Minutes of meeting
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Z.review of the application of the provisions of the section on geographical indications under article 24.21.The Chairperson recalled that, at the last meeting, the Council continued its detailed review of the experience and practice with the application of the provisions in the TRIPS Agreement on geographical indications. The Chair had encouraged Members to use the main headings in the Secretariat's summary paper (document IP/C/W/253) of the responses to the Article 24.2 questionnaire as a way of organizing the discussions and their contributions. He informed the Council that, since the last meeting, responses to the Council's questionnaire had been received from Estonia; these had been circulated in document IP/C/W/117/Add.22. 2.The representative of Australia said that her delegation welcomed the approach suggested by the Chair at the previous meeting for the Article 24.2 review to progress by working through the main section headings in the Secretariat's summary paper. At the Council's meeting in April 2001, her delegation had raised a number of questions and queries that had arisen from its examination of the information contained in the Secretariat's summary paper (document IP/C/W/253), in an attempt to enhance its own and other Members' understanding of the application of Section 3 of Part II of the TRIPS Agreement in national laws and the impact that this had on Australian right holders. For the Article 24.2 review to be as constructive and useful as possible, her delegation encouraged other delegations to delve more deeply into the information contained in the paper and to respond to the questions, comments and queries raised by Australia at the previous meeting. The use of this agenda item was an opportunity to raise any concerns arising from the information contained in the Secretariat's summary paper that any Members might have had so as to enhance the collective understanding of all Members. Her delegation hoped that Members would also address the questions concerning specific provisions of Section 3 of Part II of the Agreement, as set out in Australia's paper (document IP/C/W/211). That paper sought to engage Members in discussion of the underlying issues involved in the protection of geographical indications which Members should consider in the course of the Article 24.2 review. The paper posed specific questions in Section 7 which she suggested could be considered with reference to existing national systems and the strong interest expressed by some Members in better geographical indication protection. Addressing these questions would greatly assist Members in better understanding the application of Section 3 of Part II of the Agreement in national laws. She highlighted a few questions in Australia's paper in the hope that Members would look carefully at the paper. In relation to Article 22.1, Australia asked whether it was possible to claim geographical indication status for a term when the relevant consumer was not aware of any geographical connotation? In relation to Article 23.1, what did it mean for a geographical indication to identify a product? What practical limitations did this place on the use of a term which had descriptive qualities? How did this provision interact with Article 24.6 regarding descriptive terms and variety names? These questions were set out in order to bring about a broader understanding to the nature of this debate. 3.The representative of the United States responded to comments made by certain delegations at the previous meeting concerning the difference between trademarks and geographical indications. He said that, although trademarks generally identified products or services from a specific manufacturer, producer or service provider in order to differentiate those products from those of other manufacturers, producers or service providers, collective marks identified, among other things, products and services of associations, including those overseeing the use of geographical indications. He disagreed with the view expressed at the previous meeting that geographical indications were merely related to topographies, human work, climate or other factors and were therefore devoid of human creativity. There were a few situations in which the quality of a product resulted solely from its geographical origin, as in the case of certain semi-precious minerals that resulted from geological conditions. Even wood taken from trees particular to a certain region had to be carefully prepared to ensure that the best qualities of the wood were maintained and this required creativity as well as work. He reiterated that both trademarks and geographical indications were designations of source on which consumers came to rely in purchasing the products with which they were associated. Geographical indications that were registered as collective or certification marks would be entitled to border enforcement and criminal enforcement against trademark counterfeiting as provided for in Sections 4 and 5 of Part III of the Agreement, which were voluntary with respect to geographical indications that were not so registered. His delegation therefore believed that it was in the interest of the associations that oversaw the use of particular geographical indications to register them as collective or certification marks. The association or party overseeing the use of the geographical indication would be responsible for ensuring that the elements of the indication were in fact respected. Failure to do so, and to ensure the standards, would be grounds to challenge the registration of the geographical indication. He agreed with the view expressed by Australia at the previous meeting that the Article 24.2 review offered an opportunity to increase Members' collective understanding of the provisions of Section 3 of Part II of the Agreement through a systematic analysis of the application of these provisions in the domestic laws of Members as reflected in the Secretariat's paper summarizing these responses. Such a systematic analysis would bring about a clarification of Members' responses to the checklist since, as noted by the Secretariat in its summary, Members had, in some cases, interpreted questions differently. In order to gain a real understanding of the application of Section 3 of Part II, his delegation hoped that all developing country Members would provide responses to the checklist, as many already had. He offered the following preliminary observations and conclusions in relation to the Secretariat's summary paper, although he recognized that, at this stage, it was not complete. First, his delegation believed that the Secretariat had been wise in choosing the phrase "indication of geographical origin" rather than "geographical indication" throughout the summary for the reasons given. Members of the Council were sufficiently knowledgeable not to be confused by the use of the term, recognizing that not all indications of geographical origin conformed to the definition of geographical indication contained in Article 22.1. Review of the summary made it abundantly clear that, unlike other forms of intellectual property covered by Part II, there was tremendous diversity in the laws through which Members met their obligations under Section 3. The Secretariat's summary paper (document IP/C/W/253) showed that, even within categories of laws, diversity reigned. For example, under special protection provided by certain Members for geographical indications, some Members required that geographical indications receive prior approval and some did not. Table 2 showed that the special protection was provided by Members for geographical indications for different products. Members' responses revealed that in some cases production methods and product specifications were specified as a condition of use of a protected IGO, and systems existed for monitoring compliance with these requirements, while in other cases special protection for IGOs could exist without specifications of quality or reputation but rather with a focus on identifying products from a particular place. The Secretariat had noted that there was a diversity among even the qualifiers used by Members in describing the nature of the qualities that goods related to particular geographical indications must have to be entitled to protection. It was not clear whether that diversity represented a real difference in standards or just variations in terminology. The Secretariat's summary paper also pointed out that, with respect to such special protection regimes for geographical indications and enforcement of rights in such indications, some Members did not extend no less favourable treatment to the geographical indications of other Members, or they conditioned such extension on the other Member having equivalent special protection regimes. 4.The Chairperson recalled that, at the previous meeting, Australia had posed a number of questions under the headings of "Definitions and criteria for recognition" and "Procedures for recognition", including some questions specifically addressed to the European Communities, Switzerland and Turkey. 5.The representative of the European Communities said that, at the previous meeting, his delegation had responded to a number of questions posed by Australia. He had no additional information at the present meeting but would respond further at the next meeting. 6.The Council took note of the statements made and agreed to revert to the matter at its next meeting. |