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Cablegate: Wto Trips Council Special Session, March 11, 2005

This record is a partial extract of the original cable. The full text of the original cable is not available.

UNCLAS SECTION 01 OF 03 GENEVA 000836

SIPDIS

PASS USTR FOR MENDENHALL, ESPINEL, PECK
STATE FOR WILSON, FELT
USDA FOR FAS/ITP/SCHWARTZ, TTB/TOBIASSE
USPTO FOR LASHLEY, SALMON
USDOC FOR ITA/SCHLEGELMILCH

E.O. 12958: N/A
TAGS: EAGR ETRD WTRO
SUBJECT: WTO TRIPS COUNCIL SPECIAL SESSION, MARCH 11, 2005


1. SUMMARY: The TRIPS Council Special Session met on
Friday, March 11, 2005. The Special Session is charged with
negotiating a system of notification and registration of
geographical indications (GI's) for wines and spirits
eligible for protection in those WTO Members participating
in the system, in order to facilitate the protection of
GI's. Ambassador Manzoor Ahmad of Pakistan chaired the
meeting. A number of co-sponsors of the so-called "Joint
Proposal," including the United States, tabled a draft legal
text of the proposal at this session. This document
generated much of the discussion at the meeting. The vast
majority of the delegations present supported using this
document as the basis for further work. However, there was
strong opposition from the delegations of the European
Communities and Switzerland, who have a different proposal.
In the afternoon session, representatives from the WTO
Central Registry of Notifications and from the WIPO
administering staff for the Lisbon Agreement attended to
answer questions. END SUMMARY.

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AGENDA

2. As the Special Session is solely concerned with the
negotiations of a system of notification and registration of
GI's for wines and spirits, the Agenda was short, including:
negotiation of the establishment of a multilateral system of
notification and registration of geographical indications
for wines and spirits; and other business.

NEGOTIATION OF THE ESTABLISHMENT OF A MULTILATERAL
SYSTEM OF NOTIFICATION AND REGISTRATION OF GEOGRAPHICAL
INDICATIONS FOR WINES AND SPIRITS

3. The Chair began the Special Session by noting that
Members' statements may address the three sets of issues
discussed at the last Special Session meeting in September
2004, which were: legal effects and participation;
administrative and other burdens; and technical and
procedural issues identified in JOB 03/75 (The Chair
reiterated that the referenced JOB document does not have
consensus approval and does not have any legal status). The
Chair also noted the new document, submitted by co-sponsors
of the "Joint Proposal" (TN/IP/W/10).

4. Canada took the floor to introduce document TN/IP/W/10
noting the desire of the co-sponsors to move the
negotiations forward within the mandate of TRIPS Article
23.4. The delegation noted that this document built on the
original Joint Proposal document (TN/IP/W/5) and the recent
Q&A document (TN/IP/W/9) in setting forth a draft legal text
of the proposal. Canada also noted that this was a draft
and that co-sponsors were open to comments and to working
with others but that the document preserves the principles
of Article 23.4, namely preserving the principle of
territoriality and preserving the ability of WTO Members to
determine how to implement their TRIPS obligations. Canada
also stated that this should be a basis for negotiations.

5. Chile, another co-sponsor, gave a more detailed
introduction and noted the characteristics of the Joint
Proposal being that it is voluntary, creates no legal
effects, protects the balance of rights and obligations
within the TRIPS Agreement, has no significant costs,
respects the principle of territoriality, establishes the
freedom to implement TRIPS obligations in national laws, and
is limited to wines and spirits, all in terms of the mandate
of TRIPS Article 23.4.

6. Fellow co-sponsors New Zealand, Australia, Argentina,
and the United States all proceeded to take the floor,
supporting the new document as a basis for future work in
the Special Session. The Dominican Republic, Ecuador, El
Salvador, Honduras and Chinese Taipei requested that their
names be added as co-sponsors. A number of co-sponsors of
the original "Joint Proposal" document (TN/IP/W/5) spoke of
support but were not able to co-sponsor at this meeting,
including the Philippines, Japan, Colombia, Paraguay,
Dominican Republic, and Costa Rica. A number of other
delegations gave statements of support for the Joint
Proposal, including Malaysia and Korea, noting that it was
very useful and support a multilateral system that is
voluntary and does not have legal effect, especially for non-
participating Members.

7. The EC gave a fairly strong and lengthy "preliminary"
statement stating that the paper did not move the work
forward. The EC stated that they were disappointed in the
paper because, instead of bridging the gaps, this proposal
increases the gaps between Members. They reiterated views
expressed vis--vis previous iterations of the Joint
Proposal that the system would be plagued by unreliable
information, and that there was a need to have legal effects
on all Members. In that light, the EC questioned why the
provision governing whether a Member would notify a GI was
only voluntary and not mandatory, stating that such a system
would allow no notifications whatsoever. He also noted that
the contents of the notification as proposed would lack
important information such as the basis for protection
(laws, etc.), date of protection, and evidence of compliance
with TRIPS provisions (Note: these provisions are important
to the EC because of their national system, which they see
as a model, but are not in the mandate of TRIPS Article 23.4
in the view of the United States.) In addition to a number
of other technical critiques, the EC stated that this
document is not a basis for future work. Instead, they
proposed that document JOB(03)/75, presented by the former
Chair of TRIPS Council in 2003 be used as the basis for
discussion.

8. Switzerland commented that while the co-sponsors
indicated a willingness to address concerns of other
Members, they could not see how the current draft took into
account concerns expressed. Switzerland indicated that the
proposal must give meaning to the word "multilateral," as
compared to "pluraliteral" which is the nature of the
voluntary system proposed. They also noted three major
concerns regarding (1) whether there would be any "formal"
review of notifications, (2) how the system "facilitates"
the protection of GI's in terms of the mandate, and (3) the
absence of any procedures to review or address challenges to
certain rights.

9. Hong Kong, China took the floor to remind delegates
that they had earlier submitted a proposal which is still on
the table and which, in their view, is voluntary and has no
legal effects, but establishes a notification as rebuttable
prima facie evidence of (1), (2) and (3).

10. Brazil stated that it supported the principles
underlying the Joint Proposal. They noted that (1)
"facilitation" in TRIPS Article 23.4 does not mean "GATT-
plus" protection for GI's, (2) that it preserves the balance
of rights and obligations, including preserving the
principle of territoriality and flexibilities under TRIPS
Article 1.1, and (3) has low costs for Members. They also
stated that these principles should also guide work in TRIPS
Council with respect to patents.

11. Canada responded to a number of questions that had bee
raised. They noted that no formality examination should be
necessary as it is up to Members to provide the information
in the system. As to costs, these should be minimal as the
system could likely be implemented within the web site at
the WTO, and referenced the notifications page established
after the TRIPS and Public Health discussions. Responding
to assertions by the EC and Switzerland that co-sponsors of
Joint Proposal were not engaging, Canada noted that the co-
sponsors have continued to refine the Joint Proposal, while
the EC has not recently submitted a paper itself. Further,
Canada noted that it will work with others on technical,
administrative and other issues, but will not compromise on
key principles of the mandate of TRIPS Article 23.4
including the voluntary nature of the system and the lack of
substantive legal effects of the system, noting that there
was an emerging consensus on these matters and that no
delegation outside of Europe supported a contrary position.
With respect to questions on reliability of information,
Canada expressed surprise with little faith on the integrity
of systems of Members, and noted no need for WTO Secretariat
to review what may be a GI or to have an international
dispute settlement process as disputes should be handled at
the national level. Canada noted that the system
"facilitates" protection by providing a single place,
currently not in existence, for information to be used by
national offices in rendering decisions about GI protection.
They also noted that document JOB(03)/75 was never accepted
by the Council.

12. Australia and Chile made statements supporting the
Joint Proposal and responding to certain points noting that
this document does attempt to bridge gaps among Members,
but, of course, the EC is free to develop its own paper. At
this point, there were a number of statements from the EC
and Switzerland on one hand, and Chile, Australia, Canada,
New Zealand, Argentina and the United States on the other
hand, focusing on TN/IP/W/10 as a concrete step forward,
regarding the status of the discussion.

13. Switzerland stated that it agreed with the EC that the
administrative body should have a formal role, and agreed
with Australia that the date of protection may not be
relevant. Switzerland noted the information concerning
international agreements for GI protection could be useful
for some countries that do not have registration systems.

14. In the afternoon session, presentations were given by
representatives of the WTO Central Registry of Notifications
(CRN) and the WIPO Secretariat regarding the Lisbon
Agreement on Appellations of Origin. The CRN is the system
used in the WTO to catalog all notifications made pursuant
to the various WTO agreements. The Lisbon Agreement, with
23 Members, is a voluntary international protection system
for "Appellations of Origin," which are similar to
Geographical Indications but more narrow in scope. The
delegations of Australia, New Zealand, Canada, the United
States, the EC, Switzerland and Turkey asked a number of
questions to the representatives, mainly focusing on themes
such a voluntary participation, legal effects of the
systems, ease of operation, etc. relevant to the
negotiations.

OTHER BUSINESS

15. The Chair noted that the dates of the next Special
Session would be June 16-17. After statements by the EC,
asking for consultations after Easter using document
JOB(03)/75, and statements by Australia, Argentina and the
United States objecting to use of JOB(03)/75, and using
TN/IP/W/10 as a basis, the Chair stated that while he did
not detect any new flexibilities in position, he did see
delegations prepared to engage with new intensity, and he
suggested that he may call consultations prior to the next
TRIPS Council Special Session. DEILY

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