The outgoing chair’s draft report on progress at the World Trade Organization toward establishing a mandated register for geographical indications praises recent work and sees hope for convergence on outstanding issues such as legal effects and participation, according to a copy obtained by Intellectual Property Watch. But it details key differences on the issues that remain.

Barbados Ambassador Trevor Clarke, who next week will move to become an assistant director general at the World Intellectual Property Organization, met informally on 20 November with members in the latest special session on the GI register for GIs on wines and spirits.

Clarke prepared a 19 November draft report [pdf] detailing progress made since he took over special session chairmanship in October 2008. The sessions are associated with the WTO Council on Trade-Related Aspects of Intellectual Property Rights (TRIPS). A final version of Clarke’s report will be submitted for a formal meeting on 27 November, on the eve of the 30 November to 2 December WTO ministerial in Geneva. Members do not need to approve the report as it is accepted as the chair’s, according to sources.

Member comments from 20 November will be taken into account for the final version, but participants said Clarke’s report is not expected to change much. A broader issue that continues to raise concern is whether there can be any link between the special session activity on the register, and two other TRIPS-related issues being sought for inclusion in the current WTO round of negotiations.

Those issues are the extension to other products of the high-level protection given to wines and spirits, and a requirement for the disclosure of the origin of genetic resources in patent applications. The latter arose at WTO under a TRIPS Council mandate to compare TRIPS with the UN Convention on Biological Diversity (CBD). A group of “new world” countries have so far prevented the negotiation in the Doha Round of the GI extension and CBD issues, though some 110 WTO members have asked for their inclusion under document TN/C/W/52.

No breakthroughs on differences occurred at the 20 November discussion nor are likely this week, according to participants. The register was mandated at the 2001 Doha ministerial.

EU Fault Line

Friction appeared to arise last week over the position of the European Union, the 27-nation group represented by the European Commission at the WTO. For a long time, several EU members, like France, Italy and Spain, have been the strongest proponents of greater GI protection, while more northern countries like Germany and the United Kingdom, agree but are not are strongly seeking it. The proponents, who have been joined by countries like Switzerland in attempting to move the issue forward, have agreed to support linking GI extension to CBD – at least to allow negotiation on both.

But where a fault line appears to be is whether the EU is doing enough to encourage the link between the GI register issue and the GI extension and CBD issues, according to sources. The EU was put on the defensive recently for having focussed most on the register, where some proponents of linkage have put more emphasis on the other two. But the EU continues to support linkage, it just is using its limited meeting time to address the register first, according to an EU supporter.

Kindling Convergence

Meanwhile, the chair’s draft report said the past year’s discussions focussed on a list of questions about legality, significance, voluntary or mandatory participation, and special and differential treatment were “extremely useful.”

“With respect to the consequences/legal effects of registration, in my view there seems to be scope for convergence on the expectation that consulting the information on the register would include taking that information into account “when making decisions regarding registration and protection of trademarks and geographical indications” in the relevant domestic procedures,” Clarke wrote. Differences remain, however, “as to what significance and weight should be given to the information on the register.”

On special treatment for smaller economies, Clarke said members see such treatment embodied in a voluntary register but hold that rules on treatment should be left for after the register’s main elements are agreed.

The chair’s draft did not take any strong positions on future work but offers five guiding principles for future work. These include: that the register’s purpose is to facilitate wine and spirit GI protection; the register should be “useful and meaningful” to notifying and consulting members; that IP rights should be valid only in the territory for which they have been established; the register should not add financial or administrative burdens to members; and special and differential treatment should be “precise, effective and operational.”

It remains to be seen when and how the mandate and the other issues will be resolved.