RESTRICTED  WORLD TRADE  
ORGANIZATION  TN/IP/M/25 
31 May 2010 
 (10-2998) 
Council for Trade-Related Aspects of  
Intellectual Property Rights Special Session  
 
   
MINUTES OF MEETING 
 
Held in the Centre William Rappard
 
on 4 March 2010  
 
Chairman:  Ambassador D. Mwapa (Zambia) 
  
Subjects discussed
              P a g e  N o .  
 
A. ELECTION OF CHAIRPERSON ........................................................................................................1  
B. NEGOTIATION ON THE ESTABLISHMENT OF A MULTILATERAL SYSTEM OF 
NOTIFICATION AND  REGISTRATION OF GEOGRAPHICAL INDICATIONS FOR WINES 
AND SPIRITS ............................................................................................................................... .1 
C. OTHER BUSINESS ......................................................................................................................20  
 
  
A. E
LECTION OF CHAIRPERSON  
1. The Special Session confirmed  the appointment of Ambassador Darlington Mwape (Zambia) 
as Chairman.  
2. The Special Session agreed  to adopt the agenda as set out in WTO/AIR/3513. 
B. NEGOTIATION ON THE ESTABLISHMENT OF A MULTILATERAL SYSTEM OF NOTIFICATION AND 
 R EGISTRATION OF GEOGRAPHICAL INDICATIONS FOR WINES AND SPIRITS  
3. The Chairman  said that he would seek to ensu re progress and hoped to build on the 
achievements of his predecessors towards an outcome that was acceptable to all delegations.  He was 
thankful to Ambassador Trevor Clarke for his effort s and inspiration in taking the work of the Special 
Session forward in a positive and constructive spirit and for his masterly report that took note of the 
progress achieved and would serve as a basis for furt her developments.  The Chairman also expressed 
his appreciation to Ambassador Karen Tan (Singa pore) for her dedication in chairing the Special 
Session as pro tempore Chair following the departure of Ambassador Clarke.   
4. Ambassador Karen Tan, the representative of Singapore , congratulated the Chairman on his 
election and said that her delegati on would continue to support his e fforts in leading the negotiations 
of the Special Session.  She then reported on th e informal consultations she had undertaken as pro 
tempore Chair of the TRIPS Special Session since December 2009.  During that time she held 
informal consultations with the group sponsoring TN /IP/W/10/Rev.2 (hereinafter "joint proposal") on TN/IP/M/25 
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  16 December 2009 and with the group sponsoring TN /C/W/52 or "modalities proposal" (hereinafter 
"TN/C/W/52 proposal") as well as with Hong Kong, China, who had tabled TN/IP/W/8, on 4 February 2010.  To ensure transparency an d to report to the wider Membership on these 
consultations, she had also held an open-ended in formal meeting of the TRIPS Special Session on 
5 February 2010.  She said that the remarks she wa s going to make largely reflected the views she had 
shared with Members at that 5 February meeting.  
5. As an overall assessment, although the fundamental  positions of delegati ons had not changed, 
it had been her sense that there was a genuine and si ncere desire on the part of delegations to move 
forward and resolve the remaining differences in thes e negotiations, so as to be ready to contribute to 
any movements in the wider context of the Doha Round negotiations.  
6. More specifically, she had noted Members had expressed their appreciation of Ambassador 
Trevor Clarke's report in TN/IP/19 as a fair and ba lanced reflection of the state of play and of 
remaining challenges, in particular in the two key ar eas of legal effects and participation, even if some 
points and suggestions made in the report were not sh ared by all delegations.  With regard to the five 
"Guiding Principles for Future Work" in Part C of  the report ("The Way Forward"), she had noted a 
general agreement as to the usefulness of these prin ciples for future work of  the Special Session.  
Individual principles enjoyed different levels of  Members' enthusiasm.  Some delegations had 
highlighted particular concerns and there were fine ly nuanced views on what role they should play in 
the future work of the Special Session.  It seemed nonetheless clear that the guiding principles 
represented a succinct crystallisation of both co mmon ground and remaining differences in these 
negotiations, even though there was no suggestion that they should form the basis of negotiations.   
7. As regards the structure of future work, ther e was a widespread view among delegations that 
the discussion should avoid rhetorical debates and fo llow a practical approach, focusing in part on 
concrete practical examples and concerns regarding the implementation of each proposal at the 
national level.  To this end, several delegations  had indicated their willingness to make or develop 
case studies, examples and scenarios regarding the im plementation of the different proposals in their 
national law. 
8. She said that it was evident that the method to  structure the discussion around the clusters of 
issues identified by previous Chairs was well accep ted by Members, and that the list of questions 
posed by Ambassador Clarke ha d been successful in further focusing the discussion among Members 
on critical areas of convergence or divergence. 
9. It was her own view that, in terms of structuring the future discussions in the Special Session, 
merit lay in utilizing all the elements that had been developed and already used to ensure that none of 
the work done hitherto would be lost, that di scussions among Members should move forward rather 
than repeat existing positions, and that the gaps identified between Member s could eventually be 
bridged.  
10. In closing, she wished the Chairman much su ccess in his Chairmanship and in steering the 
Special Session. 
11. The Chairman
 said that he had held consultations with the group supporting TN/C/W/52, the 
Joint Proposal Group, and the Hong Kong, China de legation. The purpose of these consultations had 
been for him to become acquainted with some of th e delegations and to gain a sense of the issues 
under consideration, with a view to organizing future work, taking advantage of the presence in 
Geneva of capital-based experts, as well as sharing with these delegations hi s own understanding of 
the issues.   TN/IP/M/25 
 Page 3 
 
 
  12. He recalled that the three clusters of issues identified by Ambassador Manzoor Ahmad 
(Pakistan) were:  legal effects/consequences of registration and participat ion;  notification and 
registration;  and other issues, including fees, costs,  administrative and other burdens, in particular for 
developing countries and least developed countri es, and special and differential treatment.  In 
October 2009, Ambassador Trevor Clarke had circul ated a list of four questions concerning legal 
effects/consequences of registration, participation, and special and differential treatment, with the aim 
of focusing Members' discussions and structuring them around these questions.  It was his understanding that delegations had an excellent discussion on the basis of this list of questions. 
Though it had not bridged the main gaps, the cl arifications, case studies and presentations they had 
sparked had shed light on various issues.  That kind of technical discussion had probably provided 
Ambassador Trevor Clarke with some material to make suggesti ons on the way forward, including the 
five guiding principles outlined in para graph 16 of his report (TN/IP/19).   
13. With regard to the guiding principles, he was aware that, while all de legations agreed that 
they were a useful tool for their work, some oppo sed them as a basis for negotiations, and others said 
they should not be used as an excuse to conti nue rhetoric debates on well-known concepts such as 
"multilateral" or "to facilitate".  With all this in mind, he proposed that for their future work Members 
continue to build on their achievements.  
14. He therefore suggested:  
(i)  that Members continue to structure th eir work around the three clusters identified by 
Ambassador Manzoor Ahmad (paragraph 4 of TN/IP/18); 
(ii) that, while doing that, Members continue to use Ambassador Trevor Clarke's list of 
questions on legal effects, participati on and special and di fferential treatment 
(paragraph 5 of TN/IP/19);  and  
(iii) that, while discussing each issue, Memb ers should seek to see how their concerns 
could be reconciled in the light of contin uing explanations as to how Members would 
actually implement different options within their national systems, bearing in mind 
the guiding principles in TN/IP/19, without negotiating on those principles as such 
and recognizing that delegations might have some reservations on certain aspects of 
those principles. 
 15. In short, Members would continue with the three clusters of issues, using the four questions to 
focus the discussions, while bearing in mind the fi ve guiding principles.  He expressed his hope that 
this three-four-five approach would eventually end in one working document.  To this end, time was 
needed to work through some specific questions.  While it was up to the Members to consider how 
their concerns would best be met, he would encour age a focused exchange of questions and answers, 
in order to create the clearest and most informative basis from which to work.   He suggested that the 
clusters of issues be taken one by one and that th erefore the issue of legal effects/consequences of 
registrations be addressed first.  As had been underlin ed by some delegations, this issue was crucial to 
the resolution of other issues, including participation.   
16. The Chairman recalled the four questions posed by Ambassador Trevor Clarke: 
 "(i)  What legal obligations would be acceptabl e for the Register to facilitate the protection 
of geographical indications for wines and spirits, as mandated by Article 23.4 of the 
TRIPS Agreement?  
 TN/IP/M/25 
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   (ii) When making decisions regarding the registration and protection of trademarks and 
geographical indications, what significance a nd weight should national authorities give 
to the information on the Register? 
   (iii) Are there any options regarding partic ipation, other than voluntary and mandatory 
participation.  If so, what criteria could be envisaged? 
   (iv) What form could special and differential tr eatment take with regard to the Register?"  
 17. On the subject of registration and notificati on, he said he would invite delegations who 
wished to add anything new under this cluster to do so.   
18. The representative of the European Union
 congratulated the Chairman on his appointment 
and said that he could count on the support, trust and full cooperation of the European Union in seeking a mutually-agreed outcome to the negotiati ons.  Recalling that his delegation was a member 
of a coalition of 108 Members, representing a two-thir d majority of the Membership, he reiterated its 
support for the negotiations on a multilateral regist er for geographical indications for wines and 
spirits, coupled with negotiations on the issues of GI extension and TRIPS/CBD (Convention on 
Biological Diversity).  Under the TN/C/W/52 proposal, the three issues should be dealt with in parallel, and, while some Members opposed this linka ge, it was a political reality that had to be taken 
into account. The group supporting TN/C/W/52 had contributed a great deal to the register negotiations and, due to its ability to listen, had be en a driving force in terms of making proposals.  
Given that a proposal that gathered the support of a two-third majority of the Membership could itself 
only be the fruit of compromise, the Members spons oring TN/C/W/52 had seriously recalibrated their 
past positions to achieve this common position.   
19. He said that his delegation fully agreed with th e Chairman's assessment that the two pivotal 
elements of the negotiations were the issues of lega l effects and participation, and that these should be 
addressed immediately, in the hope that once these ha d been agreed the rest would fall into place.  
The European Union further supported the Chairman's  proposal of continuing work on the basis of the 
suggested clusters, starting with the first two of the four questions that had been circulated on 
2
 October 2009, on legal effects.  These two issu es had been clearly addressed on several occasions, 
notably in a thirteen-page explan atory document circulated by the European Union on 25 February 
2009, capturing a reply to a total of 64 questions relating to the majority proposal on the register.  On 
10 June 2009 his delegation had again provided e xplanations on how the register would function 
under this proposal.  His delegation was ready to address any further questions that Members might 
have.  However, as the Chairman had stated, an y new questions should not cover old ground as the 
negotiation process should not be delayed. 
20. On the issue of legal effects, he said that, under the TN/C/W/52 proposal, the entry of a name 
into a register would not amount to automatic GI  protection.  Rather, it would trigger two legal 
effects:  first, the name entered in the register would merely represent prima facie  evidence that it was 
a geographical indication, that the goods originated  from a specific place and owed at least one of 
their characteristics, its quality or its reputation to  this origin.  He said that beyond that, domestic 
authorities would have all latitude to decide for or  against protection of the term on the basis of 
contrary evidence provided by themselves or brought by any third party.  In this regard, the sponsors 
of the TN/C/W/52 proposal considered that the issu e of alleged extra-territoriality had been addressed, 
as the final decision on protection lay exclusively w ith domestic authorities.  Even if the domestic 
authorities agreed that the name met the definitio n of a geographical indication, it did not necessarily 
mean that the term would be protected because all th e exceptions of Article 24 remained available.  
The second aspect of the proposal provided that any assertion of one of these exceptions, namely the 
generic exception, had to be substantiated.  As hi s delegation and other supporters of the proposal had 
been informed by Members opposing that proposal that  this was already the case in their systems, i.e.  TN/IP/M/25 
 Page 5 
 
 
  that any assertions on genericness already had to be su bstantiated, this should therefore not represent a 
problem.  He reiterated that the checks and balan ces of the exceptions provided in Article 24 would 
remain unchanged.   
21. In contrast, he said, the Members opposed to TN/C/W/52 had not yet explained how they 
would implement the obligation to "consult and take into account" th e information on the register.  
While this formulation had so far only been e xpressed orally and not been put in writing, his 
delegation believed that this wa s how these Members would have domestic authorities treat the 
information on the register, but the details were not yet clear.  As legal uncertainties for market operators, whether they were GI or non-GI operators , had to be avoided, there was need for further 
explanations on this issue.  He said that if there were a compulsory system of taking the term on the 
register into account in domestic decision-making, th is might well be very similar to the TN/C/W/52 
proposal.   
22. He said that Members should not open or re- open semantic debates but focus on the Special 
Session's mandate and the purpose of the register, wh ich was to facilitate the protection of GIs and  
not to facilitate the protection of domestic authorities or of trademark owners.  
23. The representative of New Zealand
 congratulated the Chairman on his appointment and 
expressed his support to the Chairman for his pr oposal on the way forward.  He also thanked 
Ambassador Tan for her constructive and useful work over the past months.  
24. On questions one and two of the Chair's list of  four questions of October 2009, he referred 
Members to the responses contained in a room  document circulated on 23 October 2009 to the 
Chairman's questions by the delegations of Ar gentina, Australia, Canada, Chile, Costa Rica, 
Dominican Republic, Ecuador, El Salvador, Guat emala, Honduras, Japan, Korea, New Zealand, 
Nicaragua, Paraguay, South Africa, the United States and Uruguay.  With respect to the first question 
regarding the consequences that should flow from an entry on the international register, the room 
document noted the two general approaches that were  on the table, namely that (a) an entry should 
result in better information being available to and u sed by decision makers and national systems, and 
(b) that an entry should result in a legal presumption in national systems.  As set out in the document, 
New Zealand considered that a legal presumption w as not acceptable for a number of reasons:  firstly, 
a legal presumption would increase the legal protection for GIs, and this would be outside the scope 
of this negotiation, which was only about facilita ting protection;  secondly, a legal presumption would 
violate the principle of territoriality;  and, thir dly, a legal presumption would alter the balance of 
rights and obligations in the TRIPS Agreement. 
25. The joint proposal (TN/IP/W/10/Rev.2) had suggested an obligation for Members to consult 
the register when making decisions regarding tradem arks and GIs.  Such an obligation would ensure 
that better information would be made available to decision-makers in domestic systems to facilitate 
the protection of GIs notified to the register.   
26. With respect to the second question on the significance and weight that domestic 
decision-makers should give to the information on th e register, he said that this was a complicated 
legal issue  which varied from case to case and acc ording to the functioning of Members' different 
systems.  There clearly was a fundamental diffe rence between the two approaches on the table 
regarding  whether or not domestic decision makers  should be left with the flexibility to weigh 
information appropriately in accordance with their domestic systems.  Under the TN/C/W/52 
proposal, that weight was actually predetermined a nd that ensured that the substance before the 
decision makers was biased towards a particular outcome. 
27. For instance, when faced with conflicting claims as to whether a term was a GI or a generic 
term under the TN/C/W/52 proposal, it was his dele gation's understanding that the party seeking the TN/IP/M/25 
Page 6  
 
  intellectual property right (IPR) would be at a si gnificant advantage because the burden of proof 
would be on the party arguing that the term was gene ric.  This allocation of the burden of proof was 
clearly the wrong way round and went against the nature of IPRs.  He said that IPRs created monopolies for right holders, and were therefore exceptions by their very nature.  The quid pro quo 
for that monopoly was that those seeking the monopoly had to bear the burden of proving that they 
were entitled to it.  The burden of proof s hould not be on users of generic terms.  
28. In terms of the way forward, the room docum ent circulated in October 2009 contained a 
practical approach for Members to exchange info rmation regarding how deci sion makers in domestic 
systems would consult the register and what mechan ical steps they would take.  Some Members had 
already reported to the Special Session in this rega rd and he noted that the minutes of the Special 
Session of June 2009 contained a detailed record of information from Canada and other Members, 
including Japan, New Zealand and Korea, regarding th e practical details for the implementation of the 
register in their systems.  He said that this kind of practical engagement was still lacking from the 
sponsors of TN/C/W/52.  
29. The European Union had described in June  2009 how the TN/C/W/52 proposal would be 
implemented in a fictitious country  called "Ruritania".  New Zealand considered this example too 
abstract and therefore not particularly helpful.  It would welcome hearing about how its main trading 
partners such as the European Union, Brazil, India, and the United States would implement the 
proposal.  
30. With regard to the European Union's written re plies to questions posed by several Members in 
2009, he said that, while those written responses had b een useful, they had remained at a somewhat 
abstract level, and with regard to the crux of the i ssues the answer had invariably been that this would 
depend on domestic procedures.  He said that , while these issues should depend on domestic 
procedures, it would nevertheless be helpful to  have a detailed account from individual Members 
regarding what those national procedures were and how a register would be implemented in those 
procedures.  This was the idea behind the suggestion to examine the practical details of implementing 
the proposals in different systems that most Me mbers seemed to find useful.  He expressed his 
delegation's support of the Chairman's intention to incorporate this aspect into the Special Session's 
work.   
31. He said that his delegation also recalled with  interest a statement by Brazil made in 
October 2009, that while Brazil had had no intenti on of negotiating away the exceptions of prior 
trademarks and genericness, it had nevertheless been satisfied that the proposal contained in 
TN/C/W/52 had taken into account its concerns.  He invited Brazil to share with Members some 
practical information regarding how its domestic sy stem for the protection of GIs would take into 
account prior trademarks and genericness as well as  the reasoning and judgement that had assured 
Brazil its concerns about prior trademarks and genericness had been accommodated in the 
TN/C/W/52 proposal.   
32. The representative of Canada
 congratulated the Chairman on his election and thanked 
Ambassador Tan for her excellent contribution over the past months.  As a proponent of the joint 
proposal, Canada was in favour of a multilateral regi ster for wine and spirit GIs and could accept as 
legal effect an obligation on domestic decision-make rs to consult the register when making decisions 
regarding the registration or protection of tradem arks and geographical indications for wines and 
spirits.  In order to seek greater clarity as to  how protection would be facilitated, Canada had 
suggested that Members exchange information re garding how decision-makers would take this 
information into consideration.  To this end, Canada had made a comprehensive presentation on the 
implementation the joint proposal register by Cana da at the June 2009 meeting, describing how the 
information on the register would be taken into acc ount in its national decision-making process.  In 
preparing for this meeting, her delegation had atte mpted to assess the GI register elements contained  TN/IP/M/25 
 Page 7 
 
 
  in the TN/C/W/52 proposal but had been unabl e to determine how these elements could be 
implemented in Canada. 
33. She said that unfortunately the TN/C/W/52 proposal seemed to raise more questions than 
answers.  It was Canada's view that to merit consideration a proposal s hould include all relevant 
elements and not leave them for future discussions .  For Canada, the TN/C/W/52 proposal was not a 
proposal for the establishment of a register as such, but rather a text for modalities seeking to link this 
issue, for which there was a clear negotiating ma ndate, with other intellectual property issues 
designated by Ministers as implementation issues.   Her delegation was willing to advance the 
negotiations on the register, but was concerned ab out prejudicing progress by linking it with other 
issues, as this approach could and would not benefit the wider Membership. 
34. The only known elements of the TN/C/W/52 propo sal, such as the legal presumption that the 
registered term met the definition of geographical indication, were clearly outside their mandate.  
Among other things, this presumption created an im balance between the right holder of a GI from a 
given country and the other parties in the count ry where protection is sought, as it did not put 
everybody on an equal footing.  Under the TN/C/W/52 proposal, a domestic right holder would need 
to satisfy domestic procedures, including demonstra ting that a term met the definition of geographical 
indication to obtain protection, while foreign owners  of GIs would be exempted from that requirement 
as they would benefit from a legal presumption.  She said that this kind of reversed or distorted national treatment was only one of several c oncerns about that legal presumption.   
35. Another concern was the extra-territorial natu re of the TN/C/W/52 proposal.  For instance, 
several years ago Canada had entered into nego tiation on wines and spirits with the European 
Communities
1 and had been presented with some 10,000 na mes of GIs recognized in Europe, in other 
words:  names presumed to be GIs.  At the end of a difficult and time-consuming exercise in which 
each of those names was diligently examined by the Canadian author ities to see whether it referred to 
a geographical area, and whether it was actually protected in their country of origin, the list was reduced to only 1,500 names that  could qualify as GIs.  While this process had been time-consuming 
and laborious, one could imagine how much more di fficult  and onerous it would be if Members were 
required to reverse a legal presumption in line with  the TN/C/W/52 proposal.  Members were being 
asked to recognize in their legal system decisions ta ken in other legal systems over which they had no 
control.  While the representative of the Europ ean Union had pointed out the need to avoid 
uncertainty, it was her delegation's view that the EU proposal actually provoked uncertainty.  In the 
example she had provided, the number of GIs had b een considerable but the principle remained the 
same, no matter how many GIs a Member was asked to recognize.  She said she doubted whether all 
Members would have the resources to undertake a similar exercise. 
36. In concluding, she said that her delegation wi shed to move forward with the negotiation on 
the GI register for wines and spirits.  Canada's vi ew, endorsed by the Canadian industry, was that the 
GI register for wines and spirits would be a valuab le tool that would benefit Canadian producers.  
While the TN/C/W/52 proposal was incomplete and outside the mandate, the joint proposal addressed 
all the elements required for the implementation of a register, respected the mandate and therefore constituted the best basis for c ontinuing the negotiations.   
                                                     
 
1 On 1 December 2009, the Tr eaty of Lisbon amending the Treaty on European Union and the Treaty 
establishing the European Community  (done at Lisbon, 13 December 2007) entered into force.  On 
29 November 2009, the WTO received a Verbal Note (WT/L/779) from the Council of the Eu ropean Union and 
the Commission of the European Communities stating that, by virtue of the Treaty of Lisbon , as of 
1 December 2009, the European Union replaces and succeeds the European Community. TN/IP/M/25 
Page 8  
 
  37. The representative of Korea
 congratulated the Chairman on his appointment and expressed 
the hope that an outcome to their negotiations w ould be achievable under his guidance. Like Canada, 
Korea was concerned by the register proposed in TN /C/W/52.  Korean patent officials and IP experts 
had repeatedly voiced their concerns regarding th e difficulty of implementing such a register in 
Korea.  His delegation considered it unfeasible fo r developing countries to implement any of the 
elements contained in TN/C/W/52.  Although th e proposal encompassed special and differential 
treatment for developing countries, the scope of su ch treatment was unclear.  Developing countries 
that might already have difficulty in implementin g GI protection might be forced to implement a 
system that would not fit in their domestic system.  In this context, he said that, while Ambassador 
Trevor Clarke's questions had served as a guide to  a certain extent, it would be necessary to have 
more focused discussions on the problems inherent in the TN/C/W/52 proposal, together with more 
specific and practical questionnaires. 
38. He stressed that Korea attached great importa nce to transparency and inclusiveness in the 
consultation process and said that ensuring this through regular meetings could be less time-
consuming.  In this context, Korea would welc ome as many open-ended meetings as possible being 
held in the course of their future work.   
39. The representative of Hong Kong, China  congratulated the Chairman on his election.  She 
said that Hong Kong, China supported the proposal by the Chairman on the way forward and would 
continue to help facilitate the negotiations.  
40. With regard to the first two of the Chair's four questions posed in October 2009, concerning 
legal effects and the significance and weight that national authorities should give to the information 
on the register, she recalled that her delegation had developed four hypothetical case studies 
illustrating how the Hong Kong, China proposal  would function.  These case studies had been 
circulated in a room document and presented by her delegation at the last meeting on 28 October 2009.  The first case dealt with a non-c ontentious notification and registration of a GI 
from a participating Member at both the domestic a nd international levels.  The fourth case, which 
actually followed on from the first scenario, dealt w ith a contentious notification and registration at 
both the international and domestic level, where the i ssue was finally resolved at the domestic level in 
another participating Member.    
41. She said that she would not repeat the facts cited in the first case study, which could be found 
in paragraphs 6-12 of the room document, but w ould refer Members to paragraph 18 of the room 
document concerning the fourth case study.  Here, the plaintiff from Economy X sought damages for 
infringement of the GI "Ubique" in a court of law in Economy Y.  The respondent in that case did not 
dispute the ownership of the GI, but chose to bri ng evidence to rebut the presumption that the term 
fell within the definition of Article 22.1 of the TRIPS Agreement.  He alleged that none of the 
reputation or quality or characteristics of Ubi que did in fact essentially arise from its place of 
manufacture.  He adduced evidence to show th at for over a hundred years the wine had been 
manufactured not only in the "Ubique" region, but al so in other regions of Economy X and that the 
reputation, quality or characteristics of "Ubi que" did not essentially derive from its place of 
manufacture.  The court could decide that this ev idence was sufficient to rebut the presumption that 
"Ubique" was a GI as defined by TRIPS and the plai ntiff's case could fail accordingly.  She said that 
this described a scenario under the Hong Kong, Chin a proposal, where a contentious dispute would be 
resolved at the domestic level.  Her delegation believe d that in this case the principle of territoriality 
of Members would be respected and the balance between the parties would not be changed.   
42. She said that the second and third case studies were  more straightforward.  The second case 
study dealt with a situation where a contentious GI  was resolved at the domestic level before any 
notification or registration at the international leve l was effected, and the third case study concerned a 
non-protectable GI that was screened out by a pa rticipating Member at the domestic level.    TN/IP/M/25 
 Page 9 
 
 
  43. In devising these four cases studies, her delega tion hoped to illustrate the implementation and 
functioning of the Hong Kong, China proposal.  As explained in paragraph 4 of the room document, 
they illustrated that questions of conformity with  the GI definition and competing claims for a GI 
would continue to be dealt with under Members' do mestic legal systems.  The registration of a term 
on the register would not in itself be conclusi ve because the presumption could be challenged in 
national courts and by the authorities, and the ex ceptions under Articles 22-24 would continue to be 
applicable and decided in accordance with Members' domestic regimes, and having regard to the local 
circumstances.  The respective parties' substan tive rights under the domestic proceedings would not 
be changed and the principle of territoriality would be respected.  It was her delegation's view that, 
under the system proposed by Hong Kong, China, the legal effects of a regist ration were limited in 
scope and there were no legal effect s in non-participating Members.   
44. She hoped that these case studies would provide some practical illustrations for Members to 
see the proposal in a more concrete manner, and th at Hong Kong, China could continue to facilitate 
the negotiation on the GI register in this manner.    
45. The representative of El Salvador  congratulated the Chairman on his election and thanked 
Ambassador Karen Tan for the transparent and bala nced manner in which she had conducted the work 
in the past months.  He said that his delegation,  as a sponsor of the joint proposal, supported the 
establishment of a multilateral system of notificatio n and registration of geographical indications for 
wines and spirits that would not lead to an increase or decrease of existing rights and obligations of Members under the TRIPS Agreement, regardless of whether or not a Member elected to participate 
in the system.  As the Chairman had stated, th e technical discussions on the register were still 
ongoing.  The report by Ambassador Trevor Clarke  contained in TN/IP/19 represented a sound basis 
for the work in progress in the Special Session and included issues such as legal aspects, participation 
and other elements relating to costs, fees and administrative burdens.   
46. In his delegation's view, the issue of special and differential treatment mentioned in that 
report was of great interest for developing countr ies, such as El Salvador.  In the course of 
consultations with Ambassador Ka ren Tan regarding this issue, hi s delegation had suggested pursuing 
work, based on technical discussions, as was the prac tice of other negotiating groups in the WTO.  He 
agreed that discussions should be organized in clusters focusing on aspects on which this Special 
Session had not commenced discussions, such as special and differential treatment. 
47. Like other sponsors of the joint proposal, hi s delegation would request the Chairman to 
consider the principle of inclusiveness and transpar ency and conduct open-ended meetings, so that the 
broader Membership would be able to participate and express positions on matters that were of special 
interest to economies such as El Salvador.   
48. In addition, he said it would be helpful to have presentations from Members on their national 
systems and practical case studies, such as the ones circulated by the delegation of Hong Kong, China, 
which his delegation had found of great value.  
49.  With respect to the Chairman's proposal fo r taking the negotiations forward towards having 
one text on a multilateral register, he said that his delegation could share this approach as long as that 
text remained under the negotiating mandate of the Special Session.  
50. The representative of Guatemala
 congratulated the Chairman on his election and thanked 
Ambassador Karen Tan for her work during the past months.  She said that the report by Ambassador Tan reflected Members' opinions expressed in th is negotiating group.  He r delegation noted in 
particular that the work in this body should be guided by the five guiding principles expressed in the 
report of Ambassador Clarke (TN/IP/19), and attached  particular importance to the fifth principle, TN/IP/M/25 
Page 10  
 
  which required that the negotiation take up special  and differential treatment that was precise, 
effective and operational.  
51. Her delegation also supported that Member s continue the dynamics of Members' 
presentations to which Canada and New Zealand ha d recently made contributions.  It was very 
important for  authorities to have a clear idea of the practical implications of the joint proposal, as this 
had enabled Guatemala to determine which areas re quired further technical assistance.  Her delegation 
believed that continuing this exercise would en able progress in the Special Session as it allowed 
Members to see the shortcomings and strong points of  the various proposals for developing countries 
such as Guatemala.  Members needed  to ensure that the work of th e Special Session remained within 
the mandate of Article 23.4 of the TRIPS Agreem ent and paragraph 18 of the Doha Declaration, 
which referred exclusively to negotiations to estab lish a multilateral register for GIs for wines and 
spirits.  
52. The representative of Cuba
 congratulated the Chairman on his election and expressed her 
thanks to the outgoing Chair, Ambassador Kare n Tan, for the excellent work achieved.   
53. She said that for her country it was important  to have due protection of geographical 
indications at the national and international level.  In Cuba, GIs were protected pursuant to Law 228 
of 2002.  Since 1996 Cuba had been a party to  WIPO's the Lisbon Agreement, which sought to 
facilitate international protection of GIs, and had al so subscribed to several international treaties in 
this area.   
54. Having said this, her delegation wished to put on record certain essentia l matters that should 
be part of the negotiations on the establishment of a multilateral system of notification and registration 
of GIs, namely, the preservation of the territorial na ture of intellectual property rights and the need for 
special and differential treatment that was precise, e ffective and operational.  GIs should be granted in 
keeping with the principle of territoriality and on the basis of applicable laws.  With respect to special 
and differential treatment, the needs of developing countries and least developed countries had to be 
taken into account in any negotiation.  Fulfilling the Ministerial Declaration, and specifically 
paragraph 44 of the Doha Declaration, was extrem ely important.  The establishment of a registration 
system should not signify additional excessive fees or  administrative burdens and should be accessible 
for developing countries to the extent that they coul d use and receive benefits from such a system.  It 
was her delegation's view that the five guiding prin ciples enunciated by Ambas sador Trevor Clarke in 
document TN/IP/19 should be observed in the negotiati ons, in particular principles three and four.   
55. The representative of Chinese Taipei  congratulated the Chairman on his election and 
extended his thanks to Ambassador Tan for her valuab le contribution during the past months.  He said 
that his delegation supported the Chairman's three-f our-five approach and hoped that it would lead to 
more practical discussions.  On the first two que stions regarding the legal consequences of the 
information in the register, his delegation agreed with New Zealand that it was necessary and useful for Members to exchange information about how their various proposals would be implemented in 
their domestic systems.  In their discussions, Memb ers should bear in mind that the interests of 
Members who treat other Members' geographical names as generic terms and who export such 
products to third countries should be  given due consideration.  This was also in line with the first 
guiding principle in TN/IP/19, namely that the purpose of the register was to facilitate, not to increase, the protection of GIs for wines and spirits.  While  the obligation to consult the database under the 
joint proposal would not affect such interests, it  was unclear whether this was also true for the 
TN/C/W/52 proposal and that was why his delegation would appreciate more discussions on this 
proposed system. 
56. The representative of Australia
 congratulated the Chairman on his election and expressed her 
appreciation to Ambassador Trevor Clarke, for his guidance and leadership during 2009, and to  TN/IP/M/25 
 Page 11 
 
 
  Ambassador Karen Tan for the work she had carried  out during the past months.  She recalled that 
Australia was a proponent of the joint proposal (TN/IP/W/10/Rev.2), which articulated a practical, simple and voluntary system that would add real value to the current system, and facilitate, rather than increase, the protection of wine and spirit GIs, while  respecting the principle of territoriality.  The 
joint proposal was also the only proposal on the ta ble that was consistent with the negotiating 
mandate.  The TN/C/W/52 proposal, in seeking manda tory participation and calling for prima facie 
validity, went beyond the Doha negotiating mandate, changed estab lished WTO jurisprudence on the 
burden of proof, and could seriously limit the availa bility of exceptions for prior good faith use of 
generic terms for Australian exporters.  She said that this was a serious commercial concern for 
Australia. 
57. Her delegation fully supported the form of wo rk set out by the Chairman and endorsed the 
need for practical constructive dialogue on how the various proposals would be implemented in 
national systems.  She said that, with that in mi nd, she would like to set out how the joint proposal 
would be implemented in the Australian system.  
58.  An obligation to consult the register on wines and spirits as contained in the joint proposal 
introduced as a binding obligation upon relevant au thorities in Australia, and would have a broad 
systemic impact affecting a range of actors and laws throughout the GI protection system.  These would include, for example, trademark examiners wh en examining an application for protection of a 
GI listed on the register or any trademark applicatio n in class 33, i.e. wine and spirits, the Australian 
Wine and Brandy Corporation (AWBC) in examining applications for foreign GIs, and judges of the 
Federal Court and each State Supreme Court in ex amining applications under consumer protection 
and trade practices laws. 
59. She said that in Australia trademark examiner s currently searched the AWBC Register of 
Protected Names, a listing of wine GIs registered in  Australia, as part of any trademark application in 
class 33.  An obligation to consult would mean that, if a relevant GI was found, the examiner would then be able to consider the similarity of the trad emark applied for and the GI , the latter's reputation in 
Australia, whether it was essentially attributable to  its geographical origin, and any other factors 
relevant to the decision, which we re prescribed by legislation and administrative guidelines.   She said 
that opposition procedures in existence under Au stralian law allowed opponents to challenge the 
registration of a trademark on the basis that its use woul d be contrary to law, that the use was likely to 
deceive or cause confusion because of a connotation it had or a sign it contained within it, that it 
contained or consisted of a sign that was a GI for goods originating in a particular country, region or 
locality, and that the goods were similar, or that the use of the trademark in respect of the goods 
would be likely to deceive or cause confusion.  An obligation to consult the register would add further 
strength to these grounds of opposition.  In Australia, th e obligation to consult the register would give 
rise to a right of appeal to a court of law if th e foreign GI right holder did not believe that the 
examiner had adequately complied with it.  The judge would then be obliged to make the same 
fulsome consideration of the register anew.  Ther e were, in fact, instances of successful cases brought 
by foreign entities alleging non-registrability on th ese grounds, such as the "Adelaide Le Mans" case 
brought by the Automobile Club de l'Ouest.   
60. She said that the procedure for protection of foreign wine GIs under sui generis  legislation 
required an application to be made to the AWBC,  setting out the proposed GI and the basis for the 
proposed registration.  Legislation in Australia al so established a process for considering objections 
raised by prospective trademark owners.  Resoluti on of any such dispute required the decision-maker 
to take into account Australia's international ob ligations, which would, am ong other considerations, 
include the obligation to consult the database.  On ce resolved, the AWBC would have to have regard 
to the definition of a GI and whether the proposed GI was protected as a GI in its country of origin.  A 
right of appeal to the Administrative Appeals Tri bunal existed if the applicant was unhappy with the 
AWBC's decision.  This ensured transparency and pr ocedural fairness.  An obligation to consult the TN/IP/M/25 
Page 12  
 
  register would add a further factor for the AWBC to consider.  Here again, an appeal could compel a 
judge to engage in the same fulsome consideration of the register afresh.   
61. She said that under Australian consumer prot ection and trade practices legislation the 
following acts were prohibited:  to make a false or misleading representation concerning the place of origin of goods;  to falsely represent that goods were of a particular standard, quality, or grade;  or to 
engage in conduct that was misleading or deceptive or  likely to mislead or deceive.  If right holders 
were to bring an action alleging infringement of a GI , the judge would then be obliged to consult the 
register in deciding the action.  Again, appeal rights provided a further opportunity for the register to be consulted.  Depending on the in formational requirements of the register, the obligation to consult 
could swiftly bring into play a potentially large amount of information to be used in making a decision 
on GI protection.  
62.  She said that, contrary to the TN/C/W/52 propo sal, the joint proposal did not seek to alter the 
existing balance of rights and obligations and exce ptions in Section 3 of Part II of the TRIPS 
Agreement.  The position that an entry on the register constituted prima facie  evidence was not an 
empty phrase that would be interpreted differently by national authorities, as the European Union had 
indicated during the last meeting of the Special Se ssion.  If the European Union and other Members 
believed that their proposal would have little lega l effect on national decision-making authorities, it 
might be questioned what legal effect, and therefore value, any register would have. 
63. She hoped that her explanation of an Australia n implementation of the joint proposal had 
been useful to Members.  Her delegation woul d welcome similar detailed descriptions from other 
Members in the room, including the sponsors of TN/C/W/52, as that kind of discussion would allow 
Members to identify gaps, and how to fill them. 
64. In response to the comment by the European  Union on linkage, she would like to put on 
record that Australia continued to oppose the propone nts' insistence that engagement on the register 
be tied to other issues that went be yond the mandate of the Doha Round. 
65. The representative of Switzerland
 congratulated the Chairman on his election and thanked 
Ambassador Tan for the work she had accomplis hed between December 2009 and February 2010, and 
for the report she had just presented.  She also welcomed the Chairman's proposal on the way in 
which the Special Session should conduct its work  as being very appropriate, and assured him of 
Switzerland's support and active participation in th e discussions in order to help Members to move 
forward.   
66. She said that, like other sponsors of TN/C/W/52, Switzerland saw the proposal on the register 
as one of the three elements of TN/C/W/52 which s hould be dealt with in parallel, GI extension,  
TRIP/CBD disclosure and the register.  Her delega tion's position was that the register negotiated in 
the Special Session should be developed to extend to  all products.  It was for all these reasons that 
Switzerland had reduced its ambitions and made  concessions on the register throughout the 
negotiations and had joined the current compromise proposal contained in TN/C/W/52. 
67. In order to respond to the first two questions ci rculated by Ambassador Clarke, and to have a 
more substantive debate at this very meeting, sh e wished to emphasize two important elements with 
respect to the effects of registration:  the register to  be developed should contain,  first, an obligation to 
consult the information contained in the register and, secondly, an obligation to duly take that 
information into account.  With regard to the sec ond element, the proponents of TN/C/W/52 had not 
hitherto received assurances from those Members supporting the TN/IP/W/10/Rev.2 proposal:  while 
it was her delegation's understanding from the oral e xplanations that the information on the register 
would be taken into account at the national level,  that had never been made clear in any written 
explanations.  In contrast, the sponsors of TN/C/W /52 had explained the legal framework of how this  TN/IP/M/25 
 Page 13 
 
 
  information needed to be taken into account, mentioning the prima facie  evidence and the need to 
substantiate claims on the generic character of a GI. 
68. She said that, with regard to TN/IP/W/10/Rev. 2, her delegation continued to confront a 
proposal that called for the establishment of a simple database as a source of information that Members' authorities might or might not consult, a nd, even if they did consult it, it was not clear 
which consequences they would attach to the consul tation.  Her delegation believed that, to respond to 
the mandate of facilitating the protection of GIs, it seemed essential after so many years of negotiations to foresee at least that, beyond the simp le obligation to consult a source of information, 
Members should provide some clear assurances that the national authorities responsible for GIs - judges, trademark examiners or other authorities – would have the obligation not only to consult the 
information in the register but also to take due account of this information when making decisions by 
giving it all the necessary weight.  This meant specifi cally that, when an aut hority took a decision not 
to take account of the information on a given GI  in the multilateral register, it had made such a 
decision after having examined the legal situation of  the GI in the country of protection, taking into 
consideration, for instance, other uses or rights which could be in conflict with that GI.  Such uses or 
rights could be, for example, prior trademarks, the fa ct that the GI was the generic name of a product, 
or grand-fathered uses.  Such elements could, for instance, be dealt w ith in some trademark 
examination guidelines requiring national authorities to take them into account.  The effects that her 
delegation was envisaging regarding registrations w ould actually be to ensure that the authorities 
would carry out their work diligently. 
69. In response to Australia's explanations regardi ng its opposition procedure, she agreed that this 
was a useful procedure, but said that the one-sid ed burden on the GI right holder to monitor all 
trademark applications in other countries implied c onsiderable work which many producers would not 
be in a position to carry out.  This meant, in conse quence, that the authorities had to be more proactive 
in doing work that would facilitate the protection of the rights of GI right holders.  Swiss producers 
had already highlighted the difficulties they were  facing in monitoring the use of trademarks 
throughout the world, and this would be even more difficult for right holders in developing countries.  
Her delegation believed that the mu ltilateral register had a useful role to play in that context. 
70. She added that the legal effects of a regist er that Switzerland would like to have would 
facilitate the protection of GIs without preventin g the application of the exceptions under TRIPS 
Article 24 and without questioning the principle of te rritoriality as the final decision – as pointed out 
by New Zealand and Canada - would always be take n at the national level of the country where the 
question of protection of a particular GI arose.  There was no automatic protection effect for GIs 
resulting from the TN/C/W/52 proposal. 
71. On the question of participation, Switzerland be lieved that there was no intermediate solution 
between mandatory or voluntary participation and that  therefore, in response to the question identified 
by Ambassador Clarke, her delegation believed that  criteria established for the examination of 
protection of GIs would have to be accepted by all Members, and for the register to be multilateral it 
would have to have effect in all Members.  Me mbers would nevertheless be free whether or not to 
notify their GIs.   
72. The representative of Venezuela
 congratulated the Chairman on his appointment and 
expressed his appreciation for the work accomplished by Ambassador Karen Tan.  He said his delegation supported the interventions by El Salvador , Guatemala and Cuba with respect to the need 
for beginning work on the issue of special and di fferential treatment.  This could not be postponed 
because a GI register, as part of the Doha De velopment Agenda, should not  imply more financial 
burdens for developing countries, cons istent with the Doha Developmen t Agenda.  Participation in the 
register should be voluntary and GIs should only be valid for the territory in which they had been TN/IP/M/25 
Page 14  
 
  granted.  His delegation was also concerned that developed countries continued to tell developing 
countries what would be most appropriate for them.   
73. The representative of Japan
 congratulated the Chairman on his election.  He said that his 
delegation echoed the statements of the other spons ors of the joint proposal, especially the concern 
voiced over the perceived widening of the Doha Round mandate on the multilateral system.  Japan 
was committed to the joint proposal as the most appr opriate solution under that mandate because of its 
voluntary participation and the degr ee of burden placed on participating Members.  With a view to 
achieving convergence in these negotiations his delega tion believed that more pragmatic and practical 
discussions would be beneficial, including an explan ation by each side on how the provisions of their 
respective proposals would be implemented domestically.   
74. In this context, he recalled his delegation's ow n explanation regarding how paragraph 5 of the 
joint proposal, regarding consultation of the databa se by the authority of the participating Member, 
could be implemented in Japan wit hout prejudice to actual decisions taken in the future.  Pursuant to 
the joint proposal, the information on GIs notified and registered in a future multilateral system would 
be placed in a database.  When it came to the examin ation of trademarks in Japan, this data would be 
imported into the retrieval system for national tr ademark examiners, so that trademark examiners 
retrieved information on notified and registered GIs whenever they examined trademark applications.  
If potentially conflicting GIs were found as a result of  a search, examiners w ould have to consider 
whether or not to refuse the trademark application, based on the consultation of the GI register during 
the retrieval process.  It was therefore clearly unders tood that the act of consultation entailed the act of 
taking into account.  One option for implementing para graph 5 of the joint proposal would be for the 
manual of examination guidelines simply to stat e that trademark examiners had to consult the 
database.  While this statement would suffice by itself, a clause could follow the aforementioned 
sentence if deemed necessary that trademark examin ers take into account the result of the retrieval. 
75. He added that in Japan, apart from trademarks, there was another administrative measure in 
place to regulate the use of GIs for wines and spir its, which fell under the jurisdiction of the national 
tax administration agency.  With regard to the relevant  criteria in this context, namely the standards in 
relation to GIs, the same approach as explained with  regard to trademark app lications could be taken 
when implementing the joint proposal.  He said that the purpose of this brief explanation had been to 
demonstrate how the joint proposal could be implemented without complicated legislative 
proceedings.   
76. He concluded by saying that, although the joint pr oposal had only dealt with the issue in only 
one paragraph, the issue occupied a prominent place in  the domestic measures that future participating 
Members would have to take to implement the proposal.     
77. The representative of China  congratulated the Chairman on his election and thanked 
Ambassador Tan for her detailed report on the info rmal consultations she had undertaken during the 
past months.  As a member of the coalition group of  the TN/C/W/52 proposal, it was China's intention  
to push for the three topics to be dealt with in pa rallel in the negotiations, a nd her delegation had fully 
set out its reasoning at the regular session of the TRIPS Council on 2 March 2010.    She further added 
that China considered that multilateral registration s hould extend to GIs for products other than wines 
and spirits.   
78. As to the legal effects under discussion, he r delegation supported the statement by the 
European Union that the legal effects under th e TN/C/W/52 proposal provided that national 
authorities would have the final say in the protecti on of the GIs notified and registered multilaterally. 
79. Among the three proposals on the multilateral registration system for GIs for wines and 
spirits, the Hong Kong, China proposal in TN/IP/W/8 sh ared the view regarding legal effects that the  TN/IP/M/25 
 Page 15 
 
 
  notification and registration should have a kind of prima facie  evidence effect.  Hong Kong, China's 
interpretation of a hypothetical situation had help ed her delegation to see how the registration in the 
proposed system would work with prima facie  evidence.  She encouraged delegations to provide 
illustrations and to reflect on how the system could function. 
80. She further said that China considered that special and differential treatment should be an 
integral part of the negotiating outcome in the Special Session.   
81. The representative of Angola , on behalf of the LDC Group, congratulated the Chairman on 
his election and thanked Ambassador Trevor Clarke for the work accomplished in recent years.  He also thanked Ambassador Karen Tan for the informal  consultations she had undertaken to facilitate 
the work of the Special Session.   
82. He said that the LDC Group recognized the importance of GI protection through a register 
under paragraph 18 of the Doha Manda te and supported the Chairman's approach on the way forward.  
He believed it was essential to have a written document in respect of the procedural steps of the future 
system.  Some delegations had referred to propos als that had been submitted only verbally.  His 
delegation believed that it was impor tant to have written versions in order to enable a thorough 
consideration of all proposals.  In order to ensure the participation of certain Members, he emphasized 
the need for translations to be available to the na tional offices.  Lastly, he stressed the need for all 
aspects of special and differential treatment to be taken into account fo r LDCs and developing 
countries.   
83. The representative of Ecuador
 congratulated the Chairman on his election and expressed his 
appreciation to Ambassador Karen Tan for the co nsultations she had undertaken during the past 
months.  As a sponsor of the joint proposal, he sai d that his delegation reite rated its support for the 
room document of 23 October 2009 presented by New Z ealand in response to the questions circulated 
by Ambassador Trevor Clarke.  Like Guatemala, his delegation considered that Members could use 
the guiding principles contained in TN/IP/19 while continuing with their explanations of how the 
various proposals on the table would be implemen ted at the national level.  Ecuador further 
considered it would be important in  planning future meetings to fac ilitate the participation of small 
developing countries, whose delega tions were of a limited size and who had limited human resources.   
84. The representative of Argentina  congratulated the Chairman on his election.  She recalled that 
Argentina did not support the artificial parallelism be tween the three TRIPS issues as set out in the 
modalities proposal of TN/C/W/52, for the mandate was limited to negotiations on the establishment 
of a multilateral system of notification and regist ration of geographical indications for wines and 
spirits. 
85. Her delegation supported the joint proposal , which complied with the mandate under 
Article 23.4 of the TRIPS Agreement and paragraph 18 of the Doha Declaration and enjoyed a high 
degree of acceptance among the Members.  It provi ded for the establishment of a multilateral system 
of notification and registration of GIs for wines and spirits, which facilitated the protection of these 
GIs while preserving the territoriality of intellectua l property rights.  In k eeping with the mandate, 
participation in the register would be voluntary.  She recalled that Argentina was also co-sponsor of 
the room document that had been presented by New Zealand in response to the questions by Ambassador Trevor Clarke.  With regard to legal effects, she said that the prima facie  evidence, the 
extraterritoriality, and the reversal of the bur den of proof provided for in TN/C/W/52 were not 
acceptable for Argentina.  
86. The representative of Brazil
 congratulated the Chairman on his election.  She reaffirmed 
Brazil's support for simultaneous, pa rallel and joint treatment of th e three TRIPS issu es, namely the 
GI register, GI extension and TRIPS/CBD.  For th is reason, Brazil was strongly committed to the TN/IP/M/25 
Page 16  
 
  procedural and substantive parame ters contained in document TN/C /W/52, which it considered an 
inclusive and balanced proposal.  The proposal was a sincere attempt by some 108 Members, 
representing two-thirds of the Membership, to de liver on the mandate of the Doha Development 
Round.  She said that TN/C/W/52 also reflected a positive movement of some Members from their previous positions in order to bring an end to the ongoing deadlock, and hoped that similar 
willingness would be shown by other Members.   
87. She would not repeat the views on the legal e ffects and on the significance and weight of 
information on the register that had already been made abundantly clear by the European Union and 
Switzerland.  Her delegation would, however, like to  highlight that the TN/C/W/52 proposal was the 
only one that provided for special and differential treat ment as set out in paragraph 9 of that proposal.   
As Brazil had pointed out at the last meeting, he r delegation failed to see how  voluntary participation 
for all Members could be equated with special and differential treatment, as some Members had suggested.  In her view, while special and differe ntial provisions could take many forms, such 
provisions should contemplate a specific commitment to assist developing countries to develop their own GIs.  In this context, for the past eight years, Brazil had fostered community-based projects 
involving local producers, farmers, and ranchers aimed at adding value to local products.  As a 
consequence of this effort, Brazil now had several national GIs for wine, coffee, meat and "Cachaça".  
Brazil considered it was a responsibility to help prod ucers in developing countries to consolidate their 
products in their national market and to  gain access to markets worldwide.   
88. The representative of Chile
 congratulated the Chairman on his election.  He said that Chile 
attached great importance to discussions at a technical  level, as they were helpful in identifying the 
effects, the benefits and the achievements of th e various proposals for a multilateral system of 
notification and registration of GIs for wines and spirits.  Discussions should be based on Article 23.4 of the TRIPS Agreement and paragraph 18 of the D oha Declaration and should not be mixed with 
extraneous points that made it difficult to establish such a register.   
89. With respect to questions one and two of Amba ssador Clarke, Chile was in agreement with 
the statement by New Zealand that a legal pr esumption as provided for in TN/C/W/52 would not 
facilitate but increase the protection of GIs, and therefore would go beyond Article 23.4 of the TRIPS 
Agreement.  The proposed legal presumption woul d impose costs on producers in WTO Members.  
Very often the terms in question had been used ge nerically or otherwise did not comply with the 
legislation established for the protection of geogra phical indications.  Given that the number of GIs 
that would enjoy prima facie  evidence status would be in the order of thousands, this would create an 
avalanche of disputes, leading to further administ rative costs for Members, producers and consumers.  
As dispute settlement was a lengthy process for mo st Members, this would lead to uncertainty 
regarding the possibility of using th ese terms in various markets.   
90. He said that the joint proposal, in contrast , would not involve any change for Members 
wishing to participate in such a system.  Member s would consult a public database when registering 
trademarks and GIs.  This proposal was in keeping with the negotiating mandate of TRIPS 
Article 23.4:  it would facilitate the protection of GI s, and would be fully consistent with the guiding 
principles, such as the principle of territoriality.  In short, it provided for the establishment of a 
multilateral system that was voluntary and simple, th at did not have legal effects for Members that 
decided not to participate, and that caused only lim ited costs and administrative burdens, particularly 
for developing countries.   
91. The representative of  India
 congratulated the Chairman on his appointment and expressed his 
appreciation to Ambassador Karen Tan for her work as pro tempore Chairperson.   His delegation 
agreed with the Chairman's structuring of their future work in the Special Session.  TN/IP/M/25 
 Page 17 
 
 
  92. He said that the delegations of the Eur opean Union and Switzerland before him had 
elaborated on the legal effects and that he would not reiterate the points they had raised.  Some 
Members, however, had raised questions about special  and differential provisions in TN/C/W/52.  His 
delegation wished to spell out the intrinsic linka ges existing between the three TRIPS issues of the 
register, GI extension and TRIPS/CBD in TN/C/W /52 and special and differential treatment that 
referred to all these three issues, as set out in para graph 9 of the proposal.  He said that the register 
proposal contained in TN/C/W/52 included not only pa ragraphs 1, 2, 3 but also paragraph 9.  The 
reason why special and differential had not been fu rther elaborated was because TN/C/W/52 was not a 
text proposal but contained key parameters for a mini sterial decision.  Details of several elements of 
the three TRIPS issues had been left to negotiations following modalities.  It was at that stage that it 
would be more appropriate to work  on the details of special and diffe rential treatment provisions.  At 
that stage Members would be clearer about the differe nt elements of the three issues, and special and 
differential provisions would be worked out accordingl y.  His delegation noted that in contrast the 
joint proposal was silent on the issue of special  and differential treatment.  If the joint proposal 
proponents considered that voluntary participatio n was a special and differential provision in a 
multilateral register, then it was a truly odd special and differential provision in the WTO.  His 
delegation would like to pose the question to the proponents what would be the special and 
differential provisions under their proposal for devel oping countries that had finite but not substantial 
interest in a GI register.   
93. The representative of Turkey  congratulated the Chairman on his appointment and thanked 
Ambassador Tan for her leadership and efforts in the consultations she had undertaken.  Her 
delegation agreed with the Chairman's proposed appro ach for future work.  It regarded legal effects 
and participation as the key elements that should be  addressed first.  She reiterated her delegation's 
view that the three TRIPS issues were inextricab ly linked and should advance in parallel.   
94. On the question regarding what would be acceptabl e for a register to facilitate the protection 
of GIs, it was her delegation's view that a multilate ral register with legal effects would facilitate the 
protection of geographical indications.  It was clear  that the proposal contained in TN/C/W/52 was the 
only proposal with real legal effects and provided for two kinds of obligations:  the obligation to 
consult and the obligation to take into account the information on the register.  Her delegation 
believed that a strong register would provide lega l certainty for the right owners as well as for the 
protection of consumers.  It was difficult to envisage how a voluntary system with no legal effects would facilitate protection.   
95. With respect to future discussions, her delega tion considered that, while sharing national 
experiences could provide some guidance in these ne gotiations, it was difficult to see how elements of 
convergence and divergence could emerge from just  discussing the legal complexities and difficulties 
of implementing the multilateral registration system  in various national systems.  Even so, she 
expressed her delegation's willingness, with a view to  facilitating and achieving agreement, to explain 
how the register could be impl emented under its legal system. 
96. The representative of Nepal
 congratulated the Chairman on his appointment and noted its 
importance for least developed countries in the Or ganization. He also thanked Ambassador Tan for 
the balanced and efficient work she had accomplishe d.  He said that his delegation supported the 
TN/C/W/52 proposal, particularly the provisions re garding disclosure of country of origin, prior 
informed consent and access and be nefit sharing.  Furthermore, he  expressed his delegation's support 
for the Chairman's approach on the Special Session's future work.  
97. The representative of  the United States  congratulated the Chairman on his appointment and 
thanked Ambassador Tan for the excellent work ach ieved.  She said that the United States fully 
appreciated the establishment of a multilateral system of notification and registration of GIs for wines 
and spirits as being part of the Single Undertaking and was fully committed to fulfilling this mandate.  TN/IP/M/25 
Page 18  
 
  Her delegation was prepared to continue engaging and thinking creatively with other Members about 
how to achieve that objective, which was eminently attainable.  It was apparent that there were 
significant gaps on important aspects of the registra tion system, particularly in the view of a few 
Members, and that these gaps appeared to have been  reinforced and made clearer in the last several 
meetings and informal discussions of the Special Session.  
98. Even so, her delegation considered that the Special Session was well-positioned to continue 
its work by virtue of the fact that there were de tailed text-based proposals under consideration in this 
negotiation.  The United States, as one of the numer ous proponents of the joint proposal, continued to 
support this text as the optimal means by which the Special Session could fulfil the mandate for this 
negotiation.  Her delegation believed that the jo int proposal represented the appropriate basis for 
continued work of the Special Session and the best prospects for a rapid conclusion of its work.  It 
remained the firm position of the United States th at the registration system should convey no legal 
presumptions but should instead be limited, as the ma ndate made clear, to the facilitation of protection 
for wine and spirit GIs through a transparent system of information sharing.  If progress were to be 
achieved in these negotiations, all Members had to keep the focus within the parameters of the 
mandate.  She said that her delegation agreed with  points made by New Zealand, Canada, Australia 
and other joint proposal proponents. 
99. She also expressed her delegation's appreciation of Australia's detailed intervention on how 
the joint proposal would be implemented in Aust ralia, and she would welc ome hearing from others, 
specifically the proponents of TN/C/W/52, details  on the various steps they would take in 
implementing their proposal in their domestic systems.  Members should focus their discussion on 
facilitating protection, not increasing protection, as so me were seeking.  Proposals requiring that the 
entry of a term on the register would be prima facie  evidence that it was a GI under Article 22.1 of the 
TRIPS Agreement would do just that, as this sought  to achieve substantive legal effects in other 
domestic systems.  Instead, she said, Members should focus efforts on developing a system that would 
aid examining authorities in their evaluation of whether a designation qualified for protection in that 
Member according to domestic laws. 
100. She said that the principle of territoriality need ed to be respected.  Proposals that sought to 
require a Member to defer to a foreign author ities' finding of what constituted a geographical 
indication went well beyond the scope  of the mandate and was thus unacceptable to the United States.  
101. In order to move the negotiati ons forward consistently with the mandate under Article 23.4, 
Members should focus on developing a system to facilitate protection of geographical indications for 
wines and spirits.  For the United States such a syst em would provide a useful reference that would 
facilitate the work of their examining authorities without prescribing the significance or weight that the domestic authority afforded to such informa tion when evaluating whether a term qualified for 
protection as a GI under its domestic laws. 
102. She said that the details of the scope and applica tion of the register had to be clearly spelled 
out.  The United States could not endorse an y so-called "constructive ambiguities".   
103. In concluding, she said that, as the agenda of this Special Session limited the negotiation to 
the establishment of a multilateral system of notifica tion and registration of GIs for wines and spirits, 
her delegation objected strongly to any discussion of ot her TRIPS-related issues in this context.  As 
noted previously, it was neither appropriate nor produc tive to endeavour to tackle the serious technical 
issues in this negotiation by lumping them in a broader process linked with other TRIPS issues.   
104. The representative of Costa Rica
 congratulated the Chairman on his appointment and said 
that, in order to advance the negotiations, Memb ers should respect the mandate, focusing on how to 
facilitate protection, and not to increase it.  The le gal obligation of the register acceptable to Costa  TN/IP/M/25 
 Page 19 
 
 
  Rica was that Members wishing to participate in the system should consult the database and take 
decisions in accordance with their domestic legisl ation, while respecting the balance of rights and 
obligations and the principle of territoriality.  He believed that the joint proposal, of which Costa Rica 
was a sponsor, met this objective and constituted the only proposal that complied with the mandate.  
He said that those proposing the effect of prima facie  evidence sought to change the burden of proof, 
which would go beyond the facilitation of protection and thus change the balance of rights and 
obligations.   
105. With respect to special and differential treatme nt, he said that his delegation attached great 
importance to this issue and it should not be left to be addressed at a later stage.  In the view of his 
delegation, voluntary participation in the register was a way to grant special and differential treatment. 
106. Finally, his delegation believed that the establis hment of a register that applied to other 
products than wines and spirits would be incons istent with the mandate and did not support the 
artificial parallelism.  
107. The representative of Nigeria , speaking on behalf of the African Group, congratulated the 
Chairman on his election and pledged to work with  him in constructive engagement.  His delegation 
believed that the discussion on the register shoul d cover all products, as African countries had GI 
products other than wines and spirits.  The TN/C /W/52 proposal for moda lities covered all products, 
but further elaboration would be necessary when modalities had been adopted.  
108. Regarding the issue of special and differential treatment, India had elaborated on  this issue 
and clarified that it covered all three TRIPS i ssues, namely the register, GI extension, and 
TRIPS/CBD. 
109. The African Group considered that these three i ssues were interlinked and that negotiations 
on all the three issues should move in parallel.   
110. The representative of El Salvador  said that, with respect to special and differential treatment, 
the joint proposal had the advantage that voluntary  participation afforded developing countries the 
possibility to take decisions in accordance with their national legislation and their administrative 
capacity for registration.  It was important that the established legal system be taken into account.  
Members had already stated the need to preserve the balance of rights and obligations, and not to 
impose administrative burdens on Members wishing to participate in keeping with their own system.  
If the multilateral system was established under the ma ndate of Article 23.4 of the TRIPS Agreement, 
there should be no increase in charges and f ees for developing countri es and least developed 
countries.  Every Member would work, in keeping wi th the administrative capacities of its intellectual 
property office, to provide protection to IPR, and any new system should not go against the acquired 
rights of Members.  Against this background, he said that his delegation believed that El Salvador 
would benefit from special and differentia l treatment under the joint proposal.   
111. The representative of the European Union  recalled that his delegation's position had been 
clearly stated and represented the view of the major ity of Members of the issues under consideration.   
112. In response to Canada's comments on the larg e number of GIs belonging to the European 
Union, he said that the number of European GIs had been vastly exaggerated.  He welcomed the 
Canadian explanation as to how the proposal w ould be implemented, but  reiterated that the 
TN/IP/W/10/Rev.2 proposal was silent on this issue.   
113. He said that although the Australian and Canadi an examples had been useful, it would not be 
feasible to create a compendium comprising examples of how the register would be implemented in 
each national system, and doing so wo uld not create legal certainty.  TN/IP/M/25 
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  114. In response to the argument that the TN/C/W/ 52 proposal reversed the burden of proof, he 
said that this was a fallacious argument.  Those who argued that the person seeking to benefit from a 
monopoly would have to bear the burden of proof to  fulfil the relevant conditions also had to accept 
the argument that, once such a right had been estab lished, the person who wanted to benefit from the 
application of an exception had to bear the burden of  proving that the conditions of the exception were 
fulfilled.  Therefore, requiring those claiming generici sm of a term to substantiate their claim was no 
reversal of that principle. 
115. With regard to New Zealand's statement th at the proposed database would better inform 
trademark offices and therefore facilitate protection, he said that all the information regarding European GIs, including the conditions for registrati on, was already available on the Internet and the 
website of the European Union, and it was ther efore doubtful that such a database would represent a 
real improvement in terms of information.  Assu ming, however, that the database would indeed be a 
better way of being informed, his delegation faile d to see how that enhanced information would 
facilitate protection, because the negotiating mandate was not to better inform the trademark offices or 
the IP national authorities but to facilitate protection of GIs.  While this might not please everyone, he 
reminded Members that the compromise proposal TN/C/W/52 had been accepted by and was 
acceptable to two-thirds of the Membership.   
116. In concluding, the Chairman
 said that the debate had been useful in helping Members to gain 
a sense of where they stood and how they saw them selves going forward.  It was apparent, however, 
that the issue of legal effects remained central, and if they were to move forward it was crucial that 
sufficient detailed examination be made of that issu e in order to have greater clarity.  He said that 
Members should move towards having a single do cument for discussion, identifying, slowly but 
surely, elements of convergence emerging out of th e ongoing discussions in an appropriate time and 
at a pace at which Members felt comfortable.  
C. OTHER BUSINESS  
117. The Chairman  recalled that a stocktaking exercise w as foreseen for the end of March 2010.  
As far as this negotiating group was concerned, he said he would seek to reflect, where appropriate, 
any relevant information in his report to the TNC Chairman.  This report would be factual and be on 
his own responsibility and without prejudice to any delegation's position.  In order to ensure  
transparency and inclusiveness he would consult delegations as appropriate in the coming weeks. 
118. With regard to their future substantive work, he  suggested that the next formal meeting of the 
Special Session be held on 10 June 2010, back to  back with the Regular Session of the TRIPS 
Council.  He did not, however, exclude the possibility of having to meet in some format before the 
formal session, depending on the overall process.     
119. The Special Session took note  of the statements made. 
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