US embassy cable - 05GENEVA836

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, Trade 
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. 
 
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