RESTRICTED  WORLD TRADE  
ORGANIZATION  TN/IP/M/16 
19 May 2006 
 (06-2475) 
Council for Trade-Related Aspects 
of Intellectual Property Rights Special Session  
 
  
MINUTES OF MEETING 
 
Held in the Centre William Rappard
 
on 16-17 March 2006  
 
Chairperson:  Ambassador M anzoor Ahmad (Pakistan) 
 
 Subjects discussed
         P a g e  N o . 
 
A. ELECTION OF CHAIRPERSON .......................................................................................................1  
B. ADOPTION OF AGENDA ...............................................................................................................1  
C. NEGOTIATION ON THE ESTABLISHMENT OF A MULTILATERAL SYSTEM OF 
NOTIFICATION AND REGISTRATION OF GEOGRAPHICAL INDICATIONS FOR WINES 
AND SPIRITS ............................................................................................................................... .1 
D. OTHER ISSUES ...........................................................................................................................38  
 
_______________ 
 
 
A. ELECTION OF CHAIRPERSON  
1. The Special Session confirmed the reappointment  of Ambassador Manz oor Ahmad (Pakistan) 
as Chairperson of the Special Session of the Council for TRIPS. 
B. ADOPTION OF AGENDA  
2. The sixteenth Special Session agreed  to adopt the agenda as set out in WTO/AIR/2769. 
3. The Chairman suggested that the Special Session invite the International Bureau of WIPO to 
be represented in an expert capacity, this being wit hout prejudice to the issue of observer status for 
intergovernmental organizations. 
4. It was so agreed . 
C. NEGOTIATION ON THE ESTABLISHMENT OF A MULTILATERAL SYSTEM OF NOTIFICATION AND 
REGISTRATION OF GEOGRAPHICAL INDICATIONS FOR WINES AND SPIRITS  
5. The Chairman  recalled that Ministers in Hong Kong had agreed that negotiations of the 
Special Session should be intensified in order to complete them within the overall time-frame for the 
conclusion of the negotiations that had been foreseen in the Doha Declaration.  He said that, at the TN/IP/M/16 
Page 2  
 
 TNC meeting of 6 February 2006, the TNC Chair ha d noted that there appeared to be a shared 
intention by the Members to move ahead across the whole of the DDA, making progress on all issues, and a willingness to do so by "moving in concert".  The TNC Chair had also made the point that it 
was necessary to move urgently to negotiating elements of texts.  The Chairman of the Special Session then drew Members' attention to  the "Timelines for 2006" paper, circulated as 
JOB(06)/13, which provided for a working document of the Special Session to be on the table by 
July 2006.  This fully reflected his own assessment  that, bearing in mind the end-of-year deadline for 
the Doha negotiations as a whole, it would be necess ary to have, before the summer break, a working 
document which could be used as a basis for the fina l product and in respect of which there would be 
a good degree of understanding among Members as to wh ere the main outstanding difficulties to be 
resolved lay.  Clearly, in order to achieve this by July, it would be desirable to have made progress in 
unblocking, well in advance of that time, the key di fficulties that had impeded the work so far.   
6. He further recalled that his report to the TN C (TN/IP/14), which was taken note of in the 
Hong Kong Ministerial Declaration, referred to im portant differences remaining on two key issues, 
namely the issues of legal effects and participati on.  The report further recognized that additional 
work was required on a range of other points, in cluding on the question of costs and administrative 
burdens for WTO Members, in particular for develo ping countries.  The report noted that it would be 
difficult to make major headway on these issues, togeth er with other details of the mechanism to be 
established, without greater convergence on the two key issues.   
7. He informed Members that, on the basis of what had been agreed in Hong Kong and of the 
guidance from the TNC meeting, he had been c onsulting with delegations on how the Special 
Session's work might be best organized.  It was im portant to find a way of  "changing gear" in these 
negotiations so as to be able to make progress on the i ssues that needed to be clarified in order to be in 
a position to produce the document required by July.  As a result of these consultations, he had 
circulated to delegations, by fax and on his own res ponsibility, a list of the priority concerns that had 
been raised by delegations for discussions in this  meeting.  The paper listed five such priority 
concerns, in the order in which they appeared in  the side-by-side document (TN/IP/W/12), namely 
participation, notification, registration, legal effect s/consequences of registration, and fees and costs.  
He suggested that the Special Session take up each of these areas in turn.  The paper further said that 
it had been suggested that, in discussing each area of  priority concern, certain issues might be 
explicitly addressed as appropriate, namely:  the impact of the proposals on the principle of 
territoriality;  their impact on the existing balan ce of rights and obligations;  their impact on 
developing countries;  their impact on national syst ems/jurisdictions;  and administrative burdens.  He 
added that the discussion of the priority concerns  and of the issues listed would not preclude other 
aspects from being discussed.  He proposed that the Sp ecial Session organize its work on this basis. 
8. It was so agreed
. 
General Comments 
9. The representatives of India , Guatemala,  and the Philippines  said that the issues of costs and 
burdens were of great importance and were always  at the back of their minds when discussing the 
various proposals on the table. 
10. The Chairman  said, in response to a procedural question raised by India , and supported by 
Guatemala , that it was possible to raise the issues of co sts and burdens at any time, including during 
the discussions on participation, notificati on, registration and legal effects.   
11. The representatives of the European Communities , New Zealand  and the United States  said 
that the Chair's list would be a helpful contribution to the Special Session's efforts to move forward in 
a constructive manner.    TN/IP/M/16 
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 12. The representative of Switzerland  said that his delegation was disappointed by the fact that 
the list of priority concerns had grown, compared to the two key issues that the Chair had originally 
mentioned, namely participation and legal effects.  It would be of little use to discuss issues related to 
notification and registration in great length w ithout having more clarity on these two key issues. 
13. The representative of Costa Rica  requested that his country, which had already co-sponsored 
document TN/IP/W/5, be added to the list of sponsor s of the joint proposal circulated in document 
TN/IP/W/10.  He said that the joint proposal had th e necessary and sufficient elements to comply with 
Article 23.4 of the TRIPS Agreement and the Doha  Mandate, and that his delegation supported the 
seven basic principles enshrined in that proposal:  fi rst, that participation w ould be voluntary;  second, 
that the system to be established would not have  legal effects in respect of non-participating 
Members, a feature compatible with all existing lega l systems in international law;  third, that the 
system would maintain the existing balance of right s and obligations under the Agreement, a principle 
of particular importance to his delegation, for many WTO Members, including Costa Rica, were not producers or exporters of wines and spirits and woul d therefore not have an economic interest in these 
negotiations but only a systemic one;  fourth, th at the system to be established would not entail 
substantive costs, either for participating Members or for the body that would administer it;  fifth, that 
this system would comply with the principle of terr itoriality;  sixth, that it would preserve the rights of 
Members to establish the adequate method to im plement the provisions of the TRIPS Agreement 
within the framework of their own legal systems an d practices;  and seventh, that the system to be 
established would be limited exclusively to wines and spirits. 
14. The representative of the European Communities
 said that his delegation remained fully 
committed to this process and considered these ne gotiations as an essential element in the overall 
balance of the DDA.  The evolution of the EC pr oposal from its initial content to what was currently 
on the table was good proof of his delegati on's continually constructive attitude.  The 
European Communities had refined their proposal, attempting to meet the concerns expressed by 
other delegations in the last few years, including so me of the principles that had just been mentioned 
by Costa Rica and which were, in fact, common gr ound.  All Members had already agreed:  that the 
applicable GI definition was that under Article 22.1;  that the purpose of the system should be to facilitate obtaining the level of protection fo r geographical indications established in the 
TRIPS Agreement;  that the system should be useful and reliable;  that the exceptions in Article 24 of 
the Agreement would continue to be  valid and relevant;  and that th ere should be a different treatment 
for participating and other Members.   The new elements added to the EC proposal tabled in June 2005 
(TN/IP/W/11) included provisions on trademarks and a system for fees that was devised to ensure that 
those who benefited most from the system would c ontribute to its functioning costs.  Apart from these 
written improvements, his delegation ha d flagged, at previous meetings , that it would be prepared, as 
a sign of flexibility, to consider other possible ad justments if Members thought they would be helpful 
for improving the text.  One example was his delegation's willingness to discuss the extension of the 
period for lodging reservations or the limitation of the annual number of notified geographical 
indications.  He said, however, that his delegation's willingness to be flexible did not mean that it was 
detracting from proposing a system which was multilate ral in nature and with legal effects in all 
Members.  These two key issues, legal effects and participation, should be the focus of all the 
Special Session's efforts.  Progress on other issues was dependent on progress on these two key issues. 
15. The representative of Brazil
 said that his delegation was willing to engage in substantive work 
related to these negotiations , provided that there would also be a commitment to deal in a similar way 
with other TRIPS-related implementation issues, su ch as the proposal that Brazil, India and other 
developing countries had tabled in the context of  the discussions of the relationship between the 
TRIPS Agreement and the CBD.  
16. As far as the substance of th ese negotiations was concerned, he said:  that any multilateral 
system of notification and registration of geographical  indications for wines and spirits would have to TN/IP/M/16 
Page 4  
 
 be of a strictly voluntary nature;  that it should not produce extraterritorial effects;  that it should not 
result in additional burdens for developing countries;  that it  should be limited to wines and spirits;  
and  that it should avoid the introduction of add itional commitments into the TRIPS Agreement. 
17. The representative of Guatemala
 said that it would be essential to take into account, in a 
horizontal fashion, the impact that every element of  the system to be established could have in terms 
of costs and burdens for developing countries, an essential and prevailing factor in these negotiations.  
She recalled that Guatemala was a co-sponsor of  earlier proposals, including the joint proposal 
circulated in October 2002 as document TN/IP/W/5.  Her delegation agreed with all seven principles 
outlined by Costa Rica. 
18. The representative of the United States  said that the joint proposal was the only proposal that 
respected the mandate and the principles outlined by  Costa Rica.  The objective of the Special Session 
should be to establish a multilateral system of notifi cation and registration of geographical indications 
for wines and spirits that was consistent with th e TRIPS Agreement and satisfied the mandate, namely 
that it should:  be voluntary;  be simple and ine xpensive;  preserve the existing balance of rights and 
obligations in the TRIPS Agreement;  respect the pr inciple of territoriality;  and allow Members to 
continue to determine for themselves the appropria te method of implementing the provisions of the 
TRIPS Agreement within their own legal systems and practices.  The joint proposal was the only 
option that satisfied the mandate, because it facilitate d the protection of geogr aphical indications for 
wines and spirits without imposi ng additional burdens on Members. 
19. The representative of Korea  said that his delegation was of the view that these negotiations 
should be conducted within the mandate set out in Article 23.4 of the TRIPS Agreement and 
paragraph 18 of the Doha Declaration, which mean t that the system to be established should be 
non-binding and participation in it should be volunta ry.  In addition, the system should not impose 
undue financial and other admini strative burdens, either on par ticipating Members or on those 
choosing not to participate and it should allow Memb ers to continue to determine for themselves the 
appropriate way of implementing the provisions of the Agreement within their own legal system and 
practice. 
20.  The representative of Nicaragua  said that his delegation considered the joint proposal a 
simple, effective and efficient system for the notification and registration of geographical indications, and that its voluntary nature was a particularly important feature.  His delegation expressed support 
for the statements made by Chile, Costa Rica and Guatemala and requested that Nicaragua be added 
to the list of sponsors of the joint proposal circul ated in document TN/IP/W/10.  He informed the 
Special Session that on 15 March 2006, Nicaragua had deposited before WI PO its instrument of 
accession to the Lisbon Agreement for the Protection of  Appellations of Origin and their International 
Registration, which demonstrated the importance that his country placed on multilateral disciplines. 
21. The representative of Singapore
 said that, although her country was not a producer of wine 
and did not have any such geogra phical indications, it had been following these discussions closely, 
given the implications of their outcome for non- wine producing Members.  In this regard, her 
delegation agreed with the elements of the join t proposal as outlined in document TN/IP/W/10.  Any 
multilateral system of notification and registrati on to facilitate the protection of geographical 
indications for wines and spirits must subscribe to the following principles:  voluntary participation;  preservation of the existing balance between Members' rights and obligations;  no legal effects for Members who decide not to participate in the sy stem;  no substantial costs, particularly for non-
participating Members;  respect of the principle of te rritoriality;  and consiste ncy with Article 1.1. of 
the TRIPS Agreement.  Whatever system the Sp ecial Session eventually agreed to should not 
prejudice the interests of non-wine producing Members.  Her delegation was encouraged by the European Communities’ willingness to be flexible and responsive to the concerns that had been 
raised.  Her delegation was seeking a system that would be simple, straightforward, uncomplicated,  TN/IP/M/16 
 Page 5 
 
 
 efficient, and more importantly, which would maintain the principle that the protection of 
geographical indications would be provided in ac cordance with the domestic laws of each WTO 
Member, consistent with existing obligations under TRIPS.  In other words, it should not pre-empt 
decisions made regarding the protection of ge ographical indications at the national level. 
22. The representative of Malaysia  said that, like previous delega tions, her delegation hoped for 
the fulfilment of the mandate with regard to the se tting up of a multilateral system of registration and 
notification of geographical indications for wines an d spirits that would be the least burdensome and 
costly for developing countries. 
23. The representative of Thailand , recalling that his country was not a demandeur in these 
negotiations, expressed his delegation' s concerns regarding the issues of legal effects/consequences of 
registration, fees and costs, and other burdens. 
24. The representative of Turkey  said that his delegation had broader interests than these 
negotiations and was therefore not a demandeur  for a register limited to geographical indications for 
wines and spirits only.  Turkey had registered onl y two geographical indications, one for a spirit and 
the other for a liqueur and believed that a GI regist er limited to wines and spirits would be a repetition 
of the mistake made during the Uruguay Round that limited the proper TRIPS GI protection to these 
two categories of products. 
Participation 
 
25. The representative of th e European Communities  recalled that Members were working under 
a mandate that called for a multilateral system of no tification and registration.  He said that, in the 
WTO context, this meant an agreement that had to be binding upon all WTO Members.  Therefore, 
the understanding that the system to be established s hould have legal effects in all Members was fully 
in line with Article 23.4 of the TRIPS Agreement, including its reference to geographical indications 
"eligible for protection in those Members participa ting in the system".  This wording meant that 
participating Members would be those who wanted th eir geographical indications to enjoy the benefits 
of the register by notifying them in the syst em.  The difference between participating and 
non-participating Members lay precisely in the free dom Members would have to decide whether or 
not to include their geographical indications in the system.  However, once a geographical indication was included in the system, protection should be "f acilitated" in all Members, because the system was 
supposed to be multilateral.  The EC proposal theref ore achieved a fair balance in foreseeing certain 
effects for participating Members and some other ef fects for non-participating Members.  Conversely, 
the approach taken by the joint proposal on particip ation was not justified, precisely because it denied 
the basic principle that any "multilateral" instru ment in WTO terms should have effects in all 
Members. 
26. The representative of Guatemala
 expressed concerns about any negative impact that the 
system to be established would have on developing  countries, particularly those deciding not to 
participate in the system.  The joint proposal full y complied with the mandate of negotiations and met 
the needs of developing countries.  Participation in th e system should be strictly voluntary.  Therefore, 
the system should not entail consequences for non- participating Members.   Proposing otherwise 
would be contrary to the rules of the TRIPS Ag reement and international public law, according to 
which treaties were not binding up on countries which did not expressly accept to participate therein.  
Such a mandatory system would create additional bur dens, in particular for developing countries, 
which were already under the obligation of implementing the heavy obligations of the 
TRIPS Agreement and which lacked fi nancial and human resources.   
27. The representative of Costa Rica  emphasized that the mandate wa s clear in that participation 
must be voluntary.  This was a key element, partic ularly for non-wine and spirit producing Members.  TN/IP/M/16 
Page 6  
 
 The joint proposal made clear that each Member w ould be able to opt in, or out of, the system and 
would participate, if they so wished, by notifying  their national geographical indications.  The joint 
proposal system would be multilateral in nature in the same way as the multilateral Code of Good 
Practice under the TBT Agreement.  His delegation di d not share the EC's interpretation of the term 
"multilateral" under Article 23.4 of the TRIPS Agreement. 
28. The representative of the United States
 said that the language in Article 23.4 of the 
TRIPS Agreement, referring to the "geographical indi cations eligible for protection in those Members 
participating in the system" made it clear that WT O Members should be free to decide by themselves 
whether or not to participate in the system and ther eby to seek the facilitation of the protection of their 
geographical indications under it.   In accordance  with the plain words in Article 23.4 of the 
TRIPS Agreement, participation must be truly vol untary, and proposals, su ch as the EC's proposal, 
that called for mandatory particip ation, were beyond the mandate of these negotiations.  Under that 
proposal, while all participating and non-participa ting Members would be faced with new substantive 
obligations and costs, their respective rights would differ as there would be no corresponding benefits 
that would accrue to non-participating Members.  For example, under that system all Members would 
have to examine notified geographical indications, engage in compulsory bilateral negotiations if 
there was an objection to protection, protect possibl y tens of thousa nds of successfully registered 
geographical indications, and dedicate more resour ces for interested parties to pursue and defend 
challenges concerning the use of notified terms in their markets.  While it was not clear that any 
benefits would accrue to non-participating Members under the EC system, its burdensome obligations 
and costs were clear.  Moreover, the EC proposal seemed  to suggest that a Member must participate in 
the system in order to receive the benefits of the TRIPS provisions on geographical indications.  If a 
Member participated in the proposed EC system, it could notify geographical  indications and obtain 
protection in other countries, but if it did not particip ate in it, then it would not be able to notify its 
geographical indications a nd would therefore not obtain protection in other countries.  This should not 
be the paradigm for obtaining GI protection in other countries.   
29. She said that, currently, any WTO Member seeking GI protection in another country could do 
so without the existence of a multilateral regist er.  It was the full implementation of existing 
obligations of the TRIPS Agreement that would provide such protection, which could not occur 
through extraterritorial mechanisms.  Members must  also avoid creating a system whereby mandatory 
participation was necessary in order for Members to receive the benefits of the TRIPS Agreement provisions on geographical indications.  This was in c ontrast to the choice that the joint proposal gave 
Members to participate in the system by submitting, if they so wished, a written notification of such 
intention.  This feature provided an appropriate balance between participa ting and non-participating 
Members:  for the former, there would be rights an d obligations and for the latter, there would be 
none.  Participating Members would commit to ensu ring that their domestic procedures included the 
provision to consult the database when making d ecisions regarding geographical indications and 
trademark registration under domestic law.  Non-pa rticipating Members would, however, be free to 
consult this data and use it to su bstantiate their decisions regard ing trademark and GI registration 
under their domestic laws.   
30. Her delegation had some concerns with th e Hong Kong, China proposal.  While it also 
envisaged the voluntary participation of Members, it provided that such voluntary participation would 
be revisited after four years of the establishmen t of the system.  Any changes in the scope of 
participation would be beyond the mandate of the Special Session. 
31. The representative of Chile
 said that, despite the European Communities' statement that its 
proposal also followed the principles outlined by Costa Rica, it actually did not, for the following 
reasons:  participation would not be voluntary;  th ere would also be legal effects for non-participating 
Members;  the balance of rights and obligations under the TRIPS Agreement would be altered, as it 
would affect the enjoyment of Article 24 excep tions;  substantial costs would accrue to both  TN/IP/M/16 
 Page 7 
 
 
 participating and non-participating Members;  the pr inciple of territoriality would be affected as a 
result of mandatory bilateral negotiations;  the freedom Members currently enjoyed to choose the 
appropriate way of implementing their obligations woul d be curtailed;  and the registry would not be 
limited only to wines and spirits, but would include all products.  He agreed with the 
European Communities that the system should ma intain intact the definition of geographical 
indications under Article 22.1 and that it should facilitate, and not increase, their protection.  The 
language used in Article 23.4 of the Agreement, "t o facilitate the protection", had a different meaning 
from "increasing the protection", the language used in Article 24.1 of the Agreement.  Therefore, 
"facilitate" did not mean to "increase" and "multilate ral" meant the adoption of a multilateral solution, 
i.e., a system the genesis of which would be multilateral but which would leave Members free to 
decide whether or not they wished to participate in  such a system.  As pointed out by Costa Rica, one 
example of such a system was the multilateral Code of Good Practice under the TBT Agreement. 
32. The representative of the Philippines  said that his delegation's position on the issue of 
participation had been reflected in paragraph 48 of the minutes of the meeting of the Special Session held on 16 September 2005 (TN/IP/M/14).  As a co-sponsor of the earlier joint proposal in document 
TN/IP/W/5, his delegation also supported the mo st recent proposal in document TN/IP/W/10, 
primarily because it provided an uncomplicated and efficient system with no additional burdens for 
Members.  His delegation was still examining the po ssibility of co-sponsoring document TN/IP/W/10.   
33. Another important issue for his delegation was the territoriality principle.  He expressed 
concern that the EC proposal would also have ef fects for non-participating Members, particularly 
developing country Members.  Under such a system , if a developing country Member was unable to 
exercise the right to pose a reservation, this c ould have significant negative implications for that 
Member in terms of territoriality.  While his delegation welcomed the flexibility the European 
Communities was showing by possibly limiting the num ber of notifications every year or extending 
the time-limit for reservations, it nevertheless had doubts as to whether such flexibilities would be enough to address the concerns that many developing countries had on this particular issue.  He 
therefore urged the European Communities to c onsider, for example, building on the proposals 
relating to a voluntary database in the WTO or perh aps looking for other areas where it might be more 
flexible, bearing in mind the positions that Member s, particularly developing country Members, had 
been taking with regard to the issue of participation. 
34. The representative of Canada
 said that the language of Article 23.4 of the TRIPS Agreement 
clearly showed that the negotiators' intention was to have a non-mandatory registration system.  There 
could be a number of reasons why a Member would c hoose not to participate.   Non-wine and spirit 
producing Members would probably see no benefit in  participating in the system while other 
Members might choose not to participate for cost r easons.  It would be unfair and simply unacceptable 
to impose substantial obligations and costs on a large majority of non-wine and spirit producing 
Members that would not gain anything from, nor be ab le to make practical use of, the system.  Canada 
therefore had serious concerns about the particip ation aspect of the EC proposal, because not only 
participants but also non-participants  would have onerous obligations.   
35. Canada also had concerns with the Hong Kong,  China proposal, which foresaw a review of 
the voluntary nature of participation.   
36. For all these reasons the joint proposal was the only one that truly respected the concept of 
voluntary participation.  In fact, it went even further by suggesting the requirement that there should 
be a written notification of an intention to participat e in this registry and by allowing non-participants 
to consult the registry. 
37. The representative of Hong Kong, China  said that the provision of its proposal providing for a 
review after four years included all aspects of the proposal, not only participation.  If no consensus TN/IP/M/16 
Page 8  
 
 arose from the review, the system would remain the same.  In any case, mandating reviews after a 
system or agreement had been implemented was common practice in the WTO.  
38. The representative of th e European Communities
 said that, contrary to what some delegations 
had stated, the EC proposal fully respected the prin ciple of territoriality as it would leave decisions 
regarding the protection of geographical indications in the hands of national authorities and courts.  
There were some misunderstandings as to the meani ng of "extraterritorial" effect.  An effect was 
extraterritorial when a country took a decision on its own and without consu lting the others, and this 
decision had legal effects in other jurisdictions.  This was different from international or multilateral 
effects, which was the case when a ll countries agreed to take a deci sion and the effects that flowed 
from it would take place in all these countries.  His delegation was referring to the second situation as 
corresponding to the meaning of a "multilateral sy stem".  Thinking otherwise, i.e. that the 
European Communities were proposing a system with ex traterritorial effects, would be equivalent to 
saying that the GATT or other WTO Agreements were al so extraterritorial because they had effects in 
other Members.  By the same token, agreements  managed by WIPO, wher eby there were effects 
flowing from IP protection granted in a given country, could also have been term ed as extraterritorial 
agreements.  Of course, none of these agreements w as extraterritorial;  they were in fact multilateral 
or international ones.  He therefore requested Member s to use this concept of extraterritoriality in a 
more prudent manner. 
39. As to the question of administrative burdens, he said that his delegation had already accepted 
that there would be notifications that would come  into the system, that the notified geographical 
indications would have to be analysed by Members, and that it was natural that the EC, in its proposal, 
was uncertain as to how many notifications the regist er would attract.  Furthermore, the establishment 
of a time-limit for the examination process, and therefore for challenging notified geographical 
indications, would require Members to apply their relevant domestic examination procedures.  This 
process would require the use by a Member of some resources for the determination of whether the notified geographical indications were, for example, generic, in accordance with the interpretation in 
that Member and on the basis of the informati on provided through the multilateral register.  His 
delegation was therefore aware that this proposal would create some administrative work and that probably more applications would reach the system dur ing its initial stage.  It  was therefore ready to 
explore ways to meet those concerns with a view to ensuring that the administrative burdens linked to 
the examination process could be absorbed by all WTO Members.  There would be two possible ways 
to do that:  to limit the number of geographical indi cations to be notified annually into the system, and 
to extend the period for examination.  The aim wa s to establish a well functioning register, not one 
bound to collapse due to a high number of notified geographical indications.  In any event, there would probably not be as many geographical indicati ons as the number of trademarks that entered the 
Madrid system every year, which was in  the magnitude of many thousands.   
40. Furthermore, the proposed EC system would be  able to be implemented easily through the 
existing administrative procedures that Members alr eady had since the notification into the register 
would become a bundle of notifications to the differe nt Members and the subsequent procedure at the 
national level would be the same as  if the geographical indication had been notified directly in those 
Members.  For all these reasons, his delegation be lieved that its proposal would not entail additional 
costs of setting up structures or different systems.  Although procedurally the notification that would be coming through the register would be examined in a Member in a way similar to other domestic 
applications, that did not, however, mean that th eir legal effects would be the same.  For purely 
national GI applications, the result would be eith er registration or refusal of the geographical 
indication.  For notifications coming from the multilat eral register as proposed  by his delegation, the 
geographical indication would, in the absence of a re servation, be included in  the multilateral register 
with certain legal effects, namely that in par ticipating Members there would be a presumption of 
eligibility for protection of  the notified and unoppo sed geographical indication.  For all Members, 
including participating Members, notified and u nopposed geographical indications would not be  TN/IP/M/16 
 Page 9 
 
 
 refused in the future on the grounds they did not m eet the definition of Article 22.1, the provision of 
Article 22.4 on grandfathered use or the provision of  Article 24.6 on genericness.  Such legal effects 
would only apply after a Member had examined the no tification, which meant that it had the final say 
on this matter.  This would therefore be fully cons istent with the principle of territoriality.   
41. The system would also facilitate the operation or  the implementation of the TRIPS obligations 
in all Members and, given that it would create a streamlined way for Members to handle geographical 
indications, it would help in particular Members that had less administrative resources to devote to 
this purpose.  
42. Regarding the question of participation, he said that, in his delegation's view, a voluntary 
register would not meet the mandate of Article  23.4 of the TRIPS Agreement, which had clear 
language.  When this provision refe rred to "geographical indications eligible for protection in those 
Members participating in the system", it meant that th ey would have to participate if they wished their 
indications to enjoy the benefits of the multilateral register.  However, by leaving it to Members to 
decide whether or not to include their geographical  indications in the register, the EC proposal was 
not, as some Members erroneously believed, deny ing the benefits of the TRIPS provisions on 
geographical indications to Members deciding not to participate.  This was not the objective of the EC 
proposal:  those not wishing to notify a geographical indication into the system would be simply renouncing the benefits of the register, but not the benefits they already enjoyed under the 
TRIPS Agreement.     
43. On an issue that had been re peatedly raised by some Members and which related to the 
voluntary or non-voluntary nature of the register, namely the meaning of the word "multilateral", he 
said that Article II:2 of the Marrakesh Agreement Es tablishing the WTO stated that: "[t]he agreements 
and associated legal instruments included in Annex es 1, 2 and 3 (hereinafter referred to "Multilateral 
Trade Agreements") are integral parts of this Agreements, binding on all Members".  That clearly defined "Multilateral Trade Agreements" as those wh ich were binding on "all Members".  Annex 3 of 
the TBT Agreement, i.e. the Code of Good Practi ce, was a quite different instrument from the one 
being negotiated in this Special Session, name ly a multilateral system for the notification and 
registration of geographical indications that woul d facilitate the obtaining of the TRIPS protection 
available for these indications.  The Code of Good Practice was open, by acceptance, to standardizing 
bodies, both governmental and non-governmental, but  what was quite clear was that all WTO 
Members were parties to Annex 3, given the fact that it was an integral part of the TBT Agreement, as 
indicated in its Article 15.5.  All the European  Communities were putting forward was a multilateral 
GI register through a proposed Annex, to which all Members would be parties and whereby they 
would be obliged to facilitate the protection of ge ographical indications.  This would involve legal 
effects in all Members because the system was boun d to be multilateral.  He recalled a presentation 
made in this Special Session by a WIPO expert on the systems of notification and registration of IPRs 
managed by that organization and which were described  by the expert himself as multilateral in nature 
and having the objective of facilitating the releva nt protection.  All these WIPO systems actually 
carried legal effects, some even stronger than those proposed by his delegation. 
44. As to bilateral negotiations under the EC proposal, he said that Article 24.1 of the 
TRIPS Agreement was an efficient way to resolv e issues through negotiation and was an obligation 
accepted by Members in the Uruguay Round.  Members were bound by it, irrespective of its inclusion in the EC proposal. 
45. The representative of Japan
 said that participation in the proposed system should be voluntary 
and a clear distinction between participating and non-participating Members should therefore exist, 
particularly in relation to the burden on Members,  which should not be excessive.  For these reasons 
his delegation believed that the joint proposal was the best one on the table. TN/IP/M/16 
Page 10  
 
 46. The representative of Jordan
 said that, according to the mandate, the system should be 
voluntary and should therefore not entail any ad ministrative and other burdens on developing 
countries nor be in conflict with WTO Members'  commitments under the TRIPS Agreement.  He 
stressed the importance of understanding how the sy stem could be efficient for developing countries, 
keeping in mind the burdens they were already bearing and the fact that the Doha Round was a round 
for developing countries 
47. The representative of Chinese Taipei  said that, at first sight, all the three proposals that had 
been tabled allowed each Member to decide if they  wanted to participate or not, the main difference 
between them lying in the consequences for non-par ticipating Members.  Un der the EC proposal, the 
system would have strong legal effects, even for non- participating Members, a feature that caused his 
delegation the same concerns as those raised by Ca nada, Chile, Costa Rica, Guatemala, Japan, Korea, 
Nicaragua and the United States.  The joint proposal  was therefore the one that met the mandate by 
appropriately addressing the concerns about th e consequences for non-participating Members. 
48. The representative of Switzerland , said that, whatever the system to be agreed upon, it must 
give meaning to the wording of Article 23.4 of th e TRIPS Agreement.  The meaning of "multilateral" 
could only be determined by cont rasting it with "plurilateral".  In the context of the WTO, 
"plurilateral" was understood as referring to a system in which participation was entirely voluntary, as 
was the case, for example, of the Agreement on Trade and Civil Aircraft or the Agreement on 
Government Procurement.  Conver sely, "multilateral systems" were  understood as being instruments 
by which all Members were bound or would be bound.   The words "eligible for protection in those 
Members participating in the system" suggested that it was WTO Members' free choice to benefit 
from the multilateral system by notifying and registering their geographical indications and, in that 
sense, they would be "participating in the system".   The multilateral system to be established should 
not create new rights and obligations.  His delegati on understood the EC proposal to provide for a 
presumption of validity to registered geographical  indications, namely those notified and which 
remained unopposed within a certain time-limit.  By doing this, the EC proposal would "facilitate the 
protection for geographical indications".  In this c onnection, he pointed out that, when his delegation 
referred to the "protection of geographical indicatio ns", it meant geographical indications that were 
and would be enjoying the protection available un der the current TRIPS Agreement, i.e. with or 
without registration.   
49. If Members wanted a meaningful system with  added value as compared to the current 
situation, i.e. a system that would actually facilita te the protection of geographical indications at the 
WTO level, it seemed obvious to his delegation that  the registration - which was a process with the 
effect of producing a rebuttable presumption - of a geographical indication into the system had to 
have legal effects in all WTO Members.  His dele gation did not see any such added value in a system 
such as the one set out in the joint proposal a nd wondered how that system would facilitate the 
protection of geographical indications;  nor did it see what incentives it would bring about for any 
Member to notify its geographical indications to a system without multilateral character or legal 
effect.  
50. The representative of New Zealand  said that the joint proposal was truly voluntary in the 
sense that it was entirely up to Members to choose whet her or not to participate in the system.  There 
were three reasons why his delegati on supported a voluntary approach:  first, it was consistent with 
the mandate;  second, it was the approach that the ma jority of Members preferred;  and third, it was 
the best means of ensuring that the balance of ri ghts and obligations in the TRIPS Agreement would 
not be upset.   
51. As to the Code of Good Practice under the TBT Agreement as a possible good precedent for 
the type of approach taken by the joint proposal, he  said that this instrument was multilateral in the 
sense that it had been negotiated and concluded by all Members, just as the joint proposal for the  TN/IP/M/16 
 Page 11 
 
 
 register would be, but its legal effects only applie d to those Members who had specifically chosen to 
accept the terms spelt out in it.  Therefore, if Me mbers did not accept the terms spelt out in the Code, 
then they would not accept the legal effects, and that  was the simple and effective approach taken by 
the joint proposal. 
52. The representative of India  said that, although India was not a demandeur  for a register of 
geographical indications for wines and spirits, or in fact for any other products, it respected the 
Uruguay Round's built-in agenda as well as paragra ph 18 of the Doha Declar ation and subsequent 
decisions, including the latest reaffirmation of the mandate in the Hong Kong Ministerial Declaration.  
For his delegation, a shared understanding of the me aning of the two concepts in Article 23.4 of the 
TRIPS Agreement, namely "multilateral system" a nd "those Members participating in the system", 
was a prerequisite for the Special Session to determ ine what participation meant, in particular for 
developing countries.   The next question for these countries was what the costs and burdens arising 
from their participation in the system would be.  As at the present stage Members still did not have a 
common understanding of the meaning of those two c oncepts, India, as a developing country, was not 
in a position to make any assessment of costs and bur dens arising from its participation in any future 
system.  From what had been stated by the Eur opean Communities and, more explicitly, Switzerland, 
in this meeting, participation in a multilatera l system would necessarily add obligations and 
consequent burdens.  If a WTO Member, for ex ample, had a policy of not administering an 
anti-dumping regime, it did not mean that its exporters would not face WTO legal anti-dumping 
duties in other WTO Members.  In the same vein, if a WTO Member had no trademarks to protect, it would not escape its obligation to set up a legal and administrative system to protect trademarks of 
nationals of other WTO Members.  Did either or both of these examples involve participation?  From 
the language of Article II:2 of the WTO Agreement, cited by Switzerla nd, he believed it would, which 
meant that it would be necessary to have details regard ing the consequent costs.  On the other hand, if 
it did not, then the word "multilateral" in Article  23.4 of the TRIPS Agreement could perhaps be 
considered useless.   
53. He said he was confused by the Joint Proposal Group's statements that the system should be 
voluntary, should not lead to the modification of ri ghts and obligations or of the existing scope or 
level of protection for wines and spirits under th e TRIPS Agreement, and that such principles 
stemmed from the language of Article 23.4 of the TR IPS Agreement.  In his delegation's view, the 
phrase "in order to facilitate the pr otection" contained an implicit presumption of a lack of adequate 
facilitation of GI protection.  It therefore called for the establishment of a system of GI registration, an 
exercise which would necessarily modify some rights and obligations.  It would then be up to 
Members to determine to what extent these rights a nd obligations would need to be modified and at 
what costs, particularly for developing countries.  The challenge would therefore be to find where to 
strike the balance so as to fulfil the mandate of th e DDA and, at the same time, be fair to all WTO 
Members.   
54. India was still trying to determine what the r esults of these negotiations should be.  It had a 
domestic GI system with some costs and burdens.  However, this was with the purpose of protecting 
its own geographical indications.  Therefore, Indi a's decision-makers had the full responsibility and 
obligation to approve the budget for setting up such a system.  The first applications under India's GI 
system had been received in October 2003.  Ther e had been 27 applicatio ns between this date 
and 2006.  The time for processing them currently av eraged from ten months to one year.  Based on 
this example in India, he asked whether Members were looking at a system which would oblige them 
to process some nine applications every year or at  a system which would oblige them to process more 
than this number.  This kind of question would enable Members to take a decision as to how much the 
additional administrative costs and burdens would be for their systems.  This was precisely why he had raised the procedural point that Members woul d need to look at the developmental aspects when 
they went through each of the priority concerns.  Any decision on each of them would depend on the 
costs and administrative burdens it would involve.  For Members, this was not a simple question of TN/IP/M/16 
Page 12  
 
 setting fees but also a matter of policy decision on what these burdens would be before taking any 
decision in these negotiations accordingly. 
55. The representative of Argentina
 said that the joint proposal's provisions on participation 
respected the mandate in Article 24.3 of the TRIPS Agreement by proposing a voluntary system, a viewed shared by many Members, including those which did not have any geographical indications.  
In addition, the joint proposal's requirement of a notification of the intention to participate would 
result in greater legal certainty for the entire sy stem, by avoiding any misunderstanding as to whether 
or not a Member would have any obligation under the system.  None of the Ministerial Declarations 
adopted after the entry into force of Article 23.4 of the TRIPS Agreement had included any change in 
the mandate of that provision but rather had reaffirmed it. 
56. As to the principle of territoriality, she disagreed with the point made by the 
European Communities that, if their proposal was "e xtraterritorial", as claimed by some Members, 
then the WTO and WIPO agreements should also be in  this same category.  She pointed out that the 
WIPO agreements carried international obligations  only for those countries which had ratified them, 
contrary to the EC proposal.  One example of the extr aterritorial effect in the EC proposal was the fact 
that a non-participating Members that had not lodg ed a reservation against a notified geographical 
indication and had not entered in bilateral negotiations would nevertheless bear the effects of this 
notification in its territory.  Such a Member, which had not lodged a reservation for capacity, 
budgetary or administrative reasons, would have to protect the geographical indication, even though 
according to its own legislation such indication woul d not be eligible for protection, for example on 
the ground that it did not meet the definition of Artic le 22.1.  It would no longer be able to invoke 
Articles 22.1, 24.4 or 24.6.  In other words, the proposal would deny the right to invoke 
TRIPS provisions.  That was an example of the extrate rritorial effect of the legislation of the notifying 
country in the territory of the non-participating one.  Regarding the amendments made by the European Communities to their proposal in orde r to minimize the costs, such as by limiting the 
number of notifications or by extending the time-li mit for reservations, she said that they might not 
allay all the concerns because there were other costs involved, for example those related to the 
examination of a notified geographical indication.  Even if the costs and burdens were minimized as 
proposed by the European Commun ities, they would still be too heavy for developing country 
Members to bear.  In contrast, the joint proposal would not create any additional costs and burdens.   
57. The representative of Mexico
 said that the term "multilateral" should be interpreted according 
to its own literal meaning and in comparison with th e terms "regional" and " bilateral".  Article 23.4 
contained the qualification of "Members participating in the system".  Rather  than discussing whether 
or not the joint proposal fulfilled the mandate, Members should focus on the substance of the EC 
proposal, particularly the fact that  it did not address the concerns voiced by many Members.  For his 
delegation, the joint proposal met the concerns rais ed and consequently facilitated the protection of 
geographical indications. 
58. The representative of Malaysia  said that it was necessary to set up a simple, uncomplicated 
and efficient system, such as the one offered by the joint proposal.  The fact that the joint proposal 
system would be strictly voluntary and would not  entail any legal effects in non-participating 
Members made it the only one that gave comfort to  Malaysia, a developing country which was not a 
wine producer. 
59. The representative of Colombia  said that his country had not yet decided which proposal it 
would endorse.  He recalled, however, that his de legation had in the past made the point that 
participation should be voluntary and that there s hould not be any legal e ffects on non-participating 
countries.  Both Hong Kong, China's proposal a nd the joint proposal were clear regarding the 
voluntary character of participation.  The joint pro posal was, however, more transparent, as it required 
any Member intending to participate in the sy stem to make a notification to this effect.  TN/IP/M/16 
 Page 13 
 
 
 60. The representative of Ecuador  said that, like previous speak ers, his delegation could not 
commit itself to a system that would create more costs and legal obligations for Members and was unclear as to the effects touching upon the principle of territoriality.   
61. The representative of Australia
 said that it had become clear from the interventions made 
during this meeting that one Member was isolated  and that neither the co-sponsors of the joint 
proposal nor all other delegations who supported voluntary participati on were those who were holding 
up the negotiations.  It was therefore time for that is olated Member to engage with the joint proposal 
and listen to the overwhelming oppos ition to the idea of having mandatory participation.  There was 
one other Member who had provide d some support to the aforementioned isolated Member, but she 
sensed from that other Member a willingness to at least engage with the joint proposal group. 
62. She rejected the European Communities' argument that there was a tension in Article 23.4 of 
the TRIPS Agreement between the words "multilatera l system" and "those Members participating in 
the system" and that the EC proposal met the mandate by dealing with such tension and making provisions for both participating and non-participating Members.  The only distinction made in the EC 
proposal between these two categories of countries was that, whereas participating Members could 
benefit from the system by notifying their own term s, non-participating Members could not benefit 
from it but nevertheless had to protect the terms on the register.  In other words, there was a choice to 
not participate in the benefits but no choice not to participate in the obligations.  To her delegation, 
this was a strange way of structuring the system .  The main reason why non-participating Members 
were forced to participate and protect the terms was that, if they did not participate by lodging reservations and entering into compulsory negotiati ons, they could not refuse domestic protection to 
the notified geographical indication on the grounds that  the product was generic in their territory or 
that the term was not a geographical indication.  Therefore, the EC proposal not only forced Members 
to participate, but undermined their existing rights to make use of Article 24 exceptions. 
63. She said that the definition of extraterritori ality provided by the European Communities was 
not the one usually given, according to which extrate rritoriality meant to give to domestic actions the 
capability of producing legal effects in other countr ies.  This had nothing to do with multilateral 
treaties that Members all negotiated and agreed in th e WTO.  By subjecting determinations of whether 
or not a term was eligible for protection in a Me mber to bilateral negotiations, the EC proposal was 
disregarding the principle of territoriality and the well-established norm, expressly recognized by the 
TRIPS Agreement, that IPRs were private rights to be  determined and enforced at the national level.  
Additionally, the EC proposal would give geogra phical indications notified to the register a 
presumption of protection in all Members, whether participating or not, a feature which went well 
beyond any other protection provided to other IP right holders under the TRIPS Agreement.  Why 
should some IP holders benefit from such presumpti ons but not others?  Th e more appropriate place 
for the instrument proposed by the European Communities would perhaps be WIPO, where other 
international registers, such as the Madrid system for international trademarks or the 
Lisbon Agreement on appellations of origin, had b een negotiated.  The European Communities had 
argued that its proposal indeed respected the prin ciple of territoriality because Members would be 
able to place reservations against notified terms.  However, whether or not Members would have this 
reservation choice was really not the point, for su ch a reservation process would in itself erode the 
principle of territoriality by forcing Members to be proactive in denying IP rights to GI right holders 
rather than, as mandated by the TRIPS Agreement, providing the framework of minimum standards 
within which these rights could be acquire d in relation to their territories.   
64. Responding to a comment made by India that th e establishment of any system implied some 
modifications of existing rights and obligations, sh e said that there was a slight misunderstanding.  
The precise language that Joint Proposal Group referred to in this regard related to the impact of 
proposals on the existing balance of rights and obligations and not to the rights and obligations per se .  
This was so because one important concern the Join t Proposal Group had with the presumptions under TN/IP/M/16 
Page 14  
 
 the proposed EC system related to the fact that the protection granted in one country would give rise 
to presumptions of protection in other countries.  While noting that Switzerland had made the point 
that such presumptions were necessary to facilitate pr otection, she said that that would be done at the 
expense of Australian and other producers, which was unacceptable and outsi de the mandate.  What 
the EC proposal was doing was not to facilitate but to increase protection.  These were the reasons 
why Australia and other Members had problems with  the issue of presumptions under both the EC 
and Hong Kong, China proposals. 
65. The representative of the European Communities
, recalling that he was speaking on behalf 
of 25 WTO Members, said that the question of number of Members supporting a certain position was 
not necessarily relevant in this organization, wher e Members tended to work and decide on a different 
basis.  In the WTO, rather than looking at th e number of supporters of a proposal, Members would 
look into its substance and try to understand it with  the aim of finding a compromise by looking for 
common ground.  It was with this in mind that hi s delegation was listening to all the comments made 
in these negotiations and trying to adapt its proposal accordingly.  Example of this flexibility was the 
inclusion in the EC proposal of provisions to c over the issues of costs and trademarks.  The 
European Communities had also expressly mentioned th at it was prepared to look at other flexibilities, 
such as limiting the number of geographical indi cations to be notified, extending the reservation 
period and allowing notifications to be made direc tly by producers.  In doing so, his delegation was 
simply applying what it believed was the right ap proach for these negotiations:  trying to find 
common ground and then trying to reach compromises.  In contrast, the Joint Proposal Group had not flagged a single change that would aim at bridgi ng the gap with other proposals on the table.  This 
was not very encouraging. 
66. The representative of Chile
 made reference to a WIPO doc ument (SCT/9/5 of October 2002), 
which said that one of the ways of affecting the pr inciple of territoriality was through the signing of 
international agreements.  Both the EC proposal and the joint proposal could be characterized as 
international agreements, except that the latte r did not entail the strong legal effects the 
European Communities was proposing.  With regard to the point made by the European Communities 
that WIPO's Lisbon and Madrid systems envisaged lega l effects which were actually stronger than the 
ones in their proposal, he said that the EC propos al entailed effects that went far beyond those 
provided by any existing WIPO systems.  None of them had envisaged, for example, a reservation mechanism like the one suggested  by the European Communities.  Under the WIPO systems, each 
Member could decide what it would or would not prot ect and was not under an obligation to take part 
in bilateral negotiations. 
Notification 
67. The representative of the United States
 said that the EC proposal concerning mandatory 
elements in its notification section raised significant concerns and should not be  looked at in isolation 
from the legal effects of the system as these el ements negatively impacted upon the principle of 
territoriality and could also lead to discrimin atory treatment of certain notified geographical 
indications.   
68. Concerning translations, the EC proposal had asserted that it was the country of origin that 
must notify the translation of a notified GI into the language of the Member where protection was sought.  This raised concer ns regarding the territoriality of IPRs , as decisions concerning protection of 
translations must be made by the national system an d be consistent with the consumer's perception of 
the country where protection was sought.  In the EC proposal, the scope of GI rights, including rights in translation, appeared to be determined sole ly by the notifying country, which was a radically 
different model and would take away the ability of  the country in which protection was sought to 
define the right under its national system.    TN/IP/M/16 
 Page 15 
 
 
 69. The EC and Hong Kong, China proposals require d a reference to the legal instrument by 
which the geographical indication was protected  in the notifying Member or, in the case of 
Hong Kong, China, a statement under seal to that  effect from the government of the notifying 
Member.  Fulfilling any of these requirements woul d be difficult, if not impossible, for those 
Members that protected geographical indications through unfair competition, where rights were 
acquired through use.  In contrast, translations under the joint proposal would not become part of the 
notifications and the Member in which protection was being sought would be ab le to define for itself 
the right to a translated term under its national sy stem, which was consistent with existing rights and 
obligations under the TRIPS Agreement.  Furtherm ore, the notification elements requested under the 
joint proposal would reflect information that coul d be provided under the various protection systems, 
in particular common law, unfair competition, trademark systems, including certification and 
collective marks, and separate GI registration syst ems.  The notification would contain:  (i) the 
identity of the notifying Member;  (ii) the geographical indication, as it appeared on wine or spirit goods, in the notifying Member;  (iii) the identifica tion of the territory, region or locality of the 
notifying Member from which the wine or spirit was identified as originating;  (iv) a transliteration, 
for information purposes;  and (v)  whether the indica tion was for a wine or spirit.  This was the kind 
of information that all participating Members, rega rdless of their existing systems, would be able to 
provide and therefore it would ensure equal participation in the system. 
70. The representative of Hong Kong, China
, responding to the comment made by the 
United States on the requirement for a reference to  the legal instrument by which the geographical 
indication was protected in the notifying Member, said that for Members like Hong Kong, China, 
where geographical indications were protected  as certification trademarks, fulfilling such a 
requirement would not be a problem because there woul d be a list containing these terms.  However, 
he acknowledged the point raised by the United St ates that in other instances this would not be 
possible, for example when there was no list of names because the rights had been acquired through 
use.  He assured the Special Session that his delega tion would look further into  this particular point. 
71. The representative of Chile  said that notification was one of the issues where there were many 
points of convergence between the various propo sals on the table.  He noted that, under both the 
Hong Kong, China and EC proposals, particip ating Members would notify all geographical 
indications protected in their territories without making the distinction made in the joint proposal between protected terms originating from the territo ry of the notifying Member and protected terms 
originating from the territories of third countries. 
72. The representative of Hong Kong, China
 said, in response to Chile, that it would indeed be 
possible to interpret the proposed provision as allo wing a notifying Member to notify a geographical 
indication protected in its territory but originating from a different country.  However, this was not his 
delegation's intention.  The Hong Kong, China proposal , as set out in page 4 of the side-by-side paper 
(TN/IP/W/12), referred to "domestic geographical indications for wines and spirits which were 
protected under their domestic legislation, judicial decisions or administrative measures".  That meant 
that the focus of the proposal was on "domes tic" geographical indicati ons originating from the 
notifying Member.  Thus, country A would not be ab le to notify a geographical indication originating 
from country B.  
73. The representative of th e European Communities  said that Chile's last intervention was the 
correct approach, i.e. to seek for the points of c onvergence and use them as  building blocks for a 
common approach to the multilateral system of notification and registration of geographical 
indications.  According to paragraph 2.1(a) of the EC proposal, the first essential element was that notified GIs should meet the definition in Article  22.1 of the TRIPS Agreement.  Furthermore, 
paragraph 2.1(b) of the EC proposal reflected Artic le 24.9 of the TRIPS Agreement, which stated that 
a WTO Member had no obligation to protect a geogr aphical indication from another WTO Member if 
such an indication was not protected in its country of origin.  He clarified that the intention of the EC TN/IP/M/16 
Page 16  
 
 proposal was that Members would only notify geog raphical indications corresponding to their own 
territory and said that his delegation was prepared to make this requirement more explicit in its 
proposal.  In addition, he said that notifications ha d to provide the necessary relevant information to 
confirm that the notified geographical indications co mplied with the definition in Article 22.1 of the 
TRIPS Agreement, and could include, inter alia , domestic rules and decisions on which protection 
was granted.  On this particular issue, there were  certain differences in the joint proposal which could 
perhaps be usefully adapted to what his delegati on was proposing.  According to the joint proposal, 
participation in the system was not defined by a no tification.  Members wishing to participate would 
have to notify their intention to participate in the system but might actually choose to notify, or not, their geographical indications.  In contrast, the determining element of the EC proposal was that 
participation was defined by the fact that a Memb er notified its geographical indications into the 
system.  Originally, the joint proposal had fo llowed the same approach to the definition of 
participation as the EC proposal, but their current  version on the table no longer included such an 
approach.   
74. As to the content of the notification in the jo int proposal, he said that the requirements to 
include the notifying Member, the name of the geogra phical indication, a reference to the GI territory 
or region, and a transliteration of the GI into Latin characters, instead of a re ference to translations, 
might not be sufficient.  The joint proposal made a distinction between mandatory and optional elements for notifications.   In the event that only mandatory elements had been notified, one 
important element would still be missing, namely the basis for protection in the country of origin.  
This requirement was important because the protection in the country of origin was precisely the basis 
for seeking protection at the international level.  Th e same could be said about the date of protection, 
a relevant piece of information, which was included in the joint proposal only as an optional rather 
than a mandatory element.   
75. As to the question of translations, he said th at the EC proposal contained in TN/IP/W/11 was 
based on previous papers and the approach taken w as to use, to the maximum extent possible, the 
elements of convergence that had been identified at the time of presenting that proposal.  One of those 
elements was reflected in the former Chair's pa per, JOB(03)/75, which contained a draft legal 
instrument for the establishment of the register w ith different options based on Members' different 
proposals as well as areas for further discussion.  JOB(03)/75 also included a single set of draft provisions that, while not necessarily meaning accept ance, indicated the existence of a substantial 
degree of convergence in some areas, such as transl ations.  Therefore, he asked if Members could 
explain in more detail the problems they had with the part of JOB(03)/75 that had been considered 
close to being acceptable in the past .  The issue of translation was a relevant element to be retained 
because it corresponded to the idea that , in accordance with the principle of territoriality, it would be 
up to national authorities to make decisions or determ inations, also with regard to translations.  The 
EC proposal, particularly its paragraph 2.2(b), shoul d not be read or interpreted as binding on what 
would be the proper translation of a notified term th at Members would offer.  He recalled that Article 
23.1 of the TRIPS Agreement expressly prohibited the u se, in translation, of geographical indications 
identifying wines or spirits not originating in the place indicated by the geographical indications.  The EC proposal that the notifying country itself provide translations of the geographical indications could be useful for national offices implementing the TR IPS obligations under Article 23 of the Agreement. 
76. The representative of Colombia
 said that Members should have the right to notify the 
geographical indications that originated, and were pr otected, in their territories.  As to the mandatory 
information contained in the notification, he shar ed the position taken by New Zealand at the last 
meeting of October 2005 that the need for a minima l or detailed notificati on procedure would depend 
on the extent of the legal effects of the system to be  established.  As to the format of the notification, 
it was vital to make clear that, once a format had been adopted, it should not be altered.  In that 
regard, the Hong Kong, China proposal for a revi ew would give rise to uncertainty.  Finally,  TN/IP/M/16 
 Page 17 
 
 
 establishing a maximum number of notifications to be  submitted each year w as a good idea, and could 
prevent the system from collapsing due to an overwhelmingly high number of notifications. 
77. The representative of Turkey  said that the proponents had a strong case that the register 
should be "multilateral", as Article 23.4 of the TRI PS Agreement specifically mentioned that term.  
As a comparison, the Agreement on Government Procurement was not called "multilateral".   
Registration 
 
78. The representative of Argentina  said that, in the joint proposal, the registration phase was 
quite simple:  the Secretariat would simply regist er all submitted notificati ons.  Her delegation could 
not agree to the procedures proposed by the Eu ropean Communities, such as those related to 
reservations, which would involve all WTO Members and exclude from national jurisdictions certain 
exceptions currently available under the TRIPS Agreement. 
79. The representative of the European Communities  noted that the seemingly limited interest for 
discussing registration was a signal that the two real key issues were legal effects and participation.  
As India had said, in order to assess other implicati ons of the proposals more precisely, Members first 
had to agree on these two main issues. 
80. He said that, as correctly pointed out by Argen tina, the EC proposal had a more substantive 
content with regard to registration than the joint proposal.  For example, in the EC proposal the initial 
step for registration was for the administering body to transmit and publish on the Internet the notified 
geographical indication.  Once that notificati on had been circulated and published, a period 
of 18 months would start, in which Members might  lodge their reservations.  Although this period of 
time was the longest that could be found in multilate ral IP registration systems, his delegation would 
be prepared to look into the i ssue if it still posed a problem to other Members.  The reservation 
presented by Members should, in accordance with th e EC proposal, be duly substantiated and be 
based on one of the grounds mentioned in paragra ph 3.2 of the proposal:  (i) that the notified 
geographical indication did not meet the definition in  Article 22.1 of the TRIPS Agreement;  (ii) that 
the geographical indication in question did not meet th e requirement in Article 22.4 of the Agreement;  
and (iii) that the geographical indication was gene ric in the territory of the examining Member.  
Therefore, it would be up to the examining Member to conduct the relevant analysis, which was fully 
consistent with the principle of territoriality.  
81. He said that such a reservation procedure made sense for many reasons.  First, given the fact 
that the system to be established should have legal effects and presumptions in all Members in order 
to fulfil the mandate, it also made sense to open th e challenge procedures to all Members and give 
them the opportunity to examine the notifications made within the 18-month period.  This would 
allow Members to be able to prevent certain legal effects from unfolding in their territories by raising 
a reservation based, for example, on the grounds th at the notified term was not a geographical 
indication as defined in Article 22.1 of the TRIPS Ag reement.  This would be in accordance with the 
principle of territoriality and would also ensure that the register contained reliable and useful 
information.  In addition to these three grounds  for reservation described above, his delegation 
presented, in its June 2005 communication (TN/IP/W /11), a new provision, namely paragraph 3.3, 
which gave a notifying Member the possibility of requesting other Members to provide information 
on trademarks consisting of or containing the geographical indications.  In that case the WTO 
Member which had received the request would need to notify the existence of such trademarks.   
82. Another additional important element of the EC proposal was how to resolve differences 
resulting from the lodging of reservations.  The solution proposed by the European Communities, 
namely bilateral negotiations, was based on Article 24.1 of the TRIPS Agreement, which was already TN/IP/M/16 
Page 18  
 
 an obligation accepted by Members.  In addition, ne gotiations would be the most efficient way and 
more familiar approach within the WTO system to resolve differences.  
83. At the expiry of the 18-month period, the administering body would register the notified 
geographical indication and include any annotations re lated to reservations, if any.  Therefore, the 
contents of the registration would not only include the various elements of the notification but also 
those annotations.  If the reservation had been accep ted, the relevant annotation meant that there 
would not be legal effects for the challenging Memb er.  That was another example of the consistency 
of the EC proposal with the principle of territoriality.   
84. He said that, as compared with the EC proposal , the joint proposal's registration phase was 
relatively simple.  In fact, the registration and notification phases were almost a single phase because 
the registration consisted basically of the administering body simply registering the notified 
geographical indications on a database and recordin g the related information.  The automaticity of 
such a registration system, i.e. all geographical indi cations notified would be automatically registered, 
was troublesome, for it did not foresee any GI scree ning, nor did it provide any useful information, 
such as the legal basis on which the notified geographical indication was protected in its country of 
origin, or whether the notified term actually met th e GI definition.  Since all names notified into the 
system would be registered, the same effects would, therefore, flow from the names, irrespective of whether or not they were actually geographical indica tions, or even irrespective of whether or not they 
were protected in their countries of origin.  Th e same comment applied to the fact that the 
joint proposal did not require information as to the dates on which the geographical indication started to be protected or the protection ceased to exist.  As a consequence, under th e joint proposal, national 
IP offices would have the obligation, in the case of  participating Members, to look at the database, 
irrespective of the type of geographical indica tion, including where the term was not really a 
geographical indication.  As a consequence of the automaticity of registrations and of the absence of 
sufficient information in the notifications, the datab ase would be loaded with unreliable information, 
which would not be an adequate contribution to the legal certainty that  formed the basis for 
facilitating protection.  
85. In conclusion, he said that, because it was importa nt to ensure that only reliable information 
would be registered on the GI register, it made se nse to have substantive notification and registration 
procedures, including with the po ssibility of lodging reservations. 
86. The representative of Australia
 said that her delegation was among those keen to include 
registration as one of the priority areas for discussi on at the Special Session.  The reason for this was 
not to avoid discussing the consequences or legal effects of the registration, which all Members 
agreed were critical to this debate, but rather to  ensure that Members would have the opportunity to 
discuss the reservation process in the EC proposal, which came under the heading of "registration" and was fundamental to understanding the consequences of that proposal in relation to:  firstly, the 
burdens it would place on Members;   secondly, th e limitations it would place on Members' existing 
rights under the TRIPS Agreement, including in relation to the Article 24 exceptions;  and thirdly, its 
implications for intellectual property law, in particular the principle of territoriality.   
87. With regard to the burdens for Members, she said that paragraph 3.2 of the EC proposal 
required Members to lodge reserva tions and enter into compulsory negotiations on behalf of every 
private interest in its territory that might be a ffected by the registration of a foreign geographical 
indication.  If a Member failed to engage in this  costly and burdensome reservation process, such a 
Member would not be able to decline protection to  the term on the register on certain grounds, e.g. 
that the term was not a geographical indication or it was a generic term in that Member's territory.  In other words, that Member would be forced to pr otect the term on the register.  This would be 
burdensome for Members, whether developing or developed, and was unwarranted.     TN/IP/M/16 
 Page 19 
 
 
 88. As to the limitation for existing exceptions, she said that the EC proposal limited the existing 
rights of Members in relation to Articles 22 and 24. 6 of the TRIPS Agreement.  Currently, Members 
were required to protect geographical indications that  met the Article 22 definition in their territory.  
Article 23 of the Agreement provided the general ob ligation of ensuring a higher level of protection 
for geographical indications for wines and spirits, wh ile Article 24 provided exce ptions to this general 
rule.  One of these exceptions, which was quite d ear to her delegation, was Article 24.6 of the 
Agreement:  it provided that Members were not re quired to protect the geographical indication of 
another Member when the term was a generic in their territories.  Howeve r, under the EC proposal, 
Members' ability to use this exception was limited,  because they would have to lodge reservations in 
order to avail themselves of the right to decline prot ection on the grounds that the term was generic.  
They would have to duly substantiate the groun ds for such reservations and then enter into 
compulsory bilateral negotiations with the notifying pa rty, if so requested, with the aim of resolving 
any disagreement.  More importa ntly, these negotiations would be stacked in favour of increased 
protection due to the link made to Article 24.1 of the TRIPS Agreement.  In this regard, she recalled 
that her delegation had not yet received a response from the European Communities to its concern that 
the EC proposal would diminish access to the Ar ticle 24 exceptions.  In fact, the only response 
received so far was that the obligation to negotiate was not new.  That was not a satisfactory response 
as Members' ability to invoke the exceptions under Article 24 was not conditi onal on the negotiations 
referred to in Article 24.1, on a Member having to justify its decision to any other Member, or on any 
time-limit.  Although the EC delegate had made re ference to an 18-month period, she said that the 
point was not how long the time was but rather whethe r there should be any time period at all.  Such a 
limitation to exceptions would change the existi ng balance of rights and obligations of Members 
under the TRIPS Agreement, increasing the rights of some and decreasing the rights of others. Her delegation was therefore concerned that such a system would de facto  give rise to nearly universal 
protection of all geographical indica tions notified to the register.  This might be the objective of the 
European Communities in these negotiations and, if this  was the case, then it needed to be made clear 
to the entire membership, because it was inconsistent with the purpose of the system to facilitate the 
existing level of protection of geographical  indications for wines and spirits.   
89. As to the point made by the European Commun ities that the challenge procedure made sense 
and was consistent with the principle of territoria lity, she said that, whether or not Members had the 
choice to lodge reservations against a geographical indication was not the point.  Reservations would 
erode the principle of territoriality by forcing Member s to be proactive in denying IP rights to GI right 
holders rather than providing the framework of minimum standards within which IPRs could be 
acquired in relation to their territories.  This w as what the TRIPS Agreement was, namely a minimum 
standards agreement.  Additionally, whether ot her intellectual property treaties in WIPO had a 
different approach was not relevant to these discussi ons, which were held in the WTO context.  In any 
case, while Members could choose to sign up to WIPO treaties, under the EC proposal Members 
would not have this choice. 
90. The representative of the Canada
 said that, contrary to the European Communities, the topic 
of registration was of great interest to her delega tion.  Article 23.4 required the implementation of a 
two-phase system, comprised of a notification phase and a registration phase.  However, the EC proposal provided for three add itional phases, examination, reserva tion and bilateral negotiations, 
which would substantially change the existing TR IPS Agreement obligations.  In contrast, the 
voluntary joint proposal system did not include an y of these additional phases and it did so to keep 
with the mandate.  Under the joint proposal, bo th examination and opposition procedures would 
remain at the national level and consequently th e balance of rights and obligations, as carefully 
negotiated in the TRIPS Agreement, would not be disturbed.  The first phase would consist, for a 
Member, of notifying to the administrating body a wine or spirit geographical indication protected 
within its own territory.  The second phase was the registration, which was when the administering 
body entered the notified geographical indication on a searchable database.  The list of registered 
geographical indications would then be accessible by all Members on the WTO website. TN/IP/M/16 
Page 20  
 
 91. With regard to the explanation given by the EC that, under its proposal, if a Member did not 
notify a geographical indication, it would not be consid ered to be a participating Member and yet have 
obligations, her delegation failed to understand how a non-particip ating Member would receive no 
benefit but would incur all additi onal obligations.  In contrast, the joint proposal would be more 
equitable:  only those making a notification would be  obliged to consult the registry.  While admitting 
that, under the joint proposal, parties might indicate their intention to participate in the system but 
might not notify any geographical indications, she di d not see any problem with such a hypothesis.  
She concluded by saying that the joint proposal sy stem was transparent, flexible, non-burdensome and 
was receiving support from the majority of the Members. 
92. The representative of the Philippines
 gave support to the comments made by Australia on the 
burdens that the EC proposal would create, as well as on its implications for the principle of 
territoriality.  He took note of the clarificati ons given by the European Communities regarding 
territoriality and their assurances that Members woul d continue to have the prerogative and right to 
make their own assessment regarding the protection of  a geographical indication.  While conceding 
that there was no direct impairment of the principl e of territoriality in the EC proposal, his delegation 
was nevertheless concerned that the proposal, as it st ood, was putting on all Members, in particular 
developing countries, the burden of preserving the principle of territoriality to the extent that they themselves would have to make sure of making the reservation within the 18-month period.  The offer 
made by the EC to give more flexibility to the pr oposal by extending this period or by limiting the 
number of annual notifications would not be enough to address such concerns.  
93. He added that the system proposed by the EC  would be burdensome, in particular for 
developing countries, in various r espects.  The first related to th e time-limit of 18 months.  As 
indicated earlier, he did not see how the flexibility o ffered by the EC would alleviate the burden.   The 
second burden related to the EC propo sal's requirement for Members to constantly monitor trademark 
applications vis-à-vis  notified geographical indica tions and make the corres ponding notifications, if so 
requested by the Member that had notified the geogra phical indication to that administering body.   
All this would put great pressure on Members, in particular developing countries, to come up with the 
appropriate pool of examiners to make sure that th ey would be able to lodge reservations within the 
18-month period or to comply with one of the legal effects of registration if there had been no reservations lodged within that period.  Therefore,  what the Philippines and many other developing 
countries were looking for in these particular negotiations was a simple and yet efficient system. 
94. The representative of Argentina
 said that understanding the registration procedures proposed 
by the EC was important to the discussion on the two key issues of participation and legal effects, for 
it was in this aspect that Members would feel most of the legal, administrative and cost-related impacts of that proposal.  She was still not convinced by the explanations given by the European Communities to justify its  proposed registration procedures.   They might be based on an 
erroneous interpretation of Section 3 of Part II of the TRIPS Agreement.  The Agreement required 
Members to implement this Section so as to make av ailable to the parties the means to avoid certain 
uses, but it did not mandate any automatic protecti on of geographical indications in Members.  As 
with any IP right holder, GI ri ght holders had to go to each co untry and assert their rights, which 
would be granted according to the national legislation of that country.  Recalling that the negotiations 
of the register could not be carried out in a vacuum but only within the framework of the existing rights and obligations under the TRIPS Agreemen t, she expressed the concern that through a 
procedural element, the EC proposal was aiming at changing the existing balance of rights and 
obligations.  
95. She agreed with Canada that the EC pr oposal was adding new phases to the mandated 
procedure of notification and registration.  These new phases, examination, reservations and 
mandatory bilateral negotiations, were fundamentally detrimental to developing countries.  She 
disagreed with the argument made by the Euro pean Communities that, in the WTO, bilateral  TN/IP/M/16 
 Page 21 
 
 
 negotiations were a customary method to resolve dis putes.  In the WTO, differences were to be dealt 
with through the dispute settlement system, which had been created precisely to prevent unilateral 
measures or political pressure.  The EC proposal woul d replace this neutral way to resolve disputes 
with a politically-oriented dispute mechanism, whic h could not, in any event, be justified by 
Article 24.1 of the TRIPS Agreement.  The approach of bilateral negotiations would be detrimental to 
all Members, in particular to developing on es, which had less resources and bargaining power 
vis-à-vis  the European Communities or any other developed country Member. 
96. The representative of the United States  said that her delegation fully supported the statements 
made by the delegations of Argentina, Australia, Canada and the Philippines and had serious concerns 
about the onerous and overly burdensome registrati on procedures of the EC proposal.  The proposed 
reservation procedure for notified geographical i ndications was problematic and would negatively 
impact upon existing TRIPS Agreement rights and obligations for trademarks and geographical 
indications, for it gave Members only one chance to object to a geographical indication at the 
international level within an 18-month period on limited grounds. This would clearly eliminate 
countries' abilities to use long-standing TRIPS excepti ons.  Her delegation had already explained what 
would happen if, under such a proposal, a WTO Member failed to object to every one of the notified 
geographical indications within the 18-month pe riod.  However, if a Member had placed any 
objections to the notification, it would then be fo rced into bilateral negotiations with the notifying 
Member where significant pressure would be brought to bear on that objector to work out some sort of deal for the notified geographical indication.  Bila teral negotiations dealing with what were private 
property rights would result in less legal certainty and transparency in national systems of protection.  
Furthermore, they would be resource intensiv e, with the European Communities pressing for 
protection in the territory of the country that had ma de the objections.  It was quite disturbing that the 
European Communities had inappropriately linked su ch negotiations to the provision in Article 24.1 
of the TRIPS Agreement, thereby id entifying the aim of the Special Session's negotiations to be that 
of "increasing the protection of individual geographical indications".  All the procedures proposed by 
the European Communities, both at the national and international levels, woul d potentially enable one 
country to mandate GI protection in other countri es, consequently devaluing prior valid trademark 
rights and ignoring Members' national legal regimes.  The EC proposal would have a negative impact 
on the existing balance of rights and obligations for trademarks and geographical indications and 
would impose significant procedural burdens on a ll Members' national systems.  While providing 
more protection for EC geographical indications, this system would negatively impact upon domestic 
trademark owners and other national systems worldwid e.  In contrast, the jo int proposal focused on, 
and gave deference to, the domestic  systems of participating WTO Members.  It focused on domestic 
systems by providing them with information to ma ke more accurate registration decisions, thereby 
effectively facilitating the protection of geographi cal indications for wines and spirits.  More 
information for overworked and under-funded national offices could only help to allow for better 
decisions that would then create more legal certainty for domestic and foreign businesses. 
97. The representative of New Zealand
 said that his delegation acknowledged the two issues of 
legal effects and participation as key ones, but di d not want to overlook the other aspects such as 
registration.  As had been indicated by Australia, registration was an important topic in that it was 
closely linked with the question of legal effects.   The joint proposal involved a straightforward 
process of registration, which simply ensured th at the notified geographical indication was duly 
recorded on the register.  A registration itself had no impact on the legal rights and obligations of 
Members in terms of the status of  individual geographical indications.  Consistent with the principle 
of territoriality, all decisions about geographical  indications, including the applicability of the 
Article 24 exceptions, were therefore left with nationa l decision-makers in IP offices.  This contrasted 
with the EC proposal, under which the registrati on process had a significant impact on the existing 
rights and obligations of all Members, including non-participating ones.  All Members would be 
committed to lodging a reservation or would otherwise lose certain rights and flexibilities.  When Members had lodged a reservation, they would then be obliged to enter into  bilateral negotiations TN/IP/M/16 
Page 22  
 
 aimed at "resolving differences".  The use of the words "resolving differences"  by the EC delegation 
seemed to mean that the Europ ean Communities would essentially be looking to find differences and 
to question decisions taken by national courts a nd authorities.  His delegation failed to understand 
how such a requirement would be consistent with the principle of territoriality.   
98. His delegation disagreed with the point made by  the EC delegation that Article 24.1 of the 
TRIPS Agreement was the legal basis under whic h the EC proposal for mandatory bilateral 
negotiations was justified.  In or der to understand what the EC require ment really meant, he gave a 
hypothetical example:  assuming that the proposed EC register would apply to all products - which his 
delegation would strongly oppose - and that the European Communities notified to the WTO the 
geographical indication "Feta", some Members would lodge reservations within the prescribed 18 
month-period on the ground that the term was generic, in the sense of Article 24.6 of the 
TRIPS Agreement, in their own territories.  It would be reasonable to assume that the 
European Communities would then seek to negotiate with those Members the outcome of the legal or 
administrative decision regarding the generic char acter of "feta".   He failed to see how the 
negotiation by a third country of the decision taken by  a national court or authority could be consistent 
with the principle of territoriality.  He invited the European Communities to consider looking at its 
own situation in respect of this type of requirement .  For example, the European Court of Justice had 
recently issued a ruling on "Feta", but New Z ealand had not tried to negotiate with the 
European Communities to change the outcome of th at decision so as to obtain that the term be 
considered as generic.   New Zealand might not ha ve liked the EC's ruling and its implications, but 
that was the way the principle of territoriality worked. 
99. The representative of Guatemala
 said that, if developed countries like Australia or Canada 
had expressed concerns about the proposed EC syst em, developing countries like Guatemala would be 
in even greater difficulties, for they would not be ab le to react appropriately to notifications under that 
system.  The only valid alternative for developing countries would then be the joint proposal system, 
which was user-friendly, accessible, simple, e ffective, non-costly and non-burdensome.   
100. The representative of South Africa  said that the hypothetical case given by New Zealand was 
a factual one in his country.  South Africa was a produ cer and exporter of "feta", a generic term in its 
territory.  Currently the European Communities, wh ich had been its main export market until recently, 
were now blocking such exports and sending South African producers threatening letters.  Under the 
TRIPS Agreement, the South African producers had the right to make use of the generic term "feta" 
and export this cheese to the European Communities.  Therefore, if this proposed EC registration 
system were accepted, the case to stop South African  feta cheese from entering the EC market would 
in fact be further strengthened, a situation whic h led his delegation to consider the proposal as 
unacceptable. 
101. The representative of Argentina  offered the example of a homonymous geographical 
indication for wine, which referred to both a region in Spain and in Argentina.  Argentina had not 
only been prevented from exporting its wine to the European Communities under that homonymous 
name but its producers had also been  treated there as foodstuff GI pirates.  This and other examples 
demonstrated that the positions ta ken by delegations were not based on theory but rather on practical 
examples with commercial implications. 
102. With regard to the comment made by the EC de legation that the joint proposal system did not 
require the mention of the date of protection, she noted that the TRIPS obligations applied to 
Members only as from certain dates, for exampl e 1 January 1996 for developed countries, and 
wondered what would happen, unde r the EC proposal, with those EC geographical indications 
registered many years before that date.  TN/IP/M/16 
 Page 23 
 
 
 103. The representative of Chile  said that, under the joint proposal, notifications would be 
submitted by Members' governments, and not by private parties.  Contrary to what the 
European Communities had said, they could be quite detailed and reliable.  He recalled that the joint 
proposal foresaw information such as transliterations of the GI and that Members would also be free 
to add any other information they saw fit.  Chile, for example, would probably also notify the date, the 
legal basis of protection of the geographical indi cation as well as where additional information could 
be obtained.  
104. The representative of the European Communities  said, in response to the comment made by 
Chile, that the purpose of the register was not to be a starting-point for GI protection, otherwise the mandate in Article 23.4 of the TRIPS Agreement w ould have stated that Members should establish a 
GI database for information purposes only.  This was clearly not the case because the mandate was, 
instead, to establish a multilateral system for th e registration and notification of geographical 
indications "in order to facilitate" their protection.   
105. To the point made that bilateral agreements  based on Article 24.1 of the TRIPS Agreement 
was a requirement not consistent with the principle of  territoriality, he responded that, if that was true, 
then all Members which had bilaterally negotiated th e protection of generic te rms would have violated 
this principle.   
106. As to the practical examples referred to by Argentina and South Africa, he said that it was 
precisely on the basis of the principle of territoriality that his delegation had taken those decisions.  Regarding the particular case of "Feta", he explained that the term had been registered, and judicially 
confirmed, as a geographical indication in the terri tory of the European Co mmunities.  Therefore, 
based on the principle of territoriality, a decision had been taken that "Feta" was a geographical 
indication and was, therefore, a name that could only be used for goods having the origin indicated by 
it, namely Greece.  Thus, a product coming from Sout h Africa, which obviously did not have the right 
origin, Greece, should not use the term "Feta" in the Communities.  Such decision was not, however, 
putting into question the right of South Africa to use "feta" as a generic term on its own territory.  The 
same reasoning would apply to the example cited by Argentina, which was based on a different 
TRIPS exception, namely the one under Artic le 23.3 regarding homonymous geographical 
indications. 
107. To delegations which had made the point that  the TRIPS obligations were burdensome, he 
asked why they were thinking that such a burden ex isted only in relation to geographical indications, 
and not to other IPRs.  The current obligations under the TRIPS Agreement, as under any other WTO 
Agreement, implied burdens.  However, all Members had based their decision to participate in these 
agreements, and therefore to be committed by these obligations, based on the fact that there was an 
overall favourable balance of results for them.  One of the obligations that all Members had 
undertaken was precisely the one in Article 24.1 of the TRIPS Agreement, which clearly stated that  
"Members agree to enter into negotiations ai med at increasing the protection of individual 
geographical indications".  Contrary to what Aust ralia had said, this obligation did not mean an 
obligation to negotiate for any private interest in  the European Communities.  What this provision 
referred to was the protection of specific geographica l indications, which, in this case, would be those 
resulting from the implementation of th e proposed EC multilateral register. 
108. As to the reference made in the EC propo sal to the exception in Article 24.6 of the 
TRIPS Agreement on generic terms, he confirmed that delegations we re correct in saying that, under 
that proposal, if an application was unopposed, the possibility of invoking that exception would be 
waived and would create an irrebuttable presumption.  Such a possibility should not create a surprise:  
it had been a normal practice for Members to negotiate  on generics on the basis of Article 24.1 of the 
TRIPS Agreement.  Therefore, what the EC proposal was doing was simply implementing that provision.   TN/IP/M/16 
Page 24  
 
 109. Responding to a comment that the EC proposal was seeking "universal" protection for its 
geographical indications, he said that the TRIPS Agre ement already provided what could be termed as 
"universal" protection.  Therefore, because what the proposed EC system was trying to achieve was 
simply to facilitate the obtaining of such protection, it would not create any new substantive obligations and it was therefore within the mandate .  However, GI protection under the proposed EC 
system would not actually be that "universal" because the objective of the procedures for opposition 
was precisely to make sure that Members would be ab le to ensure that their national particularities as 
far as protection was concerned would be reflected by the system.  
110. As to the comment made that under the WIPO  treaties Members chose to sign up for the 
effects flowing from these treaties, he said that, in the case of the TRIPS Agreement, Members had 
chosen to sign up to its Article 23.4, which was clear in stipulating that the system should be 
"multilateral", and hence cover, and ha ve effects in, all the WTO Members. 
111. He rejected the comments made that the EC pr oposal was trying to force certain results on 
Members by making a linkage with Article 24.1 of the TRIPS Agreement and negotiate on the 
exceptions.  The EC proposal was quite clear that th e only obligation was to enter into negotiations, as 
stated in Article 24 of the Agreement.  Therefore,  the fact that the obligation under that provision 
would apply even in the absence of the Doha Round showed that his delegation was not forcing any 
results on Members.  The only objective of the propo sal was to provide that, after the registration 
procedure, Members that had not withdrawn their re servations would get an annotation together with 
the geographical indication, which would imply that th ere would be no legal effects in their territories. 
112. The representative of Argentina
 disagreed with the interpretation made by the 
European Communities of the language of Article 24.1 of the TRIPS Agreement.  That provision 
appeared under Article 24 and not under Article 23,  particularly under its paragraph 4.  Had the 
framers of the TRIPS Agreement intended otherwise,  they would have included the language of 
Article 24.1 in a paragraph 5 to Article 23.  She considered it strange that the EC proposal gave, on 
one hand, great importance to the application of Article 24.1, and, on the other, subtracted the 
safeguards that other Members had, namely the righ t to invoke at national level the exceptions under 
Article 24.  
113. The representative of Australia  said that the EC delegation had correctly stated that, in 
accordance with the principle of territoriality, it was up to the Eu ropean Communities to determine 
what was a geographical indication or a generic in  its territory, and that it was not putting into 
question other Members' right to use, for example, generic terms in their territories.  However, she 
failed to understand how the European Communities w ould not be putting into question those rights if 
in their proposal they required Members to negotia te the increase of protection of those product names 
on the basis of Article 24.1.  With regard to the point made by the European Communities that 
Article 24.1 was a clear provision under which many Members had already negotiated away some of 
their generic terms in bilateral agreements, she said that it was precisely because of Australia's 
experience in negotiating these agreements that  it had become extremely concerned about 
multilateralizing that kind of bilateral process and a dding the possibility of bein g forced to give away 
the remaining generic uses that were not yet affected.   
114. While taking note of the citation of Article 24.1 of the TRIPS Agreement by the 
European Communities as a justification for the wa y its proposal dealt with exceptions, she said that 
the EC delegation had not yet responded to the point  she had made, namely that nothing in Section 3 
of Part II of the TRIPS Agreement made Memb ers' ability to invoke the generic exceptions 
conditional on entering into the bilateral ne gotiations provided under Article 24.1.    
115. She disagreed with the European Communitie s' statement that the TRIPS Agreement 
provided for "universal" protection, as the provision s of this Agreement on in dustrial property were  TN/IP/M/16 
 Page 25 
 
 
 underpinned by the principle of territoriality, not by  universality.  It seemed, therefore, that the 
European Communities were proposing that the register should facilita te the universal protection of 
geographical indications, which confirmed that thei r proposal was "TRIPS-plus" and, as such, would 
be better placed at WIPO.  It was "TRIPS-plus " because it would give geographical indications 
notified to the register a presumption of protection in  all Members, an effect which would change the 
balance of rights and obligations under the TRIPS Agreement. 
116. The representative of the Canada  said that Canada had entered into bilateral negotiations on 
wines and spirits with the European Communities at a mutually convenient time, which had been 
determined and agreed by both parties, and not within any compulsory 18-month period, as required 
under the EC proposal. 
117. The representative of the United States  said that the more his delegation listened to the points 
made, in particular the views and concerns expressed by the delega tions of Argentina and Australia, 
the more it believed that the join t proposal was the only option that me t the mandate.  It facilitated the 
protection of wine and spirit geographical indicati ons without changing rights and obligations under 
the TRIPS Agreement.   
118. He added that, under the EC proposal, if a r eservation based on the grounds that the notified 
GI did not meet the definition of Article 22.1 was lodged, then that Member would be subject to 
bilateral negotiations, which the European Communities had linked to Article 24.1 of the Agreement.  
However, if that term did not meet the GI defi nition under the Agreement, Article 24.1 would simply 
be inapplicable as there would not be any geographical  indication to be negotiated.  This was just one 
clear example showing that the European Commun ities were seeking, through their proposal, to 
rebalance the current rights and oblig ations under the TRIPS Agreement. 
119. The representative of the European Communities  said that Article 23.4 of the 
TRIPS Agreement was quite clear wh en it stated that what should be facilitated was the protection of 
geographical indications under the Agreement, wh ich covered Articles 22, 23 and 24, all of them 
having elements relevant to the register.  For ex ample, under paragraph 9 of Article 24, Members did 
not have the obligation to protect geographical indi cations which were not protected in their country 
of origin or which had fallen into disuse in those countries.  It would not therefore be possible to exclude from the scope of the register the exceptions of Article 24. 
120. As to Article 24.1, he said that this provi sion was explicit about its applicability to both 
bilateral or multilateral agreements and was simply a tool at Members' disposal with regard to 
geographical indications and also an obligation that  all the Members had accepted.  It clearly did not 
change the balance of rights and obligatio ns, precisely because it was already in the 
TRIPS Agreement, and as such formed part of th e obligations that Members had undertaken.     
121. Finally, he recalled that Article 24.1 mentioned, in its first part, the obligation to enter into 
negotiations, if so requested, to increase the protecti on of individual geographi cal indications but that 
the second part only said that Members "shall" not  use the exceptions under paragraphs 2 to 8 of 
Article 24 to refuse to conduct negotiations or c onclude bilateral or multila teral agreements.  The 
wording of Article 24.1, which did not cover paragr aph 9 of Article 24, did not exclude the possibility 
of discussing a reservation on the ground that the notif ied term met the definition of Article 22.1.  
122. The representative of Chile
 said that, while Article 24.1 of the TRIPS Agreement referred to 
negotiations aimed "at increasing" the protection, Ar ticle 23.4 of the Agreement used the words "to 
facilitate" the protection.  "Increase" and "facilitate" had been intentionally used by the negotiators of 
the TRIPS Agreement for different situations. TN/IP/M/16 
Page 26  
 
 Legal Effects/Consequences of Registration 
123. The representative of the United States
 said that under the TRIPS Agreement there were 
carefully negotiated relationships between trademar ks and geographical indications, with neither of 
them having preference over the other.  The EC pr oposal upset this balance by creating a presumption 
that a notified term should be automatically prot ected in all WTO Members, whether or not it was 
considered a geographical indication in those Member s.  This evidentiary presumption that would be 
granted upon registration would call into question the validity of prior trademar ks and generic terms, 
forcing trademark owners and users of generic term s to prove their right to continue to use these 
terms.  In the context of the discussions of the regi stration procedure, the "feta" case had been raised, 
and the EC delegation had confirmed that the Euro pean Court of Justice had upheld that it was a 
geographical indication within the EC territory, desp ite the fact that several other EC members had 
indicated that "feta" was a generic in their territories.  Under the EC proposal, if the 
European Communities notified "feta" as a geographi cal indication, there would be a presumption of 
eligibility for protection in all the WTO Members,  irrespective of whether or not they were 
participating or non-participating Members in the mu ltilateral system.  The proposal would thus force 
all those Members where the term "feta" was gene ric to defend such determination against the 
presumption that would flow from the register.  For her delegation, this was clearly an unprecedented substantive legal obligation being placed on a ll WTO Members.  She was concerned that the 
European Communities wanted to rely on Article 24.1 of the TRIPS Agreement to eradicate the 
generic exception under Article 24.6.    
124. She said that, as noted by previous delegations, the consequences of registration under the EC 
and Hong Kong, China proposals were of particular  concern to her delegation, for both of them 
focused on presumptions that would essentially create a GI right in each WTO Member without national examination.  For example, in the Unite d States, examination and a third-party opposition 
period were required before a presumption of valid ity was granted.  The evidentiary presumption 
under the Hong Kong, China and EC proposals appear ed to grant the same status to foreign 
geographical indications with no examination of nationa l law criteria or prior rights.  This would force 
trademark owners and generic users, as the "feta"  case had demonstrated, to prove their right to 
continue use of their trademark or of a generic term if a later-in-time geographical indication was 
notified.  The registration of geographical indi cations under the proposed systems would have an 
impact on key issues of concern to her delegation, such as:  the principle of territoriality;  the need for 
maintaining the balance of rights and obligations for trademarks and geographical indications;  and 
the impact on national systems and administrative bur dens.  It was extraordinary that one Member's 
decision to protect a particular IP right in its te rritory could lead directly to a forced presumption 
under local law and judicial procedures of numerous other Members.  Essentially, the Hong Kong, China and EC proposals would allow for a notifying country to use its country of origin 
protection as a basis to receive protection in another country without having to comply with the 
statutory requirements of another country.  This ignored the principle of territoriality in that 
intellectual property protection typically had effects only within the territory of the Member that had 
granted that protection.   
125. If the EC proposal were adopted, the GI presumptive right would be established in countries 
even when the terms might not be considered ge ographical indications by their consumers, which 
would be an unprecedented system.  A proposal based on presumptions would impact detrimentally 
upon owners of similar-looking trademar ks and product terms on a worldwide basis even if that term 
had actually been in use first.  There was also the very real possibility of prior right holders being forced to defend their trademarks in a territory because a later-in-time notified geographical indication 
would be presumed valid in that territory.  By  automatically claiming a broad range of terms 
throughout the WTO membership, the EC proposal  could eliminate the ability of owners of 
trademarks in one market to enter a new market with their trademarks and would also inhibit the ability of small and medium-sized companies to establish new brands that might otherwise have  TN/IP/M/16 
 Page 27 
 
 
 incorporated the terms.  Companies that had long sold products in a territory with generic names or as 
trademarks that appeared similar to a notified ge ographical indication would have to find a new name 
for their products, the same being true for local geogr aphical indications that happened to be similar to 
notified geographical indications.  This would all happen as a result of Members only having one 
chance to object to a geographical indication at the international level and on limited grounds within 
an 18-month period.  Another result would be that there would be nothing to stop the 
European Communities or other Members from simply pre-emptively registering the names of all towns, regions and other domestic geographical i ndications, regardless of any intent to export 
products therefrom.  For the European Communi ties alone, this could number in the tens of 
thousands.   
126. In contrast, the joint proposal would not conf er any rights with respect to geographical 
indications registered in the system, nor would it upset  the current balance of rights and obligations of 
WTO Members under the TRIPS Agreement.  The join t proposal was quite different from the other 
proposals in this respect, for it did not have a direct legal effect within any WTO Member.  It would be up to the Member consulting the database to dete rmine, according to the provisions of its domestic 
national law and registration requirements, what ev identiary weight to give to the geographical 
indication included in the database when making de terminations on whether or not to register a 
trademark or a geographical indication.  Nationa ls from Members seeking protection would still be 
able to apply directly to national offices.  A partic ipating Member would not be obligated to negotiate 
over every term it did not believe should be protected as a geographical indication, since the use of the register would be discretionary and without legal effect.  Although the joint proposal would not have 
legal effect in WTO Members, it would indeed fac ilitate the protection of geographical indications by 
these Members.  In fact, it would create a tool to assist WTO Members that would be unprecedented 
in its scope, creating a global database for the fi rst time for a category of IPR.  Members would 
consult this database when making decisions a bout GI problems under national law, greatly 
facilitating them in providing GI protection.  Lastly, the joint proposal would assist Members in 
protecting geographical indications under TRIPS without adding additional burdens or changing 
rights and obligations under the Agreement. 
127. The representative of Hong Kong, China
 said, in response to the questions of whether the 
rebuttable presumptions created under Hong Kong, Ch ina's proposal would affect the balance of 
rights and obligations under the TRIPS Agreement a nd whether the proposal would be consistent with 
the territorial nature of IPRs, that the system proposed was voluntary and would, therefore, create 
certain rebuttable legal effects only in those Members participating in the system.  Hence, if a 
Member took a well-informed policy decision not to pa rticipate in the system, then there would not be 
legal effects and, as a consequence, the question of it s consistency with the territorial nature of IPRs 
should not arise.  Even for those participating Me mbers, there would be a presumption regarding three 
aspects only:  the definition under Article 22.1 of the TRIPS Agreement;  GI ownership;  and 
protection of the geographical indication in the notifying country so as the exception under 
Article 24.9 would not arise.  All these presumptions would be rebuttable. They would operate within 
Members' domestic courts, in accordance with their local jurisprudence and proceedings.  Whatever 
decision was taken by a domestic court on a partic ular geographical indication, it would only have 
effects in that particular jurisdiction, with no consequences for other Members.  In this way, the 
territorial nature of IPRs would be preserved.   
128. He added that, under the Hong Kong, China propo sal, except in relation to Article 24.9 of the 
TRIPS Agreement, all other exception provisions under  Article 24 would stay intact and be governed 
by the rules under Member's domestic systems.  Unlike the EC proposal, there would not be any time-
limit.  He said that his delegation shared the concer n raised by some delegations that the EC proposal 
would diminish the exception provision under Article 24 in the sense that, if a certain Member did not 
lodge a reservation within the sp ecified time-limit, certain rebutta ble presumptions under the proposal TN/IP/M/16 
Page 28  
 
 would become irrebuttable.  He confirmed that, under the Hong Kong, China proposal, there was not 
such a time-limit, neither there was any provi sion for oppositions at the multilateral level.  
129. The representative of Australia
 recalled that Hong Kong, China had said that, under its 
proposal, there would be a rebuttable presumption in  relation to the definition of a geographical 
indication in Article 22.1 of the TRIPS Agreement and that the Article 24 exceptions would not be 
affected.  She asked whether the burden of proof as to whether a geographical indication was generic 
would be on generics producers or on the GI owners.  The reason she asked this question was because 
she presumed that if a product name was generic in a given territory, then it would not be a 
geographical indication.  Under the Hong Kong, Chin a proposal, would there still be, in such a case, a 
presumption that the term was a geographical indication?  
130. The representative of Hong Kong, China  said, in response to Aust ralia's comment regarding 
the generic exception under Article 24.6 of the TR IPS Agreement, that, under the Hong Kong, China 
proposal, there was no presumption linked to that provision.  Therefore, on this particular issue, the burden of proof would not be affected.  This was pr ecisely one of the main features distinguishing his 
delegation's proposal from the EC proposal.  His de legation's belief was that a Member's domestic 
court would be in the best position to determine whet her a term was generic or not in that Member's 
territory.  This approach would be preferable to leaving the issue to bilateral negotiations or any 
arbitration at the multilateral level.  
131. The representative of the European Communities
 noted that all the three proposals on the 
table had certain legal effects.  While it was positive that the join t proposal was on the table, it was 
just a starting-point and consequently did not de liver on the mandate to establish a "multilateral" 
register.  The joint proposal's legal effect consiste d only in the obligation to consult the register, which 
was not sufficient to truly "facilitate" the protect ion of geographical indications, as required by 
Article 23.4 of the TRIPS Agreement. 
132. As to the comparison made between the GI register to be established and the registration 
systems managed by WIPO, he said that factual background papers by the WTO Secretariat on 
existing international systems of notification and re gistration at the multilateral level (TN/IP/W/4 and 
TN/IP/W/4/Add.1/Rev.1) had clearly explained th at those WIPO-administered systems aimed at 
facilitating the acquisition of protection for different IP rights.  The conclusion that he derived from 
these papers was that all those systems carried legal effects of various degrees.  For example, in the 
case of the Madrid system, an international registra tion of a trademark under this system would result 
in the granting of protection to the trademark in  each member State in the same way as if the 
trademark had been the subject of a direct applica tion with the national office of that member State, 
unless it had been rejected by that office.  Some of  the joint proposal sponsors, like Australia and the 
United States, were parties to the Madrid system, wh ich carried strong and legally binding effects.  
The difference with the WIPO systems was that under Article 23.4 of the TRIPS Agreement, the 
system to be established was being negotiated with in the WTO, where the wo rd "multilateral" meant 
that all the WTO Members should be covered, and that the system should hence produce legal effects 
in all those Members.  In that light, the EC  proposal was the only one that met the mandate. 
133. He said that the key idea of the EC proposal w ith regard to participating Members was to 
provide for a presumption of eligibility for protec tion for unopposed geographical indications.  This 
was not a substantive obligation, but simply a way of  facilitating GI protection.  In other words, it 
would make it easier for GI right holders to obtai n the GI protection that was already available under 
the TRIPS Agreement, while leaving, in accordance w ith the principle of territoriality, national courts 
and authorities free to examine, and decide on, each case on the basis of its own merits. 
134. He explained that under the EC proposal the challenge procedure, which was based on the 
different grounds mentioned in the proposal, allowed Me mbers to take account of  and assert territorial  TN/IP/M/16 
 Page 29 
 
 
 specificities.  All this would ensure the reliability of the information that would be recorded.  The 
exceptions in Article 24 of the TRIPS Agreement woul d continue to apply.  Some of them should be 
exercised within the 18-month reservation peri od, while others, whic h were not mentioned 
specifically in the original EC proposal but were later expressly included at the request of certain 
Members, could be invoked at the national level at any time. 
135. His delegation rejected the point made that the EC proposal actually aimed at eradicating 
Article 24.6 of the TRIPS Agreement.  This was not  the case, for this provision would simply be the 
basis for opposition if a Member found that a term  was generic in its territory, in which case the 
geographical indication would be registered with an  annotation excluding legal effects in the opposing 
Member.  As a consequence, not only would Article  24.6 be preserved, but the system would also 
ensure that the principle of territoriality was respected.   
136. As to the references to "Feta", particularly th e comments that this term was generic in most 
countries, he said that such comments were against the principle of territoriality, for only a  Member 
could decide what was generic in its own territory .  For example, a Member could not export cheese 
with the term "Feta" to the European Communitie s because this term was a registered geographical 
indication in the territory of the European Comm unities, but could still export the cheese under that 
name to Members that decided, based on the principl e of territoriality, that it was generic in their 
territories.  With this example, the idea he wanted to convey was that the EC proposal ensured that the 
decision on the protection of terms remained in the hands of national authorities. 
137. He disagreed with a comment made by the Unite d States that, as a result of the EC proposal, 
GI name users would be compelled to find new nam es for their products.  This would not be the case 
precisely because, under the EC proposal, exceptions , such as those based on genericness, would 
remain applicable.  In addition, other exceptions, such as those under Articles 24.4 and 24.5 of the 
TRIPS Agreement, could be invoked at the national le vel to make sure that prior uses could continue 
in those markets where these exceptions applied.   
138. He disagreed with the comment that thousands of place names would be registered under the 
EC proposal because it would allow any geographical name to be registered.  Not every geographical 
name could become a geographical indication.  "Geographical indications" were only those names 
that referred to a geographical origin and where there was a link between the qualities, characteristics 
and reputation of the product with that geographical orig in.  This was not an easy hurdle to overcome.    
139. He concluded by saying that the joint proposal  established a system whereby the protection of 
geographical indications was not necessarily facilitated, since it would be organized in such a way 
that the database, simply comprised of a list of geographical indications, would not contain reliable 
information.  According to the joint proposal, natio nal authorities would consult this list of notified 
geographical indications, but there was no mechanis m to ensure that such obligations would be 
respected.  In any case, knowing that the information av ailable in this database would not be reliable, 
national authorities would be likely to prefer not to  take account of what was in the database.  In 
addition, due to the limited participation, th e database would contain incomplete, and hence 
unreliable, information.   The joint proposal, which did not bring any added valu e with regard to legal 
effects, did not therefore meet the mandate. 
140. The representative of Australia  said that "feta" was a generic term in her country and that, in 
fact, there were more people of Greek origin in Melb ourne than in any other city in the world outside 
of Athens and that more feta cheese was made in Australia, New Zealand, South Africa and the 
United States than in Greece.   
141. As to the point made by the European Commun ities that the joint proposal's effects were not 
"sufficient", she said it would be important to determ ine what was meant by "sufficient".  Clearly, it TN/IP/M/16 
Page 30  
 
 would be "sufficient" if it facilitated protection.  All Members agreed that this was the purpose of the 
system they were negotiating.  However, there seemed to be different interpretations of what 
"facilitation" meant.  One of the major concerns of the demandeurs , which had led to the built-in 
agenda in Article 23.4 of the Agreement, seemed to  be to ensure that trademarks containing, or 
consisting of, geographical indications  would not be registered in thir d country markets, thus avoiding 
that these trademarks could prevent GI owners fro m selling their products in those markets.  The 
mandate also reflected some Members' concern th at, because not all Members protected geographical 
indications through a registration system, lack of information would put GI right holders at a disadvantage vis-à-vis  trademark owners in protecting and enfo rcing their rights.  Taking into account 
this background history, "facilitati on" conveyed to her delegation the idea of an information-based 
source, which would not be in itself, in contrast to the other proposals, the source of protection, nor 
give rise to a presumption of protection in Members'  territories.  The database under the joint proposal 
would sufficiently address the concerns outlined above by providing national IP offices with information on GI rights claimed by producers in the territory of another WTO Member.  This 
information could be used by national IP offices wh en making decisions regarding the registration and 
protection of trademarks and geogr aphical indications for wines and spirits in accordance with their 
national legislation, thereby facilitating the protec tion of geographical indications and reducing the 
risk that trademarks would be improperly register ed.  For the European Co mmunities, it seemed that 
the word "sufficient" had another meaning, namely  that the burden of proof should be reversed in 
favour of GI owners in domestic court proceedings by way of a presumption, an aspect also present in 
the Hong Kong, China proposal.  She strongly disagr eed with the European Communities' explanation 
that this presumption was not a substantive obligatio n, because such a reversal of the burden of proof 
would basically increase one Member's rights vis-à-vis  another Member's rights.  This would not be 
equivalent to simply "facilitating" the fulfilment of Member's existing rights.  While agreeing that all 
proposals on the table could be considered to ha ve legal effects, she said that the proposed 
presumptions were a type of legal effect that her delegation could not countenance because rather than 
"facilitate", they would instead "increase" the protect ion of geographical indications at the expense of 
trademark holders and generics producers. 
142. She concluded by saying that the issue of legal effects, the most important to her delegation, 
could not be simplistically characterized as whether the system to be established should or should not 
have legal effects.  Her delegation's position was not a dogmatic one, but rather one which reflected 
real concerns.  The challenge was therefore to fi nd a way to facilitate the protection of geographical 
indications under Article 23 of the TRIPS Agreemen t without negatively impacting upon the interests 
of her country's constituencies.  The joint proposal would achieve that objective.  Her delegation was, 
however, open to considering other options and would welcome any sugg estions as to how the text of 
the joint proposal could be improved, taking into  account the fundamental concerns raised with 
respect to the issue of presumptions and their effects on existing rights. 
143. The representative of Switzerland
 said that participation and le gal effects seemed to be the 
key issues to be first addressed before examining other secondary issues in greater detail, such as 
notification and registration.  It would be only on th e basis of the legal effects that would be accorded 
to registrations that Members would be able to de termine what could be notified and registered and 
under which procedure.   
144. Bearing in mind the fact that the mandate called for establishing a system to "facilitate the 
protection" of geographical indications that was currently available under the TRIPS Agreement, it 
would be necessary to bring in a "plus".  To her de legation, the objective of "facilitation" of protection 
could not be achieved without providing, as the EC and Hong Kong, China proposals did, that a 
registration would have as a legal effect the presu mption of validity of the registered geographical 
indication in all the Members that had not opposed it.  This presumption should be rebuttable at any 
time and on any applicable ground.  It was not aime d at creating new rights or obligations, but rather 
at putting GI right holders in a better situation than  the one existing at the present time to defend their  TN/IP/M/16 
 Page 31 
 
 
 rights.  By providing this type of limited or qua lified legal effect, Members would fulfil the mandate 
of "facilitating" protection.   She said that, while it was clear that Article 24 of the TRIPS Agreement 
provided some exceptions to the general rule of pr otection, such as generic terms or grandfathered 
uses, she had the impression that some delegations we re trying to turn those exceptions into a general 
rule and that, of course, was unacceptable.  
145. She said that a rebuttable presumption was a legal effect that fully respected the principle of 
territoriality because the decision regarding the validi ty of this presumption would take place in the 
national courts of a Member.  As with any kind of  IPR, geographical indications had to respect the 
principle of territoriality.  Each Member should conti nue to be able to decide whether a term was or 
was not a geographical indication in its territory and,  as a consequence, whether it merited protection.  
Since the principle of territoriality also applied to determinations regarding the genericness of terms, it 
would therefore not be logical to give an extraterr itorial character to such determinations.  Thus, as 
confirmed by Australia, the principle of territoriality applied both ways. 
146. She stated that her delegation saw great benef it in providing for examination procedures and 
for reservations that could be lodged based on various elements, such as the definition of a 
geographical indication, genericness or homonymy.  Th is would bring clarity to the register at an 
early stage, namely before there was any litigation at the national level.  In that sense, protection 
would be facilitated. 
147. With regard to the joint proposal, she asked how  it would effectively facilitate protection if 
the only obligation it provided for Members was to consult, amongst other sources of information, a 
database that simply compiled national information.  Chile had explained, in this regard, that the 
database would compile information provided by Memb ers.  For her delegation this would be a mere 
source of information.  Where then could GI ri ght holders find the effective facilitation of the 
protection of their rights in the joint proposal?  W ould such facilitation consist only of right holders 
knowing that they were protected in their own country  of origin?  Was this the extent of Member's 
ambitions in these negotiations?  Was that how  Members intended to meet the mandate under 
Article 23.4 of the TRIPS Agreement?  Her delega tion was simply not convinced that such was the 
case.  The purpose of the multilateral register w as to facilitate the protection of geographical 
indications in other Members.  Otherwise, w hy should a country be a party to a multilateral 
agreement?  The reason was certainly not because it wanted to focus on the protection given at the 
national level to geographical indications located in  its own territory.  Swiss GI right holders were 
already aware that they were protected in Switzerla nd, so what they really wanted was to have the 
protection of their geographical indications facilitated in other WTO Members.  Therefore, in the light 
of the proposals on the table, her delegation was of the view that providing unopposed GI registrations 
with certain minimal legal effects that could be  invoked in all WTO Members was the only way to 
effectively facilitate the protection of geographical indications as compared to the current situation. 
148. The representative of New Zealand  agreed with Switzerland that the objective of the register, 
as stated in the mandate, should be to "facilitate the protection" for geographical indications.  The 
joint proposal was therefore the only one that w ould meet this objective without increasing GI rights 
nor their protection.  He agreed with the comments made by Australia as to the value of the legal 
effects in the joint proposal.  The obligation to c onsult the GI database was a serious and meaningful 
new commitment that would not upset the fundamental balance of rights and obligations in the TRIPS Agreement.  This new proce dural obligation would need to be built into Members' systems and 
procedures, and was one that participating Members would be expected to honour.  In fact, many IP 
offices would probably welcome having access to su ch a one-stop resource.  New Zealand took its 
TRIPS obligations seriously and believe d that this proposal could be a useful tool in helping IP offices 
avoid possible conflicts between trademarks and ge ographical indications.  Finally, while the joint 
proposal would involve no new obligations for non- participating Members, they would nevertheless TN/IP/M/16 
Page 32  
 
 have access to it, if they so wished.  In this way,  it would be likely that the total number of Members 
consulting the database would be higher than th e number of Members being obliged to do so. 
149. The representative of Chile
 said, in response to Switzerland,  that the joint proposal would 
provide effective protection through a system that would be unprecedented in the intellectual property 
field.  Current IPR agreements, such as the Strasbourg Agreement, Lisbon Agreement, the 
Madrid Protocol or the PCT, were only schemes fo r the facilitation of IPR protection, some through 
registry systems that had limited number of partic ipants, inferior to the number of WTO Members.  
Under the joint proposal, it would be likely that many Members, Chile included, would use the GI 
register and notify all their geographical indicati ons.  Their IP offices would surely consult this 
database when taking decisions on geographical indica tions and trademarks because this would be an 
obligation.  This was, therefore, a legal effect.  The information contained in this database would be 
reliable because it would be sent by WTO Members.  Thinking otherwise would be the equivalent of 
accepting that Members distrusted each other. 
150. The representative of the European Communities  said that it was quite clear from the 
language of Article 23.4 of the TRIPS Agreement that  the objective of the system was not simply to 
inform Members.  The WTO Agreements, including the TRIPS Agreement, contained provisions on 
notifications that explicitly and clearly indicated that the notification obligations were just for 
purposes of exchanging information or of responding to  requests concerning Members' legislation.  In 
contrast, Article 23.4 contained obligations that  went beyond the obligations under these other 
provisions.   
151. As to the comparison made by Chile with other WIPO registration systems, he said that these 
systems carried strong legal effects.  The Europ ean Communities, as Chile ha d also remarked, were 
proposing a different system because these nego tiations were being c onducted under the WTO 
framework.  Thus, the European Communities were s uggesting different legal effects, which would be 
less than, for example, the Lisbon Agreement, or the Madrid System, where the effect of registrations 
was exactly the same as national registrations.  The reason for a lesser degree of legal effect was that 
the system simply aimed to facilitate the protec tion provided under the TRIPS Agreement.  Another 
important feature, specific to the multilateral charact er of the WTO, was that the legal effects should 
cover all WTO Members.  
152. The representative of Australia  said that, while Members could continue discussing what 
facilitation or effective facilitation meant, they had ne ver held any real discussion on the merits of the 
EC proposal.  To this end, and also in respon se to the comment made by Switzerland about the 
certainty that Swiss producers wanted to secure wh en seeking protection in other countries, she asked 
why geographical indication owners from one count ry should have this benefit in domestic 
proceedings in other countries, while other IP ri ght holders, whether tradem ark or patent owners, 
would continue to have to seek to obtain and enfor ce their own rights in those other countries.  Why, 
as a matter of public policy, should geographical indica tions be any different from these other IPRs?   
153. As to the important issue of the balance of ri ghts and obligations, she said that the idea of 
facilitating protection was completely different from that of providing protection at others' expense, 
which would change the balance of rights and oblig ations in the TRIPS Agreement in a way that 
would be commercially damaging to countries outside  Europe.  This was a core question to her 
delegation:  why should generic producers in Aust ralia bear the burden of proving that a term was 
generic? 
154. The representative of Chile  said that to "facilitate" clearly did not mean the same as to 
"increase" and this was confirmed by the fact that , while Article 24.1 of the TRIPS Agreement used 
the latter term, Article 23.4 used the former.  Had the participants in the Uruguay Round intended to 
have a system which would increase protection, they would have expressly used such a term.  TN/IP/M/16 
 Page 33 
 
 
 155. He stated that, contrary to what the Europ ean Communities had said, the EC proposal would 
produce legal effects that would be greater than t hose currently produced under the Madrid system or 
Lisbon Agreement.  Under the Madrid system, on which the European Communities was purportedly 
basing its proposal, if a member notified a registered trademark, this would be sent out to a designated 
country, Chile for instance.  If the Chilean authoriti es decided that they would not grant protection to 
the trademark, whatever the reason might be, this woul d be the end of the process at the Madrid level.  
If the foreign trademark right holder felt affected by  this decision, he could still go to Chile to seek 
national registration.  If the Chilean authorities decided to accept the trademark registration notified through the Madrid system, this registration would th en deploy effects in Chile.  The Madrid system, 
like the other WIPO ones, was very different fro m what the European Communities was proposing in 
the Special Session.  To take the same example, if Chile refused to grant protection to a notified 
geographical indication, it would still have to ne gotiate with the European Communities within the 
18-month period.  In sum, unlike the EC proposal, the strong legal effects under the WIPO registration systems would only apply if a member d ecided to accept the notified application for, or 
title of, protection. 
156. The representative of the European Communities
 said that the two preceding interventions 
had simply shown that the really controversial i ssue under legal effects was the meaning of the word 
"facilitating".  To Chile’s last intervention with regard  to effects, he responded that it was true that the 
EC proposal included effects in all Members, simp ly because these negotiations were being conducted 
within the WTO and not in WIPO. 
Fees and Costs 
157. The representative of Argentina  recalled that, at the last meeting in October 2005, her 
delegation had indicated that the column of the side -by-side paper (TN/IP/W/12) reserved for the joint 
proposal under this heading was blank, which meant that it would not result in substantial costs nor 
there would be any need to establish fees.  This  would be beneficial for the majority of WTO 
Members, which were developing and least develope d countries.  On the other hand, the column of 
that side-by-side paper reserved for the EC pr oposal under this heading showed how complex this 
proposal was in this regard, to the point that it would create uncertainties.  For example, paragraphs 9.2 et seq. were not clear as to how much the final costs of the system would be.  Not even an estimate had been given.  There was uncertainty as  to whether the intention of paragraph 9.3 of the 
EC proposal was to establish that the costs of the system would be first borne by the main budget of 
the WTO and be later reimbursed.  Furthermore, th ere would be serious administrative and financial 
costs for developing countries since the EC system established a double system of fees:  a basic fee 
and an individual one.  She reite rated her delegation's perplexity  over the establishment of an 
individual fee.  It appeared that it would be linke d to an obligation for many Members to undertake a 
continuous monitoring of geographical indicati ons.  The European Communities had given the 
assurance that the costs associated with it would be reimbursed.  However, it was still not clear how 
this would work in practice.  The complicated st ructure for fees in the EC proposal was just one 
element of a whole complex system.  This was the reason why it was important to analyse and better understand the broad range of costs a nd burdens implied in a proposal.  
158. The representative of the Philippines
 expressed concern about this issue, in particular its 
impact on developing countries, both as potential users or participating Members and as countries 
being required to implement legal effects even if th ey were not participating in the system.  With 
regard to the impact for his country as a potential user, he said that his delegation had not yet made 
any mathematical calculations in this regard, and was therefore not in a position to criticize or endorse 
the proposed EC system.  However, there was a fundamental concern for developing countries:  in the event that a developing country like the Philippines had geographical indications for wines and spirits 
to protect in the future, the elaborate and complicated system under the EC proposal would impose 
fees that would become so prohibitive that it would not be able to participate even if an economic TN/IP/M/16 
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 interest existed.  The other, more compelling, co ncern his delegation had related to the burden and 
costs that the EC mandatory system would most probably impose on Members, particularly developing countries, even though they had decided not  to participate in the system.  The EC proposal 
would entail additional costs for some Members as a result of the obligation of monitoring trademarks 
and of the need for providing for capacity building of  examiners and personnel in Member's IP offices 
so as to ensure that they would be able to lodge the necessary reservations within the 18-month 
period.  There were also notification costs, which would be burdensome for Members, as well as the additional costs associated with the reservation procedures and the requirement of engaging in 
mandatory bilateral negotiations.  Another concern was whether the EC proposal would not have 
certain consequences with regard to  border controls by his country.  If that was the case, then it would 
constitute an additional burden and cost for many Members, particularly developing countries.  In 
addition to the costs for Members, there would be costs for their exporters, who might be compelled 
to re-label and re-brand their products.  He said that, for the above reasons, it seemed that the EC 
proposal implied a fundamental shift in the way GI protection would be provided, at least for wines and spirits.  While costs and burdens were currently more on the side of the private sector, or at least 
on the producers and manufacturers, they would be  shifted to governments.  This would pose a 
problem for the governments of many developing countries in terms of funding and budgetary 
priorities.  Although not directly impacting on the topic under discussion, global branding was one corollary issue that was also at th e back of the minds of countries, in particular the developing ones.  
159. He concluded by saying that, from a developing country's perspective, it would be preferable 
to have voluntary participation in the system.  Manda tory participation, in particular for countries with 
no interest in the system, would be unfair and would most probably impose undue financial and 
administrative burdens on Members, especially the developing countries, which was unacceptable. 
160. The representative of Chinese Taipei
 recalled that, at the last meeting of October 2005, two 
points had been raised.  The first one, made by the European Communities, was whether or not the 
proposal made by Hong Kong, China on the duration of  registrations would be in conformity with the 
TRIPS Agreement.  The other, made by Argentina, related to the reason for the inclusion of a new 
element in square brackets in paragraph 9.4 of  the EC proposal, namely the "renewal of the 
multilateral registration", to which the European Communities had simply replied that its proposal 
was basically inspired by the Madrid Protocol.  She asked the European Co mmunities:  whether there 
was a term of protection for registered GIs under th eir proposal;  if there was, how would it conform 
with the TRIPS Agreement;  and, if there was not, why did paragraph 9.4 of the proposal contain a 
provision for renewal fees in square brackets? 
161. She expressed concern about the individual fee under the EC proposal. According to its 
paragraph 9.7, the individual fee would cover the co sts of searching for trademarks containing, or 
consisting of, a notified geographical  indication prior to registration as well as the costs of monitoring 
conflicting trademarks.  This would shift to governme nts the burden that should be borne by GI right 
holders.  Given that IPRs were private rights, it should be the right holders who should bear that 
burden.  Furthermore, according to paragra ph 9.8, "WTO Members shall notify the national 
component of the individual fee which it wishes to receive" on the condition that this fee "may not be 
higher than the equivalent of the amount which the relevant administration of the WTO Member 
would be entitled to receive from a national appli cant in the framework of a domestic procedure, 
where such an individual fee is payable".  Given that not all WTO Members were signatories to the 
Lisbon Agreement or to the Madrid Protocol, ho w could Members decide which domestic procedure 
to use as a reference in deciding the individual fee?   If there was a complaint from other Members that 
the individual fee was too high, how would the system manage to resolve it?  In contrast, there was no 
such fee under the system of the joint proposal. 
162. She expressed serious doubts about the European  Communities' statement that under the EC 
proposal all costs would be fully recoverable.  Th ere were many hidden costs that would still not be  TN/IP/M/16 
 Page 35 
 
 
 covered by the fees proposed in paragraph 9.5 of the proposal, including the costs of lodging 
reservations and entering into compulsory negotiations to retain the right to use existing exceptions, as 
well as the costs of re-branding for producers and retailers.  
163. She concluded by expressing concern that the pr oposed EC system would be expensive.  In 
contrast, the system under the joint proposal app eared to be inexpensive, given the way it was 
designed and, most importantly, that it fully respected  the principle of territoriality and the fact that 
intellectual property rights were private rights. 
164. The representative of Turkey  recalled the detailed e xplanation given by the 
European Communities on its proposal related to co sts.  Although the system would be based on the 
user-pays principle, the cost issue would need to be  further elaborated so as to allay the concerns of 
developing countries.  In this regard, he welcomed the EC proposal on technical assistance to LDCs 
and developing countries in view of their active use a nd participation in the system.  It might therefore 
be necessary to envisage S&D elements in the system.   
165. As for administrative burdens and costs, he echoe d parts of the statement made by India, and 
added that since 1995 Turkey had been investing heavily  in its IP infrastructure with a view to having 
a better and larger IP office, and had extended lega l and law enforcement structures with adequately 
trained personnel, facilities and equipment.  These we re real costs that Turkey's taxpayers, including 
its businesses, had incurred for the prot ection of third parties' IPRs as a result of the fulfilment of its 
international commitments.  What Turkey was expe cting from this round was to also have a result for 
itself in terms of IP protection. 
166. The representative of Jordan  recalled an earlier statement expressing his delegation's concern 
about the burdens that the proposed EC system might  cause to developing countries.  He considered 
the proposed EC system as being complicated, incl uding with regard to fees, the implementation and 
functioning of which he was still struggling to under stand.  He feared that the costs and burdens 
associated with this proposal, in cluding due to fees and costs for re-branding and re-labelling of 
products, would be negatively refl ected in product prices.  In other words, the EC proposal would 
produce adverse effects.  
167. The representative of Singapore  expressed his delegation's concern with the impact of the EC 
proposal's obligations on Members with little or, as in the case of Singapore, no wine geographical 
indications, since for them there would potentially be no benefits to reap.  In fact, it was clear that the 
current version of the EC proposal would indeed gi ve rise to additional costs and burdens to non-wine 
producing countries.   
168. Building on the comments made by the Philippin es and Chinese Taipei on this issue, he said 
that the functioning of the EC proposal's reserva tions system would automatically bring about the 
question of costs and administrative burden.  This  was so because, apart from monitoring trademarks 
systems, Members would also have the obligation to set up efficient processes for the purpose of 
collating the representations of their traders so as to lodge reservations within the 18-month period, 
which was, in any case, quite short.  There would al so be costs associated with liaising closely with 
the traders and businesses so as to competently negotia te bilaterally on their behalf.  While the setting 
up of these processes would involve substantial cost s, it was still unclear how a country with no 
geographical indications, like Si ngapore, would benefit from the system.  For all these reasons, his 
delegation was in favour of a simple and uncompli cated system that would not involve substantial 
costs and administrative burdens. 
169. The representative of Costa Rica  said that costs and fees were an essential issue for 
developing countries, in particular, as mentione d by the Philippines, for those developing Members 
who were non-producers or exporters of wines and spirits.  The joint proposal had no provisions on TN/IP/M/16 
Page 36  
 
 fees and costs, exactly because the system it propo sed would not impose any kind of administrative 
burden for the participating Members, and none at all for non-participating Members.  In contrast, 
under the proposed EC system system, Members who had opted not to participate would have, in 
addition to the costs mentioned by the Philippines, to lodge reservations and engage in compulsory 
negotiations so as to maintain their rights a nd make use of the existing exceptions under the 
TRIPS Agreement.  Who would bear such cost s?  The EC proposal was therefore onerous for 
developing countries, including those opting not to participate in the system. 
170. He welcomed the commitment for trade-relate d technical assistance for developing countries 
and LDCs as suggested in paragraph 9.10 of the EC proposal.  This was positive wording that could 
be used in other areas of negotia tions of the Round.  He neverthe less expressed doubt regarding the 
part of this paragraph stating that such assist ance would be provided with a view to enabling 
developing countries and LDCs to profit and actively participate in the system.  He wondered whether 
this meant that countries without geographical indica tions, such as Costa Rica, would have to change 
their production and marketing systems to be able to  use the EC system.  If that were the case, there 
would be many costs and it would constitute a fo rm of neo-colonialism of standards and rules. 
171. The representative of the European Communities
 said that the issue of costs and fees would 
depend on what was agreed on other issues, such as  legal effects, participation or the number of 
notified geographical indications, ta king into account the flexibility that his delegation had offered in 
this regard.  He recalled that originally his de legation had not intended to include in its proposal 
provisions related to costs and fees.  They had be en later included only at the request of other 
Members and in order to meet their concerns.  In  addressing Member's concerns, this section of the 
EC proposal was guided by the principle that it should be the beneficiaries of the system who would 
mainly pay for its functioning.  His delegation w as nevertheless open to addressing further concerns 
Members might have under this item. 
172. He explained that under the EC proposal there were two different sets of costs:  the costs for 
administering the system and the costs for Members.  The first costs were basically those incurred by 
the administering body and would be minimal.  They would derive from the reception, processing and 
circulation to Members of the notifications, annot ations of challenges and updating the system, and 
would essentially be the same as those deriving from the other proposals on the table.  The other set of costs were those that Members would incur and were related to the examination of the notifications.  
He recalled his delegation's earlier statement that  such examinations would take place under the 
existing administrative and legislative structures that  Members, as Turkey had indicated, had already 
put in place as a result of their implementation of th e TRIPS Agreement.  This meant that most of 
those administrative costs had already been borne by Members. 
173. On the basis of the principle that the beneficiar ies of the system should mainly be the ones to 
bear the burden of paying for its functioning, the EC  proposal had divided into two the fee that should 
be paid at the time when a Member made a notificatio n:   a basic fee and an individual fee.  The basic 
fee would be intended to cover the administrative func tioning of the system, i.e. the first set of costs 
described above.  The individual fee would cover th e costs incurred by Members in monitoring past 
and future trademarks. 
174. As to the comments that the EC's fee proposal was complex, he said that it was precisely to 
allay a similar concern that his delegation itself ha d had that it had decided to draw inspiration from 
the Madrid fee system, which had proved to be a manageable one. 
175. As to the comments that under the EC proposal costs would be shifted from the beneficiaries 
to governments, he responded that that was the reason why the proposal included the possibility for 
Members to pass on, or to collect, fees from the beneficiaries, i.e. the GI right holders.  TN/IP/M/16 
 Page 37 
 
 
 176. He further said that paragraph 9.10 of the EC proposal was designed to help developing 
countries to benefit from the establishment of the system.  According to this provision, WTO Members would commit to providing trade-rela ted technical assistance to ensure that those 
developing country Members could ac tively participate in the system, in other words, be able to notify 
their geographical indications into the system, whic h was the main criterion under the EC system to 
define a participating Member. 
177. The representative of Australia
 asked the European Communiti es whether it accepted the fact 
that there were many costs associated with its proposal that would not be recoverable by the fee 
mechanism proposed, most particularly tho se stemming from the reservations process.  
178. The representative of th e European Communities  said that he had already addressed that point 
when he had said that Members would not need to set up new structures to conduct examinations 
using their existing administrative systems.  As to  further costs that might emerge, the EC proposal 
only referred explicitly to the indi vidual fee covering those obligations to monitor past or future 
trademarks.  However, if there were further co sts that Members believed could be covered, his 
delegation would be prepared to exercise flexibility in that respect. 
179. The representative of Argentina  expressed support for the comments made by the previous 
speakers.  She said that the preceding interventi ons, particularly those from Costa Rica, the 
Philippines and Singapore, had shown that any discussion over costs of the system could not just be limited to multilateral administrative costs or fees.   Concerns had been voiced about the basic and 
individual fees from the point of view of non- wine producing countries.  Argentina, as a 
wine-producing country, was also not convinced wh y and under what justification the system to be 
established should result in costs either for its govern ment or its producers.  As indicated by other 
delegations, Argentina's concerns also touched upon a wider range of issues, such as enforcement, 
examination or bilateral negotia tions, which were all time-consum ing and involved financial and 
human resources. 
180. She expressed surprise with th e European Communities' point  that the costs would be 
minimized by the fact that the system would make use of existing national structures that had already 
been set up to comply with the standards under the current TRIPS Agreement.  For her delegation, the 
TRIPS Agreement did not create any obligation what soever to establish any kind of structure to 
examine geographical indications.  However, if th at were the case, what would happen with those 
Members, who were the majority of this organization,  that did not have such costly structures nor the 
financial resources to create them?  If some memb er States of the European Communities had such 
systems, it was not because of the TRIPS Agreement but because they had had them in place for more 
than a century. 
181. The representative of the United States
 said that there was a direct relationship between the 
structure of the system and the fees and costs involved.  The more complex the system, the higher the costs would be.  The EC system was more comple x than the one proposed by Hong Kong, China but 
they were both more costly than the joint proposal.  With respect to fees, the joint proposal was easy 
to administer and no fees would be charged.  It was unclear under the EC proposal whether non-participating Members would be able to obtai n fees for the examinations conducted for notified 
geographical indications.  There would also be many costs associated with the EC proposal that would 
not be recoverable by the fee mechanism propo sed, such as costs to governments, producers, 
consumers and the administering body.   
182. The representative of the Philippines
  said that, while he had taken note of the response given 
by the European Communities to th e point raised by some delegations that under the EC proposal 
there were certain costs that would not be recove rable, his delegation was still unconvinced that the 
proposal addressed the core concerns raised by many Members in this meeting. TN/IP/M/16 
Page 38  
 
 183. He further took note of the European Communities' point that under the EC proposal 
Members would not have to restructure their national IP administration systems in order to protect geographical indications.  Although his delegation was not in a position to  fully debate this particular 
assertion, it had always been the position of his auth orities that implementing the EC proposal would 
require changes with significant implications as to  how his country was going to administer its 
system.  Therefore, his delegation was not complete ly convinced that this issue was as simple as the 
EC delegation was claiming it to be. 
184. He agreed in principle with India that there were  certain core systemic concerns, such as legal 
effects and participation, which needed to enjoy some commonality before Members would be able to 
move forward on other issues.  However, from the perspective of developing countries, costs and 
burdens were also core issues.  Many developi ng countries were already finding it difficult to 
implement many of their obligations under the di fferent WTO Agreements, which imposed additional 
costs and burdens on them.  It would therefore be difficult for them to explain and justify to their 
constituencies and stakeholders why they should u ndertake to implement a mandatory system that 
would have additional costs and burdens to go vernments while there no economic interests. 
Remarks by the Chair 
185. The Chairman
 said that the discussion had been focused on the priority concerns and hence 
useful.  He hoped that the points made had helped Members to better understand each other's concerns 
and invited them to think further on how certain con cerns or fears could be allayed.  He noted that, 
while in some areas, such as legal effects/conse quence of registration and participation, Members 
were still far apart, on some others, such as notific ation, there seemed to be more common ground.  
His sense was that on issues such as fees and costs th ere was need for more work to clarify the issues 
and the differences. 
D. OTHER ISSUES  
186. The Chairman  informed Members that the next formal meeting of the Special Session had 
been scheduled for 12-13 June 2006, back-to- back with the next regular session of the 
TRIPS Council.  He said that, in the meantime, an intensive process of work in more informal settings 
had to be envisaged in order to make significant prog ress by that time, and in order for Members to be 
able to produce the required working document by Ju ly of this year.  He was also cognizant of the 
guidance that Members had received from the TNC about the need for the negotiations across the 
whole of the DDA to move ahead in concert.  He  therefore planed to organize consultations in a 
variety of formats in the period between this meet ing and the June meeting.  It would clearly be 
necessary for delegations to intensify also their contacts with each other in  order to find the way 
forward. 
187. The representative of the European Communities  said that the Chair's suggestions appeared to 
be a reasonable way forward.  His delegation would continue its informal work with other Members 
to try to make progress.  He added that it would be u seful if a draft of the document to be tabled in for 
July 2006 could be prepared for the June meeting.  He recalled that in the past his delegation had 
asked the Chair to produce a compromise proposal with options.  It would certainly be useful if such a 
compromise proposal was prepared with the suppo rt and input that might flow from the work 
conducted in the consultations. 
188. The representative of Argentina  said that her delegation had no difficulties with the Chair's 
suggestions as to the way forward.  Members needed  to take into account all the points discussed and 
made in this Special Session, including the general comments made at this meeting.  In this regard, 
she noted that in his concluding remarks the Chair had identified points about which delegations were 
still apart, a point about which there could be some common ground, and other points where more  TN/IP/M/16 
 Page 39 
 
 
 clarification was needed.  Her delegation believed that the curre nt situation would not enable 
Members to use any paper other than the docum ent under which they had been conducting their 
negotiations, i.e. the side-by-side paper (TN/IP/W/ 12).  Therefore, future consultations should be 
based on that document and it looked likely that this would not change for the formal meeting in June.  
This would have been different if there were c onsensus among Members that would enable them to 
move on.  In principle, any working document within the meaning of the guidelines of the TNC 
should be a consensus document, i.e. one emanati ng from the Members themselves.  Any consultation 
should therefore continue on the basis of what Me mbers already had on the table and it was not the 
right time to request a compromise proposal.  In th is regard, she recalled an attempt made by the 
previous Chairman to come forward with a co mpromise text including options, with which her 
delegation had had difficulties.  Noting that the side-by-side document already showed the options, 
she suggested that, given the support expressed fo r the joint proposal at this meeting, the EC 
delegation come to the consultations and to the June  meeting with a revised proposal that would better 
take account of the interests of all Members. 
189. The representative of Australia  said that her delegation also agreed with the approach 
suggested by the Chair.  The discussions had been qu ite useful and had attracted wider participation 
than usual.  Although these negotiations might appear  tortuous at times, she believed that Members 
had gradually been able to discern what the real issu es were.  She agreed with the Chair that Members 
should keep discussing the issues and try to address each other's concerns.  She supported Argentina's 
point that it would be positive if the European Communities could come to the next Special Session's meeting with some responses to the questions and concerns raised by many delegations at this 
meeting.  Her delegation would also reflect on certa in points, including some of the concerns raised 
by the European Communities and Switzerland, so as to  be able to address them at the next meeting.  
Some of these points or concerns were, for exampl e, those regarding the effectiveness or sufficiency 
of the joint proposal or those on how the integrity  of information on geographical terms could be 
ensured under the joint proposal. 
190. As to the July working document, she agreed with Argentina that it should be a consensus 
document from Members.  She wondered ho w a compromise text, as suggested by the 
European Communities, would work.  For exampl e, what would be the compromise between a 
voluntary and a mandatory register if the only possible options were either to participate or not?  Would this compromise be based on the complicated idea of non-participating and participating Members under the EC proposal?  The same concern applied to legal effects, where the issue of 
presumptions and their implications regarding the balance of rights and obl igations was an essential 
one to her delegation and many ot hers.  Would the compromise be to diminish Members' rights 
slightly less than what was bei ng proposed by the European Comm unities?  She was not even sure 
whether such an idea would be acceptable to her delegation.  Therefore, the best course of action was to intensify these negotiations by holding informal  consultations, which w ould hopefully enable 
Members to come to the next Special Session meet ing in June with some responses to each other's 
concerns, and help them achieve progress in these negotiations. 
191. The representative of the Philippines
 said that the discussions at the meeting had been 
interesting and educative and that they had attracted, as Australia noted, more pa rticipation than usual.  
While his delegation recognized the importance of  this issue for the European Communities, 
Switzerland and perhaps a few other delegations, as well as the right of the European Communities to 
present a proposal, which some Members would view  as overly ambitious, he said that it should also 
be recognized that a good number of Members ha d raised legitimate concerns, leading them, 
including the Philippines, to express preference for the joint proposal. 
192. As to the way forward, his delegation agreed w ith the Chair's concluding remarks that perhaps 
it would be too late if Members waited until the Ju ne 2006 formal meeting of the Special Session.  It 
would therefore be necessary to intensify informal bilateral and plurilateral contacts, whether or not TN/IP/M/16 
Page 40  
 
 under the auspices of the Chair.  He said that the Chair should convene an open-ended informal 
meeting between this meeting and the June formal meeting so as to ensure that the process of 
consultations would be transparent and inclusive, because at the end of the day any agreement would 
have to be adopted by all Members by consensu s.  It was clear from this meeting that the demandeurs  
and the proponents were not the only interested pa rties in these negotiations.  There were many other 
delegations, such as the Philippines, who might not have been always active or vocal in the 
discussions, but had legitimate systemic concerns.  He concluded by saying that the way forward 
proposed by the Chair was the best option and urge d Members on both sides of the fence to truly 
intensify discussions and be open to the legitimate con cerns that each side had raised over the course 
of many years of negotiations.   
193. The representative of the United States
 said that the brief summary of the Chair was accurate, 
and that her delegation agreed with his suggested way forward.  Her delegation associated itself with 
the comments made by Argentina and Australia with  regard to the July working document and the 
continuation of the Special Session's work, and ther efore supported their comment that a compromise 
working document was not warranted at this juncture. 
194. The representative of Switzerland  said that her delegation agreed with the Chair's proposal 
regarding the way forward.  An intensification of  consultations in different formats would enable 
Members to make progress in these negotiations.  Re garding the consultations, she said that Members 
were just at the beginning of a process and had di ffering positions.  If they wanted to reach specific 
results, then they would have to take into account each other's interests and make concessions.   She 
hoped that the consultations would enab le Members to achieve this goal. 
195. As to the document to be produced, she also belie ved that it was premature at this point to say 
whether Members needed such a document, or whethe r they should keep the side-by-side document.  
In any case, Members would need to have a text wh ich would enable them to identify their room for 
manoeuvre and what the final result could be.  While noting that it was helpful that Hong Kong, China had made such an attempt, she said that, in the absence of a text by Members, the Chair might 
have to come forward with a text with options th at allowed them to see where they were heading. 
196. The representative of the European Communities
 expressed surprise at the suggestion made 
by Argentina and Australia as a way forward that the European Communities modify its proposal to 
address the concerns they had expressed but which had not been appropriately addressed in the EC 
proposal.  His delegation could also say exactly the sam e, namely that its concerns regarding the joint 
proposal had not been appropriately addressed, and th at the appropriate way forward would therefore 
be for the Joint Proposal Group to modify its proposal before coming to the June meeting.   
197. Referring to Switzerland's statement that wh at Members needed to do was to engage 
immediately in an informal process to understand each ot her's concerns so as to be able to work their 
way towards a compromise, he expressed the hope th at for the June meeting Members would be able 
to establish a sufficient basis to produce that compro mise text, which, as Switzerland also had said, at 
some point in time might come from the Chair. 
198. The representative of Chile  agreed with the Chair's summary  of the discussions and with his 
suggestion as to the way forward.  He said that  the side-by-side paper was a good document and 
should continue to be the basis for the discussions  of the Special Session.  With regard to the 
instruction by the TNC that these negotiations would have to proceed in concert with other areas of 
the DDA, he said that, compared to other negotiatin g groups, the Special Session seemed to be quite 
advanced with a document presenting the various propo sals that delegations had put in a draft legal 
form on the table.    TN/IP/M/16 
 Page 41 
 
 
 199. The Chairman  took note of all the comments made.  He thought that it would be rather early 
for him to say whether he was in a position to come  up with a document.  This would depend on how 
bilateral consultations and his c onsultations developed, as well as on developments in other areas of 
the WTO.  He therefore urged all Members to sh ow flexibility so as to allow these negotiations to 
achieve some results. 
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