Trade-Off With WTO Geographical Indications Register Still In Question

A meeting on 16 September of the World Trade Organization committee responsible for intellectual property rights saw little progress on the issue of a creating a register for geographical indications for wines and spirits, according to sources in Geneva. But it did see a new paper from the secretariat that compares the three leading proposals on the issue side by side, aimed at helping negotiators work through the issues.

Geographical indications (GIs) refer to naming rights for product names generally derived from places. The GI register proposal is tied to other issues, such as agriculture, at the WTO in the negotiations before the December ministerial in Hong Kong. GIs fall under the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).

At issue is a proposal to establish a multilateral system for notification and registration of GIs for wines and spirits, as called for under Article 23.4 of TRIPS. Such products already have special protection under WTO rules. A separate effort is underway at the WTO to extend that GI protection to other products.

A source familiar with the 16 September meeting said it was more “business-like” than the June meeting, allowing a more thorough examination of the EU proposal from June, and with the sides presenting their arguments without the kind of “explosion” seen in June. Those pushing for a mandatory register argue that if they had wanted a voluntary agreement, they “could have just gone to the World Intellectual Property Organisation,” but that they “wanted something new and different,” the source said. The debate is over the mandate inherent in the TRIPS article.

Debate in the latest meeting centred on the legality of registration based on these variations on mandatory versus voluntary, sources said. The joint proposal countries held the view that the registry would have legal effect on countries that chose to participate, while the European Union said it apply to all members. According to sources, the legal arguments to support the position of both sides are deepening but so far to no avail.

The next meeting on the issue will take place during the week of the 27-28 October TRIPS Council meeting. In the meantime, the chair will hold consultations, including on how this issue fits into the Hong Kong ministerial.

The new paper from the secretariat (Document symbol TN/IP/W/12) compares a proposal from Hong Kong (TN/IP/W/8), a proposal from the European Union (TN/IP/W/11), and a joint proposal from Argentina, Australia, Canada, Chile, Dominican Republic, Ecuador, El Salvador, Guatemala, Honduras, Japan, Mexico, New Zealand, Taiwan and the United States (TN/IP/W/10).

There are several key differences in the proposals. For instance, Europe would like to amend the TRIPS Agreement and make registration mandatory. The joint proposal would not amend TRIPS and would make registration voluntary by encouraging the use of a database of registered items. Europe’s proposal argues that the reference to “multilateral” in TRIPS Art. 23.4 requires the name to be protected in all other WTO member countries unless they have a reservation for a certain period of time. The Hong Kong proposal falls between, providing some protection for registered items across all members who choose to participate.

In a June meeting, some members accused the European Union of going beyond the scope of the negotiation by including a proposed extension of the protection for wines and spirits to other products. An EU official explained at that meeting that the EU intended only to discuss the part of its broader proposal that referred to the registry. He also said their proposal addressed two key previous stumbling blocks: trademarks and costs.

Where’s The Trade-Off?

In June, the meeting chair said he saw no progress toward consensus and that any progress “would require significant new flexibility.” That flexibility did not appear at the 16 September meeting, as some governments indicated they were not ready to consider the GI register as a trade-off for further liberalisation of the EU agriculture regime, according to the source familiar with the meeting.

It remains unclear what role the GI register will have in Hong Kong. “There was a bit of shadow-boxing” on broader negotiating links at the meeting’s end, but the real negotiating may have to wait for more senior levels, the source said.