WTO Geographical Indications, Biodiversity Talks Intensify, But No News For TNC

Two days of World Trade Organization consultations this week on a proposal to extend high-level protection for geographical indications beyond wines and spirits did not bring resolution in time for the WTO Trade Negotiations Committee meeting on Tuesday, sources in Geneva said.

The same is true for discussions on proposals relating to biodiversity and the disclosure of origin of genetic material in patent applications. But there was an intensification of talks and progress in the meetings on both topics, according to participants.

Consultations were held on 21 and 23 March with member governments and WTO Deputy Director-General Rufus Yerxa, on behalf of the director-general. In both cases, consultations were inconclusive and more consultations are anticipated in the coming weeks or months.

“There are indications that people are intensifying,” Yerxa told Intellectual Property Watch. “But they remain deeply divided.” He said debate remains over whether there is a mandate for the WTO to negotiate on the extension of GI protection. All agreed to intensify consultations, however, he said, calling the debate “quite lively.”

Yerxa must report to Director-General Pascal Lamy, who must report to the Trade Negotiations Committee (TNC), which is driving overall talks under the current WTO negotiating round. The report to the TNC is expected to be factual, not reflecting completion, sources said. Lamy also must report the General Council, which is scheduled to meet at least once, in May, before the July deadline for all issues in the round.

Several sources said political will is needed to reach a compromise in these areas, and that the intellectual property rights issues are tied to progress in other areas, such as agriculture. This means that an agreement on IP issues could come quickly if a breakthrough occurs in the other areas, they said.

Geographical indications are terms for products, usually food, with certain qualities and deriving from a specific location, such as Bordeaux wine (which is named for a region in France). Most are protected under Article 22 of the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), while wines and spirits receive higher-level protection under Article 23 of TRIPS.

There is a mandate for a GI register, a related issue being addressed in the WTO TRIPS Council (IPW, GIs, 17 March 2006). There is concern by some that the register would provide an automatic right for any country that files for a GI, especially if the stronger protection is extended beyond wines and spirits.

Extending the Extension Debate

On the extension, debate is being guided by a secretariat-drafted list of questions. So far, discussions have covered: general points; protectable subject matter; impact on producers within the GI region; impact on producers outside the region. Still to come is: impact on trademarks; impact on GIs from different locations with same names; impact on consumers; and costs and burdens of procedures.

The European Union and Switzerland continued to defend their proposal for extension against concerns that it would have a harmful commercial impact on agricultural markets outside of Europe in particular. Australia has taken a lead role in opposition, and an Australian delegate argued that third market producers would need to lodge reservations to decline protection to a GI notified elsewhere if the term is used generically in the third market. Even then, it would have to enter into bilateral negotiations to defend the decision if challenged.

“How would the result not be de facto and near-universal protection of Europe’s GIs at the expense of non-EC producers, particularly exporters in third markets who will have to bear the costs of relabelling and remarketing their products?” the Australian delegate asked.

Questions also were raised about whether the impact would be positive on developing countries. Europe has argued that developing countries should seek to move quickly to secure their GIs before they become generic terms in other countries, as has happened to numerous EU terms, one participant said. Several developing countries see the reasoning, such as India, which raised Basmati rice and typical dress called saris, and Sri Lanka, which says its Ceylon tea is now being produced elsewhere.

The list of “Friends of GIs” has grown to 30 countries in addition to the 25-nation European Union. These include Switzerland and several prospective EU members, but also reach to all other regions, such as China, Egypt, India, Jamaica, Kenya, Nigeria, Pakistan, Sri Lanka, Thailand, and Venezuela.

The term “parmesan” cheese provided a point for discussion for governments. Australia argues that the term is used generically there and in New Zealand, as it covers products with a range of brands and prices, and they are concerned about their ongoing ability to export their production of it under extension. Switzerland, by contrast, would see the generic term as “extra hard cheese” of which parmesan is a particular type bearing particular characteristics and originating from one place. It would see the Australian argument as insisting on “extra-territoriality” of the generic term, while Australia and others have argued their concern about the extra-territoriality of the EU proposal for GI protection. A similar debate arose over feta cheese, a soft cheese, sources said.

Another argument made by Switzerland is that under the normal protection of Article 22, an owner of the GI such as Basmati rice (India), must prove that the consumer is being misled by the similarly named product from outside the GI region. But this can be difficult if say, the Basmati rice says clearly on the package front, “from the United States,” a Swiss official said. Elevating protection to Article 23 would eliminate the need to prove this, the official said.

At the higher level, a developing country official said there remains uncertainty for many as to how much to give to the European Union on GIs when it is unclear how much will be gotten back in agriculture in exchange. The GI talks, the official said, are “fluid, based on power politics,” and could come together quickly if everything gels at once.

He described the consultations as a method for “diagnostics,” a place to check that each key country’s position has not changed. Delegates look for movement on the part of any other government. This can be signalled if a delegation that typically states its position suddenly becomes quiet, he said.

Diversity of Views on Biodiversity?

On the protection of biodiversity and traditional knowledge, there is a mandate from the December Hong Kong ministerial meeting to intensify discussion of these issues, and according to sources this has taken place.

A centrepiece for these discussions is an examination of the relationship between TRIPS and the Convention on Biological Diversity. Yerxa held consultations on the so-called CBD issues on 23 March, and will put forward a “factual” report to Lamy, sources said. Yerxa anticipates further consultations before the May General Council, and urged all participants to have discussions on their own, one participant said.

According to sources, a push continues from India and Brazil to launch negotiations for a TRIPS amendment for disclosure of origin based on a text. “We need to start text-based discussions by April,” an Indian delegate told Intellectual Property Watch. “If not, they need to come tell us why there is no negotiation.” The United States continues to oppose working from a text, but the Indian delegate said, “Opponents are really getting on their back foot,” meaning they are increasingly being forced to defend their resistance to a text.

According to a participant, on 23 March, China spoke and signalled support for text-based discussions to begin. Brazil presented statistics that showed the majority of biotechnology patents are in developed countries, with some 70 percent of all in Switzerland. Peru supported the text-based approach and countered a US argument that there is a wide divergence of views among members. Peru said a large majority support disclosure requirements, while the United States argued that proponents would not only not achieve their objectives through such requirements, but would actually have a negative impact on their benefit-sharing. The United States generally favours contract-based arrangements at the national level.

Some participants have watched with interest the relationship between the GIs and CBDs. For instance, the proponents of each tend to take a softer approach on the other issue in order to minimise objections to their own issues. For instance, the European Union continued to signal a willingness to discuss the TRIPS amendment on disclosure, though it called for a clearer definition of traditional knowledge. On the other hand, Brazil, which says it stands to lose economically from the GI extension, has taken a fairly neutral stance on it.

A further relationship of interest to some is that of India and Brazil. They are the drivers of the proposal for disclosure of origin at the WTO and are strongly aligned in pushing for development issues at the World Intellectual Property Organization. But they differ on GIs, as India is strongly in favour of the extension while Brazil is lukewarm. Representatives of both governments and others downplayed the difference, however.

Turnout for the consultations was rather low, with mainly the chief players in each debate attending, sources said. Smaller economies such as from Africa were particularly under-represented, they said.