Minutes of meeting
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8.The representative of Chile said that his delegation had co-sponsored the joint paper introduced by Australia (document IP/C/W/289) because it went beyond the mere question as to whether or not there existed a clear provision in the Agreement permitting negotiations for the extension of the protection of geographical indications for wines and spirits to all other products. He reiterated that the difference in levels of protection in Section 3 of Part II had not been a mistake nor an oversight but rather had been intended by the negotiators and all Members had agreed to it when they signed the Agreement. It had been a compromise solution. The different levels of protection were part of the architecture not only of Section 3 but also of the whole Agreement. The joint paper also considered the negative effects that an extension would have. He hoped that these arguments would assist in reaching points of consensus so as to permit progress on this subject. 9.The representative of Argentina said that her delegation was one of the co-sponsors of the joint paper introduced by Australia (document IP/C/W/289) and she drew attention to the fact that there were developing countries that supported the view it presented. In order not to prolong the discussion on the elements contained in the paper, which Australia had already introduced, she only highlighted what she believed were the most important points. The joint paper presented the legal aspects involved as well as the practical ones in a balanced way. Various delegations at previous meetings had referred to these without bringing forth any additional or substantive elements. Paragraph 3 clearly indicated that the extension of additional protection to other products necessarily involved a re-opening of the Agreement, that was to say that extension of additional protection could only be negotiated in a new round when all Members so agreed. The paper referred to practical consequences or costs of any extension, its effects on trade and its effects on consumers, and detailed elements which would contribute to a serious and substantive discussion, both to analyse and understand the subject and its consequences. The paper presented a non-exhaustive list of practical consequences, that is the effects on trade and consumers that an extension of protection could occasion. The analysis listed issues that had to be taken into account in any discussion of this item. She then turned to the legal aspects, although some delegations did not think this was appropriate, because in any rules-based organization with a dispute settlement mechanism they could never be left aside or forgotten. The TRIPS Agreement established in its Article 1.1 that "Members may, but shall not be obliged to, implement in their law more extensive protection than is required by this Agreement" and that "Members shall be free to determine the appropriate method of implementing the provisions of this Agreement within their own legal system and practice". As a result, it was astonishing that paragraph 17 of the earlier joint paper proposal in document IP/C/W/247/Rev.1, asserted that the fact that Members fulfilled their obligations to protect geographical indications by means of a variety of systems had led to imbalances and legal uncertainty. The existence of diversity among systems was a fundamental element that the negotiators of the TRIPS Agreement took into account when they drafted the Agreement. The objective of the Agreement had been to establish minimum standards of protection and not a harmonized system. This had not only occurred in the case of geographical indications but also other rights, including patents. No-one could doubt the various national systems of protection of these other rights. The earlier joint paper asserted that this situation generated uncertainty. If this were so, it affected not only geographical indications but the whole Agreement. The eligibility for protection of a geographical indication was a matter for national legislation and this was one of the important flexibilities, or rights acquired, under the Agreement about which so much had been said at the present meeting, for example under item N, and which should not be lost. The general rule of protection of geographical indications for the whole universe of products was in Article 22, that is Article 22 constituted the general principle that determined the protection for all products protected by geographical indications. In Article 22, the right granted was explicit. Article 23 circumscribed the additional protection to only two products, wines and spirits, and, as such, it constituted an exception to the general rule which was the protection granted by Article 22. Therefore, her delegation understood that to extend the protection granted as an exception for two products to the whole universe of products represented an alteration of the scheme of protection established in the Agreement. In other words, extension of protection meant creating new rights and this could not be done without a mandate, and without reopening the Agreement. For Argentina, it was clear that the creation of new rights could only occur in the context of a new round of negotiations, if Members agreed to include the subject, and the creation of new rights could not involve only one section of the Agreement. During a meeting of the WIPO Programme and Budget Committee in April 2001, Argentina had voiced its concern that delegations who pushed this subject in the WTO systematically refused to discuss technical aspects and cut back on fora for discussion. Doubtless, it did not assist in reaching common understandings to cut back fora for discussions especially since in those fora it was possible to deal with subjects in a perspective that permitted Members, unfamiliar with this type of right, to understand and grasp the issues. Turning to the discussion in the present meeting of the joint paper which Argentina had co-sponsored, she had observed a general tendency in the criticisms to present examples of bad faith use of geographical indications. The objective of the joint paper had rather been to deal with legitimate uses of geographical indications. She reminded those delegations who had made comments that, in addition to uses in bad faith or counterfeiting of geographical indications, which no-one was defending, there was also continuous use, use of generic terms and homonymous geographical indications, all of which constituted absolutely legitimate uses of the geographical indications of other countries. 10.The representative of Guatemala said that his delegation had co-sponsored the joint paper introduced by Australia (document IP/C/W/289) because the arguments it advanced were cogent. Due account had to be taken of the costs involved in extending additional protection to other products. As a developing country, Guatemala was aware of the costs which extension would imply and had to weigh this carefully against any possible benefits. Furthermore, the claimed extension would imply accepting further obligations. His delegation was prepared to continue the dialogue in order to cover all details which still needed to be clarified. 11.The representative of Uruguay said that, in connection with an extension of the additional protection for geographical indications under the Agreement to geographical indications for all products, her delegation would like to repeat what it had already said at earlier meetings of the Council. The balance in the TRIPS Agreement had resulted from a difficult discussion and represented a compromise. Furthermore, Article 23.1 applied to wines and spirits exclusively and the Agreement did not contain a mandate to explore an extension of the protection under it to other products. Her capital was studying the joint paper, which appeared to have the virtue of containing novel elements of analysis for use by the Council. She informed the Council that her country's National Intellectual Property Directorate and WIPO were jointly organizing a symposium on the issue of the protection of geographical indications, which would take place at the end of November 2001 in Montevideo which, it was hoped, would provide a valuable opportunity for all regions to debate this issue and assist in raising awareness, and to the spread of information and experience and positioning of various national actors in relation to this issue. 12.The representative of Paraguay said that his delegation was a co-sponsor of the joint paper introduced by Australia (document IP/C/W/289). Although it had not participated in the drafting of the paper, Paraguay fully concurred with its contents. He expressed support for all the arguments presented by other co-sponsors of the paper who had already spoken in the present meeting. Turning to the intervention by Switzerland, he quoted the definition of "geographical indication" in Article 22.1. He noted that the Swiss delegate had referred to know-how which was the application of human knowledge in the production of a good. Throughout the Americas, European immigrants had brought their know-how with them. For example, in Paraguay, Swiss migrants made gruyère cheese even though there was no locality named Gruyère in Paraguay. Rather, they applied their know-how in the production of this cheese (which was in fact very good). He asked the Swiss delegate if he believed that this characteristic was "attributable to its geographical origin", as he had said in his intervention. On another note, the Swiss delegate had spoken not only of the extension of additional protection to products besides wines and spirits, but also of the costs to Members of the implementation of all the intellectual property rights in the Agreement. Implementation of all the Uruguay Round agreements had involved certain costs, and he assured the Council that for Paraguay this cost had been very high: both political, legislative and economic. He agreed that there had been costs in implementing the TRIPS Agreement and Paraguay was not willing to pay additional costs for the extension of additional protection for geographical indication beyond wines and spirits. The extension of this protection to other products would involve the acquisition of new rights and the assumption of new obligations. This could only occur in the context of a new round of negotiations without which he doubted that his delegation could ever support the extension of additional protection to other products. 13.The representative of Venezuela believed that the joint paper introduced by Australia (document IP/C/W/289) advanced this debate. However, she agreed with those delegations that had said that the level of protection provided by Article 22 was not sufficient and that it was necessary to introduce, at the international level, a uniform level of protection. Regarding the costs of modifying the existing provision, account should also be taken of the benefits. The relevant relationship was cost-benefit, not cost-cost. Extension of protection could permit Venezuelan producers in different parts of the country to increase the value-added of their products, and improve protection, complying with the standards of quality to compete better in an open market without restrictions. Regarding the possible effect on trade, protection could be the beginning of a wider process of generating small and medium enterprises in the processing industry, which would permit the generation of employment and better living conditions of workers and the diversification of exports. Based on these premises, the Ministry of Commerce of Venezuela considered that geographical indications had an important social and economic dimension, and hoped to promote them as an instrument of industrial, commercial, economic, cultural and technological development. It allowed the rescue and promotion of indigenous products and production processes that currently ran the risk of disappearing. They could even promote tourism and tourist routes, for example the Cocoa Route of Chuao. Geographical indications allowed the improvement and facilitation of a perception of quality in certain goods in discriminating markets. Geographical indications would highlight in local and foreign markets the special characteristics of products and would limit their use to producers entitled to use them and prevent abuse by third parties. Venezuela's experience with Chuao cocoa had shown that producers were getting organized, becoming aware of the value of their products and their potential, and beginning to investigate ways of increasing their value. These producers had found that it was easier to publicize their products and were advancing in the collective management of marketing. Of course, this all required great efforts, but it would produce great benefits. It was hoped that other producers would organize and register geographical indications for their products. With respect to the effect on consumers, they expected to see the true origin of goods and services and the geographical indication assisted in establishing differentiation and market access for a very specific group. The consumer should not be misled and, if he wished to pay more for a product, it should be the one that he meant to choose. Geographical indications allowed producers to be accredited and to communicate to consumers the qualities of their products, thereby protecting consumers' interests. The consumer expected that a product offered would have the qualities of the region to which its geographical indication referred. To take the example of cocoa in Venezuela, experts had said regarding that the geographical location of Chuao and natural and human factors, such as the climate, topograhy, environment and workforce, were the reasons that made this cocoa one whose quality was recognized internationally. If this were not the case, there would not have been such an interest in registering the name in other countries. This discussion had aroused a lot of interest. Many developing countries had already identified a large number of products capable of protection by means of geographical indications and the discussion was therefore bound to move forward. Her delegation hoped that this form of protection would give producers the legitimate right to use on their products the name of the region which had conferred on their products their particular and unique qualities and to prevent competitors from outside that region from using that geographical indication. 14.The representative of Turkey considered that the joint paper introduced by Australia (document IP/C/W/289) was a positive development in the discussion of geographical indications, although his delegation did not agree with the views it expressed. He observed that the paper contained some of the well-known views and arguments of its sponsors. His delegation would respond to these at a later date. He commented that the discussion of extension of protection of geographical indications had gone beyond the TRIPS Council and had become a kind of bargaining position for the forthcoming Ministerial Conference. The discussions in the TRIPS Council provided useful inputs into the discussions to be held on this issue in the General Council in preparations for Doha. He associated his delegation with the statements made by Hungary and Switzerland. 15.The representative of Singapore, speaking on behalf of ASEAN Members, noted that there was a divergence of views as to whether discussion of an extension of additional protection for geographical indications to products other than wines and spirits was part of the mandate of the TRIPS Council. Without expressing his views on that question, and for the purposes solely of the present intervention, he assumed that there was such a mandate. He noted that the proposal to extend protection was supported by a broad range of Members, developed, developing and economies in transition alike. He noted that the proponents of extension believed that it was consistent with the goals of the TRIPS Agreement and general WTO principles. Tacit in this regard is that it is also beneficial to all Members and in this the proposal deserved utmost attention and serious assessment. As Members afforded the proposal the attention that it merited, it behove them to consider the basic issue of what they stood to gain from a change of the status quo; that is, what was wrong with the status quo and why did it have to be changed. At present, all products were covered by geographical indication protection under Article 22.2. Wines and spirits were protected by additional protection, in particular, under Article 23.1. The distinction between the two levels of protection was that Article 22.2 was intended to protect the public from being misled as to the geographic origin of the product covered by the geographic indication. On the other hand, this element of misleading the public was not a requirement of Article 23.1. It could then be said that Article 23.1 provided for unqualified protection of private rights, but Article 22 provided for a balance between protection of private rights and the public interest. The delegations for which he spoke understood that the TRIPS Agreement was intended to strike a balance between private rights and public interests. They also understood that Members had not agreed on multilateral governance of private rights which essentially were otherwise subject to their respective exclusive jurisdiction. It appeared that a possible, if unintended, consequence of the proposal would be that additional protection would be afforded private rights per se, whilst diluting the public interest requirement. He was concerned that, by doing away with the public interest element, Members might unwittingly be eroding the balance which the TRIPS Agreement seemed to achieve. He quoted that balance as a matter of principle as it was a crucial consideration in respect of other intellectual property rights, in particular the balance between private rights and public interest with regard to patents for medicines and the rights of Members to promote public health. It could be argued that this concern was academic in that Article 23.1 already provided for unqualified protection for wines and spirits without any reference to the public interest. He did not go so far as to say that Article 23.1 was an aberration. Instead, he confined himself to saying that, rightly or wrongly, that was the bargain struck in the Uruguay Round. Other concerns could be raised, among them were possible unintended consequences of extension, many of which might not necessarily be positive. These concerns could be raised at the proper time. He raised these concerns as a contribution to a frank debate, as the delegations on whose behalf he spoke remained open to the possibility of extension of geographical indication protection under Article 23.1 to other products. 16.The representative of Mexico reiterated her delegation's position that none of the provisions of Section 3 of Part II of the Agreement could be interpreted as providing a mandate for negotiations on the extension of the protection provided under Article 23 to products other than wines and spirits. This matter was not "futile", nor procedural, nor a supposition, but rather it was a reality found in the text of the Agreement. The more her delegation listened to this debate, the more doubts it harboured about the serious consequences that extension could have. She had presented arguments on these on earlier occasions and recalled her delegation's concerns. The joint paper introduced by Australia was useful as it put in a clearer perspective the legislative, economic (in terms of impact on trade and consumers), administrative and other consequences which extension could have. It presented fundamental issues which had not been clarified or analysed in any depth to the satisfaction of many Members. Her delegation agreed with the joint paper's general conclusions. It agreed that it had not yet been demonstrated convincingly why the level of protection provided under Article 22 was inadequate for other products. It agreed that extension of additional protection under Article 23, if it were ever agreed, would not necessarily imply greater or more effective protection given various considerations, which the proponents of extension should evaluate seriously. It agreed that the costs of extension appeared to exceed by far the expected benefits, particularly for those Members which had no, or only a few, products to protect and which perhaps, at the international level, did not have an economic value which would justify the costs involved in extending additional protection to hundreds or thousands of indications which other Members probably had in mind – although the Council did not yet know what the universe of those indications was. It agreed that extension would also involve costs for those Members which did not currently have national systems capable of providing this additional protection for products other than wines and spirits. Regarding costs, the Council had heard throughout its meeting of the great costs and efforts which many Members had expended so as to implement the Agreement in various areas, including this one. She could not imagine the situation if the Council attempted to extend existing obligations in the manner proposed if it was not aware of the implications. Therefore, her delegation believed that it was indispensable that these issues be clarified and analysed, and to carry out a cost-benefit evaluation, without which the proposal could not be seriously considered. Her delegation took a different view in some respects from that expressed in the joint paper introduced by Australia regarding the history of negotiations and how it should be interpreted. However, it agreed that the provisions of Section 3 were the result of a delicate balance reached in the Uruguay Round with the consent of all Members in a very specific negotiating context. But that was the past. Now Members had to face the language of the Agreement as it was, and it was on that basis that Members had to work. Any change of the text or any initiative to renegotiate and open that text had to proceed from a mandate on the basis of a consensus of all Members, which was only possible in another context, not the Council for TRIPS. Her delegation remained willing to continue to participate constructively in carrying out the mandate that the Council did have, which was that in Article 23.4 and the work programme in the Singapore Ministerial Declaration. 17.The representative of the Czech Republic offered some preliminary remarks on the joint paper introduced by Australia (document IP/C/W/289). His delegation did not share the opinions or approach to the issue that it expressed. He associated his delegation with the statement made by the representative of Switzerland. He commented on the methodology of the joint paper which stated that its objective was "a serious assessment of consequences flowing from any proposal that recommends substantial changes to existing provisions of the TRIPS Agreement". However, this was not what his delegation and others had proposed in their joint communication (document IP/C/W/247/Rev.1). Rather, their proposal had addressed the difference in treatment according to products which was an anomaly in the intellectual property system of the TRIPS Agreement. It came from the Agreement itself, but the joint paper described it as if it were a strange element which its proponents tried to incorporate into the Agreement. Second, a comparison of the levels of protection with the extension of additional protection for geographical indications with the future market opportunities for emerging industries methodologically incorrect. He agreed with the observations of the representative of Hungary in this regard. He had doubts about the consistency of the argument made in the joint paper. A discussion in informal session was anything but a way out of the present situation and was not useful. The joint paper contained questions, presumptions and statements. It was a basic principle of a dialogue to respond to the questions and his delegation would do this at a later opportunity in order to dissipate doubts. However, given that the joint paper had been submitted without prejudice to the right to reject the proponents' arguments on the question of the mandate, it was unclear whether, at the end of the day, the proponents were expected to restart the whole exercise from the beginning. He asked the co-sponsors for clarification of this point. 18.The representative of the United States said that his delegation was a co-sponsor of the joint paper introduced by Australia (document IP/C/W/289), and he thanked those delegations which had supported it. He assured Switzerland and other delegations that he would endeavour to address their questions and concerns at the next meeting. 19.The representative of Bulgaria, providing preliminary comments on the joint paper introduced by Australia (document IP/C/W/289), said that, in his delegation's view, none of the questions and concerns expressed in this paper were justified. In most cases, the truth was the contrary to that which was asserted in the joint paper. Unlike what the paper claimed, the administrative costs involved as a result of the extension of the geographical indication protection, if any, would be negligible and, in any case, compare favourably to other categories of intellectual property. All that would be required would be a legislative instrument amending the existing protection, if this were limited to wines and spirits. This was, for example, different in the copyright area, as Bulgaria had experienced after its accession to the WTO. Regarding trade implications, he believed that it was important to bear in mind that, when it came to genuine negotiations, there would have to be a bargain in which delegations would have to compare what each side would win and what it would lose. Consequently, it was not at all irrelevant how the sponsors of the joint paper saw those costs and those benefits. If the countries supporting the extension would not have significant benefits, that would be an advantage to the supporters of extension, because they would not have to pay that much in the bargain. In his delegation's view, there would in fact be a win-win situation, which would not allow the sponsors of the joint paper (document IP/C/W/289) to ask very much either. Turning to page 7 of the joint paper, he had the impression that the costs boiled down to renaming, re-labelling and court actions. He accepted that there were costs of renaming and re-labelling but would comment on court actions later. Several delegations had pointed out that costs had to be compared with benefits, and that geographical indications opened important niches for small and medium economic operators. Those operators did not need to invest in the intellectual property right as such, because they would have it already. Rather, they had only to invest in the production of the good itself. This compared positively with other IPRs. For example, it was unlikely that small enterprises would be in a position to invest in elaborate and expensive pharmaceutical research. As regards consumer confusion, his delegation agreed with those who said extension of additional protection to other products would actually reduce confusion. It seemed that the joint paper itself tried to create confusion. He did not understand the sentence in paragraph 25 of the attachment to the joint paper which said that "This will increase search and transaction costs for consumers, at least in the short to medium term, and potentially prices as well". No example was given and he could think of none, except perhaps a confused consumer in Alaska who searched for Paraguayan gruyère or white "Bulgarian-like" cheese and, not finding it, had to travel long distances and incur heavy petrol costs and create an environmental threat. Regarding increased risks of litigation among producers and disputes between WTO Members, he said that any rules bore the risk of conflict. This did not mean that one should not have rules. He asked the co sponsors of the joint paper whether they implied that disputes between WTO Members were a bad thing and whether they were ready to apply the same logic to other issues. He took issue with the example on page 8 of the joint paper, which was meant to show how Article 22 protection was sufficient and Article 23 protection was not necessary, because it was disputed that "feta" was a geographical indication as such and not a generic name. Bulgarian producers did not sell their products abroad as "feta" but rather as "Bulgarian white cheese". Knowledgeable consumers considered that Bulgarian white cheese was better than others whatever name it was given. He gave an example of the inadequacy of Article 22 protection and the need for extension of Article 23 protection by quoting a conversation in which a consumer who asked whether a particular cheese was Bulgarian was told that although the cheese was not Bulgarian, it was "like" Bulgarian cheese. It was exactly this kind of situation that the level of protection under Article 23 would address. Article 22 level of protection did not prevent others selling their products as "Bulgarian-like feta". Finally, on the issue of mandate, a compromise had been reached some time ago not to discuss mandates but to move to a substantive discussion of negotiating proposals both on geographical indications and in agricultural negotiations. If the TRIPS Council continued to discuss the mandate as an obstacle to substantive discussions on the extension of the additional protection for geographical indications, it would have to be seen whether individual negotiating proposals in the Committee on Agriculture fell under the mandate of Article 20 of the Agreement on Agriculture. He had reserved the right to return to that issue in the Committee on Agriculture. The mandate in Article 20 of that Agreement was rather laconic and there might be similar problems to those which other Members found in Article 24.1 of the TRIPS Agreement. 20.The representative of Japan said that the joint paper introduced by Australia (document IP/C/W/289) was a valuable contribution to the discussion. In the view of his delegation, Article 22 already provided general protection of geographical indications for all products against use which misled the public. In this sense, the additional protection for geographical indications for wines and spirits under Article 23, having no misleading requirement, was exceptional preferential treatment for certain products. If such protection were to be extended to other products, Members should carefully examine whether or not sufficient justification existed for the extension. Although Japan had reserved its position regarding extension, it was prepared to participate in the discussion. The joint paper introduced by Australia provided very useful material for Members' consideration. The extension of protection could have a positive impact, such as enhanced consumer protection or promotion of production in certain sectors or certain local regions. On the other hand, it could have negative impact, such as a possible excess burden to be imposed on normal business transactions in certain industrial sectors, including uncertainty concerning continued use, and renaming or re labelling of products. Japan therefore wished to examine this issue carefully, weighing both the negative and positive impacts. In order to arrive at the best solution, various options had to be analysed. The Secretariat's summary paper showed that Members had different means of protecting geographical indications. No particular means of protection should be pre-empted. Japan considered that Members should consider various policy options before examining a particular approach. The ongoing information-gathering exercise based on the checklist of questions should be completed as soon as possible by contributions from Members who had not yet provided their responses. It was important to examine how each Member was implementing the provisions of Section 3 of Part II of the Agreement. Information on the various means of implementation would provide a useful basis for close examination of the appropriateness of a possible extension of the additional protection under Article 23 to products other than wines and spirits. 21.The representative of Sri Lanka thanked the co-sponsors of the joint paper (document IP/C/W/289) for engaging in a constructive discussion of the issues but regretted that they had raised the mandate issue since she had thought there was an understanding that it would be set aside. Her delegation was prepared to engage in a discussion with the co-sponsors and offered preliminary comments on the joint paper. She associated her delegation with the interventions made by Switzerland, Venezuela, Hungary, Bulgaria and others. Paragraph 5, first bullet, of the joint paper referred to the costs for Members of extension of the existing provisions and took as its basic premise that Members would have to adopt TRIPS-plus laws. This stemmed from the co-sponsors' view of the mandate and what the TRIPS Agreement already provided. However, the co-sponsors of an earlier communication (document IP/C/W/247/Rev.1), including Sri Lanka, believed that there already was a mandate and therefore commitments would not be TRIPS-plus. Paragraph 5, second bullet, of the joint paper (document IP/C/W/289) alleged that there was no evidence of inadequate protection under Article 22. The co-sponsors of the joint paper wanted the demandeurs of extension to highlight the products for which they sought additional protection. However, extension to only some other products would only aggravate the existing imbalance in levels of protection. Rather, the demandeurs wanted to extend additional protection to all products which would remove the imbalance altogether. The proposals submitted by the demandeurs had already highlighted amply the rationale for additional protection. Paragraph 5, third bullet, of the joint paper claimed that there had been no discussion of potential downsides of extension. It referred to the additional administrative burden of extension. However, implementation of the TRIPS Agreement required all Members to assume an additional administrative burden. For Sri Lanka this burden was huge. If one were to deny extension of protection of geographical indications on this basis, then one would have to set aside the whole TRIPS Agreement. It also referred to confusion of consumers but, on the contrary, extension would assist consumers in making their choices and ensuring that they choose what they really want. In this regard, she quoted from the summary and conclusion of the OECD report on appellations of origin "The fact that every market is characterized by asymmetric information between producers and consumers puts the latter in a disadvantage. Consumers cannot be sure that the goods they buy are actually the ones they would prefer. One answer is to use communication tools to improve the amount of consumer information on product quality. Another answer is for producers to invest in building up a sound reputation with consumers. That reputation hangs both on product quality and the tools to provide information about that quality. … Geographical origins are just one of the communication tools used by the government and enterprises to send this message." Paragraph 10 of the joint paper said that Article 23 operated to confer exclusive rights over a particular term. However, the whole TRIPS Agreement operated to confer exclusive rights. She did not understand why this should be a problem just for geographical indications. She agreed with the comment by the representative of Argentina that Members had many options as to how to protect their intellectual property rights, but said that it was for the Members to decide what was the most appropriate and suitable method to be used in each area of intellectual property rights. Sri Lanka believed that trademarks could not protect some of its geographical indications, so that specific geographical indication protection was the only way some of them could be protected. Therefore, it was not a question of choosing between alternative methods of protection. Regarding a cost/benefit analysis, she said that the co-sponsors of the joint paper were putting the cart before the horse. For example, the TBT and SPS Agreements placed a heavy burden on producers. She asked if the co-sponsors wanted to weigh up the costs and benefits of those and other agreements as well, or whether they only wanted to raise this issue for geographical indications. 22.The representative of India shared the views expressed by Switzerland, the Czech Republic and Sri Lanka. He associated his delegation with the comments made by Hungary and Switzerland on the joint paper (document IP/C/W/289) and said that he would provide comments on it at a later date. 23.The representative of the European Communities first made some general comments. Although his delegation had tried to stay away from the issue of the mandate, the question had cropped up. Those Members which did not favour extension called upon this argument so that it would not take place. He hoped that this question could be sorted out at the Doha Ministerial Conference; otherwise the Council would be repeatedly confronted with it. He favoured a balanced discussion but he did not believe that the joint paper (document IP/C/W/289) had contributed to one. It was untrue, unfair and one-sided to say that extension of geographical indication protection only had to do with costs and not benefits. Such emphasis on costs showed a lack of comprehension of the difficulties many Members were having in implementing the TRIPS Agreement. His delegation appreciated the efforts undertaken by many Members to comply with the Agreement. The costs of extension of geographical indication protection would not really change the situation. He subscribed to many arguments advanced by Bulgaria, Hungary, Switzerland and others. Turning to the joint paper, his delegation regretted that it focused almost exclusively on criticism of the approach by a very substantial number of Members who advocated extension, rather than on the potential advantages of extension over the alternative, which was the status quo. The document missed the mark when it stated that there had been no evidence of insufficient protection under Article 22. The debate was not about implementation of Article 22 but about improving the level of protection available under Article 22. Nor was it accurate to say that contributions to date had only focused on Article 23. Rather, it appeared that the earlier communication (document IP/C/W/247/Rev.1) had contained a full analysis of Article 22 and its evident shortcomings. The concerns expressed in the joint paper (document IP/C/W/289) regarding costs were not substantiated. It appeared that, if countries were already, or were in the process of, providing enhanced protection for geographical indications for wines and spirits, it would only be a small effort to extend such protection to other protection. A minor change in provisions in existing laws that were already required for wines and spirits would enable national judges to provide such enhanced protection to other products as well. His delegation was surprised by the assertion that enhancing the level of protection for geographical indications for other products to the level of those for wines and spirits might foreclose opportunities for emerging industries and bring uncertainty to existing markets. As for emerging markets, streamlined protection for geographical indications as provided under Article 23.1, would do nothing else than boost the development of incipient or infant agricultural quality industries that would, once and for all, operate in a stable and clear legal framework. This would, in turn, enable geographical indication holders to thwart any attempts to cherry-pick on their embryonic, yet substantial, investments, to gain market entry. As for existing markets, the genuine quality food industry willing to expand internationally will receive as a blessing the extension of the clearness of Article 23.1 to their realm and get away from the sometimes capricious results of the "misleading test" of Article 22. The argument that extension of additional protection would lead to consumer confusion was very difficult to follow. Rather, his delegation believed that protection as provided under Article 23 would improve clarity for consumers. His delegation fundamentally disagreed with the interpretation of the objectives of Section 3 of Part II of the Agreement in the joint paper. It seemed quite obvious that the objectives of Section 3 were to establish, first, an internationally accepted definition of geographical indications and second, a two-pronged approach to the associated rights of geographical indication owners for their protection. He agreed with the co-sponsors of the joint paper that this created an imbalance which should be resolved but did not understand their approach, which would only perpetuate such an imbalance unless the co-sponsors were proposing to reduce the level of protection available for wines and spirits to that of Article 22. Conversely, it seemed logical to redress the imbalance by levelling up protection for all products to that higher and more effective level currently available for wines and spirits under Article 23. Finally, one should not assess the benefits of additional protection under Article 23 only from a historical point of view but also from a forward looking perspective. What mattered above all were the potential benefits that such protection could bring to developing countries and other countries for new geographical indications. 24.The representative of Mauritius acknowledged that not all Members took the same view of this item but observed that the approach taken at the present meeting was positive as it had moved from procedure to substance. She supported the statement made by Switzerland, and other statements made in favour of extending additional protection for geographical indications. She then commented on the joint paper (document IP/C/W/289). Regarding costs, she agreed with the representative of Paraguay that implementation of the Uruguay Round agreements was costly. Although she believed that few Members had benefitted from those agreements, this had not stopped Members from implementing them. In the same way, it was not valid to say that Members should be careful about the costs involved in extending protection for geographical indications because only a few people might benefit from them, and that others, who did not have geographical indications for their products, might not. She agreed with those delegations that had said that the costs of extension of additional protection for geographical indications should be measured against the benefits that might arise for some Members. There was no reason why an extension of additional protection should be much more expensive than the existing additional protection for wines and spirits. Regarding consumer confusion, she believed that extension of additional protection would rather enhance consumer clarity, by enabling them to make an informed choice, and increasing, rather than diminishing, that choice. Informing consumers that a product was gluten-free or GMO-free was no different from informing a consumer that a product was Bulgarian cheese. In any event, consumers' choices were not always directed by name, which was just one relevant factor in making a choice among other, economic, considerations. Extension of additional protection should not deprive others from sales nor, at the same time, people with a genuine reason to use a geographical indication from gaining benefits. Regarding trade effects, she believed that the number of Members who were so opposed to extension of additional protection indicated that there were trade benefits to be derived from geographical indications and reputation based on geography. 25.The representative of Switzerland, responding to Argentina, said that a harmonization of national systems for the protection of geographical indications had never been advocated either in the earlier communication (document IP/C/W/247/Rev.1) nor in any other instance in the Council's work on extension. Rather, that communication advocated extending the level of protection of Article 23 to products other than wines and spirits, and thereby providing a single level of protection for geographical indications at the multilateral level, which could remedy the legal uncertainty regarding the level of protection granted by WTO Members to a specific geographical indication. This uniform level of protection could be implemented by Members at the national level by the individual protection systems they chose to apply. In this way, predictability, transparency and legal security for the protection of geographical indications within the WTO framework would be enhanced. In particular, he referred to paragraph 18 of document IP/C/W/247/Rev.1. 26.The representative of Australia thanked all those delegations which had provided comments on the paper which she had introduced (document IP/C/W/289) and looked forward to responses to the questions that it raised. She responded to some comments, and said that she would at the next meeting respond to others. The paper had argued, in relation to market access for new and emergent industries, that use by another producer of a geographical term would amount to misappropriation of another's right. Responding to Hungary's comment that the same argument, applied to patents, would lead to dangerous waters, she said that this assertion completely ignored the existence of Article 22, a provision agreed to by all Members at the conclusion of the Uruguay Round. The paper she had introduced said that Article 22 contained the optimal balance among various competing interests, having at its core the legitimate objectives of preventing consumer deception and unfair competition. The paper did not suggest that Article 22 level protection should be weakened. Indeed, it reaffirmed the intrinsic value of geographical indications. In light of Article 22, her delegation did not see how the use of geographical terms in a manner consistent with that provision could be a misappropriation, or could in any way be analogous to patent infringement. The same reasoning applied to any suggestion that free and fair imitation of products was inappropriate. Responding to Hungary's request for information concerning the application of this principle to other intellectual property rights, she noted that, for example, fair use exceptions had long been recognized in the field of copyright. She noted that Articles 13, 17 and 30 provided for limitations and/or exceptions in each of the major intellectual property right categories in recognition of the need to strike an appropriate balance between competing interests. Responding to those delegations which had said that extension of Article 23 to other products was necessary to reap the benefits offered by geographical indication protection. She highlighted paragraphs 11 and 12 of the joint paper and paragraph 3 of the attachment, which noted the effectiveness of the protection offered under Article 22 to all goods and underlined the fact that this provision, far from minimizing the intrinsic value of geographical indications, operated in a balanced way to allow Members to promote trade opportunities. Article 22 permitted Members actively to market their products in a manner that did not impede trade or minimize the authenticity of geographical indications. The paper she had introduced encouraged Members to consider very carefully whether, on a cost/benefit analysis, extension of Article 23 to other products was, in fact, worth it. It was the co-sponsors' considered view that it was not. They would not like to see other Members signing on to change the current TRIPS rules that would not deliver the advantages that were claimed. 27.The Council took note of the statements made and agreed to revert to the matter at its next meeting.
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