 
treatment into account as each Member could decide whether or not to participate.  The European 
Communities, on the other hand, had not yet been able to explain how special and differential 
treatment might be included in the TN/C/W/52 pr oposal.  She reiterated that a register in which 
participation would be mandatory for all WTO Memb ers would not be acceptable for her delegation.   
125. As regards the procedures to be followed by pa rticipating Members, the joint proposal stated 
that "each Participating Member commits to ensure that its procedures include the provision to consult 
the Database when making decisions regarding registration and protection of trademarks and 
geographical indications for wines and spirits in accordance with its domestic law".  In contrast, 
TN/C/W/52 proposed to consider "the register as prima facie  evidence that, in that Member, the GI 
met the definition of geographical indication laid do wn in TRIPS Article 22.1".  For her delegation, 
the proposals in TN/C/W/52 for a prima facie eviden ce, a reversal of the burden of proof and extra-
territoriality were not acceptable.   
126. The representative of Chinese Taipei
 said that his delegation would provide complete and 
comprehensive answers to the Chair's questions at the next meeting, after having consulted 
domestically on their possible implications.  
127. Canada's presentation had demonstrated that the joint proposal was workable and constituted 
a complete solution.  It would facilitate protecti on of GIs for wines and spirits.  His delegation was 
interested in hearing from Canada how homonym ous GIs would be protected under the Canadian 
implementation of the system.  He further requested  Canada to provide an illustrative example of how 
the "notifying authorities" and the "responsible au thorities" would cooperate with each other in the 
system.  
128. In response to the questions on homonymous GIs from Chinese Taipei and Korea, the 
representative of Canada  said that, as a concrete example, the name of the significant wine-growing 
region of the Niagara Escarpment, which extended into  both Canadian and US territories, was used as 
a GI by both countries.  Pursuant to TRIPS Article 23.3, Members were  free to determine the practical 
conditions under which homonymous geographical indications would be differentiated from each 
other.  In this regard, the practice in Canada had been to qualify the GI with the name of the country, 
for example, "Chilean Pisco".  Therefore, before entering a homonymous name in the list of protected 
GIs, Canada would require a qualif ier to be added to the name.  
129. In response to the second question posed by Chin ese Taipei, he said that the terms "notifying 
authority" and "responsible authority" were already u sed in Canada.  For Canada, the term "notifying 
authority" would refer to the body notifying GIs to the register.  His delegation considered that it 
would be the participating Members, i.e. the government or the competent authority of the 
participating Member.  In Canada, it would be the Department of Foreign A ffairs and International 
Trade, in consultation with the Canadian Intellect ual Property Office and with Agriculture and Agri-
food Canada.  The term "res ponsible authority" would refer to the body controlling the GI in question, 
which would be named as the responsible authorit y in the notification.  Their address and contact 
details would be included in the notification and the examining authority would be able to contact 
them for additional information.  Under the Canadian  system, applications for protection of names for 
wines and spirits were submitted by the responsible au thority.  For example, in relation to wines from 
the province of Ontario, it would be the Vintners Quality Alliance. TN/IP/M/22 
Page 22  
 
  130. Turning to the questions posed by  the United States, he gave the following replies.  First, the 
implementation of the joint proposal would provi de predictability for right holders and other 
interested parties by ensuring that the national aut hority of the participating Members would, pursuant 
to paragraph 5 of the proposal, consult the data base when making decisions on the registration and 
protection of new trademarks or GIs for wines and sp irits.  Therefore, the right holders would have the 
assurance that their rights had a better chance of be ing protected since the national IP offices would 
consult the register when making a decision.  Secondly, as regards how, if the joint proposal was implemented, this would be an improvement for ex aminers taking decisions on GI registration, he 
said that the creation of a centralized database cons isting of standardized notifications of GIs would 
provide official and reliable information as to the st atus of GIs internationally, notably for domestic 
authorities, including national IP offices.  This  represented an important improvement over the 
alternatives that might be used by IP offices such as Internet search engines or separate individual 
databases, which might not be complete, accurate, up- to-date or in a language that the IP office was 
able to examine. 
131. He recalled that at the last meeting his delega tion had raised a large number of questions to 
the TN/C/W/52 proponents and that the answers receiv ed had not completely satisfied his delegation.  
However, at this time, his delegation would only focus on one area of concern for Canada, namely the 
legal effects of a notification to the register unde r the TN/C/W/52 proposal.  Such a notification would 
benefit the prima facie evidence that the term met the definition of a GI.  While it might be a GI in the 
notifying Member, it might not necessarily be a GI in other Members.  After the analysis undertaken by its domestic authorities, Canada did not see any need to give greater weight to a notification than to 
other sources of information, which included domes tic and international s ources.  Indeed, Canada 
would exercise a great deal of caution, given its experiences, in providing extra weight to this sort of notification.  It would be preferable to leave  th e determination of whether or not a term constituted a 
GI in Canada to the responsible Canadian authoriti es.  Referring to question 30(a) of a list circulated 
by a number of delegations from the Joint Pr oposal Group to the European Communities on 
4 December 2008, he asked the co-sponsors of TN/C/W/52 what a person holding the view that a 
registered GI did not meet the TRIPS definition would need to do in practical terms to rebut the presumption. 
132. In his delegation's view, considering that dele gations had answered and clarified additional 
points and in light of the actual debate, the tec hnical discussions had been useful and were not 
exhausted.  His delegation was concerned that the TN/C/W/52 proposal only contained a few 
modalities and feared that the devil would be in the detail.  Therefore, he urged the TN/C/W/52 
proponents to provide a more elaborate text, whic h would make it easier to compare and analyse the 
different proposals.   
133. His delegation would also be interested in hearing from the co-sponsors of TN/C/W/52 how 
they would implement the system in their national le gislation.  In this context, he would welcome 
comments from Brazil, Switzerland and the European Communities, including its member States with 
competencies at the member State level.  It woul d also be interesting to know how Hong Kong, China 
would implement its own proposal.   
134. The representative of Chile
 said that as regards legal effects, the joint proposal would not only 
imply the obligation to consult the database, but  would also create an important precedent which 
could then be an input for a decision by the IP offices,  without resulting in an automatic protection.  In 
other words, the fact that a term had been register ed in the WTO database could have a certain effect. 
135. He failed to understand why a system providing information would not help to facilitate the 
protection.  He believed that it would help to f acilitate the protection of GIs and he welcomed the 
EC's comment in the last meeting that acknowle dged that "putting names in a database" would 
facilitate protection of GIs.  The TN/C/W/52 pr oposal, which increased rights, would certainly  TN/IP/M/22 
 Page 23 
 
 
  facilitate protection for rights holders but it would al so upset the balance of rights and obligations that 
was achieved within the TRIPS Agreement.  Conseque ntly, it would also upset the balance that should 
exist between right holders and cons umers or users.  He failed to see why the burden of proof should 
be reversed, as that would result in more value being given to the simple fact that a term had been put 
into a database than to th e evidence given by an IP office, a court or a national using terms of foreign 
origin. 
136. Chile, as a developing country, strongly believed in the use of GIs and itself had a large 
number of GIs.  As his delegation had stated at earlier meetings, Chile used, promoted and generally 
protected GIs.  Therefore, the Chilean's position sh ould not be confused with the position of some 
Members who did not believe in GIs or simply want ed to eliminate them.  While believing that GIs 
contained a development dimension, he said that there should not be an increase in the cost for 
authorities and users in Chile to the benefit of foreign right holders.  
137. The representative of India  thanked the European Communities, Switzerland and Brazil for 
their interventions.  In light of the statements made by some delegations from the Joint Proposal 
Group and by Hong Kong, China, it seemed to him that the fundamental logic of those proposals 
would result in a backward movement.  He recalled that in the Marrakesh Declaration ministers had 
been "[D]etermined to build upon the success of th e Uruguay Round through the participation of their 
economies in the world trading system, base d upon open, market-oriented policies and the 
commitments".  The Declaration had further called fo r the "stronger and clearer legal framework they 
have adopted for the conduct of international trad e, including a more effective and reliable dispute 
settlement mechanism" and "the establishment of a multilateral framework of disciplines for trade in 
services and for the protection of trade-related in tellectual property rights".  He said that his 
delegation noted the presence of the word "commitm ents" and the absence of the word "voluntary". 
Members should therefore not dilute the statements made by ministers at Doha and reconfirmed at the Hong Kong Ministerial Conference.  Ministers had recognized in Doha "the need for all our peoples to benefit from the increased opportunities and welf are gains that the multilateral trading system 
generates".  Recalling that in Hong Kong Minister s had emphasized "the central importance of the 
development dimension in every aspect of th e Doha Work Programme" and had recommitted 
themselves "to making it a meaningful reality", he sai d it was important to recognize that the majority 
of Members were developing countries and the only wa y to make this a meaningful reality would be 
through "commitment, compliance and ambition", or to use a short formula, C
2A.  In contrast to the 
TN/C/W/52 proposal, the two other proposals did not fulfil this formula.  Consequently, Members 
should work from the TN/C/W/52 parameters as had been explained by the European Communities, 
Brazil and Switzerland.  He also highlighted that  TN/C/W/52 was a proposal very different from the 
ones tabled earlier by the European Communities and should be seen as a positive movement.  On 
legal effects, this fact should be taken into acc ount to see the movement leading up to TN/C/W/52. 
138. He said that India had done much work in the area of GIs and already had a number of 
registered GIs.  It considered that the recognitio n of GIs was important to eliminate disadvantages and 
that GIs were an essential IP tool for the deve lopment of the Indian society as it added value to 
primary commodities.  The time had come to move forward in this direction.  
139. As regards the Chair's question on special and di fferential treatment, he recalled that the Hong 
Kong Ministerial Declaration had reaffirmed that provis ions for that treatment were an integral part of 
the WTO Agreements and expressed his concerns that this issue had not been sufficiently discussed in 
this negotiating group. 
140. He underlined the intrinsic linkages between the three TRIPS issues of the GI register, 
TRIPS/CBD and GI extension in TN/C/W/52.  These linkages explained why the reference to special 
and differential treatment in paragr aph 9 of TN/C/W/52 covered all the three issues.  In response to 
the question why the issue had not been elaborated  more extensively, he said that most of the TN/IP/M/22 
Page 24  
 
  concerns had been satisfactorily addressed duri ng the pre-negotiation of the modalities proposal.  
TN/C/W/52 was a paper for modalities and details fo r special and differential treatment would be 
discussed after the modalities, i.e. when the final shap e of the register would be clearer.  Trying to do 
otherwise would be like putting the cart before the horse.  While his delegation still had to examine 
the special and differential treatment aspect in th e joint proposal, it would make the preliminary 
comment that claiming that voluntary participatio n could be a form of special and differential 
treatment would be an entirely new concept of special and differential treatment in the WTO. 
141. His delegation failed to register any specific sp ecial and differential treatment provisions in 
the joint proposal.  India supported the key para meters for a register as explained by the EC 
delegation and contained in docum ent TN/C/W/52, and would like to see these reflected in a 
Ministerial decision on the GI register.  The process of finalization of TN/C/W/52 had necessitated 
intensive negotiations between some 108 Members.  His delegation would support negotiations on the 
GI register on that basis, and did not see any need for clarifying its support element by element.  He emphasized that the GI register elements pr oposed by the European Communities came from 
TN/C/W/52, which was not a proposal on the GI register alone, but on all three TRIPS issues.  
142. The representative of China
 said that, as a co-sponsor of TN/C/W/52, his delegation 
supported the key parameters for a register as expl ained by the EC delegation.  He thanked the 
European Communities for having explained and clar ified the proposal and endorsed the statements 
made by Switzerland, Brazil and India.   
143. His delegation was of the view that the GI multilateral register should cover GIs for all 
products to correct the current imbalance in the TR IPS Agreement, and that the opportunity to benefit 
from the GI register should be given to all Member s.  Moreover, special and differential treatment 
should be fully addressed in any solution.  He reitera ted that the three issues as set out in document 
TN/C/W/52 should be dealt with in parallel.  This  was the only pragmatic way to find a compromise 
and a final solution.   
144. The representative of Costa Rica  said that questions from the Chair should be balanced and 
should aim to stimulate discussion a nd bring positions closer.  Such qu estions should not be used as a 
basis for any other process than the one in this Sp ecial Session.  The technical discussion had to be 
completed before Members could proceed w ith any further stage of negotiation.   
145. Members should begin by defining what it meant "to facilitate" protection.  Paragraph 4 of 
Article 23 of the TRIPS Agreement clearly stated  that the objective of the negotiations was to 
facilitate the protection, and did not mention the in crease of protection.  For Costa Rica, the joint 
proposal represented a tangible effect of such fac ilitation:  it proposed that the national authorities of 
participating Members provide in  their procedures for a consultation of the database.  As was 
indicated by Chile, the consultation of the informat ion in the database would facilitate protection as 
provided for under Article 23.4.  It was important to st ress that this facilitating effect did not alter the 
balance of rights and obligations under the TRIPS Ag reement.  Costa Rica would reject any proposals 
seeking to increase protection on the ground that it w ould facilitate protection.  He recalled that in 
2003 the Chair of the Special Session had said that "the aim of the multilateral system should not be to improve the level of protection of geographical indications for wines and spirits as provided for in 
the TRIPS Agreement, but rather the aim should be to facilitate achieving that level of protection".  
He said that the element of special and differential treatment was inherent in the joint proposal, not 
only because it was voluntary in nature, but also because it implied minimum costs for Members and 
was simple to implement.  In contrast, the other proposals on the table would generate a great deal of 
uncertainty as to their effects, su ch as increased obligations, costs, and difficulty in implementation.   
146. As regards special and differential treatment , Members should not confuse the mandates for 
the different TRIPS issues.  The CBD issue, which Costa Rica considered to be an element of the  TN/IP/M/22 
 Page 25 
 
 
  development dimension of the Doha Round, was not  part of this Special Session's mandate.  His 
delegation could not accept the claim that there would be special and differential treatment in the register for wines and spirits simply because TN/C/W/ 52 dealt with the disclosure of origin of genetic 
resources and benefit sharing.  His delegation rej ected the parallelism made in TN/C/W/52:  each 
TRIPS issue should be dealt with on its own merits.  It strongly r eaffirmed that the TRIPS Special 
Session was not mandated to deal with anything ot her than the GI register for GIs for wines and 
spirits.   
147. He further expressed surprise at the comments made by some developing country Members 
that discussing special and differential treatment in these negotiations would be premature.  In other 
negotiations such as agriculture, NAMA and trade fac ilitation, special and differential treatment was a 
key element of the negotiations.  For Costa Rica, in all the WTO areas of negotiations without any 
exception, special and differential treatment had to  be discussed in parallel with the substantive 
elements, as it was a fundamental element of the negotiations and of the Doha Development Round. 
148. The representative of New Zealand
 said that his delegation wanted to register two important 
points arising from the EC's fax distributed in February of this year.   
149. First, New Zealand shared Canada's concerns that the concept of prima facie  evidence and 
absence of proof to the contrary acted as a presumption that a GI on the register should be a GI in all jurisdictions.   
150. A second, very real concern for his delegation was the EC's proposal concerning assertions of 
genericness.  The EC delegation had explained in March of this year that its proposal on genericness 
responded to problems faced by its wine and spirit industry in certain unspecified third markets, 
where it was reportedly faced with the impossibility of proving that its geogr aphical terms were not 
generic.  Presumably this was because the domest ic procedures in place in those markets did not 
deliver the level of protection the European wine  and spirit GI rights holders believed they were 
entitled to.  The EC's preferred option was therefore to amend the TRIPS Agreement to ensure that its 
wine and spirit industry could more effectively assert its IP rights in those third markets.  
151. His delegation would like to point out that it was not aware of any such problems in New 
Zealand, where EC producers had been able to protect their GIs as registered certification marks.  There was also a clear jurisprudence relating to the common law tort of passing-off to protect the 
intellectual property rights associated with the term "Champagne".  The EC's proposal would 
therefore be an amendment to a finely balanced se ction of the TRIPS Agreement in order to make it 
easier for its industry to assert distinctiveness in so me markets.  His delegation believed that this 
would create a whole range of new problems for other sectors of the industry, which would then have 
to gear up to assert genericness in a significant number of markets. 
152. It was ironical that, while the European Commun ities bemoaned the difficulty of proving that 
its products were distinct in third markets, it ha d itself provided a useful case study on how difficult it 
was for others to prove that a term was generic in its own market.  Despite concerted efforts over 
many years, the European Communities itself had be en unable to develop a lis t of terms considered 
generic within its own borders.   
153. There had also been situations before European courts that suggested that others might face 
the same problem as the European wine and spirit indu stry, only in reverse.  In other words they could 
be faced with the impossibility of proving that a te rm was generic.  In that context he referred 
Members to the EC Commission's recent comm unication on Agricultural Product Quality Policy, 
dated 28
 May 2009.  This paper acknowledged that, in the c ontext of a possible recast of the EU's GI 
legislation, "... the Commission will consider whether any clarifications are needed, in particular in 
identifying generic terms …".  His delegation th erefore felt that Members were asked to accept TN/IP/M/22 
Page 26  
 
  obligations that affected the burden of proof c oncerning genericness, while the main proponent had 
only just itself announced that its legislation might require clarification in order to properly identify generic terms.   
154. Against that background, his delegation saw a TRIPS amendment of the nature proposed by 
the European Communities as an extreme way of addressing the commercial problems of the 
European wine and spirit industry in some market s.  The current Article 24 exceptions were very 
delicately balanced against the obligations outlined in Article 23, and he therefore saw very real 
problems with the EC's proposed amendment.  Hi s delegation did not agree that an amendment 
establishing conditions for the terms and the applicati on of Article 24.6 was insignificant, far from it.  
New Zealand would welcome more de tailed discussions of this issue in order to understand more fully 
the EC's commercial concerns behind their demands to impose conditions for the application of the 
Article 24.6 exceptions, and to explore together whet her or not there would be other ways to address 
these concerns without requiring a TRIPS amendment.   
155. As regards legal effects, he said some of New Zealand's unease might be  allayed by a fuller 
understanding of how the terms "e vidence", "proof" and "substantia te" would be defined in the 
context of the register.  In the last Special Session the EC delegation had offered to undertake an 
exercise to define these terms if Members so wish ed.  His delegation warmly welcomed the EC's 
constructive offer which would allow Members to better understand the proposed legal effects of the 
EC's latest new thinking and looked forward to review ing the details of the EC's work in this area in 
due course.   
156. As regards special and differential treatment,  he said that the joint proposal was fully 
consistent with the development principles underp inning this round.  The joint proposal did not 
require Members to delay the negotiations on these important development questions until later, as 
had been suggested by the delegation of India.  Under the joint proposal there would be no need for 
Members to consider complex approaches such  as transition periods, participation based on 
calculation of the share of global production, export  consumption, trade on a certain product, technical 
support, or even whether special or differential treat ment would apply only to developing countries, to 
LDCs, or to a particular group of Members.  This was because the joint proposal allowed all 
Members, including developing countries and LDCs, to decide for themselves whether or not they 
wished to participate.   
157. The joint proposal also had the benefit of  providing important policy space for those 
Members who for social, moral or religious reasons  had explicitly opted not to trade in wine and 
spirits.  
158. Responding first to the comment made by Unite d States that the three TRIPS issues should 
not be discussed together, the represen tative of the European Communities
 said that, while the United 
States might not like it, 108 WTO Members preferred that they be discussed in parallel.  All he could say in this regard was that this was the result of  a solid alliance on the three issues and that this 
position had to be accepted as a reality. 
159. As regards the questions on legal effects by th e delegation of the United States, he understood 
them as meaning why there should be any legal effect at all.  In response, he said that the simple 
reason was the need for legal certainty.  A good illustration that the TN/C/W/10/Rev.2 proposal did not provide that legal certainty was that the Unite d States had actually asked Canada how they would 
apply the proposal.   If each Member had to ask every other Member how a proposal would work, it 
was clear that it would not ensure the lega l certainty that users were entitled to.   
160. The United States had also asked how the legal effect contained in TN/C/W/52, i.e. the prima  
facie evidence of the GI notified in the register, w ould be defined.  The answer was simple:  it would  TN/IP/M/22 
 Page 27 
 
 
  be up to each Member to apply its own rules.  For th is reason, he did not have the answer to how other 
Members would apply the proposal.  It would be up to the US authorities or courts to answer according to their law and procedure the question of whether consumers kne w or did not know the 
existence of a name on the register would affect th e issue of whether or not it met the definition of a 
GI.  
161. In response to New Zealand's request th at the European Communities identify the 
shortcomings of TN/C/W/10/Rev.2 from its perspectiv e and that Members work from that text instead 
of TN/C/W/52, he said that procedur ally it would seem more logical to start working on the basis of a 
text that was supported by two thirds of the member ship and which was less than one-year old, rather 
than from a ten-year old document supported by less than 20 Members.  As regards the substance, he 
said that the shortcomings of TN/C/W/10/Rev.2 were  the absence of legal effects and the fact that 
voluntary participation did not fulfil the mandate to cr eate a "multilateral" system linked to the rest of 
the DDA, which was multilateral.  The lack of clarity and the absence of legal effects in 
TN/C/W/10/Rev.2 were also evidenced by a number of questions posed by their own proponents to 
each other and their desire to explain how their proposal would work in their own system. 
162. El Salvador had asked whether the validity of a GI  notified to the register would be presumed.  
He said that the answer was negative.  First, the e ffect of a GI being on the register was only that it 
constituted prima facie  evidence of its meeting the definition of a GI under Article 22.1, and not of its 
protection.  Even if a GI met the definition it coul d still be denied protection for a number of reasons, 
genericness being one of them.  Secondly, under the TN/C/W/52 proposal, meeting the definition was 
presumed unless proven to the contrary.   
163. El Salvador had asked how to prevent a GI notified to the register from being protected.  The 
answer was simple:  at any time and in any national jurisdiction, since there would be no direct effect 
coming from the registration in the register.  For reasons of commercial common sense, it would be very unlikely that GI right holders would seek protec tion in all Members, first, because they might not 
export to all Members, and second, because under th e TN/C/W/52 proposal, they would still have to 
go through national procedures to actually obtain prot ection.  It would therefore remain costly for 
them to seek protection in the entire WTO membership.  
164. In response to Korea's questions regarding ho monymy, he said that the TN/C/W/52 proposal 
would not change the current situation.  Where two identical or similar GIs had been notified to the 
register, each Member remained free to apply its ow n rules in deciding to protect both GIs or only one 
of them.  Of course, Members would have to respect the TRIPS provisions regarding homonymous 
GIs in paragraph 3 of Article 23 regardin g the prohibition to mislead consumers. 
165. In response to Canada's question how to rebut the prima facie  evidence, he said that, again, 
this was up to each country to make the determin ation.  This was the best illustration that the 
TN/C/W/52 proposal was anything but extraterritorial, because it did not impose the only way to rebut prima facie  evidence, but respected each Member's national jurisdiction. 
166. In response to New Zealand's last interven tion that the problem of having to prove 
genericness did not exist in its jurisdiction, he said that it should therefore not change its system.  In 
those Members having such a problem, it would be  necessary to find a solution.  Authorities or 
persons claiming the application of an exception s hould have to substantiate it.  The TN/C/W/52 
proposal would not do any harm to those Members where such a problem did not exist.  
167. On special and differential treatment, he reite rated his earlier statement.  Whilst it was an 
important element it should be a ddressed after the modalities or ke y parameters had been agreed 
upon, otherwise it would be like putting the cart before the horse.   TN/IP/M/22 
Page 28  
 
  168. The representative of Hong Kong, China
 said, in response to Canada's question on the 
implementation of her delegation's own proposal, that she could not say how other Members might 
implement the proposal as, according to Article 1.1 of the TRIPS Agreement, Members were free to 
determine the appropriate method of implementing the provisions of the TRIPS Agreement within 
their own legal system and practice.  Hong Kong, China would implement the proposed GI register 
according to its own legal system and practice, and did not foresee any difficulty in implementing it in 
its jurisdiction.  Provisions might  have to be introduced in the domestic legislati on to give legal 
effects to the GI register or to provide for the admission of the certificate of registration as prima facie  
evidence.  Her delegation would be pleased to enter into bilateral dialogue with interested Members 
that had concerns about or interest in the impl ementation of Hong Kong China's proposal in its own 
jurisdiction. 
169. The representative of Australia  expressed support for the inte rventions of Canada on prima 
facie  presumption regarding the GI definition and of Ne w Zealand with regard to genericness.  He 
expressed his disappointment that his delegation's earlier offer to undertake a serious technical 
discussion of the level of facilitation that would be provided by the joint proposal did not seem to 
have been taken up by TN/C/W/52 proponents.  Inst ead Members had heard a lot of statements that 
would have to be characterized as "like it or leave it".  His delegation looked forward to the EC's 
approval for Australia's ideas in that respect.   
170. Switzerland had requested Australia to clarify its  comment that some GIs known or registered 
in Europe might lack reputation in Australia, and said that this would create legitimate concerns in 
relation to the proposals in TN/C/W/52.  In response,  he said that the idea that not all these GIs were 
traded or recognized overseas was supported by the EC Quality Policy Paper, where this was 
expressed as one of the difficulties the Eu ropean Communities might address.   
171. In more general terms, if some delegations did not share Australia's concern that Members 
might be called upon to apply the presumption proposed in TN/C/W/52 to a term that was indeed  unknown in their territory, he would invite those Me mbers to substitute a different industrial property 
right for a GI and imagine their domestic systems be ing asked to apply an equivalent presumption, for 
instance, a presumption that any invention examined by a foreign patent office involved an inventive 
step at their domestic level, or that a trad emark examined by a foreign trademark office was 
distinctive at their domestic level.  This might assi st other Members conceptually in understanding his 
delegation's difficulty concerning GIs in this regard.  
172. The representative of Korea
 noted the EC's clarification that Members could choose any 
option according to their own rules and regulations.  He pointed out that, in some current systems, 
introducing the concept of prima facie evidence under the TN/C/W/52 proposal could actually decrease the level of protection for traditional fa mous GIs for wines and spirits, as information 
provided by other Members could then come into conflict with the current  protection of a GI.  
Cluster 2 (Notification and registration) 
 
173. The Chairman
 recalled that his predecessor had reported that "a fair amount of detailed work 
had been done in these areas", th at there was significant common ground in the area of registration 
and a fair measure of common ground in the area of notification.  However, whilst some differences 
remained, it was understood that positions on these tw o issues remained linked to the treatment of 
participation and legal effects.  He had therefor e not raised any questions on these elements in the 
provisional list.  
174. The representative of New Zealand  said that his delegation had found the discussion on 
notification and registration in the March Special Session very useful.  One particular element of 
interest had been the exchange between the Sw iss and Australian delega tions concerning opposition  TN/IP/M/22 
 Page 29 
 
 
  procedures.  As a significant exporter of win es and spirits, New Zealand shared the Australian 
preference for a discussion on whether, and if so  on what basis, Members' domestic procedures 
provided for opposition procedures.  According to  New Zealand's practical experience, it was 
important for third countries and industries with a leg itimate interest to have standing to provide input 
to relevant authorities considering the protection of GIs.  This was just one of the many examples 
demonstrating why it was important for Members to discuss in detail how the EC's latest new ideas 
would play out in practice, particularly in those Members which were now major traders in wines and 
spirits.  If one Member decided to protect a term fo r a wine that the vast majority of other Members 
producing or exporting a wine consider ed to be generic, then what means did they have to object to 
the registration of the GI?  Would producers of the generic product have standing under the 
registering Member's processes?  What obligation would the registering Member have to consider 
information, assertions, or opposition provided by othe rs?  While it was easy to respond that this was 
up to Members to decide, an important part of  understanding the impact of the various proposals 
would be to have the opportunity to discuss them in detail.  His delegati on would therefore welcome 
the opportunity to do so at a future meeting of the Special Session and would suggest that the Chair 
direct a set of questions to that end. 
175. The representative of Australia  said that his delegation regarded the information provided 
through the notification process and therefore u ltimately provided to the domestic authorities 
consulting the register as being of  paramount importance and not as something that should be left for 
negotiation until after modalities.  This was particularly  true in light of the EC's intentions regarding 
legal effects, as far as they could be ascertained by Members.  
176. It would appear that the assertion of GI status in the notifying jurisdiction was to be treated as 
prima facie evidence of GI status in an examini ng jurisdiction.  Members were told that this 
presumption might be rebutted by evidence.  Could the register also serve to pr ovide such evidence, at 
least in making clear the basis on which a term's universal status as a GI was claimed?  Referring 
more specifically to the issue of translations, whic h was key in the context of Article 23 for protection 
of wines and spirits and a complex question, his delegation would invite the proponents of 
TN/C/W/52 to explain how they envisaged translat ions would be dealt with under their system.  
Noting that, under the EC's current domestic system, tr anslations could be notified, he said that it was 
his delegation's  suspicion that notified translati ons could not be appealed by trading partners.  
177. He drew attention to the fact that the issue of translations was particularly complex in 
languages based on common characters where sound, me aning and written form interacted in complex 
ways, such as Chinese, Korean or Japanese.   
Cluster 3 (Other issues such as costs and fees, administrative and other burdens, and special and 
differential treatment) 
 
178. The Chairman  hoped that, while views continued to di ffer as to when and how to address 
these issues, delegations would still wa nt to continue an exchange of  views on these areas.  On these 
issues, and in particular on the wider issue of special and differential treatment, experience or 
comparison with how these issues were dealt with in other WTO areas could provide some 
inspiration.  He said, however, that it would be diff icult to force those that argued that the time was 
not ripe to declare their hands. 
179. He further said that developing countries who might have expectations of special and 
differential treatment should consider that they either  might have to participate in a mandatory system, 
or that they might actually want to join a volunta ry system, sooner or later.  This was why these 
questions, even if they were not critical at this time, did bear some relevance.  He encouraged 
Members to give some thought to what form special  and differential treatment  with regard to GIs TN/IP/M/22 
Page 30  
 
  could take so that both develope d and developing countries could exch ange additional views at a next 
meeting. 
180. In concluding the discussion, the Chairman said that the exchanges on legal effects and 
participation had been substantial,  and that it was a good sign that the approach had been focused on 
substance.  Some Members had elaborated in par ticular on how the conseque nces of registration under 
the proposals would play out in their respective national implementation.  He said that not enough 
attention had been paid to the question of how this system would be implemented.  While the 
proponents, notably the European Communities, had given indications about the essential role to be 
played by national authorities, there were still qu estions from other Members as to the detail of how 
these matters would play out.  A common understanding of those two sides of the issues could only be 
achieved through further focused discussions. 
C. O
THER BUSINESS  
181. The Chairman  said that he would not want the work of  the Special Session to go faster than 
any other negotiating group in the DDA, particularly  as it was broadly considered that certain other 
groups should lead in this round.  At the same time he invited Members to help keep the right pace to 
ensure that all issues would be properly clarified in good time. 
182.  With respect to future work, he said he woul d invite further discussion on the four questions 
he had distributed by fax on 9 J une 2009 and on any additional questions  he might find relevant.   The 
questions were intended as a mechanism to focu s discussion capable of pointing towards some 
common ground.  In his view, there certainly were areas where there had been some comfort that 
consensus could emerge.  He encouraged Members to continue the dialogue and to include at the next 
meeting comments on the four questions mentioned.  
183. The representative of the European Communities  agreed that Members should continue 
holding discussions and hoped that there would be mo re meetings, particularly if compared to the 
meeting frequency of other nego tiating groups, e.g. in Trade Facilitation, NAMA and Rules.   
184. The representative of New Zealand  said that his delegation had been encouraged by the way 
the Chair had been able to reinvigorate these discu ssions since taking over the chairmanship.  This 
also reflected the fact that events in the broade r context of the Round had brought the Special Session 
back into focus. 
185. He said that, while New Zealand had no objectio n to having inter-sessi onal work, it would be 
necessary to make a radical change in terms of the working material.  Regarding the comment made by the Chair that delegations should not be forced to produce more pieces of paper, his delegation felt 
even more strongly that the European Communities s hould codify its latest new thinking in a text-
based proposal, or provide comments or suggestio ns on the other proposals.  This would allow 
Members to move forward in a practical manner.  The EC delegation had suggested that Members 
might instead wish to work off the three paragraphs  of TN/C/W/52.  His delegation believed that the 
proposal was full of uncertainties and ambiguities, as evidenced by the fact  that the European 
Communities itself felt it necessary to clarify it twice, in a first fax dated 25 November 2008, and in 
another one on 25 February 2009.  There were cl ear legal texts on the table from Hong Kong, China 
and from the Joint Proposal Group.  He recalled that  at the last formal session Brazil had suggested 
the possibility for the TN/C/W/52 co-sponsors to wo rk on an additional text on the wine and spirit 
register should Members find it useful.  His delegation would certainly find that very useful as it could clear up the ambiguities and would allow Members to identify a number of areas where 
positions might be close, and to hone in on those areas where positions diverged, requiring focused 
discussions.  A strict change of the current proposal  into a legal text in the same way as was being  TN/IP/M/22 
 Page 31 
 
 
  done in other WTO negotiating groups, where ideas we re lodged as text proposals, could be envisaged 
along the lines suggested by Brazil.  
186. The representative of Australia  said that intense work could be useful, but it was not clear on 
what basis inter-sessional work could take place.  Hi s delegation had come to this meeting prepared to 
give some comfort regarding the content of the joint proposal and the meaning of "consulting" the 
register, but it had not seen a great deal of interest by other delegations in exploring that issue.  A 
legal text from the proponents of TN/C/W/52 woul d be an excellent basis for more intense 
engagement. 
187. The representative of Brazil  concurred with the EC comment regarding the need for more 
sessions.  With regard to the implementation of TN/C/W/52, Brazil was open to discuss that after 
modalities had been agreed and there w as common ground on which to work.   
188. The representative of the United States  said her delegation agreed with the points made by 
Australia and New Zealand.  She said that before Members agreed to any programme of meetings, it 
was important to have a more detailed description of the system envisioned in TN/C/W/52.  Her 
delegation had asked the TN/C/W/52 proponents to pr ovide a text that would make it possible for 
Members to engage productively on the substantive issues.  Her delegation could not agree to more 
inter-sessional work if it proved to be a repeat of  previous discussions rather than a constructive 
exchange on the details.  She added that inter-sessional  meetings should be open to participation by all 
interested Members.  
189. The representative of Chile  said that those supporting the joint proposal had clearly indicated 
that the proposal included legal effects, special a nd differential treatment, and terms on participation.  
This was not the case with the TN/C/W/52 propone nts.  His delegation could not accept the position 
that Members could only discuss the details of a proposal once modalities had been agreed.  It was 
important to know how the proposal would be implem ented in all WTO countries.  It was important 
for Members to discuss special and differential treat ment.  This important issue for all WTO Members 
could not be left until after possible modalities.  Fo r example, France had 800 officials working in its 
intellectual property office and Brazil 560 officials ac cording to its website.  This was not the case in 
Chile, nor in the majority of Members. It was im portant that developing countries supporting the joint 
proposal, and those supporting the TN/C/W/52 proposal, clearly understand the effects of paragraphs 1-3 in TN/C/W/52.  
190. The Special Session took note
 of the statements made. 
__________