RESTRICTEDWORLD TRADE
ORGANIZATIONTN/IP/M/2
26 August 2002
(02-4570)
Council for Trade-Related Aspects
of Intellectual Property RightsSpecial Session
MINUTES OF MEETING
Held in the Centre William Rappard
on 28 June 2002
Chairperson:  Ambassador Eui-yong Chung (Korea)
Subjects discussed: Para. Nos
ADOPTION OF AGENDA 2-3
OBSERVER STATUS FOR INTERGOVERNMENTAL ORGANIZATIONS 3-11
NEGOTIATION OF THE ESTABLISHMENT OF A MULTILATERAL
SYSTEM OF NOTIFICATION AND REGISTRATION OF GEOGRAPHICAL
INDICATIONS FOR WINES AND SPIRITS 12-144
OTHER BUSINESS 145-146
_______________
A. ADOPTION OF AGENDA
1. The second Special Session agreed to adopt the agenda as set out in WTO/AIR/1817.
2. The Chairperson proposed to address first the issue of observer status for intergovernmental
organizations.
B. OBSERVER STATUS FOR INTERGOVERNMENTAL ORGANIZATIONS
3. The Chairperson recalled that, at the March meeting, he had suggested that one way of
handling the issue of observers in the Special Sess ion would be to grant observer status to those
organizations which already had observer status in the TRIPS Council.  The Special Session had
agreed to come back to the matter in June in the li ght of any action that might have been taken by the
Trade Negotiations Committee (TNC) at its 24 April meeting.  Since the TNC did not reach an
agreement, the matter was back in the hands of the individual negotiating groups and special sessions.
He asked delegations whether they could consider granting observer status to those intergovernmental
organizations which already had such status in the regular session of the TRIPS Council.  That would
be as an interim measure pending further guidance from the TNC and on a meeting-by-meeting basis.He further suggested that cooperation with the Wo rld Intellectual Property Organization (WIPO) was
essential for the Special Session's discussions to be efficiently conducted.  WIPO's input and expertise
would enable delegations to better reflect on the issues to be discussed.  He also suggested that,TN/IP/M/2
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pending further guidance from the TNC or the General Council, the Special Session might invite
WIPO to attend the next session so as to be able to share information on its current work or on the
systems it was administering, or to reply to Members' questions.
4. The Chairperson informed Members that, on 18 April 2002, he had received a request from
the Organization for Wine and Vine (OIV) for ad hoc observer status in the Special Session of theTRIPS Council.  The request, together with attachments, had been faxed to all delegations
participating in the Special Session.  He recalled that the OIV had made a similar request in the
TRIPS Council in 1998;  since then, no decision had been taken regarding this request nor regarding
requests from other intergovernmental organizations.
5.  The representative of the European Communities said that his delegation had no difficulty in
granting observer status or in accepting as observers the international intergovernmental organizations
which had been granted such a status at the regular session of the TRIPS Council.  It also hoped thatprogress could be made as far as the observer status for the OIV was concerned;  its participation
could be very valuable for the activities of the Special Session.
6.  The representative of Canada said that her delegation would be willing to grant observer
status to the intergovernmental organizations which already had such status in the regular session of
the TRIPS Council.  Her delegation believed that the presence of WIPO was very important to theCouncil's work.  With regard to OIV's request, she said that, regrettably, Canada had to reserve its
position.
7.  The representative of Paraguay said that his delegation welcomed the suggestion to grant
observer status to the WIPO in the Special Session because of its great expertise and
accomplishments.  With respect to the OIV's request, he said that this organization did not haveobserver status in the regular session of the TRIPS Council and any future granting of that status to
any international organization in that session could not automatically be applied to the Special Session
of the Council.  The understanding of his delegation was that it depended on approval by the Special
Session itself.
8.  The representative of Hungary supported the Chair's suggestion of accepting
intergovernmental organizations already having observer status in the regular session of the TRIPS
Council as observers in the Special Session.  His delegation also fully supported OIV's request for full
observer status in the Special Session.  It would be regrettable if an organization like the OIV were to
be excluded from the discussion of this body which obviously had a great bearing on its activities.
9.  The representative of the United States said that his delegation would welcome inviting the
existing observers of the TRIPS Council to the Special Session, particularly WIPO, because its
participation would be very helpful.
10.  The representative of Egypt said that his delegation, too, would like to see all those
organizations interested in attending the Council's Special Session granted observer status,
particularly when they had relevance to the work of the Special Session like WIPO.  The point was
that the Council could not reach a selective decision or follow a selective approach to reach a decision
on an issue of systemic nature which was being dealt with under both the umbrella of the GeneralCouncil and of the TNC as far as the negotiating groups and the special sessions were concerned.  For
that reason, he did not see how Members could, at th is meeting, try to find a way out of that problem,
either by trying to have different categories, ad hoc observers or special invitees, or through any other
mechanism.  He added that the position expressed by his delegation was also shared by a number of
WTO Members.
11.  The Special Session agreed to revert to this i ssue in the next meeting in the light of any action
by the TNC or the General Council.TN/IP/M/2
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C. NEGOTIATION OF THE ESTABLISHMENT OF A M ULTILATERAL SYSTEM OF NOTIFICATION
AND REGISTRATION OF GEOGRAPHICAL INDICATIONS FOR WINES AND SPIRITS
12. The Chairperson recalled that, at the Special Session's meeting on 8 March 2002, he had made
some suggestions concerning the organization and phasing of the work of the Special Session and he
had detected a general feeling among Members that these suggestions were considered useful.  Thesesuggestions provided for two main phases, a final negotiating phase of the mechanics preceded by a
first phase devoted to further exploration of the issues and of the ideas already put forward, as well as
of any new ideas that might be tabled.  He had suggested that, as part of this first phase, it would be
desirable if delegations aimed to table their main proposals by the September 2002 meeting as a target
date.  Prior to work based on proposals, he had suggested that it would be helpful for Members to
have a more structured and engaged discussion.  To that end, he had held an open-ended informal
consultation on 17 May 2002 to get delegations' views before submitting a note in advance of thesecond Special Session which would identify a number of points and topics that participants might
address.  In drafting the note (JOB(02)/49),  he had taken into account views expressed, both orally
and in written documents, such as the communications submitted by the United States (TN/IP/W/2)
and the European Communities and their member States (JOB(02)/44).  He reiterated that the note
was on his own responsibility and was without prejudice to the position of delegations or the outcomeof the negotiations.  It was recognized that the task before the Special Session was to negotiate a
system that would constitute an integrated whole and that therefore it might be difficult to address
some aspects in isolation.  Delegations should therefore feel free to address any relevant matter at
each meeting.
13. The Chairperson indicated that, in his note, he had identified four categories of issues for
discussion at this meeting.  He proposed to discuss them one by one, in the order of the note.  If any
delegations wanted to raise issues other than the four categories of issues identified, then they would
have the opportunity to do so under a fifth item "Other issues".  He would like to provide the
opportunity for every delegation to express its positi on to the fullest.  However, in view of time
constraints, he suggested that general debate and statements be avoided, and instead asked delegationsto focus on concrete presentation of positions on the four categories of issues.  He expressed the hope
that, through the course of discussions, the Special Session might reach some convergence on some
aspects of the four categories listed in his note.
14. The representative of Australia welcomed the approach suggested by the Chairperson.  He
thought the four questions posed should focus participants' minds on a systematic in-depth
examination of the underlying concepts and practical implications of a multilateral system.  Before
proceeding as suggested, he wished to respond to the reference made in the first paragraph ofdocument TN/IP/W/3 to the product coverage of the multilateral system.  He recalled that the Special
Session was negotiating a multilateral system for wines and spirits alone.  There was no mandate for
such a system to cover any other products, nor did Australia envisage that there was any interest in it
being extended to other products.  In the interest of moving things forward, the Special Session should
adhere to the Ministers' mandate in paragraph 18 of the Doha Declaration.
15. He recalled that, under agenda item M (Article 24.2 review) of the regular session of the
TRIPS Council, Australia was to make a presentation about the implementation of its obligations
under the TRIPS provisions on geographical indications.  Due to time constraints, this presentation
was postponed to the next meeting.  Referring to the list of questions that the EC had given to
Australia, he welcomed the fact that Members were starting to engage in a substantive discussion onhow they all implemented their obligations unde r the TRIPS Agreement and, particularly, how they
distinguished between protection under Article 22 a nd that under Article 23.  The United States and
other countries had, on several occasions, raised the issue of the costs for governments, consumers
and producers to have a system of registration along the lines of the proposal put forward by the EC
and other Members.  His delegation had also commented on the complexity and the intrusiveness ofsuch a system.  He gave two statistical examples of the implications of the proposal:  first, an ECTN/IP/M/2
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paper containing some 200 questions to Australia c oncerning its system of protection of geographical
indications;  and second, the 4,500 (and very soon, 6,000) EC geographical indications protected or
registered under Australian wine and spirit legislation compared to the 97 Australian geographical
indications.
16. The representative of the European Communities said that the parameters for the negotiating
process set out in the Chair's note (JOB(02)/49) would enable the Special Session to complete its task
by the next Ministerial Conference as set out in paragraph 18 of the Doha Ministerial Declaration and,
thereby, to fulfil the mandate of Article 23.4 on the establishment of a multilateral system of
notification and registration.  He fully agreed with the method suggested for conducting the
discussion.  In order to contribute to an engaged discussion, his delegation had made written
comments in document JOB(02)/70 of 24 June 2002, following the structure of the points and issues
identified in the Chair's note.  In particular, it concentrated on the notion of geographical indicationsin section 3 of that document.  In section 4, it addressed the objective that the register needed to
facilitate the protection of geographical indications.  In section 5, it elaborated on the distinction
between "notification" and "registration", which was not present in any proposals made by other
Members.  In the last section, it addressed the multilateral character of the system for geographical
indications.  The comments were fully in line wi th the communication tabled by the EC and their
member States in document IP/C/W/107/Rev.1 of 22 June 2000, in which they had outlined their
basic ideas of how such a multilateral register should be.  He recalled the communication made in
document IP/C/W/259 of 31 May 2001, which provided a comparative table of the main proposals
already submitted.  He believed the table continued to be a useful tool for conducting the discussions.
He also pointed to document TN/IP/W/3, co-sponsor ed by Bulgaria, Cyprus, the Czech Republic, the
EC and their member States, Georgia, Hungary,  Iceland, Malta, Mauritius, Moldova, Nigeria,
Romania, the Slovak Republic, Slovenia, Sri Lanka,  Switzerland and Turkey.  In that communication,
the co-sponsors wanted to confirm that they were committed to the objective laid out in the proposals
tabled by the EC and their member States (IP/C/ W/107/Rev.1) and by Hung ary (IP/C/W/255).  It was
their conviction that the Special Session had to work towards a meaningful instrument with legaleffect, providing as well for a mechanism to resolve disputes which might emerge once such a register
was put in place.  At the end of that communication, in the last paragraph, the co-sponsors also gave
their support to the views expressed in the info rmal paper by the EC and their member States
(JOB(02)/70).
17.  In reply to the comments made by the representa tive of Australia, he said that the EC's list of
questions on the Australian legal system in the area of geographical indications was not meant to
show that they were ready to begin substantive negotiations;  they had already tried to do so forseveral years.  He pointed out that the discussion on the register should not focus on finding out how
Members had implemented their obligations under the TRIPS Agreement, which was not the
objective of the Special Session.  While looking fo rward to receiving compre hensive answers to the
questions at the September meeting of the regular session of the TRIPS Council, he recalled that the
only reason for the EC to circulate the questionnaire was because Australia had volunteered to explainto the TRIPS Council its legal regime on geographical indications.  In reply to a comment made by
the delegation of Australia on the title of document TN/IP/W/3, he pointed out that the EC's original
proposal, as well as the proposal tabled three years ago by the United States and other Members, did
not make a reference to any specific product.  That was certainly deliberately left open at the time.  He
also indicated that the document relating to extension which was tabled in the regular meeting of theTRIPS Council also contained a reference to the register.  Referring to a comment made by the
Australian representative concerning the need to discuss costs relating to the establishment of a
register, he said that his delegation was looking forward to examining the issue of costs at the
September meeting as pointed out by the Chairperson in his note (JOB(02)/49).  With regard to a
comment made on statistics or numbers of geographical indications, he said that the EC would, at theappropriate time, indicate in the Special Session the number of geographical indications it believed
should be notified, on behalf of the EC and their member States, in the multilateral register.TN/IP/M/2
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18.  The representative of Argentina said that the Chair's note would be a very good guide to the
substantive debate.  Her delegation was committed to working positively and constructively during
the course of these negotiations and to endeavouring to reach some form of understanding.  Referring
to the communication from the EC and their member States (JOB(02)/44), she said that her delegation
could not accept the statement in the preambular part of the document that the mandate of the DohaDeclaration "develops the already existing mandate of Article 23.4 TRIPS".  The wording of Article
23.4 expressly excluded spirits.  Therefore, the Doha Declaration could not "complement" any
mandate because there was no mandate in that Article.  She recalled that the Singapore Declaration
per se  contained no explicit mention of negotiations relating to Article 23.4.  Paragraph 19 of that
Declaration stipulated the following:  "Bearing in mind that an important aspect of WTO activities is a
continuous overseeing of the implementation of various agreements, a periodic examination and
updating of the Work Programme is a key to enable the WTO to fulfil its objectives. In this context,we endorse the reports of the various WTO bodies.  …  We agree to a process of analysis and
exchange of information, where provided for in th e conclusions and recommendations of the relevant
WTO bodies, on the Built-in Agenda issues, to allow Members to better understand the issues
involved and identify their interests before undert aking the agreed negotiations and reviews.  We
agree that:  … the work undertaken shall not prejudice the nature of the activity agreed upon (i.e.,negotiation or review)."  The TRIPS Council's Annual Report of 1997 (IP/C/12), which was adopted
by Ministers in Singapore, mentioned in paragraph 27 the following:  "In its report (1996), the
Council agreed to initiate in 1997 preliminary work on issues relevant to the negotiations specified in
Article 23.4 of the Agreement concerning the establishment of a multilateral system of notification
and registration of geographical indications for wines, and that issues relevant to a notification andregistration system for spirits would be part of this preliminary work (IP/C/8)."  Paragraph 34 of the
TRIPS Council's Annual Report of 1996 said that "in regard to geographical indications, the Council
has agreed that a review of the application of the provisions of the section on geographical indications
as provided for in Article 24.2 would take the form outlined in paragraph 27 above, which permits
inputs from delegations on the issue of scope, and the Council will initiate in 1997 preliminary workon issues relevant to the negotiations specified in Article 23.4 of the TRIPS Agreement concerning
the establishment of a multilateral system of notification and registration of geographical indications
for wines.  Issues relevant to a notification and registration system for spirits will be part of this
preliminary work.  All of the above work would be  conducted without prejudice to the rights and
obligations of Members under the TRIPS Agreement and in particular under the specific provisions of
the TRIPS built-in agenda."  The same Annual Report mentioned in its paragraph 28 the following:
"Article 23.4 calls on the Council for TRIPS to undertake negotiations concerning the establishmentof a multilateral system of notification and registration of geographical indications for wines eligible
for protection by those Members participating in the system, but does not specify a time-frame for
such negotiations."  In light of the above-mentioned texts and cross-references, it might be said that
the Doha Declaration only established a deadline for negotiations and, in that regard, it might be
considered that it had "complemented" the existing mandate under Article 23.4 on wines.  Argentinatherefore reiterated that if it did not oppose the inclusion of spirits in the ongoing negotiations because
it was a political decision by Ministers in Doha, it considered, however, that in the negotiating process
Members ought to look at how to include a specific obligation related to a system of notification and
registration of geographical indications for wines and spirits so as to create a legal obligation for
Members having signed the Marrakesh Agreement.  From this perspective, the communication fromthe EC and their member States (JOB(02)/44) had correctly put in square brackets the term "spirits".
That way of proceeding should be used for all the documents of the Special Session until a legal
solution was found with respect to that issue.  Argentina was also concerned about the second
sentence of the preambular paragraph of document JOB(02)/44 and a reference in the same vein in
document TN/IP/W/3, stating that the product coverage of the future system should not be prejudged.This would create a distortion of the scope of negotiations and was unacceptable to Argentina bearing
in mind the above-mentioned grounds and statements made in the first Special Session.  For her
country, the Doha Declaration should make it possible to concentrate negotiations on a system for
geographical indications for wines and spirits without  including other irrelevant issues and thereby
delaying, or impeding progress in, the negotiation of the multilateral system.  For that reason, theTN/IP/M/2
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representative of Argentina asked that, before advancing in the substantive discussions, the mandate
remain clearly delineated.  Finally, she announced that her delegation would make a written
contribution in the near future.
19.   The representative of Hungary said that paragraph 18 of the Doha Declaration set the Fifth
Ministerial as the deadline for establishing the multilateral system of notification and registration for
geographical indications under Article 23.4.  The conclusion of the negotiations, which, in the view of
his delegation, was an important part of the ongoing process of agricultural reform, was long overdue.
Against that background, his delegation wished to echo the call on Members to table their main
proposals well in advance of the September meeting so that a realistic chance remained for the
Council to meet the deadline.  Referring to the statement by Argentina on whether the scope of the
register should cover spirits in addition to wines, he said that he did not see any problem in that area.
Paragraph 18 of the Doha Declaration usefully made it clear that spirits, in addition to wines, were tobe covered in the system.  He asked whether Argentina would have similar concerns with respect to
the agriculture mandate in the Doha Declaration that usefully complemented Article 20 of the
Agreement on Agriculture.  He said that the same argumentation could be made and Members should
not lose sight of the fact that the issues on the agenda were not new.  They had been negotiating the
establishment of that system for over five years.  There were concrete proposals on the table,including from his delegation.  The exercise should not be confused with the ongoing Article 24.2
review in the regular session of the TRIPS Council.  Regarding document TN/IP/W/3, Hungary
concurred with the statement made by the EC.
20.  The Chairperson said that Members had a very clear mandate to negotiate the establishment
of a multilateral system of notification and registration of geographical indications for wines and
spirits by the Fifth Ministerial Conference.  He suggested that Members work within the mandate.
21.  The representative of Estonia said that her country's name could be added to the list of co-
sponsors of document TN/IP/W/3.
22.  The representative of Japan said that, when considering the establishment of the multilateral
system, Members should take into account the treatment of exceptions, in particular the exception
concerning trademarks.  Japan's position was to maintain the exception clause as it was, whichever
multilateral system would be established.
23.  The representative of Romania said that her delegation endorsed the EC's contribution, which
would provide the necessary instruments to prevent geographical indications from being unfairly used
in the future.  It was clear that the system envi saged would not replace national ones.  It  would
facilitate access to protection without creating obligations with respect to the level of substantive
protection;  only procedural obligations to facilitate access of producers to existing protection wouldbe entailed.  For the delegation of Romania, it was each Member's duty to pursue negotiations
constructively and complete the negotiations by the Fifth Ministerial Conference.
24.  The representative of the Czech Republic said the list of issues for discussion and
consideration proposed in the Chair's note (JOB(02)/49) formed a good basis for further debate.  The
Czech Republic fully shared the views presented by the EC and their member States in documentJOB(02)/70.  It was convinced that the establishment of the multilateral system of notification and
registration would contribute to strengthening and facilitating the protection of geographical
indications, which was one of its prior interests.  In the process of establishing the register, great
importance should be given to the issue of legal effects.  Only a system with legal effect could ensure
effective protection for geographical indications and, thus, reflect adequately the provisions ofArticle 23.4.  The registration system should contain a multilateral possibility to challenge proposed
registrations of geographical indications and the best way was the opposition procedure, which should
precede the effective registration.  In accordance with its position concerning the extension of the
additional protection for geographical indications, which was based on the premise that allTN/IP/M/2
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geographical indications deserved the same level of protection, it wished to underline that the system
should be open to all geographical indications alike.  She added that only the proposals submitted by
the EC and their member States (IP/C/W/107/R ev.1) and Hungary (IP/ C/W/255) made a genuine
attempt to fulfil the requirements of Article 23.4.
25. The representative of the Slovak Republic said that his delegation also attached great
importance and attention to the creation of a functional multilateral system of notification and
registration of geographical indications for wines and spirits.  It was aware of the very clear mandate
given by Ministers in Doha and by Article 23.4 of the TRIPS Agreement.  As a co-sponsor of
document TN/IP/W/3, it supported the proposals put forth by the EC and their member States
(IP/C/W/107/Rev.1) and by Hung ary (IP/C/W/255).  His delegation believed that a multilateral
register could help to solve many problematic issues regarding the legal use of geographical
indications, for example "Tokay" wine originating in the Tokay region of the Slovak Republic.  Hisdelegation did not intend to establish just some kind of list of notified geographical indications with
no legal obligation for participants.  The communication proposed a system which was without any
financial or administrative burden.  For his delegation, the meaning of the term "multilateral" was
clear as far as the coverage of participation was concerned.  It also thought that the clear division of
the process into two phases -  notification and re gistration - would prevent the use of geographical
indications that did not fulfil the requirements under Article 22.1.
Definition of the term "geographical indication" and eligibility of geographical indications
for inclusion in the system
26. The representative of the Czech Republic said that, regarding the question of eligibility, all
geographical indications which were in conformity with the definition provided in Article 22.1 of the
TRIPS Agreement were eligible for inclusion.  It was also clear that not only Article 22.1 but also
exceptions provided for in Article 24 should be respected.
27.  The representative of Peru said that her delegation agreed that the definition of "geographical
indications" should be that contained in Article 22.1 of the TRIPS Agreement.  As for the scope of
protection, it should be for wines and spirits.
28.  The representative of Switzerland said that his delegation found that the Chair's note formed a
clear-cut basis and it was fully prepared to discuss the four points listed in that note.  In its view, the
establishment of a multilateral register would have no implications for the definition of geographical
indications as contained in Article 22.1.  Therefore, it was convinced that no Member had to make
any changes to the definition of the term.  The definition in Article 22.1 had proven its value for many
years.  It was flexible:  it might protect geographical names of small localities like "Cognac" for
spirits, more extended regions like "Napa Valley" for wines or, to take an example not of wine andspirits, even countries such as "Luxembourg" for meat.  Any name or sign that evoked a geographical
origin on a product which met the requirements of the definition, in particular the link between the
quality, reputation or other characteristics of that product and its geographical origin, was eligible for
protection as a geographical indication.  Once the register was established, each WTO Member should
have the opportunity to examine whether a notified geographical indication fully met the requirementsof Article 22.1 and deserved the protection on its territory according to Section 3 of Part II of the
TRIPS Agreement.
29.  The representative of the European Communities said that the multilateral register should
have no impact on the definition of geographical indications embedded in Article 22.1, neither should
it have any impact on the exceptions.  The register would not change the situation with regard to theapplicability of exceptions.  He said that geographical indications to be notified to the multilateral
system should meet the requirements of Article 22.1 and, in particular, the requirement that the name
refer to a product "where a given quality, reputation or other characteristic of the good [was]
essentially attributable to its geographical origin".  The link between the territory and the definingTN/IP/M/2
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quality, characteristic or reputation should not be trivialized.  WTO Members had implemented the
minimum requirements of the TRIPS definition in accordance with their respective legal orders.
However, they should have the possibility to prevent the legal effect of the registration of
geographical indications in their territory where there was prima facie  evidence that a notified name
was blatantly not in conformity with the definition of geographical indication in Article 22.1.  The ECwas not proposing to scrutinize the way WTO Members applied the definition of geographical
indications on a case-by-case basis, although it seemed logical that names constituting clear or "gross"
misapplications of the definition embedded in Article 22.1 should not benefit from the protection to
be facilitated by the multilateral register.  The EC had provided the example of a hypothetical
geographical indication, "Wine of the European Union" , which clearly did not meet the criteria of the
definition of Article 22.1.  Otherwise, there would be the risk of having notifications that did not
correspond to a real need of facilitating the protection of geographical indications but solely to adesire to preserve certain terms for a certain country.  The proposal by the EC and their member
States provided for a "challenge" or "opposition" mechanism that would allow individual WTO
Members to prevent "gross misapplications" of Article 22.1 having effect in those Members.  Other
options could be envisaged, such as independent verification by experts, the WTO Secretariat or
another ad hoc body.  The EC looked forward to wo rking with other delegations that also understood
the need to avoid trivialization of the system.
30.   The representative of Paraguay recalled that some delegations had said that the mandate was
clear;  however, those delegations, including thos e which had put forward documents TN/IP/W/3 and
JOB(02)/70, had not quoted Article 23.4 fully and, hence, its coverage.  This way of proceeding was
not helpful;  it was like referring to Article 8 of the Agreement on Agriculture, implying that everyMember should not subsidize agriculture products.
31.  Regarding the issue of definition of the term "geographical indications", he agreed with other
delegations that the definition of geographical indications was contained in Article 22.1.  He recalled
that various types of definition had been considered in WIPO and that should be taken into account
when defining precisely geographical indications.  Regarding the coverage of the system, he noted theintervention made by Argentina and said he would consult with his capital on the question of spirits.
32. The representative of Malaysia, speaking on behalf of the ASEAN Members, said that many
Members at the March session had stressed a need for further discussion towards achieving a better
understanding of the issues regarding the negotiation of a multilateral system.  She said that the list
represented a good starting-point for discussion and clarification of issues related to the multilateral
system for wines and spirits as mandated under paragraph 18 of the Ministerial Declaration.  She
would be interested to hear more from Argentina on that issue.
33.  On the definition of "geographical indications", she said that it would be useful for the Special
Session to have a common understanding of this term.  Such an understanding should stem from the
definition given in Article 22.1.  Thus, Members would be in a better position to discuss the purpose
and the system of notification.  It would also avoid costly and time-consuming arguments on the
eligibility of geographical indications for wines and spirits for inclusion in the multilateral system.Article 22.1 defined geographical indications as indications which identified a good as originating in
the territory or region or locality of a country, and that some form of quality, reputation or other
characteristic was associated with its origin.  Theref ore, there seemed to be several aspects regarding
this definition.  Firstly, geographical indications in the TRIPS context for the purposes of wines and
spirits would refer to a good.  Hence, reference should not be made to services, concepts or symbols.Secondly, geographical indications would most likely be the names of places since it was stated that
they were indications which identified goods as originating in geographical areas.  Thirdly,
indications should also be linked with some fo rm of quality, reputation or other characteristic
associated with its origin.  The definition in the TRIPS Agreement seemed to differ from the use of
other definitions like "appellations of origin" defined in other multilateral agreements such as theLisbon Agreement.  While the appellation of orig in designated or named a product, for exampleTN/IP/M/2
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"Champagne" or "Bordeaux", the TRIPS definition used the term "identifying";  in other words, it
associated a good with the place of origin.  Some clarity as to the differences between the two
concepts and with regard to the terms "quality", "reputation" and "other characteristics of the good …
attributable to its geographical origin" would also be useful.
34. The representative of Hungary said that, for the purpose of Section 3 of Part II of the TRIPS
Agreement, including for the purpose of the work under the Article 23.4 mandate, the notion of
"geographical indication" was defined in Article 22.1.  His delegation did not believe that any changes
would be needed and did not intend to change the definition for the purpose of the register.  An
attempt to change the definition would clearly fall outside the mandate of Article 23.4.  At the heart of
the notion of geographical indications, as defined in Article 22.1 of the TRIPS Agreement, was the
linkage that had to exist between the quality, reputation and other characteristics of goods, in this case
wines and spirits, and their geographical origin.  He said that many of the misunderstandingsregarding which names fitted the definition under Article 22.1 could be traced back to a failure to
keep in mind the importance of this linkage.  Because of the necessity to establish this linkage
between the quality, reputation and other characteristics and the geographical origin of goods, the
question of whether a certain name fitted the definition could only be determined on a case-by-case
basis, taking into account all the relevant specifics of individual situations.
35.  Turning to the question of eligibility for inclusi on in the register, he referred to the objective
of the establishment of the system set out in the mandate.  According to Article 23.4, the system was
to "facilitate the protection of geographical indications ... eligible for protection in those Members
participating in the system".  To achieve this objective and genuinely facilitate protection, all those
notified geographical indications that did not fit the definition or were not under protection in theircountry of origin should be filtered out.  The objective of establishing the system, namely the
facilitation of protection, could not be achieved if notified geographical indications that did not fit the
definition or were not under protection in their country of origin were entered into the register.
Should there not be a mechanism at the disposal of Members to filter those notified names out, the
legal effect of registration could be contrary to the objective of the mandate.  This was the reason whythe EC and Hungary were advocating the inclusion in the future system of a procedure for opposing
the registration of notified geographical indications as an indispensable element.  Hungary had tabled
two communications in 2000 and 2001 (IP/C/W/234 a nd IP/C/W/255) suggesting the incorporation of
a multilateral element in the opposition or challenge procedure.  The EC proposed that, in the case of
a disagreement over the registration of a notified geographical indication, the WTO Members
concerned - the notifying and the challenging Members - should hold bilateral consultations with a
view to settling the disagreement.  If those direct bilateral discussions did not yield a mutuallyacceptable solution, a multilateral possibility should be provided to settle the dispute.  That element,
in particular, would provide adequate opportunity for smaller WTO Members to represent their
interests and would prevent the potential abuse of the opposition procedure by ensuring that it was not
left to individual Members to determine whether a challenge was justified or not.  Regarding the form
of the multilateral procedure, his delegation suggested that the Council explore the possibility ofestablishing a specific arbitration system.  He noted that this form of settling disagreements was not
alien to the WTO framework.  He referred to Articles 25 and 22.6 of the DSU and Article 8.5 of the
Agreement on Subsidies and Countervailing Measures.  Nevertheless, his delegation would be open to
any other way of settling disagreements that would have the same multilateral character and that
would be simple and effective.  The effect of the arbitrators' decision in the case of challenges inrelation to Articles 22.1 and 24.9 would be of an erga omnes nature.  If the arbitrator found that a
notified and challenged geographical indication did not fit the definition or was not under protection
in its country of origin, it would not be entered into the register.  That erga omnes effect was
important in particular for two reasons.  Firstly, it would save time and effort for the participants in
the system since a single successful challenge would prevent the registration of notified names notfitting the definition or not under protection in the country of origin;  in respect of names contained in
such notifications, there would, therefore, be no legal effects in any WTO Member.  Secondly, the
unfortunate situation would be avoided where the failure of participants to challenge notifications andTN/IP/M/2
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the resulting legal effect of registration would lead to commercial losses or costs for Members from
which the geographical indications in question originated even if those Members successfully
challenged the registration on the basis of Articles 22.1 or 24.9.  In addition, Members should have
the opportunity to challenge the multilateral registration of notified geographical indications by
referring to the exceptions in Article 24.4 (prior and good faith uses), 24.5 (prior application for orregistration of a trademark) and 24.6 (generic names).  In the case of successful challenges, the
notified geographical indication would be registered but with the note that the registration did not
have a legal effect on the successful challengers.  The reason for not having an erga omnes effect in
the case of those challenges was that the applicability of the exceptions in Article 24 could only be
determined on a case-by-case basis.  Under the proposal by Canada, Chile, Japan and the United
States (IP/C/W/133/Rev.1), the multilateral registrati on of names not fitting the definition or not under
protection in the country of origin could not be stopped and national authorities would be obliged torefer to them in their decisions.  It was not entirely clear to Hungary how this could facilitate
protection.  He would welcome some clarification of that point.
36.  The representative of Australia said that there could be no question that the definition set out
in Article 22.1 was the operative definition for the Special Session's work.  That definition was agreed
as part of the Uruguay Round balance of rights and obligations, and his delegation could see neitherany need nor justification for moving away from that already agreed benchmark.  To attempt to do so
would risk unnecessarily delaying the work of this body.  His delegation was of the view that the
definition, while perhaps ostensibly clear and unambiguous, like any legal text was open to varying
interpretations.  Referring to the comment made by  the representative of Switzerland that it was a
flexible definition, he said it might be too flexible.  It was essential that Members developed acommon understanding  of the scope and operation of the definition of geographical indications in
Article 22.1.  It would be a mistake to assume that all disagreements over specific terms could be
easily resolved on a case-by-case basis after the multilateral system had been negotiated, particularly
in accordance with a cumbersome, highly regulatory and costly arbitration system suggested earlier
by a Member.  His delegation believed that it was more sensible for the Special Session to face at thisstage some of the tricky issues that had arisen and to shed some light on what exactly it was that the
multilateral system was to facilitate the protection of.  Only in that way could Members be clear about
the subject-matter of the multilateral system.
37.  First, a very basic question was whether non-geographic place names could meet the
Article 22.1 definition.  Australia was unable to accept the concept that plain English language terms
could meet the definition in Article 22.1 of a geographical indication.  The EC had suggested that
"traditional expressions" were "so closely linked to a geographical origin as to meet the TRIPSdefinition of a geographical indication".  The quote was taken from a Commission's press release on
EC Regulation 753/2002.  Inter alia , the Regulation reserved for the exclusive use of Portuguese
producers of "Quality liqueur wine" words such as "vintage", "ruby" and "tawny".  Those words were
not English translations of Portuguese terms, they  were ordinary English terms.  His delegation had
serious concerns about the concept that such plain English language terms such as those could meetthe Article 22.1 definition.  From an etymological point  of view, it was scarcely believable that any
English descriptive word could be so closely linked to Portugal, as a geographical indication, as to
meet the TRIPS definition of a geographical indication.  As it had to be assumed that the EC would be
looking to include terms such as those in the multilateral system, his delegation considered that the
issue needed to be further examined in the Special Session as part of its ongoing work to avoiddisagreements in the future.  Referring to the EC's comment that it would notify its geographical
indications in due course, he pointed out that, if that date of notification were the day after the
proposed registration system came into force, that w ould be too late.  The EC had also said in its
communication that the link between the territory and the defining quality, characteristic or reputation
should not be "trivialized".  He wondered whether the use of English language terms to protect aPortuguese geographical indication was not "trivializing" the concept of geographical indication.TN/IP/M/2
Page 11
38.  The second question was whether it was legitimate to limit the size or type of geographical
unit that could be considered a geographical indication.  In particular, could a country name qualify
under the definition and if so, under what circumstances?  For example, could "Australia" be notified
as a geographical indication for wines under the multilateral system?  Could Canada notify "Canadian
Club" whisky?
39.  A third issue concerned how much, or which st ages, of the production process needed to be
conducted in the geographical location in question in order to be able to claim that a geographical
indication referred to that area.  Some of the EC regulations in the field of geographical indications
suggested that all elements of the production process needed to occur in the same geographical area.
It was interesting that this principle was now under challenge in European courts, in relation to terms
relating to pigmeat and cheese.  A strict interpretation of production process requirements might
exclude other Members' geographical indications for wines and spirits from the definition.  Therefore,his delegation would like further discussion on that issue.
40.  Fourth, how would a Member notifying a claimed geographical indication demonstrate the
"quality, reputation or other characteristic" of a wine or a spirit and establish that the quality,
reputation or other characteristic of the wine or spirit was "essentially attributable to its geographical
origin"?  That was the issue of "linkage", emphasized by some delegations as of key importance.  Itwas therefore critical that all Members were clear on what was meant by that linkage.  The draft
legislation on geographical indications of some Members still in the process of implementing their
obligations under Section 3 of Part II of the TRIPS Agreement appeared to deal with those issues only
via the definition itself, leaving open the question of how the two criteria could be proved and met.
Would Members notifying claimed geographical indications to the system have to include supportingdocumentation setting out how the term met the definition?  If so, Members would need to have some
kind of collective understanding about the kind of information that must be included.
41.  Lastly, there was the question of territoriality and how that concept would apply to the
definition under the multilateral system.  This raised some critical issues concerning eligibility for
protection of claimed geographical indication terms.  In Australia's  view, there was no question thatthe fundamental intellectual property principle  of territoriality must apply to the multilateral system.
The territoriality principle was the concept that inte llectual property rights were only valid in respect
of the territory for which they had been acquired and in which they could be enforced.  In other
words, a country's own laws would apply to determ ine whether a geographical indication was granted
protection within its borders.  The practical effect of this principle was that Members would not be
obliged to accept at face value another Member's claim that a particular notified geographical
indication for a wine or a spirit met the definition in Article 22.1.  If Australia notified the term"Australia" as a geographical indication for its wines, would the European Communities be prepared
to accept that term as a geographical indication or would they wish to retain the right to apply the
definition of geographical indication in the manner it was usually applied at the Community level?
42.  Turning to some other related issues, he said that there was no question that a Member
notifying and seeking registration of a particul ar claimed geographical indication must actually
protect that term at the national level.  The reference in Article 23.4 to eligibility for protection must
mean eligibility as measured against the relevant rules/criteria set out in Section 3 of Part II of the
TRIPS Agreement.  The Collins English Dictionary defined "eligible" as "fit, worthy, or qualified, as
for office".  In this context, the issue was whether a particular term was qualified  for protection in the
sense that it met the requirements of Section 3.  There was no justification for ascribing any othermeaning to the phrase "eligible for protection", a nd therefore no justification for suspending the
operation of Article 24.9, or any of the other existing TRIPS rules on geographical indications, in the
context of a proposed multilateral system.  To be eligible for protection, a geographical indication
must both be protected at the national level and meet the definition in Article 22.1.  In regard to the
latter, the principle of territoriality must be applied.TN/IP/M/2
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43.  The representative of New Zealand welcomed the Chair’s statement that the work of the
Special Session needed to proceed within the Doha mandate.  She said that the definition of a
geographical indication was a crucial concept for her delegation.  It influenced her delegation's
thinking, to greater or lesser degrees, on all of the other elements of the register, particularly its legal
effect.  A clear understanding of this concept was needed in order to complete the Special Session'swork.  Her delegation did not share the view that, as some had suggested, the issue of definition could
be resolved through a case-by-case examination of the terms notified and registered, i.e., after the
negotiations in the Special Session.  Given the sheer volume of terms expected to be registered, i.e.,
thousands, this would simply be an insurmountable task for a country like New Zealand.  Her
delegation agreed that the starting-point for a definition must be that contained in Article 22.1.
However, as seen from the TRIPS Council's discussions on extension, there was no common
understanding on how to interpret it.  Some Members took an extremely far-reaching and expansiveapproach to that definition, which stretched well beyond the standards of the TRIPS Agreement.
Incorporation of such an approach to the definiti on under the EC-style register would in effect be
imposing a definition of Article 22.1, which was not a requirement in the TRIPS Agreement, on other
countries who took a very different view of the scope of the definition.  It was clear that Members had
very divergent views on that.  Unfortunately, there had been some reluctance from certain Members toengage in a good discussion of these differences.
44. First, would terms using non-geographical names fall under the TRIPS definition and thereby
be eligible for notification and registration?  Her delegation had doubts on that point, including with
respect to how one would establish a clear link of such non-geographical names with the definition in
Article 22, and asked for further consideration of that point.
45.  Second, would the definition allow the protection of a specific process or production method
under the guise of a geographical indication?  She referred to the example of "bresaola", which was
protected as a geographical indication in the EC and associated with the geography of Italy.
However, the raw material - meat - came from outsi de that geography, often from Argentina.  It was
the production and processing method which was reserved for exclusive use with the geographicalindication.  Her delegation questioned whether such a replicable production process had an inherent
link to a geographical origin.  Also at issue with respect to an expansive definition were the issues that
had been raised both in the regular session of the TRIPS Council and in the TBT Committee
concerning an attempt by the EC to reserve certain generic production-related terms or descriptive
terms, the so-called "traditional expressions", and certain packaging configurations to certain
individual geographical indications.  Obviously that greatly restricted labelling and trade options for
producers not associated with those geographical indications.  However, that was also an issue in thecontext of discussions on the register.  For example, if Members accommodated that sort of
expansive, discretionary and flexible definition of geographical indications and if a term such as
"Port" was registered, then the other concepts, terms and production processes that had been reserved
for exclusive use by that geographical indication, for example "ruby" or "tawny", might also benefit
from the legal effects flowing from the register.  Would those terms de facto end up on the register?If that were the case, it would result in the perverse situation where, under an EC-envisaged register at
least, New Zealand would have to protect such terms, customary and belonging to all speakers of the
English language because of the appropriation, through regulation, by another geographical indication
from a country, for example Portugal, with whom New Zealand shared no common linguistic or
cultural traditions.  Not only did that frustrate the ability of New Zealand producers to have access tosuch generic terms, processes and labels, but it would also frustrate the ability of, for example,
Australia to do the same in the New Zealand market.  That approach to the definition was something
which was simply unacceptable to her delegation.
46. Another key issue associated with the definition related to the use of a country name as a
geographical indication.  The TRIPS Agreement clearly provided for this.  However, some Memberscontinued to deny her country's right to use its own name, "New Zealand", as a geographical
indication.  Her delegation would be seeking confirmation in the notification and registration system'sTN/IP/M/2
Page 13
treatment of the definition for that right to use a country name as a geographical indication to be
confirmed and operationalized.
47. Lastly, she associated her delegation with the views of Australia on the issue of territoriality.
48.  The representative of Canada welcomed the Chair's approach of dividing the work plan for
the session although she thought it would be important to also consider the various elements in their
entirety.  She recalled that some of the discussions in the regular session overlapped with the issue of
definition.  They also reinforced the view that participants in the Special Session had differing
perspectives on the interpretation of the definition of geographical indications as contained in
Article 22.1, and clearly confirmed the necessity for more discussion on the subject.  It would not be
helpful for any WTO Member if misconceptions emerged at some later stage.  In Canada's view,
consideration of the following detailed questions would be important if Members were to attain a
common understanding of how Members might expect others to interpret the definition of ageographical indication.
49.  What exactly could be protected, the name of a place, the name of a country, a common
adjective or a descriptive term, and on what basis?  In Canada's experience, a country name was an
acceptable geographical indication and was clearly covered by the definition contained in
Article 22.1.  Canada would be interested in hearing from other countries, especially on thedemandeurs' side, if they had a similar interpretation in the definition that was used in their domestic
regulations.  Canada had experienced many surprises when dealing with one of the key demandeurs
on this interpretation.
50. A second question was how to assess quality, reputation, or other characteristic.  Did
Members need common objectives to ascertain what criteria might form the basis of that assessment?Equally important was how to determine the link between geographical location and quality,
reputation or other characteristic.
51.  Another area to be pursued related to whether the geographical indication was fully produced
in a particular location.  Knowing that there was a substantial volume of trade in bulk wine which was
combined and bottled with local vintage, would it be necessary to determine whether or not the entirechain of production or just parts of production would need to be carried out in a geographic location?
There was also the question of the origin of the raw material contained in the final product.  Perhaps
the Special Session needed to consider content rules.
52.  Lastly, the interface with territorial application of the definition needed to be considered.  In
Canada's view, the definition that should be applied should be based on a Member's national law
rather than that of the source country.  Canada agreed with Australia that traditional expressions could
not qualify as geographical indications.  French wine producers should not enjoy exclusive benefits inthe EU market or rights to the use of the word "chateau".  She recalled that Canada had two official
languages and "chateau" ("château") was a common term.  Similarly, it should not be necessary to
define the descriptive term "dry" or "ruby".
53.  Finally, with reference to the Chair's question on  whether or not that issue should be resolved
in the Special Session or on a case-by-case basis, it was Canada's view that if Members were tosuccessfully conclude negotiations for a registration system for wines and spirits, it would be critical
for the Council to develop a common understanding of the definition and its scope and application;
this could not be left to individual Members' interpretation.
54. The representative of Argentina said that the definition should be that contained in
Article 22.1, which was applicable to wines and spirits as well as to other products.  In general terms
and by way of example, her delegation considered that "indications of source" ("denominaciones de
procedencia") were not covered by the protection foreseen by the system of notification andTN/IP/M/2
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registration because they referred only to the area from which the product came and the link of
quality, reputation or other characteristics with the origin was missing.  It also considered that
"traditional expressions" should not be included since they were generic terms in common language
that identified part of a production process and other elements but did not involve a geographical link.
With respect to possible discrepancies regarding whether a definition might or might not be included,it was her delegation's view that discrepancies might arise as a result of the interpretation of the
definition in Article 22.1, since interpretation was the exclusive competence of each Member.
Possible discrepancies should be resolved by the national jurisdictions.  This issue should be analysed
neither in the Special Session, that is to say during negotiations, nor on a case-by-case basis as a
collective exercise once the system came into force.  The inclusion of the issue seemed to prejudge
the fact that the system would have an opposition procedure, but there was no agreement so far.
Determination, during the course of negotiations, of the geographical indications "eligible forprotection" seemed to push forward an interpretatio n of the definition and in particular of the links
that the product must have with its geographical origin.  In sum, the question of eligibility for
protection and possible differences were issues that Members should interpret and resolve within their
national jurisdictions, bearing in mind the territorial nature of intellectual property rights.
55.  The representative of the United States recalled that in 1999 the United States, along with
Canada, Chile and Japan, introduced a proposal for the establishment of a multilateral system of
notification and registration of geographical indica tions for wines and spirits (IP/C/W/133/Rev.1).  He
took note of the observation made in paragraph 5 of document TN/IP/W/3 that, to date, only the
proposals made by the EC and their member States made a genuine attempt to fulfil the requirements
of Article 23.4.  He recalled that, prior to the Doha Ministerial Conference, there was a discussion inthe TRIPS Council about whether proposals could apply to geographical indications for products
other than wines and spirits.  He wanted to clarify that, given the very clear and narrow mandate the
Council had from the Doha Declaration to establish a system that addressed wines and spirits, his
delegation's comments would be limited to a system of notification and registration for wines and
spirits only.
56.  He associated his delegation with the statements made by Australia, New Zealand, Canada
and other countries, especially with respect to the differences Members might have with respect to the
definition of "geographical indication".  Responses to the checklist of questions under the Article 24.2
review revealed that the determination of what would constitute a geographical indication did vary
under the laws of the different Members that had provided information.  That reflected the fact that
geographical indications, like other intellectual property rights, were territorial in nature.  The lack of
a common interpretation of the definition of a geographical indication under Article 22.1 would belikely to result in terms being notified by a Member that other Members regarded as ineligible for
protection under their own national laws.  Because the terms to be notified would have to be regarded
as "eligible for protection" by the Member notifying, that Member must, however, have recognized
that the term was a geographical indication and was protected as such under its national law.  In his
delegation's view, negotiations were unlikely to resolve the differences in views, because eachMember would approach the issue from the angle of its own national law.  Some Members had
objected to any discussion of the definition of a geographical indication that might lead the Special
Session to establish a common understanding of the term.  His delegation supported such a discussion.
In the absence of a clear and common interpretation of Article 22.1, implemented in the national law
of all Members, his delegation believed that the best means for resolving any dispute over thenotification of a particular geographical indication by a Member should be made under the national
law of that Member by any concerned party rather than through an opposition procedure managed in
Geneva under the auspices of the WTO.  If a challenge under a Member's law were successful, that
Member would have to withdraw the notification of that term.  If unsuccessful, the term could remain
on the Member's notification and be registered, but given the territorial nature of geographicalindications, its presence would not guarantee that it would be eligible for protection under the laws of
other WTO Members or that an exception to its protection would not exist in the markets.  The
territorial nature of geographical indications was reflected in the use, particularly in connection withTN/IP/M/2
Page 15
exceptions under Article 24, paragraphs 4 through 8, of the phrases "in the territory of that Member"
and "in that Member".  Some claimed this would create uncertainty that interfered with market access
but there was no more uncertainty with respect to  geographical indications than with any other form
of intellectual property or, for that matter, many other matters related to business.  A system of
notification and registration of geographical indications for wines and spirits should be available toMembers, producers and consumers, providing information not currently available, and in that way
would facilitate not only the protection of such geographical indications, but their selection by
Members in the first place.  Those seeking to establish new geographical indications would have
information available that could be searched in the same manner as in trademark registers or patent
databases to determine if prior rights already existed in a trademark or in an invention.
57.  The representative of the European Communities said that no Member disagreed that the
definition of geographical indications which should be used was the definition laid down in
Article 22.1.  He was concerned when delegations suggested that there was a need to reach a common
understanding on the scope and application of Article 22.1.  That would be in contradiction with what
one delegation had said with regard to the Doha mandate that it was a clear and narrow mandate.  It
was clear from the wording of Article 23.4 what the objective of the negotiations was;  it did not say
"subject to" or "provided that" there was a common understanding reached on the scope andapplication of Article 22.1.  That was not to say that some of the questions raised by Members were
not interesting ones, but he did not understand how the reaching of a common understanding would fit
an agreement on a multilateral system of notification and registration.  This suggestion should not be
pursued.   Turning to the concern expressed by the US delegation with regard to the indication in
paragraph 5 of the EC's communication (TN/IP/W /3) that only their own proposal and that of
Hungary were making a genuine attempt to fulfil the requirements, he said that this was in line with
previous comments by his delegation that the proposal tabled by the US and other Members would
not lead to a meaningful system, and that was the spirit within which paragraph 5 of document
TN/IP/W/3 should be read.
58.  He recalled that Members had had at their disposal, for a considerable period of time, a
composite paper which had been drafted by the Secretariat and did cover many of those questions.
Surely, there were many books and articles written about the definition and application of
Article 22.1.  There was also reference to EC Regulation 753/2002, which had been discussed the
previous week in the TBT Committee.  In his delegation's view, this Regulation should be discussed,
if so decided, in that Committee and not in the Special Session.  Regarding the term "traditional", he
said that there were certain traditional expressions, such as "vintage" or "ruby", which could be
reserved for Community wines and which could also be used by wines of third countries if this waspossible in accordance with Community legislation.  Traditional expressions were attached to a wine
which had a geographical indication;  there was therefore a distinction between a "traditional
expression" and a "geographical indication".  In addition, traditional expressions were only protected
in one language and for one type of wine, liqueur, sparkling wine, etc., so the protection was much
more limited than that provided for geographical indications.
59.  The representative of Brazil said that his country was in favour of the "joint proposal" by the
delegations of Japan, Canada, Chile and the United States on the establishment of a system of
notification and registration (IP/C/W/133/Rev.1).  Hi s delegation was of the view that country names
could fit in the protection of geographical indications.  As stated in the regular session of the TRIPS
Council on the protection of "Cachaça", a spirit protected under Brazilian law, his delegation agreedto a great extent with the view that, evegn though there was a broad definition of geographical
indications in Article 22.1, the parameters of protection might vary from one country to another.
Geographical indications had a territorial nature;  his delegation agreed to some of the elements raised
by certain delegations regarding how to challenge geographical indications.  The best way might be in
the national forum where the geographical indication was protected.TN/IP/M/2
Page 16
60.  Concerning Australia's experience with the use of the terms "Port", "vintage" and "ruby", he
said that the problem did not seem to be a mistake in translation but rather a confusion of scope:
geographical indications had nothing to do with traditional expressions.  He agreed with Argentina
that traditional expressions were out of the scope of the definition issue, and wondered if they were
even related to intellectual property at all.
61.  The representative of Australia said that the TRIPS Agreement came into force in 1995 and,
to his knowledge, there had been no disputes or jurisprudence in the WTO about the definition of a
geographical indication.  Clearly, the discussions over the last two years in the TRIPS Council about
extension and about the register had revealed some interesting questions as to what should be in the
definition.  First, it was entirely appropriate for a country to decide about a geographical indication
and, clearly, the scope of the definition in the TRIPS Agreement provided for that possibility.  He was
trying to suggest to those countries which were seeking, through this process, to have their countrynames registered as geographical indications that that would not be permitted by at least one major
demandeur in this area, because the ultimate decision on whether a name would be a geographical
indication would be made, as the United States had pointed out, by the country which was requested
to protect that geographical indication.  Because of the principle of territoriality, it would be up to
each individual Member to decide whether a geographical indication was eligible for protection.Based on Australia's own experience of a bilateral agreement with the EC, he called the attention of
those Members seeking protection of their country's name that this might not be possible.
62.  He concurred with the representative of Brazil that traditional expressions had nothing to do
with geographical indications.  He recalled again the European Commission's press release on its new
wine regulation, which said that traditional expressions were so closely linked to a geographical originas to meet the TRIPS definition of a geographic indication.  While accepting the explanation by the
EC that the words "tawny", "ruby" and "vintage" would only apply to a small group of "Quality
liqueur wines", he expressed concerns that traditional expressions were said to be geographical
indications and asked how far the scope of that appl ication would be extended.  It could mean that any
words could be claimed by one participant as its geographical indications.  Pending clarifications fromthe EC and also the understanding of whether traditional expressions could have the cloak of
intellectual property rights, participants should be cautious in how far they would go when they
accepted the current definition.
63.  The representative of the European Communities, referring to Australia's question of whether
non-geographical names could meet the definition of Article 22.1, said that in his delegation's view,
nothing in that Article limited geographical indication protection to geographical names.  Some
examples were:  "Vinho verde" for a Portuguese wine or "Basmati rice".  On the question of whetherit was legitimate to forbid use of the name of a country as a geographical indication, he said that the
definition in Article 22.1 did not make that type of limitation.  The EC did protect "Luxembourg" as
part of a geographical indication on meat products.   Any country name should be protectable as a
geographical indication as long as the link of the product with a quality, reputation and characteristic
was proven.  It was up to every country to prove that case.  Australia, for example, could seekprotection for the name "Australia" as a geographi cal indication and show how all wines using that
geographical indication had a link to a unique quality, reputation or other characteristic;  he wondered,
however, how there could be a single quality for Australian wine if Australia had some 90
geographical indications with different qualities.  In reply to the question of how to demonstrate that
the quality, reputation or other characteristic was essentially attributable to the territory, he said thateach national administration would decide on the basis of evidence.  Under the principle of
territoriality, it would be the country of origin which would decide whether a term was a geographical
indication or not;  third countries could only deny that protection on the basis of Article 24.6.
Regarding the stages of production or growing process which were to be carried out in the place
referred to by the geographical indication, the reply would depend on the case:  for wines for example,sometimes the bottling process needed to be done in the geographical area because transport of the
bottles might affect the quality of the wine protected by the geographical indication.  He reiteratedTN/IP/M/2
Page 17
that Regulation 753/2002 was to be discussed in the TBT Committee if so wished by Members.  In
this connection, it would appear to the EC delegation that the definition of "traditional expression"
was still not very well understood.  "Ruby" and "vintage" should be used with a wine bearing a
geographical indication, so there was a distinction between a geographical indication and a traditional
expression.
64.  The representative of Hungary said that he agreed with Switzerland, the EC, Australia and
Brazil that a country name, in line with Article 22.1, could be a geographical indication provided that
the quality, reputation or other characteristic of the good was essentially attributable to the particular
location.  However, it was not automatic that a country name would fit the definition of Article 22.1.
That was, in fact, that linkage that his delegation had referred to in its previous statement.
The purpose of the notification and registration system
65. The representative of the Czech Republic said that the purpose of the negotiation and
registration system, i.e., the facilitation of the protection of geographical indications, related closely to
all other issues.  Effective facilitation could not be achieved without clearly setting out the legal
effects for all participating Members, and it was also indispensable that obligations for non-
participants be clarified.
66.  The representative of Peru said that the inscri ption in the register should play an important
role in "facilitating" the protection of geographical indications for wines and spirits.  For that purpose,
the register could not be a simple notification or databank system which would not contribute to
ensuring the respect of TRIPS obligations.  A register of that nature would not be a proper multilateral
system nor would it be appropriate to the commitment to reinforce the protection of geographical
indications.  The term "facilitate" should be understood as making available the means of identifyingwhich geographical indications Members had to protect.
67. The representative of the European Communities said that the protection of geographical
indications enshrined in Section 3 of Part II of th e TRIPS Agreement must be provided by law in all
WTO Members.  Right holders, consumers and administrations alike had genuine interest in gaining
easier access to those legal means that the TRIPS Agreement made available to them in order toprevent misuse of geographical indications in their markets.  According to Article 1.1 of the TRIPS
Agreement, WTO Members were free to choose the means to implement the requirements of the
TRIPS Agreement.  The multilateral regist er should fully respect that principle.
68.  He recalled the composite paper prepared by  the WTO Secretariat summarizing the responses
to the checklist of questions issued under Artic le 24.2 (IP/C/W/253):  protection of geographical
indications was granted via systems of registration of geographical indications, trademark registration,
and case law relating to unfair competition law.  Therefore, facilitating the protection of geographicalindications via a multilateral registration system necessarily referred to the implementation of existing
obligations and not to the creation of new ones.  His delegation fully endorsed that principle.
Therefore, it believed that, in order to "facilitate" the legal protection prescribed by Section 3 of
Part II of the TRIPS Agreement, a multilateral system of notification and registration would have to
help administrations to implement, and producers and consumers to avail themselves of, the legalprotection without creating new substantive obligations going beyond the existing requirements of the
TRIPS Agreement.
69.  He said that the proposals tabled by the EC and their member States (IP/C/W/107/Rev.1) and
by Hungary (IP/C/W/133/Rev.1) suggested a syst em whereby no new substantive obligations were
imposed on WTO Members.  Yet those proposals, via a presumption of eligibility for registeredgeographical indications, made the geographical indication protection easier to implement, as stated in
the EC informal note (JOB(02)/70).  What was said  in the note was in full conformity with the
proposal tabled in 2000 in document IP/C/W/107 /Rev.1, paragraph D.3, i.e., that participatingTN/IP/M/2
Page 18
Members were to facilitate the protection of an individual registered geographical indication by
providing the legal means for interested parties to use the registration as a presumption of the
eligibility for the protection of the geographical indication.  At the same time, the courts or authorities
would remain free to independently examine the value as evidence of a registration and would thereby
maintain their freedom to assess whether there actua lly was, in the specific case, any infringement of
rights and interests, with due respect to the outcome of the negotiations foreseen in paragraph 18 of
the Doha Ministerial Declaration.  Asking those using names notified by other countries, for example,
to defend their case first before local courts would discourage piracy and benefit the entire spectrum
of interested parties:  producers, consumers and administrations.  Producers intending to conduct a
policy of international expansion could make cost savings when defending their names around the
world. Occasional free-riding on notified names would be discouraged as producers using
geographical indications notified by other countries would possibly have to prove their case beforedomestic courts first (and incur the litigation costs) if asked to do so.  Consumer associations with
fewer resources than producers and yet willing to prevent consumer deception could more easily
defend their interests against those who marketed their products using names notified by others to the
WTO.  As a result, usurpation would diminish and, in turn, litigation and administration costs would
decrease.  Public administrations would have timel y information that would allow them, for example,
to not register trademarks containing geographical indications as prescribed by Article 23.2.  His
delegation was doubtful that the proposal of Canada, Chile, Japan and the United States was
suggesting a system where the protection of geographical indications was in any way "facilitated".
That proposal stated that national authorities would be bound to refer to that list but provided for no
mechanism to monitor such obliga tion to "refer".  Furthermore, no effect was attached to the
observance of that list, if national authorities looked at it at all.  In any event, national authorities,
even if they referred to that list, could choose to  completely ignore it in their domestic administrative
decisions.  Therefore, publishing a list of geographical indications exclusively for information
purposes did not guarantee that the protection would be "facilitated".  Also, the proposal by Canada,
Chile, Japan and the United States did not greatly help producers, but quite  the contrary.  Producers
using notified names might rely on the possibility that national authorities, under that proposal, would
refer to the list and, under that belief, start litigation.  Legal uncertainty surrounding the effect of that
proposal would increase litigation and, eventually, administration costs.  In the view of his delegation,
the proposed database would bring no benefits to consumers, who would remain as unprotected as
before.  The proposal did not bring any added value to the legal standing of consumers, who would
continue to witness wide misuse of names in their territories.
70.  The representative of Australia said that her delegation considered the words "in order to
facilitate the protection of" to mean to facilitate, through appropriate procedures, the obtaining of the
level of protection that already had to be given to geographical indications for wines and spirits
pursuant to the TRIPS Agreement, and not to enhance th at level of protection.  If the drafters of the
TRIPS Agreement had foreseen that the multilateral system would involve an increase in the level of
protection, they could and would have explicitly spelt this out.  She noted the differences betweenArticle 23.4 and Article 24.1.  The former referred to facilitation, the latter to increasing protection
under Article 23.  "Facilitate" was defined in the Collins English Dictionary as "to assist the progress
of".  "Progress", in turn, was defined as "movement forwards, especially towards a place or
objective".  As such, "facilitate" could be seen as connoting movement forwards, along a horizontal
pathway towards a defined goal.  Its meaning was thus clearly distinct from the concepts of enhancingor increasing, which would involve an upwards traj ectory.  Responding to the question raised in the
Chair's note, she said that the purpose of the multilateral system was to assist Members' nationals to
attain progress in applying the existing level of protection for geographical indications for wines and
spirits, as set out under Article 23.  Article 23.4 was drafted as an integral part of the special rules of
Article 23 relating to the protection of geographical indications for wines and spirits.  Legally,Article 23 was best characterized as a lex specialis  which would take precedence over the general rule
for the protection of geographical indications set out in Article 22.  Therefore, when talking about
facilitating the protection of geographical indications for wines and spirits, Members were referring to
facilitating the protection provided under Article 23.  Therefore, there was no need for the multilateralTN/IP/M/2
Page 19
system also to facilitate the protection provided under Article 22.  It was not  the purpose of the
multilateral system to endow geographical indications for wines and spirits with a higher level of
protection than that currently provided to geographical indications for wines and spirits in Article 23.
Nor was the purpose to confer a supranational or global level of protection on them that would go
above and beyond the protection accorded to any other type of intellectual property right.  That couldoccur if Members found they were deprived of the right under the principle of territoriality to apply
their own laws in making determinations about intellectual property protection within their borders.
That would tie up for the exclusive use and economic rent of a few very wealthy countries the use of
certain names.  Australia could not accept any multilateral system of notification and registration that
would have those kind of effects.
71.  From her delegation's reading of other relevant multilateral systems of notification and
registration, such as the system under Article 6 ter on official signs and hallmarks in the Paris
Convention, the Hague Agreement in the field of industrial designs, and the Madrid Protocol in the
field of trademarks, these systems all relied ultimately on determinations under domestic law to
determine eligibility and protection.  What her delegation was committed to doing was negotiating a
multilateral system designed to assist the nationals of participating Members to achieve progress in
the existing level of protection for geographical indications for wines and spirits, as set out underArticle 23.  With such an objective, the system would perform a distinct and value-added operation
within the context of the existing rules, but wi thout creating any obligations additional to those
already set out in the Agreement.  Developed and developing country Members were already obliged
to implement Section 3 of Part II of the TRIPS Agreement in the manner most appropriate to their
own legal system and practice as provided for under TRIPS Article 1.1.
72.  On the way in which the provisions of Article 24 should be taken into account in the
multilateral system, given that the system did not foresee any increase in existing levels of obligation,
there was no question that all the exceptions set out in Article 24, in particular the grandfathering
clause for geographical indications for wines and spirits (Article 24.4), the trademark exception
(Article 24.5) and the exception for customary use (A rticle 24.6) must continue to apply.  Members
participating in the system must be able to continue to assert their rights under those provisions.  The
practical mechanism by which Members could assert their right to the exceptions of Article 24
required further discussion.  However, her delegation wished to flag that, as for the Article 22.1
definition, the principle of territoriality was a crucial issue.  The history of use of particular claimed
geographical indication terms, and hence the applicability of the exceptions, would differ from
Member to Member, and that fact must be fully reflected in any multilateral system.  National courts
would be best placed to make determinations about the use of particular terms in a country.
73.  The representative of Hungary referred to his intervention regarding the previous category of
issues and the question of purpose.  In his delegation's view, the mandate calling for the facilitation of
geographical indication protection referred to the implementation of existing obligations and did not
create substantive new ones.  He noted that Article 1.1 of the TRIPS Agreement let Members decide
the means of implementation of TRIPS obligations and, as the Article 24.2 review had shown,Members did opt for different systems ranging from unfair competition law and passing-off and
trademark registration systems to registers of geographical indications.  It was not his delegation's
intention to call into question WTO Members' rights under Article 1.1 or to create substantive new
obligations for Members as part of the establishment of the register.  The reason to push for an
effective system of registration with genuine legal effects was to help producers, consumers andadministrations ensure the implementation of existing obligations.  Simply put, in most cases it would
be difficult, if not impossible, for the average right holder of a geographical indication or producers
like Hungarian wine growers in small villages to enforce their rights under Article 23, because they
would have to build their cases from scratch before local courts, in certain cases thousands of
kilometres from home, under completely different legal systems.  This would threaten to defeat theclear intention of WTO Members to provide the Article 23-level protection to geographical
indications for wines and spirits.TN/IP/M/2
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74.  On how the implementation of existing rights could be facilitated, the EC and Hungary had
suggested that multilateral registration should have the legal effect of creating a rebuttable
presumption of eligibility for protection.  Responding to the reactions to Hungary's proposal, he said
that it did not foresee and advocate the establishment of a supranational court in the framework of the
system to be established.  Hungary did not want a system that would impose decisions on nationalauthorities and courts.  Registration would just mean that those who used the names of others that
were registered multilaterally would have to prove their cases in court, if challenged.  Members would
ultimately have the multilateral possibility under the challenge procedure proposed by Hungary to
filter out geographical indications not fitting the definition and Article 24.9.  The continued use of
exceptions under Article 24 would also be ensured.  In addition to the producers owning geographical
indication rights, a register with the legal effect of creating the presumption of eligibility for
protection would help consumer associations and nati onal administrations as well.  In that respect, he
called the attention of delegations to the points made in paragraphs 19, 20, 21 and 22 in document
JOB(02)/70 submitted by the EC and their member States.
75.  Regarding the proposal by Canada, Chile, Ja pan and the United States (IP/C/W/133/Rev.1),
he wondered if the database proposed would facilitate protection.  First, it would not provide for a
mechanism to filter out names that should not be protected.  Second, it did not seem to have any reallegal effect, since national authorities would only be obliged to refer to the list, together with other
relevant sources of information and could decide to ignore the list altogether.  He was not sure if such
a system would justify the costs of its establishment and running.  He suggested that the co-sponsors
elaborate on why, in their view, such a system would be useful for their authorities, especially in light
of the fact that even names that were blatantly not in conformity with Article 22.1 or Article 24.9could find their way into the database.  Were they not concerned that such a list could create more
confusion than clarity about which names should be given the Article 23-level protection?  Were they
not concerned that such a system could even give ideas on what to copy if wine producers saw that
certain geographical indications were notified and automatically registered by more than one
Member?
76.  The representative of Argentina said that the expression "to facilitate the protection" referred
to the establishment of a register where participating Members would make known, in the framework
of the WTO, geographical indications that were protected on their territory and, in that way, make it
"easier" for countries to obtain protection for wines and spirits.  Referring to paragraph 5, second
sentence of the Chair's note, which used the words "not to enhance that level of protection", she said
that there should be no increase in that level.  The TRIPS Agreement established in Article 1.1 that
Members might, but were not be obliged to, implement in their law more extensive protection thanthat required by the Agreement, provided that that  protection did not infringe the provisions of the
Agreement.  It also stipulated that Members "sha ll be free to determine the appropriate method of
implementing the provisions of the Agreement within their own legal system and practice".  Members
had, therefore, the power to decide both on the degree of protection to grant provided the minimum
standards required were met and on the way of incorporating the obligations deriving from the TRIPSAgreement in their national legislation.  In other words, each country was sovereign in establishing
the degree of protection as long as it was compatible with the Agreement, the mechanisms considered
appropriate to protect geographical indications and the criteria for eligibility.
77.  Under Article 24.9, there could be no notification or registration of geographical indications
that were not protected in the country claiming the protection;  to that extent, it was, therefore, a pre-condition.  The rights derived from exceptions established in paragraphs 4, 5 and 6 of Article 24 of
the TRIPS Agreement and which might be used under each Member's legislation must, therefore, be
fully valid in the system.  Article 24.1 was not linked to the current negotiations because the
negotiations referred to in that Article aimed at "increasing" the protection of individual geographical
indications, that is to say aimed at concluding bilateral or multilateral agreements to increase theprotection of those indications.TN/IP/M/2
Page 21
78.  The representative of the United States said that Article 24 made it clear that the purpose of
the system of notification and registration was "to facilitate the protection of geographical indications
for wines" and spirits, namely to facilitate the ex isting levels of protection contained in the TRIPS
Agreement.  He was puzzled by the EC's statem ent suggesting that their proposal would not impose
new obligations on Members.  It was clear that that was not the case.  Australia had helpfullyprovided participants with definitions of the term "facilitate".  The word was very appropriate in this
regard.  It certainly did not imply that the sy stem of notification and registration was aimed at
guaranteeing protection of particular geographical indications for wines and spirits by rendering
unavailable within Members' territories any of the exceptions provided in Article 24 or any other basis
under which a particular geographical indication might be challenged.  Paragraph 37 of the EC's paper
(JOB(02)/70) made it clear that the proposal was intended to deny Members access to a number of
exceptions provided for in the Agreement, and that the exception regarding generics would no longerbe available to Members as a ground for opposing geographical indications.  The demandeurs'
proposals would require WTO Members to conduct the opposition procedure in Geneva, rather, as
TRIPS was currently crafted, than to enable the interested parties to conduct opposition procedures on
particular geographical indications through national law.  In fact, this would create a new national
obligation on all Members and lead to a considerable number of geographical indications that allMembers would have to review and possibly oppose.  He did not see how that could not be considered
a new and burdensome obligation.  None of those obligations were currently required under the
Agreement or could legitimately be argued as part of "facilitating" existing protection.
79.  The representative of Canada associated her delegation with the statements by Australia, the
United States, Argentina and others.  The TRIPS Agreement was clear on the purpose of the
notifications system with the words "in order to facilitate".  In plain English reading, it was to
simplify the process of protecting national interests.  The results of the negotiations must be to create
a registration system that would help all WTO Members benefit from the provisions of Article 23.
The goal of negotiating a registry system for wines and spirits was not meant to confuse the process
nor was it intended to create any new obligations and administrative burdens or to diminish in anyway the rights contained in Article 23.
80.  The representative of New Zealand noted that the Special Session did not have a mandate to
enhance the level of protection in the TRIPS Agreement, nor did it have a mandate to change the level
at which this protection was afforded.  The purpose of the register should be to "facilitate" the
implementation of protection at the national level, as currently required in the TRIPS Agreement;  in
other words, the obligation to protect geographical indications was derived from the Agreement and
not from the register.  It should do that in a concrete way and not create a new layer of supranationallegal effects.  She thought that there might be some convergence in that regard:  paragraph 17 of the
EC paper (JOB(02)/70) stated that "facilitating GI protection via a multilateral registration system
necessarily [referred] to the implementation of existing obligations and not to the creation of new
ones".  The difference between Members came in interpreting which proposals in fact did that and the
US clearly pointed out why the EC's proposal did no t meet that test.  Regarding the provisions of
Article 24 and the exceptions contained therein, she said that there should be no curtailment of
existing rights provided in those exceptions.
81.  The representative of Switzerland said Article 23.4 specified that the system must "facilitate
the protection of geographical indications".  That m eant, for instance, that the multilateral register to
be established should provide governments with an instrument which would facilitate their task toimplement the protection of geographical indications as required by the TRIPS Agreement.  It should,
for example, help authorities - trademark examiners, judges or customs authorities - to determine in a
particular case whether they were dealing with a geographical indication or not.  Producers would also
have a tool for facilitating the enforcement of their geographical indications with the reversal of the
burden of proof in litigation.  At the same time, the register could serve as a source of information asto the legitimacy of the use of an indication for their products.  However, to facilitate protection of
geographical indications in the manner as set out, it was important to create a register that had legalTN/IP/M/2
Page 22
effect and was binding on all WTO Members.  The creation of a simple database would not achieve
such facilitation of protection.  He underlined that the establishment of a register with legal effect
would not change the current level of protection granted by Section 3 of Part II of the TRIPS
Agreement;  the register would, however, effectively facilitate the protection of a particular
geographical indication, as opposed to a simple database in which the listing of a  geographicalindication had no legal effect at all.
82. The representative of the European Communities said that wines and spirits benefited from
protection under both Articles 22 and 23 and asked the delegation of Australia whether it was in
agreement with that.   He added that the EC's proposal fully respected the principle of territoriality
raised by Australia.  That was why the EC proposed a system of challenge and opposition that would
allow WTO Members to take full account of their territorial specificities.  He agreed with Australia
that exceptions would continue to apply and could be exercised via the opposition procedure proposedin the EC's proposal.  The proposal did not imply increasing the protection under Articles 22 and 23
of the TRIPS Agreement.
83.  The representative of the United States said that he had the impression that the EC's proposal
added to the level of protection for geographical indications and to the existing burdens and
responsibilities of Members.
84.  The representative of Australia, in reply to the EC's question on the application of both
Articles 22 and 23, said, that under international law, Article 23 was a  lex specialis .  It therefore had
a level of protection higher than that provided under Article 22.  From an international law
perspective, the lex specialis  would override the lex generali, and there was no reason why
geographical indications for wines and spirits would need to benefit from Article 22.  On theapplication of the principle of territoriality, her delegation did not see how a multilateral opposition
procedure could really apply the principle of territoriality.  The system that Hungary proposed would
have an arbitration panel of members of unknown nationality who would not be in a position to
understand the determinations made at national courts looking into the perceptions of consumers and
whether a term had become generic in particular territories.  Her delegation did not think that could beapplied effectively at the multilateral level.
85.  The representative of Argentina asked the EC to confirm that all exceptions, including those
in continuous use over time before the TRIPS Agreement came into force, would remain fully valid.
86.  The representative of the European Communities said that the multilateral system would not
impact on the exceptions of Article 24.
87.  The representative of Malaysia, speaking on behalf of the ASEAN Members, said that the
purpose of Article 23.4 was understood to mean the establishment of a notification and registration
system for wines and spirits.  That establishment itself would be the means to facilitate Article 23
protection.  The notification system would assist national authorities in preventing the use of a
geographical indication or in invalidating it.  Hence, the register was meant to be of assistance to
national legal means to implement Article 23 obligations.  It should not serve to enhance the level of
protection.
88.  The representative of Australia took the example of a term put on the register and challenged;
both parties would enter into negotiations to resolve the disagreement;  if the negotiations were not
concluded within 18 months from the date of initial notification, the parties would agree to submit the
case to binding arbitration.  That was not consistent with the way the TRIPS Agreement was currently
structured:  nothing in the Agreement obliged a Member to go into an arbitration requested by anotherMember which had no idea how other Members territorially applied the Agreement.  That was similar
to the question of traditional expressions, where the EC had assured Members that there was a
difference between traditional expressions and geog raphical indications, and had, however, stated in aTN/IP/M/2
Page 23
public announcement regarding Regulation 753/2002 that traditional expressions were in effect
geographical indications and were, therefore, covered by the definition of a geographical indication.
89.  The representative of Hungary, in reply to a question by Australia on what the demandeurs
meant by "no new substantive obligations", said that the level of protection provided for geographical
indications for wines and spirits would not be raised under the system proposed.  On the question ofnew burdens, he held the view that there would be new burdens;  notification was itself a new burden.
He wondered how Members could establish a system without creating new burdens.
90.  The representative of the European Communities explained why geographical indications for
wines and spirits benefited from both Articles 22 and 23.  Article 23 prohibited the use of a
geographical indication of a specific wine on another wine.  For example, it could prohibit the use of
an Australian geographical indication, "Barossa", on a wine from the EC.  It could also forbid the use
of a geographical indication for spirits like "Sco tch whisky" for a whisky from Argentina.  Nothing,
however, in Article 23 prevented the use of a geographical indication for spirits, "Cognac", on a wine
or the use of a geographical indication of a wine on a spirit or, even less, the use of a geographical
indication for a wine like "Champagne" on a perfume or on a service.  That was why, in a real case
that had occurred in France on the basis of Article 22 - which was the default protection for all
products including wines and spirits - the French court had found that Article 22 and the test ofconsumer deception prohibited the use of the name "Champagne" on a perfume.
91.  The representative of Australia said that the example given by the EC representative showed
how far-reaching the EC's ambitions really were.  On the basis of that example,  Members would not
be able to use the term "ruby" to describe a well-known, red, semi-precious stone.  On the issue of
substantive obligations, paragraph 29 of the EC paper (JOB(02)/70) stated that registration referred toa specific way of implementing the TRIPS requirement that differed from the common law approach
based on case law.  This would suggest that what the EC were proposing did restrict Members' rights
and amounted to an increase of obligations.
92.  The representative of the European Communities said that "ruby" was not a geographical
indication in the EC, so there was no reason why it could not be used in jewellery.  However, the test
of consumer deception could be applied to those type s of cases.  He doubted that the consumer would
be deceived by the use of a geographical indication on jewellery.  The obligations or legal effects that
notification of a geographical indication would carry under the EC proposed register would not cause
new obligations because the exceptions would continue to be available.  The exceptions could be
exercised in a different way, through the opposition procedure, but that did not mean that they were
no longer available.
93. The representative of the United States said that, according to the EC paper (document
IP/C/W/107/Rev.1, paragraph D.4), the exceptions would no longer be available to Members after
18 months, which was currently not the case under the Agreement.  He asked for clarification:  if a
Member did not prevail in the opposition procedure or failed to oppose, would that Member be able to
avail itself of the exceptions under Article 24?
94. The representative of South Africa asked for the same clarification from the representative of
the European Communities.
95. The representative of Australia said that, in a system where a Member would lose its rights if
it did not challenge after 18 months, then all Members would have to challenge the notified
geographical indication because there would be a degree of uncertainty of their rights.  Recalling the
"Feta" cheese example, he said that it had taken eight years of court procedures, lobbying, costs andresources for the Germans, the Danish and others to challenge it.  Where and how was the evidence in
that case obtained?  It was all European-centric and that was his delegation's concern.  If a notifiedTN/IP/M/2
Page 24
geographical indication were to be challenged and go to arbitration, an arbitrator would not know how
a term should be regarded in the territory of the complaining country.
96. The representative of the European Communities explained that, under the EC's proposal, a
Member could oppose a notified geographical indication on the basis of the exceptions, and once it
had lodged such an opposition, the exceptions would continue as far as this Member was concerned.Each country would have the opportunity to exercise the exceptions via an opposition procedure and
to that extent they would not disappear.  If a name was believed to be a generic name, a Member
would be free to oppose the registration of a geographical indication.  The EC did not propose a
system in which two countries would lose or win but one where countries would negotiate in case of
oppositions and would have an opportunity to resolve the dispute to the mutual satisfaction of both
countries as any negotiation between two WTO Memb ers.  What the EC proposed in the Council was
not to apply their own system on the multilateral level but a more humble approach.  The proposaloutlined the main features such a registration would entail.  As it was still in skeleton form, it
remained to determine each possibility and the consequences if a country did not use a certain
exception for purposes of opposition.  His delegation was ready to work with all Members to find an
appropriate solution for such cases.  He also explained that the "Feta" case was still being discussed at
the EC level.
97. The representative of Hungary pointed out that, if there were no opposition in the system,
there would be notifications of names such as "Tokay" by certain Members.  What would be the
procedure for his country to protect the interest of its producers?  Would they have to go to courts in
those Members?  This seemed exceedingly costly and difficult.
98. The representative of Australia, responding to Hungary, said that the question was a non-issue
because Australia would have no intention of notifying "Tokay" as an Australian geographical
indication in the multilateral system.  She reassured Hungary that if Hungarian wine producers had
any difficulties, Australia did provide the legal means to prevent the false use of that geographical
indication in Australia.
What is meant by a "system of notification and registration"
99. The representative of the Czech Republic said that her delegation supported the EC's opinion
that the process should consist of two phases, namely, those of notification and of registration.  While
it was aware that many procedural questions were to be solved in this respect, it was of the view that
at this stage it was necessary to differentiate clearly between the two phases.  Notification should
precede registration and, although it was indispensable for the transparency of the whole process, it
could not replace the registration phase, which entailed legal consequences.
100. The representative of Peru said that the register must be constituted of geographical
indications which fully abided by the criteria of the TRIPS Agreement.  It would therefore be logical
that the "multilateral system of notification and registration" should have an appropriate procedure
guaranteeing that the inclusion of geographical indications would be in conformity with these criteria
and facilitating an understanding amongst Members in case of discrepancies.  The system envisaged
should take into account the different forms of protect ion existing in Members' legislation.  It should
also contemplate the possibility of Members being ab le to express reservations within a certain time-
limit when they disagreed with the protection afforded for a geographical indication if they considered
that they did not meet the criteria as set out or because there was a conflict with respect to its origin.
It should be recalled that Article 23 of the TRIPS Agreement provided for additional protection of
geographical indications for wines and spirits.  In that regard, the establishment of a multilateralsystem of notification and registration that did not contribute to improving protection for geographical
indications would mean a substantial reduction of the level of protection already negotiated.TN/IP/M/2
Page 25
101. The representative of Australia said that the term "system" was defined in the Collins
Dictionary as "a group or combination of interrelated, independent, or interacting elements forming a
collective entity".  As such, the word "system" could be equated with any one element of its
constituent parts.  A "system" was a collective, interacting whole with all its various interconnected
parts.  In this case in particular, the functions of notification and registration were thoseinterconnected parts.  His delegation did not consider it helpful to seek to equate the system with any
other type of qualitative description.  It was more fruitful to focus on the nature and objectives of its
constituent parts and their interaction.  "Notification" was defined by Collins as "1. the act of making
an announcement or of making something known; notifying;  2. a formal announcement;
3. something that notifies;  a notice".  The word "notify" was defined as "1. to tell;  2. to make known;
announce".  In the context of the multilateral system with which this body was concerned, notification
was the act of submitting, presumably in writing, to the system administrator one or more claimedgeographical indications that a Member sought to include in the system.  "Registration", on the other
hand, was defined by Collins as "1. the act of registering, that is of an entry being made or state of
being registered;  2. an entry in a register".  In turn, "register" was defined as "1. an official or formal
list recording names, events, or transactions;  2. the book in which such a list is written;  3. an entry in
such a list ...".  The Collins went on to provide a total of 15 meanings for the word "register", none ofwhich made any reference to the concept of legal effect.  His delegation rejected the assertion that, to
be consistent with the Article 23.4 mandate, the registration system must have a direct legal effect in
national jurisdictions.  His delegation took issue with the statement in paragraph 29 of the EC paper
(JOB(02)/70) that "registration … refers to a specific way of implementing the TRIPS requirement
that differs, for example, from the common law approach based on case law".  Such an interpretationwould involve an increase in the level of obligations and a restriction of Members' rights under TRIPS
Article 1.1.  The act of "registration" for the purpose of the Special Session involved the act of
entering a notified term in a list set up and mainta ined for that purpose by the administrator of the
multilateral system.  The act of registration, performed by the system administrator, was thus distinct
from the act of notification performed by a Member.  His delegation also noted that, while the TRIPSAgreement did refer in other sections to registration, those references related to national  registration
systems, and in particular to intellectual property rights such as trademarks, which were commonly
protected through national registration.  This was clearly not the case of geographical indications
where issues relating to territoriality did not arise.  There was, therefore, no question of the right of
each Member to apply its own legislation in determin ing the eligibility for registration of the subject-
matter at issue.  It was clear that the TRIPS Agreement allowed Members to use a variety of
mechanisms to protect geographical indications and thus there was no value in seeking to correlate thereferences to registration in different parts of the TRIPS Agreement.  The different contexts in which
the word was used made any such comparison meaningless.  In his delegation's view, there would
rarely be any need for a notified term to undergo a preliminary examination before being placed on
the register.  Provision might have to be made for refusing registration of mischievously notified
terms (for example, if a Member notified the word "telephone" as a geographical indication for afortified wine).  Aside from that, however, because of the principle of territoriality, it would not be
possible to pronounce with any finality whether a particular term met the definition in Article 22.1.
That would be a matter for individual Members to determine.
102. If the WTO Secretariat were to be charged with the responsibility for administering and
maintaining the register, then it would also be neces sary to consider how the costs of maintaining the
system were to be met.  Members could not ignore the fact that maintenance of a multilateral system
would have cost implications and that those needed to be borne in a fair and equitable way.  Perhaps
this should occur by charging a user fee, whereb y the cost of the system should be borne by those
Members who used, and hence benefited from it, the most.  Again, this would be consistent with other
similar multilateral systems.
103. The representative of the European Communities said that Article 23.4 demanded the
establishment of a multilateral system of "notification" and "registration".  In his delegation’s view,
"notification" suggested that a preliminary phase take place prior to the registration phase.  In thatTN/IP/M/2
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sense, "notification" clearly suggested the application phase, which would allow the body carrying out
the registration to be informed of the applican t's intention to see a name being registered.
"Registration" referred to a specific way of im plementing the TRIPS requirement that differed, for
example, from the common law approach based on case law.  In the US, for example, implementation
of Section 3 of Part II of the TRIPS Agreement a nd legal protection of geographical indications were
ensured via the registration of names as certification trademarks.  Registration normally entailed legal
protection, even in the US system of certification marks, although not in the proposal tabled by the
United States and other Members.  These two prongs of the multilateral system should be clearly
distinguished.  The functions and the effects attached to both phases of the process should also be
clearly differentiated.  The proposals made by th e EC and their member States and by Hungary
suggested that notification consist of the process whereby participating WTO Members would inform
and transmit their geographical indications for distribution among WTO Members and begin theperiod for examination of those geographical indications by the WTO membership.  "Registration"
would, in turn, signify the conclusion of the process and the insertion of the name in the WTO register
along with any objections that might have been made known.  Conversely, the proposal of Canada,
Chile, Japan and the United States (IP/C/W/133/Re v.1) made no clear distinction between those two
phases.  In this proposal,  notification and registration were only one single phase in which names sentby the national authorities would all be ultimately recorded in a database.  The proposal seemed to
make no attempt to provide a differentiated meaning to those two terms.
104. The representative of Argentina said the terms "notify" and "register" were to be understood
within the framework of all the provisions of the TRIPS Agreement.  A register should not impose the
application of the criteria of eligibility used by the country that had applied for the registration of ageographical indication in the multilateral register.  Otherwise, Members would have to automatically
protect in their territories the geographical indications included in the system, thereby denying or at
least nullifying the right of each Member to define at the national level the exceptions provided under
Article 24.  These could not be a priori defined in a general manner but only on a case-by-case basis
in accordance with the national law.  The examination of the characteristics, procedures and legaleffects referred to in the Chair's note should be made in the context of the purpose of Article 23.4 and
the rights and obligations of Section 3 of Part II  of the TRIPS Agreement.  The terms "notify" and
"register" should be interpreted as elements of a single act:  Members which voluntarily participated
in the system would notify their geographical indications, which would be recorded in a register.  In
other words, the system should consist of a "register of notifications", the purpose of which would be
to "facilitate" the protection of geographical indications for wines and spirits according to the
provisions of Article 23.4 and no further.
105. Regarding costs, she said that this issue was of particular interest to Argentina and to
developing countries in general.  It should be taken up not only from the point of view of economic
costs for keeping up a system within the WTO, but also from the angle of the costs involved at the
national level, both economic and in terms of human resources.  The more complex the system was,
the greater the economic and human resource costs that would need to be involved, both at thenational and at the WTO level.  Her delegation did not agree that the Special Session take up costs
and benefits of different possible systems in a collective manner.  Only economic costs and costs in
terms of human resources of different national systems or of the WTO system could be collectively
examined.  The cost-benefit ratio was something wh ich ought to be analysed at the national level in
each different country because those variables depended on each country's specific interests.  Bearingin mind that it was difficult to evaluate costs on the basis of other systems or possible systems, the
evaluation of those systems should be based on the two systems proposed to date.  Only an evaluation
of costs would allow each country to analyse the "cost-benefit" ratio of the system it was negotiating.
106. The representative of Canada said that, contrary to paragraph 32 of the EC document
(JOB(02)/70), her delegation did make a distinction between "notification" and "registration".  There
were two separate steps.  "Notification" was the first step.  It would be the responsibility of an
individual Member to identify and submit its list of domestic geographical indications, for example toTN/IP/M/2
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the WTO Secretariat.  Registration would be the second step in the process:  it would be the WTO
Secretariat's responsibility to compile a database of all notified geographical indications in order to
facilitate the sharing of that information with al l WTO Members.  "Registration" of a geographical
indication should not be interpreted as conferring any new legal obligations.  Canada  recognized that
it had been useful to divide Article 23.4 to facilitate discussion in the Special Session.  However, itwas of the view that registration should be interpreted in the context of the Article as a whole.
Negotiation of a system of notification and registration should not have the effect of adding to the
obligations contained in the Article.  Regarding the Chair's question about whether the WTO
Secretariat or the International Bureau of WIPO c ould further contribute to the Council's work, her
delegation believed that both had already made substantial contributions.  As a result of the Doha
mandate, it was a matter of completing negotiations before the Fifth Ministerial Conference.
However, contributions from both organi zations would always be appreciated.
107. The representative of Malaysia, speaking on behalf of the ASEAN Members, recalled
document IP/C/W/85, in which the Secretariat had prep ared an overview of international registration
systems for geographical indications.  She suggested updating the document and preparing a
comparative table of the existing systems;  this would complement the comparative table prepared by
the EC of existing proposals.  She recalled that the Secretariat's paper mentioned that there wereseveral notification and registration systems such as the Lisbon and the Bangui Agreements.  She
believed that it would be useful to draw from those experiences.  A multilateral system in the TRIPS
context should be a means used to facilitate the protection of geographical indications rather than an
end by itself.  Hence, the system the ASEAN countries were considering would be a simple one which
would impose no new obligations upon Members, would not incur undue financial burden uponparticipating Members nor have any legal or financial obligation upon non-participating Members.
108. The representative of Hungary said that the mandate in Article 23.4 distinguished between
two different phases or steps that were meant to serve different purposes.  It was clear from the
debates that there were a number of common or similar elements in the two basic approaches
presented to date, but there were also several important divergences.  In his delegation's view,similarities were most striking regarding the notifi cation element of the two basic proposals.  It would
and should not be difficult to bridge the differences  in respect of the notification element.  The basic
difference between the two approaches was with respect to the mechanism and the effect of
registration.  He noted that registration in the "joint proposal" (IP/C/W/133/Rev.1) would be
automatic and would lack any real legal effect.  Therefore, it was fair to say that it would not add any
meaningful value to notification.  In fact, it would not even differ from it.  The act of registration in
the intellectual property right context normally entailed a genuine legal effect;  probably the bestexample was trademarks and in particular certification marks, advocated by one Member as the most
efficient way of providing protection for geographical indications.  In the absence of a genuine legal
effect, the end result, as suggested by the joint proposal, would seem not to constitute more than a
mere database or a compilation of notifications.  His delegation was in agreement with the other
co-sponsors of document TN/IP/W/3 that facilitating the legal protection must carry effects goingbeyond the mere reproduction of a list of names for informative purposes.  In other words, a system
without an effective registration element would not be  in line with Article 23.4 of the Agreement.  In
this context, he asked the co-sponsors of the joint proposal to shed more light on how they interpreted
the word "registration" in the intellectual property context.
109. On the issue of costs, he said that there was ha rdly anything in the world any longer that was
free and the WTO was far from being an exception.  In the WTO, there was no negotiation which
would not entail costs.  There were costs associated with the negotiating process and costs associated
with the implementation of results.  This was true for the TRIPS area as well as other negotiating
areas.  Therefore, it did not make sense to talk about costs in the abstract.  Costs always needed to be
looked at in relation to the effects of the outcome.  A system genuinely helping producers, consumersand administrations to get protection under Article 23 could more than justify even much higherTN/IP/M/2
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implementation costs than a cheaper system that wo uld, at best, not bring more confusion to the area
than there already was in it.
110.  The representative of Switzerland said that the multilateral system to be established should
provide for a two-stage process, which meant that there needed to be a distinction between the
notification and the registration phases.  Regarding the notification phase, the name or indication aMember would like to propose for listing in the mu ltilateral system needed to be notified.  The
notification of a name or indication triggered an examination by Members.  WTO Members must
have the opportunity to indicate to the Member having notified the geographical indication whether
there were elements that prevented the protection of the notified geographical indication in their
territory such as the requirements that the definition in Article 22.1 had to be fulfilled, that there
should not be any deceptive homonymous geographical indications, or that the name notified was a
generic term under Article 24.6 or fell under any other exceptions under Article 24.  For thesepurposes, the provision of a procedure to oppose and challenge the notified geographical indications
would be crucial.  Regarding the issue of examination after the notification of the name or indication,
Members should also consider whether it would be useful if the authority or "body" in charge of the
management of the multilateral register ought to make itself a formal examination of the notified
geographical indications.  The second phase of the multilateral system, the registration, could onlytake place after the first phase of notification, examination and possible challenge.  Registration was
the final stage of the procedure and meant the inclusion of the geographical indication in the WTO
register along with any objections that might have  been made known.  The distinction between those
two phases as well as the provision of an examination and a challenge procedure gave legitimacy to
the listing in the multilateral register.
111. He agreed with the representative of Hungary that there were costs and benefits involved for
all issues discussed in the TRIPS Council, not only on the issue of establishing a notification and
registration system but also, for example, in the field of traditional knowledge, where some creative
proposals were on the table and would entail some benefits and costs.
112. The representative of the European Communities sa id that, with regard to costs and benefits,
he associated his delegation with the statements by  Hungary and Switzerland.  In reply to Australia on
costs for specific notifications and registrations to be borne by the user or the beneficiary, he said that
his delegation had no definitive position about it but this was one possible approach;  it would come
up with more ideas for the next meeting.  He noted with perplexity that some delegations would have
problems with a registration system with legal ef fects for geographical indications and not for
trademarks.
113.  The representative of Argentina sought clarification of the linkage made by some delegations
between the envisaged multilateral system and trademark registration systems.  To her knowledge,
apart from the international system administered by WIPO, trademark registration systems were
administered at the national level.
114. The representative of Australia associated herself with the statement by Argentina.  There was
no point in "comparing apples and oranges" because WTO Members were obliged equally to
implement their TRIPS obligations on trademarks and geographical indications.  To that extent, there
was an equal legal effect flowing from the TRIPS obligations but there was no comparison to be made
between registration of trademarks by each individual WTO Member at the national level and what
the Council was discussing, which was a multilateral system of notification and registration of
geographical indications for wines and spirits.  If a comparison were to be made, it would be moreappropriate to refer to some of the WIPO notificat ion registration systems where, in her delegation's
view, there was no direct legal effect and each participating country in those systems retained its right
to determine whether protection would be granted in its territory.TN/IP/M/2
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115. The representative of New Zealand recalled that, in relation to the issue of definition, her
delegation had asked a number of questions about the practical effect and the scope that would arise
from using the definition under Article 22.1.  In the absence of further understanding on that issue, her
delegation found it difficult to think clearly about the legal effects, if any, stemming from registration.
Therefore, it reiterated the views it had expressed in the Council's regular session, which were closelyrelated to the points raised in the Special Session by Malaysia, Australia and Canada.
116. The representative of Brazil expressed his surprise to hear the inclusion of "traditional
knowledge" in discussions relating to the protecti on of geographical indications for wines and spirits.
He believed that the two issues were entirely unrelated unless there was consideration of a theoretical
possibility that traditional communities had some wines or spirits to protect.  He recalled that, in the
regular session, he had made the point that protection of traditional knowledge through geographical
indications was just as ineffective as protection of traditional knowledge through other forms ofintellectual property such as patents and copyright.  In no way should the protection of traditional
knowledge depend on registration, at least according to the legislation of Brazil.  Traditional
knowledge and geographical indications should be kept separate.
117. The representative of the United States said th at the practice in other multilateral bodies was
to leave the legal effects to the national systems of the Members participating in the system.  He did
not see any inconsistencies in the joint proposal (IP/C/W/133/Rev.1), which simply suggested that the
legal effect be retained by each Member's domestic law.  That was how all other forms of intellectual
property were regulated under the TRIPS system.
118. The Chairperson said that, as he had indicated in paragraph 6 of his note, it might be useful to
have the WTO Secretariat, with the assistance of the International Bureau of WIPO, provide factual
material about the different types of multilateral registration systems.
119. It was so agreed.
Participation
120. The representative of the Czech Republic said that Members should have the possibility of
deciding whether they would enjoy benefits deriving  from the system or not.  In this case, it was
obvious that the system should be obligatory for all participating Members.  However, obligations for
non-participating Members must be clearly set out to ensure an effective facilitation of the protection.
121. The representative of Peru said that the voluntary nature of the "multilateral system of
notification and registration" was due to the fact th at it was not indispensable for Members to include
their geographical indications in the register, for their protection to be mandatory for other Members
because that obligation directly resulted from the TRIPS Agreement and not from registration.  The
system should guarantee Members' freedom to include or not to include geographical indications inthe system in order to have the resulting protection.  However, once the geographical indications
which met the criteria laid down in the Agreemen t were included in the register, they should be
protected by other Members.  This did not mean that protection of a geographical indication was
mandatory because it was on the register;  it was because its protection was mandatory under the
TRIPS Agreement that the geographical indication was on the register.
122. The representative of Australia said that her delegation did not see any tension between the
concept of a "multilateral system" and the one related to geographical indications "eligible for
protection in those Members participating in the system".  Any notification and registration system
negotiated in a multilateral body (the TRIPS Council) under a mandate contained in a multilateral
agreement (the TRIPS Agreement) and presumably foreseen to be administered by a multilateralorganization (the WTO) was by definition multilateral in character even if participation in such a
system by WTO Members was voluntary.  Her de legation did not consider that use of the wordTN/IP/M/2
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"multilateral" as opposed to "plurilateral" by the drafters of the TRIPS Agreement should be
construed so as to override the clear intent of the words "those Members participating in the system".
She said that, at the time of drafting Article 23.4, it was clearly impossible to predict how many
Members would choose to participate in the system.  It was not beyond the realm of possibility that all
WTO Members would so choose, and it would not therefore have made sense to exclude thatpossibility by prejudging that the system would be plurilateral.  It was therefore logical that the
drafters of the TRIPS Agreement chose the word "m ultilateral", in line with the multilateral mandate
and multilateral nature of the negotiating forum.  It was also logical that the drafters foresaw that not
all WTO Members would have an interest in participating in a system to facilitate the protection of
geographical indications for wines (as the original Article 23.4 mandate provided), and therefore saw
fit to provide that the system should be voluntary.   In her delegation's view, the word "multilateral"
did not have any bearing on the issue of participation in the system.  That would be inconsistent withother intellectual property systems.
123.  The  representative of Argentina said that her delegation did not see any tension between the
two concepts referred to in paragraph 7 of the Chai r's note.  The fact that the system was multilateral
did not mean that it would lose its voluntary nature.  Members should express consent to participating
in the system as stipulated in Article 23.4.  The fact that it was a multilateral system did not imply alegal effect on all WTO Members, including those that did not give their express consent to
participate in the system.  "Multilateral" meant that  the outcome of multilateral negotiations should be
a multilaterally agreed result.  The legal scope and effects of the system did not stem from the
meaning of the term "multilateral";  they was determ ined on the basis of the voluntary nature of the
participation in the system.  If the system was a voluntary one, then the consent of each participatingMember was required.  Obligations deriving from the system for WTO Members should be generated
at the time a Member gave its consent to participate in the system.
124. The representative of Switzerland said that the fact that Article 23.4 required, on the one
hand, the establishment of a multilateral system and, on the other hand, related to geographical
indications "eligible for protection in those Members participating in the system" might seemcontradictory at first sight.  A closer look would show WTO Members' free choice to benefit from and
to participate in the multilateral system, by notifying and registering their geographical indications.
However, such a system made sense only if, once a geographical indication was registered in that
multilateral system, the geographical indication was valid and binding on all WTO Members.
125. The representative of the European Communities said that Article 23.4 of the TRIPS
Agreement foresaw a "multilateral system" and envisioned protection for geographical indications
"eligible for protection in those Members participating in the system".  His delegation believed that,whatever system the parties agreed upon, it must give meaning to both terms.  Determining the
meaning of the term "multilateral" could only be do ne by contrasting it with the word "plurilateral".
In the context of the WTO, "plurilateral" was understood as referring to a system in which
participation was entirely voluntary, for example the Agreement on Government Procurement.
Conversely, "multilateral systems" were understood to be instruments by which all Members werebound or would be bound.  The words "eligible for protection in those Members participating in the
system" would suggest that Members would be free to  participate in the system if they wanted their
own geographical indications to enjoy the benefits th ereof.  The proposals made by the EC and their
member States and Hungary attempted to strike a balance by making some of the effects of the system
applicable to all Members and limiting other effe cts to only participating Members.  Those two
proposals advanced that participating Members would provide a presumption of validity to notified
and unopposed geographical indications.  Under the EC's proposal, for example, notified and
unopposed geographical indications would not see their protection refused in all Members on a
number of grounds.  The proposal of Canada, Chile, Japan and the United States also seemed to make
a similar distinction between participating and non-participating Members.  That proposal suggestedthat authorities of participating Members "shall" look at the list whereas authorities of
non-participating Members were "free" to look at the list.  Yet, as there was no mechanismTN/IP/M/2
Page 31
monitoring whether national authorities did look at  the list or not, in practice, such distinction
disappeared.
126. The representative of New Zealand said that her delegation did not see a contradiction in the
two concepts.  As the EC pointed out in another negotiation where it was the key demandeur, that of
the relationship between the WTO and multilateral environment agreements, one element to considerin assessing whether a treaty was a multilateral en vironment agreement was that the agreement should
be open for accession to any WTO Member.  She referred Members to document TN/TE/W/1,
"Multilateral Environment Agreements (MEAS):  Implementation of the Doha Development
Agenda".  Her delegation believed that notion would be useful in the discussion in the Special
Session.  Just because participation was voluntary di d not detract from its multilateral character.  The
key concept was openness to join if one wished.  With respect to the application of effects to the
membership, the EC had pointed out in its proposal that some of the effects of the system would beapplicable to all WTO Members, regardless of whether they had elected to join.  This went beyond the
concept of voluntariness and was not acceptable to her delegation.  It disagreed that something was
only multilateral if all WTO Members were bound by its effects.
127. She noted that, in one of the EC's papers, there was a pertinent question with respect to
whether LDCs would be participating in the system.  She said that LDCs were not currently requiredto provide TRIPS protection on geographical indications, including any obligations flowing from
Article 23.4.  LDCs would therefore not be meeting the TRIPS requirement that national protection of
geographical indications be a prerequisite for protection under the TRIPS Agreement.  Her delegation
failed to see why the obligations automatically fl owing from the EC's proposal to all Members should
also apply to LDCs.  However, she believed that  Members should hear from LDCs themselves on that
point as they had a much better understanding of their capacity to bear the burdens of the system.
With respect to participation by the EC and their member States in the final registration system, she
asked if, under the register, EC individual member States would be notifying terms protected at their
national level or if there would be a single EC-wide notification, or both.  This was an important
distinction because, as Members had heard in the TRIPS Council's regular session, there was notnecessarily agreement between all EC member States with respect to specific terms.  To the extent
that the situation applied to wines, her delegation was unclear as to whether a member State could, for
example, put up a term for the multilateral register that was not protected at the EC level.  Would
other Members then be required to give protection to that term?
128. The representative of Malaysia, speaking on behalf of the ASEAN Members, said that it was
clear that negotiations should take place in the TRIPS Council.  Hence, all WTO Members and
acceding governments should be able to participate in the negotiations establishing the multilateralsystem.  In terms of participation, it seemed that Members with geographical indications eligible for
protection should have the opportunity to indicate their choice of participation.  For those with no
geographical indications for protection, it was not clea r how they would then be  able to participate in
that system.  The system would still be multilateral in the sense that all Members would have the
opportunity to participate in the negotiations setting up the system and that it would be open forparticipation to all Members.
129. The representative of Hungary said that Ministers in Doha gave the mandate to complete the
work that started under Article 23.4 and to establish a multilateral system of notification and
registration by the Fifth Ministerial Conference.  His delegation hoped that the mandate expressed the
common wish of all WTO Members to participate in the system.  The preference of his delegationwas to have a system with the participation of the entire WTO membership.  The best way to resolve
the perceived tension between the concepts in question would be to have a system with full
participation.
130. The representative of the United States said th at the term "balance" was often raised in the
Council, particularly with respect to geographical in dications.  He was struck by the EC's assessmentTN/IP/M/2
Page 32
of the appropriate balance in that context.  With respect to the issue of participation, the EC's idea of
balance was that, for those Members participating in the system, there were rights and obligations but
for those Members who chose not to participate in th e system, they had no rights but only obligations.
Participation under the joint proposal, on the other hand, did provide balance.  It reflected the
voluntary nature of the system as enshrined in Ar ticle 23.4.  For those who chose to participate in the
system, there were rights and obligations and for those who did not, there were none.  The EC
proposal seemed to question the value of the registration foreseen under the US proposal.  He
wondered what the value was of the EC's proposal in terms of their domestic law.  If a US place-name
for a wine or a spirit was registered and went unopposed in the multilateral system proposed by the
EC, would it automatically get protection under European regulations?
131. The representative of Australia said that Members should clearly understand what the system
would be, be it called "plurilateral" or "multilateral".  If a Member had no interest and did not wish to
ever protect a geographical indication for wines and spirits, it would nevertheless be obliged, unless it
was under the benefit of the special and differential treatment (S&D), to provide a mechanism for a
system where it had to protect other Members' geographical indications.  This would raise a problem
of appropriate balance.
132. The representative of the European Commun ities said that the concept of "appropriate
balance" was an interesting one.  He failed to understand where the "appropriate" balance would be in
the proposal by Canada, Chile, Japan and the United States.
133. The representative of Senegal said that the EC's position was known concerning the
participation of developing countries and of the technical assistance that could be provided by the
WTO and WIPO.  He also recalled the WIPO-WTO Joint Initiative on Technical Cooperation forLDCs with respect to the TRIPS Agreement.  His delegation had a particular interest in protection,
extension and use of geographical indications.  He observed that LDCs, as New Zealand had
commented, were not obliged to fulfil any of the TRIPS obligations but, given the trade interest of
geographical indications, such a protection would be important in the realm of market access.
Nowhere in the document presented by the EC and their member States was there any reference toS&D as in the WTO Agreements.  Participation by developing countries and, more specifically, by
LDCs was often subject to the existence of special and differential treatment.  In the future, a special
reference could be made to S&D.  He recalled that Members of OAPI, the French-speaking African
Intellectual Property Organization, had a single law on intellectual property, and within the Bangui
Agreement, which was the source of that organization, there was a special section on geographical
indications.  His country was interested in the subject even though it was not at the level of
implementing TRIPS as yet.
134. The representative of the European Communities, in reply to the question posed by the
delegation of the United States, said that the effects of registration under the WTO system were only
those that WTO Members agreed upon, i.e., only those that were directly connected to the WTO
registration.  Referring to a comment made by the US delegation that the effects of registration under
its proposal would be those decided at the national level, he asked whether that proposal would imply
that a geographical indication registered by the EC would become a certification trademark in the
United States.
135. The representative of the United States, replying to the EC's question, said, that under the
joint proposal, Members would have to apply, through domestic law, for legal protection of a
geographical indication.  If it was found that a given geographical indication notified by the EC metthe standards of American law, then the EC could obtain protection for their geographical indication
under the US system.  He asked whether the EC representative could confirm that, under their
proposal, a US geographical indication would be registered for protection in the EC if it were not
opposed through the multilateral system the EC was proposing.  In other words:  what steps should
the US take, within the multilateral system, in order to obtain protection for American geographicalTN/IP/M/2
Page 33
indications for wines and spirits under the EC regulations on geographical indications for wines and
spirits?
136. The representative of the European Commun ities reiterated his comments made earlier that
the multilateral register would not replace national registration systems.  Therefore, the effects of
registration at the national level and at the multilateral level were different.  The effects attached toregistration at the multilateral level were those effects that were specified in the establishment of the
register.  The effects of a national registration were those that were decided by national law.  If the US
registered a geographical indication for wines and spirits, it would get the presumption of validity
attached to the multilateral system of registration.  For example, if the US or the right holder were to
litigate before European courts, it would benefit from  a reversal in the burden of proof.  It would be
up to the third person using the US name to demonstrate that the name was, for example, a generic
name or to avail itself of any other exception.  That would be the effect of the multilateral registrationsystem.  If the US right holder asked for protection under the EC system for wines and spirits, it
would benefit from a "TRIPS plus" protection that the EC provided to its right holders.  In other
words, it would benefit from special enforcement m echanisms that were not mandatory in the TRIPS
Agreement.
Chairperson's concluding remarks
137. The Chairperson, before summarizing the discussion on the issues, recalled that the Special
Session's mandate was clear:  it was "to negotiate the establishment of a multilateral system of
notification and registration of geographical indications for wines and spirits by the Fifth Session of
the Ministerial Conference".  The Special Session was required to fulfil that mandate in its entirety
and not to go beyond the mandate.  If any delegation had a problem with the mandate, the SpecialSession was not the right forum for discussing any such  difficulties.  It would have to be dealt with at
a higher level or at the next Ministerial-level meeting.
138. With regard to the discussion on definition of the term "geographical indications" and
eligibility of geographical indications for inclusion in the system, the Chairperson said that the Special
Session had had a useful discussion on the issues of definition and eligibility which pointed to anumber of areas of common thinking as well as a number of differences of approach which would
have to be discussed further.  In regard to points of common thinking, he did not detect any delegation
questioning that the definition of geographical indications that should be used was that contained in
Article 22.1 of the TRIPS Agreement.  Nor did he detect any disagreement with the proposition that,
in determining eligibility, the exceptions provisions of Article 24 would be relevant.  That included
the notion that, to be eligible for inclusion in the multilateral notification and registration system, a
geographical indication should be protected in its country of origin.
139. An issue on which there appeared to be some differences of approach was that of how to deal
with differences in the interpretation of what terms were covered by the definition in Article 22.1 and
might be eligible for inclusion in a multilateral system of notification and registration.  One approach
had been to call for a higher degree of common understanding of what was to be covered, rather than
to rely on differences being resolved on a case-by-case basis in the implementation of the system.  Anumber of specific questions had been raised in that connection.  The other approach had been to put
more emphasis on such matters being dealt with in the implementation of the system.  Within that
second approach, he also detected some significant differences of emphasis.  Some had pointed to the
importance of challenge or opposition mechanisms as a way of dealing with those problems, whereas
others had expressed the view that such issues should be dealt with exclusively under nationalprocedures and legislation.
140. Nonetheless, even on the question of how to de al with differences of view about what might
qualify for protection as a geographical indication, he believed that there might be a common view
that it was ultimately a matter for national authorities to determine whether a given term met theTN/IP/M/2
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criteria of national legislation - which should, of course, be consistent with the requirements of the
TRIPS Agreement.
141. With regard to the discussion on the purpose of the notification and registration system, the
Chairperson said that, once again, he detected some common ground.  Delegations who had spoken
on the issue had said that the purpose of the multila teral system should not be to increase the level of
protection for geographical indications for wines and spirits provided for in the TRIPS Agreement,
but to facilitate the obtaining of that level of protection.  He also understood all delegations to
recognize that, in so doing, the exceptions provided in Article 24 should remain valid.  No doubt, as
always the devil was in the detail, but he thought it would be helpful to the Special Session's process
if there were agreement in principle with what he had mentioned.
142. He noted a couple of more specific points that might warrant further discussion.  One was
what all that meant for Article 24.1.  The other was whether the protection that should be facilitatedwas only that provided for in Article 23, or whether Article 22 protection should also be facilitated.
143. With regard to the discussion on what was meant by a "system of notification and
registration", the Chairperson said that delegations s eemed to be quite far apart, even at the level of
principle, on what was meant by a notification and registration system.  The heart of the difference
seemed to be with the meaning and significance of the concept of "registration" in the context ofgeographical indications and the TRIPS Agreement.  He remained of the view that Members needed
to find ways of making that more an empirically ba sed discussion.  There were, of course, many other
aspects of the mechanics of a multilateral system of notification and registration that needed in-depth
discussion and that would be a focus of  discussion at the September meeting.
144. With regard to the discussion on participation, the Chairperson said that this was again an
issue on which views seemed divided, in particular on the possible consequences for Members not
participating in the system.  It might be that it was an issue better pursued at a later stage when
Members had a clearer idea of the features of the system and any potential effects on non-
participating countries.
D. O
THER BUSINESS
145. The Chairperson said that, at the September meeting, Members could go into issues of
mechanics as outlined in paragraph 8 of his note, including such matters as procedures for
notification, opposition, registration and modification as well as issues of cost and the possible role of
the Secretariat, having regard to the various proposals already made and new or modified proposals.
The Special Session could also continue discussion of the four points already discussed, as well as
having a first look at any new or modified proposals  that might be tabled.  At the November meeting,
a further discussion of the issues taken up at the June and September meetings, as well as a detailedexamination of the proposals, could be envisaged.  As indicated in paragraphs 3 and 8 of his note,
those suggestions were not intended to prevent any delegation from addressing any relevant matter at
each meeting.
146. With respect to the submission of proposals, he reminded delegations that the suggested target
date for submissions was the September meeting.  He hoped that proposals could be made by thattime in order to facilitate the discussions.
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