 
 RESTRICTED  WORLD TRADE  
ORGANIZATION  TN/IP/M/10 
27 October 2004 
 
 (04-4566) 
Council for Trade-Related Aspects 
of Intellectual Property Rights Special Session  
 
  
 
MINUTES OF MEETING  
 
Held in the Centre William Rappard
 
on 23 September 2004  
 
Chairperson: Ambassador M anzoor Ahmad (Pakistan) 
 
The present document contains the record of  the discussion which took place during the 
meeting of the TRIPS Council Special Session held on 23 September 2004. 
Subjects Discussed   Page No .  
A. ORGANIZATION OF WORK ............................................................................................................1  
B. NEGOTIATION ON THE ESTABLISHMENT OF A MULTILATERAL SYSTEM OF 
NOTIFICATION AND REGISTRATION OF GEOGR APHICAL INDICATIONS FOR WINES AND 
SPIRITS ............................................................................................................................... ..........1  
C. OTHER BUSINESS .........................................................................................................................6  
 
1. The Special Session agreed  to adopt the agenda as set out in WTO/AIR/2370. 
A. ORGANIZATION OF WORK  
2. The Chairman , in the light of informal consultations that had been held on 14 September, 
suggested that the time of this session be divide d between the formal session of the Council and 
informal consultations among delegations.  He suggested that, when discussing agenda item B, 
delegations should focus on the three sets of issu es, namely legal effects and participation, 
administrative and other burdens and issues relati ng to the technical and procedural operation of 
notification and registration systems flagged in head ings 7–14 of document JOB(03)/75.  He made it 
clear that his reference to document JOB(03)/75 w as not designed to attribute to it any particular 
status. 
B. NEGOTIATION ON THE ESTABLISHMENT OF A MU LTILATERAL SYSTEM OF NOTIFICATION AND 
REGISTRATION OF GEOGRAPHICAL I NDICATIONS FOR WINES AND SPIRITS  
3. The representative of the European Communities  said that his delegation continued to believe 
that a register under this provision should have bi nding legal effects and be  multilateral in nature.  
Recalling that all WTO Members were already under an  obligation to implement Section 3 of Part II 
of the TRIPS Agreement, he said that for his delega tion, the register should have one function, namely 
the facilitation of protection of geographical indicati ons (hereinafter "GIs").  This function could not TN/IP/M/10 
Page 2  
 
 be achieved by a system that merely provided un reliable information.  Instead, the certainty and 
transparency in the application of the provisions of  Section 3 should be increased.  Therefore, the EC 
proposed a system under which Members would in a way be bound to take a decision as to whether they would allow for protection of certain geographi cal indications notified under the system.  With 
regard to participation, he said that the system should apply to all Members as the meaning of the 
word "multilateral" was unanimously understood in the treaties under the WTO umbrella.  The 
register should be multilateral not only because th e TRIPS provision said so but also because the 
obligations which it was meant to facilitate concerne d the entire membership of the WTO.  The scope 
for possible exceptions with regard to LDCs had already been indicated by the EC in the past. 
4. The representative of Australia
 said that her delegation's position was well known and was 
encapsulated in TN/IP/W/5 and TN/IP/W/9 (hereinafter  "the joint proposal").  Contrary to the other 
proposals on the table, the joint proposal clearly st ayed within the mandate of the Special Session.  
She agreed that the administrative costs and burdens  of such a system were an important issue and 
emphasized that it was a strength of the joint proposal that it would be simple and the least costly for 
participating Members and that it would entail no cost  to non-participating Members.  She said that 
the approach taken by the EC had serious implica tions for all Members and would take the discussion 
outside the specific mandate for the negotiations. 
5. The representative of Hong Kong, China  said that a number of developing countries, 
particularly those who were not really GI user s, were particularly concerned about costs and 
administrative burdens.  The system proposed by his delegation in document TN/IP/W/8 would levy 
no costs or administrative burdens on non-participa ting Members.  For participating Members the use 
of the system would be governed by two principles.  First, the "user pays" principle would mean that 
only those Members who made applications to th e multilateral register would share its costs on a pro 
rata basis.  Second, in order to avoid overburdening the system, quotas would be set regarding how 
many applications would be processed each year.  He  said that this would be a more fair and equitable 
system.  
6. The representative of the European Communities  said that his delegation was willing to 
address the issues of costs and burdens in a manne r agreeable to everyone.  While it should be 
recognized that setting up a system to register GIs w ould inevitably entail some costs, he said that the 
countries who benefited from it, such as the EC, sh ould contribute to the costs correspondingly and 
that his delegation was prepared to discuss its contri bution in that regard.  In a similar way, quotas or 
other measures to control an expected excess of applications blocking the system, as suggested by 
Hong Kong, China, could be envisaged to keep the system operational and to control costs.  
Regarding figures of cost estimates, he welcomed  Hong Kong, China's calculations on the costs of 
establishing a registration system.  He said, however, that the proposal did not address the issue of the 
cost of participation in the system.  In order to find a solution, he said it would be useful to receive concrete calculations from Members concerned about the issue of costs.   
7. The representative of the United States
 said that the joint proposal would not put any undue 
burden on governments and right holders, would impose no costs on non-participating Members and 
would not change the substantive rights and obligatio ns currently contained in the TRIPS Agreement.  
In contrast, the EC proposal would require all WTO Members, whether choosing to participate or not, 
to challenge notified terms if they wished to preser ve domestic rights to use the terms.  The proposed 
system, with bilateral negotiations culminating in  a WTO DSU-type process, would involve costs and 
burdens for Members.  At a national level, the EC proposal would create administrative burdens and 
costs in at least three areas:  (1) the need for personnel in national intellectual property offices and 
resources to examine GI requests;  (2) training for such personnel;  and (3) resources to pursue and defend challenges to notified terms.  With regard to  other burdens and on the issue of the scope of 
obligation of the GI registration itself, unlike other forms of intellectual property, the right accruing to 
the GI owner would, under the EC proposal, be in perpetuity.  In other words, WTO Members would  TN/IP/M/10 
 Page 3 
 
 
 have a permanent commitment to protect notified term s.  While in other intellectual property systems 
the cost of maintaining the right s was borne by those who benefite d from them, namely the owners, 
under the EC proposal obligations would be on the so-called "non-participating Members", who 
would incur all the costs, including those of examin ation and refusal as well as enforcement.  EC GI 
owners would bear no costs.  His delegation saw no justification for such a shift of burdens in this 
area of intellectual property  
8. The representative of Argentina  agreed with the statement of the United States.  She said that 
the EC proposal raised issues of costs not only w ithin the WTO framework but also at the national 
level.  In contrast, the joint proposal had not gi ven rise to additional and complex issues such as 
annual quotas for the number of geographical indi cations, which would go beyond the obligations 
currently in place. 
9. The representative of Switzerland  agreed with the delegation of the European Communities 
that the establishment of a multilateral system, of what ever nature, would result in some costs.  This 
also held true for a system under the joint proposal .  The issue of costs would have to be seen in 
relation to its added value and advantages.  These woul d only be very small if the system had neither 
legal effect nor was multilateral in character, cont rary to what was required under the mandate of 
Article 23.4.  The investment which would be made  to establish a list without legal effects would be 
lost.  While he believed that Members agreed that  the system should be one with a procedure as 
simple and straightforward as possible, he said that it should ensure the following:  (1) to enable all 
Members to notify and register their GIs without being deterred by formal requirements or excessive costs, thereby allowing all of them to participate in the system;  and (2) to ensure that the registration 
respect some minimal formal requirements so that th e register would become a truly useful tool to 
facilitate the legal protection of GIs.  He suppor ted the points made by Hong Kong, China that a 
maximum number of registrations per Member per y ear could be considered to avoid overburdening 
the system in its initial phase and that the distributio n of costs should reflect the participation of those 
Members who were notifying and registering thei r GIs in the multilateral system.  Internally, 
Members should be free to regulate who should actua lly bear the costs, whether it would be the 
Member State itself or those private right holders who would benefit from the registration.   
10. The representative of th e European Communities
 said, in response to the statement by the 
United States, that they seemed to be in agreement on the point that the costs of the system should be 
borne by those who benefited from it, namely the ow ners that notified the GIs to the system.  He 
clarified that the bilateral negotiations foreseen in  the EC proposal did not create obligations beyond 
what was already foreseen under Article 24.1 of th e TRIPS Agreement and that the EC proposal did 
not culminate in a system of dispute settlement.  He said that, in examining the potential costs of a multilateral registration system, it would be a wrong pr emise to assume that currently there were no 
costs.  The existing systems of GI protection, which involved seeking prot ection in each and every 
WTO Member, already entailed costs for personnel and training, e.g. for handling applications and, 
when applicable, oppositions.  The system proposed by the EC would obviate the need to launch 
applications in each country and therefore facilitate protection.  It would be a system with one single 
application which would be handled by each WTO Me mber according to its national law.  In response 
to the remark that the EC proposal foresaw perp etual protection for GIs, he said that the TRIPS 
Agreement did not set a time-limit for the protection in that regard and that his delegation did not 
propose anything that went beyond the current TRIPS obligations. 
11. The representative of Chile
 agreed with the EC delegation that costs should be borne by the 
participating Members.  She said that the EC's in tervention was adding confusion with regard to the 
nature of the bilateral negotiations foreseen in its proposal and their relationship with Article 24.1.  In 
spite of the EC's interventions, her delegation continued to have concerns about costs and 
administrative burdens, including those for non-par ticipating Members.  Chile's objective, as 
mentioned by the United States and Argentina before , was to have a system that would be neither TN/IP/M/10 
Page 4  
 
 burdensome, nor costly, and that would not change  the balance of rights and obligations under the 
TRIPS Agreement. 
12. The representative of Australia
 said that he took the EC's remarks as stating that none of the 
obligations proposed by the EC proposal were su bject to dispute settlement and asked the EC 
delegation to confirm that understanding.  He said he  did not detect much agreement between the EC 
and the United States on the subject of costs, as the EC proposal shifted most of the costs, e.g. for 
enforcement of rights, from the private right hol ders to the Members and provided for bilateral 
negotiations which were not necessary under the current system.  In contrast, the joint proposal would 
be less costly and still have bene fits.  Finally, he said that Aust ralia did not see the relevance of 
Article 24.1 in this context and regarded a discussi on of that provision as being outside the current 
mandate. 
13. The representative of the European Communities  said that the challenge procedures in the EC 
proposal would lead to bilateral negotiations along the lines of Article 24.1 but would certainly not 
lead automatically and directly to a dispute settle ment procedure if agreement were not reached.  
However, the overall interpretation of the provision s governing the system would be subject to the 
WTO dispute settlement system which covered all WTO agreements.  He said the EC did not propose 
to change the enforcement provisions of the TRIPS Agreement, including that in principle the right 
holders should bear the enforcement costs.  As bila teral negotiations were already an obligation under 
Article 24.1, the EC proposal did not contain any add ition in this regard.  W ith regard to challenges 
and opposition procedures, the EC envisaged a system similar to the WIPO Madrid Protocol, giving 
Members an opportunity to nullify the legal effects stemming from the registration of an individual GI 
after completion of the examination or litigation pro cedure regarding that GI.  While noting that there 
was recognition that all systems, including the one un der the joint proposal, would bear some costs, he 
said that the systems needed to be judged on the basi s of how solid their respective benefits were.  In 
this regard, the experience with the bilateral agre ement between the EU and Australia had shown that 
merely putting up a website with GIs protected in the two countries had done nothing to improve the 
protection of GIs in third countries. 
14. The representative of Malaysia  said that her delegation remained concerned over the potential 
cost implications of a multilateral system, including costs for governments in setting up national systems in terms of both the legislative and judici al frameworks.  If accepted, the user-pay principle 
should be applied not only to the application procedur e but also to the overall administration of such a 
system, including the conduct of oppositions.  Referring to document TN/IP/W/7/Rev.1, which 
contained a summary made by the Secretariat on poin ts and issues raised in regard to costs to the 
administering body, producers, exporters and consumer s, she said that many questions had yet to be 
answered and that the Special Session should revert to  the issue of costs.  She finally said that there 
had been some discussion on possible cost-sharing by European countries and that it would be helpful to consider in the final outcome of these negotiati ons some form of cost exemption for developing 
countries. 
15. The representative of Argentina
 said that the mandate was to find a system that would 
facilitate protection, not one that would improve pr otection.  The current system provided protection 
for a right holder in each individual country a nd it was not within the mandate of the TRIPS 
Agreement to discuss the grant of a single title at wo rld level that would be valid in all countries. 
16. The representative of Canada  recalled that the joint proposal envisaged a searchable database 
of GIs for wines and spirits that would be not ified by participating Members and contain all 
information, including the date on which the re gistration was granted under the notifying Member's 
law, the expiry date, if any, and any internationa l agreement under which the GI was already covered.  
The database would be available to all WTO Memb ers in hard copy and on the WTO website.  It 
would be updated as required.  The proposed system  would aim to facilitate the existing protection  TN/IP/M/10 
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 under the TRIPS Agreement, not to create additional protection.  Participation would be voluntary and 
countries that had chosen to participate would comm it themselves to consult the database along with 
other sources of information.  This voluntary sy stem would, for the first time, give national 
intellectual property offices a single place to look fo r information about which terms were recognized 
as GIs in other countries and thus enable them to ma ke better informed decisions with regard to both 
trademarks and GIs.  In consistency with Artic les 1.1, 22.3 and 24 of the TRIPS Agreement these 
decisions on the recognition and protection of GIs would be taken entirely at the national level 
without impeding national sovereignt y or the application of national law.  He said that the EC 
proposal went significantly beyond any system existing within the TRIPS Agreement or WIPO as neither the Madrid Protocol nor any other registratio n system in WIPO contained legal concepts such 
as a rebuttable presumption of validity that the EC was proposing.  He also requested that the status of 
the Hungarian proposal (IP/C/W/255) be clarified as it contained suggestions regarding arbitration 
and dispute settlement.  
17. The representative of Barbados
 recalled her delegation's position that, while respecting the 
mandate under the TRIPS Agreement and the Doha D eclaration, any costs and administrative burdens 
of a new multilateral system should be kept to a minimum.  Her delegation was sympathetic to the 
specific issues raised and suggestions made by Ho ng Kong, China in this regard.  She said that the 
system should respect the principle of primacy of national law reflected in Article 1 of the TRIPS Agreement and not unduly undermine national intell ectual property systems.  On the question of 
participation and legal effects, her delegation's position was that the system should be voluntary and 
could not be binding on non-members, as general ru les of international law clearly established that 
international agreements could not bind non-parties without their express consent.  
18. The representative of Australia
 said that his delegation was still confused about the EC 
proposal.  What it understood was that the proposal would entail costs for governments of WTO dispute settlement in addition to costs of bilateral negotiations.  He expressed his delegation's concern 
with regard to the intervention made by the EC on Article 24.1, and said that this provision was not 
relevant to this negotiation and that the joint prop osal was the least costly proposal on the table, 
particularly on non-participating Memb ers and on developing country Members. 
19. The representative of the European Communities
 asked Australia to clarify whether the joint 
proposal would not be subject to the WTO Dispute Settlement Understanding and whether it would prevent countries from seeking recourse to Article 24 .1 of the TRIPS Agreement.  He stressed that 
these elements were already available to all Memb ers and the EC proposal did not therefore increase 
costs in this regard. 
20. The representative of Australia
 said that the stronger the obligations imposed on Members, 
the greater the relevance would be of the dispute settlement mechanism.  For her delegation, Article 
24.1 had nothing to do with this negotiation.   
21. The representative of Kenya  said that IP rights were private rights and that therefore the main 
cost of implementing a register for GIs should be borne by its beneficiaries and only minimum costs 
by Member States.  He suggested that the same prin ciple be extended to paragraph 6 of the Decision 
on Public Health. 
22. With regard to the technical issues of notificati ons and registrations liste d in paragraphs 7-14 
of document JOB(03)/75, the representative of Chinese Taipei  requested clarification on whether the 
fee stipulated in paragraph 9.1 for the "notification or the modification of a notification" also covered 
the "registration" of a GI, as was his understanding.  He also suggested that, with the exception of 
special cases, the Member contact points already established and notified under Article 69 of the 
TRIPS Agreement could be used as the contact poi nts envisaged under paragraph 10 of the document 
in order to avoid duplication of this administrative exercise.   TN/IP/M/10 
Page 6  
 
 23. When the Special Session resumed after time had been set aside for consultations among 
delegations, the representative of New Zealand
 said that the informal consultations that her delegation 
and other co-sponsors of the joint proposal had held  with a wide range of delegations had provided 
useful insights and had been characterized by a high level of engagement by participants.  Her 
delegation would like to continue  this dialogue in future and re mained committed to working with 
other Members to achieve results consistent with the mandate.   
24. The representative of th e European Communities  agreed with New Zealand on the usefulness 
of the informal discussions and sugg ested that, in future, time left over from the regular session of the 
TRIPS Council could be devoted to such consultations.  He suggested that the Chair be included in 
these consultations to provide guidance on the process.  
25. The Special Session took note  of the statements made. 
C. OTHER BUSINESS  
26. The Chairman  recalled that it had been envisaged to  hold the next Special Session back-to-
back with the regular session of the TRIPS Council.  Given the need to avoid conflicts with other 
meetings and the arrangements agreed by the regular  session, he suggested that the next meeting take 
place on Tuesday, 30 November 2004.  In the light of the informal consultations on organization of 
work held the previous week, he also suggested th at, in addition to follow-up discussions on the three 
issues discussed today, the Special Session should focu s at its next meeting on the notifications phase 
of the system.  He said he would hold informal cons ultations before the next meeting on the best way 
to proceed with the work and that he would get in  touch with delegations to  organize these closer to 
the time. 
__________ 
 