Members Seek To Raise TRIPs Amendments In WTO Negotiations

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By William New
World Trade Organization members seeking changes to international rules on trade and intellectual property rights moved this week to include the debate on their proposals in an upcoming deadline for the broader trade negotiations at the WTO. But opponents continued to resist moving the issues to negotiation.

At issue is a proposal to raise the level of trade protection for geographical indications (distinctive products named for places) on a variety of products to the level already enjoyed by wines and spirits, and a separate proposal to require the disclosure of the origin of biological resources and traditional knowledge in patent applications.

Both proposals would require amending the 1995 WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). At a high-level consultation with WTO Deputy Director General Rufus Yerxa (on behalf of Director General Pascal Lamy) on 3 December, proponents put forward new papers calling for agreement to consider the IP negotiations in the broader trade talks as part of a “single undertaking.”

The new papers call on the upcoming WTO General Council meeting to accept the GI and biodiversity negotiations in a “horizontal modalities decision” on negotiating parameters being considered for late January or early February. This would allow continued negotiation on the details of the proposed TRIPS amendments under the broader talks covering issues such as agricultural and non-agricultural market access and services.

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The consultations on the GI extension and biodiversity issues comes under the “implementation” issues of the Doha Round of negotiations, described in Article 12 of the Doha Declaration (see below). The declaration from the 2005 Hong Kong ministerial stated under Article 39 that consultations should continue to try to resolve the issues.

The General Council meets on 18-19 December. At recent General Council meetings, Lamy has included in his report as chair of the Trade Negotiations Committee a brief reference that Yerxa held consultations and would continue to do so. It is possible this time that Lamy will mention the new proposals, sources said.

The GI and CBD groups at the consultation explicitly linked discussion on the two topics, sources said.

TRIPS Article 22 gives products with characteristics particular to a geographical location protection by allowing the rejection of trademarks on products that mislead consumers as to the place of origin. But members such as some in Europe feel this protection has been insufficient and may actually be causing a blurring of the distinction between the original products and variations from elsewhere since the latter must mention the original region on their labels.

So the proponents are seeking to extend the higher level of protection that is granted to wines and spirits under TRIPS Article 23. This would limit the use of GI-protected names only to those coming from the original region.

As an “element of flexibility,” as a proponent put it, existing exceptions to GI protection would be continued and adapted as agreed by all sides. The exceptions would not be rolled back, as may have been proposed in the past by Europe. The proponent stressed that the proposal does not introduce new concepts but rather brings the discussion into the same context as other negotiations. The details would be negotiated later, the source said.

On the biodiversity and traditional knowledge proposal, often referred to as the CBD issue for its relationship with the UN Convention on Biological Diversity, the proposal would establish an obligation for patent applicants to disclose the origin and include prior informed consent and access and benefit sharing with the affected communities.

The European Union, Norway and Switzerland have offered more limited variations on the developing country CBD amendment proposal.

Opponents of the GI extension have raised concern about its impact on the mandated GI register for wines and spirits. Proponents would like to have the register cover other products if extension is granted, but this would be up to all members to negotiate, a proponent said.

Opponents also appeared to have restated concern over possible “extra-territoriality,” the imposition of protection on other countries when one country protects a term and registers it in the system, sources said.

There are three groupings of members around these issues, according to sources. The “friends of geographical indications” includes the European Union, Guinea, India, Jamaica, Kenya, Kyrgyz Republic, Macedonia, Madagascar, Morocco, Pakistan, Sri Lanka, Switzerland, Tanzania, Thailand and Turkey.

The “disclosure group” includes Bolivia, Brazil, Colombia, Cuba, Dominican Republic, Ecuador, India, Peru, Thailand, the African Group, Least-Developed Countries group and other developing countries such as China.

The third group of countries opposes both proposals, with a few exceptions. Opposing the GI extension proposal are: Argentina, Australia, Canada, Chile, Costa Rica, New Zealand, South Africa, Taiwan, and the United States. Opposing the CBD proposal is: Argentina, Australia, Canada, Costa Rica, Japan, South Korea, New Zealand, Taiwan, and the United States. Japan and Korea do not oppose the GI proposal. Chile and South Africa do not oppose the CBD proposal.

The GI paper is considered a “Jobs” paper, which is unofficial but is in the WTO system and available to members. The CBD paper is technically a “non-paper,” but could be changed to a Jobs paper at some point, a source said.

William New may be reached at wnew@ip-watch.ch.

Doha Declaration
Work Programme
Implementation-related Issues and Concerns

12. We attach the utmost importance to the implementation-related issues and concerns raised by Members and are determined to find appropriate solutions to them. In this connection, and having regard to the General Council Decisions of 3 May and 15 December 2000, we further adopt the Decision on Implementation-Related Issues and Concerns in document WT/MIN(01)/W/10 to address a number of implementation problems faced by Members. We agree that negotiations on outstanding implementation issues shall be an integral part of the Work Programme we are establishing, and that agreements reached at an early stage in these negotiations shall be treated in accordance with the provisions of paragraph 47 below. In this regard, we shall proceed as follows: (a) where we provide a specific negotiating mandate in this Declaration, the relevant implementation issues shall be addressed under that mandate; (b) the other outstanding implementation issues shall be addressed as a matter of priority by the relevant WTO bodies, which shall report to the Trade Negotiations Committee, established under paragraph 46 below, by the end of 2002 for appropriate action.

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