No Toast Yet To WTO Consensus On Wines And Spirits Geographical Indications

Mandated efforts to create an international register of geographical indications have risen in importance at the World Trade Organization in recent weeks. And as the pressure to produce negotiating texts for the Doha Round discussions climaxed this week, some dissonant notes were heard in the main negotiating group of countries on GIs.

Members met this week on the protection of GIs and mainly kept old positions, making a mandated agreement on a global register for wines and spirits GIs elusive. Brazil, India and some other countries broke the united voice of the so-called W/52 group (based on the document name of their 2008 proposal), which had gathered 109 WTO members, a majority of the WTO membership.

The group also includes European Union members, Switzerland, and most African countries, and was in favour of holding negotiations on establishing a binding international register for wine and spirits GIs, extending higher-level GI protection to other products, and requiring disclosure of the origin of genetic resources and traditional knowledge in patent applications. Wines and spirits GIs are granted a higher protection under Article 23 of the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).

A smaller number of opposing countries, such as Australia, Argentina, Japan and the United States, known as the joint proposal group, have agreed only to discuss the register, and do not agree that it should be binding.

The W/52 strategic alliance was built upon linking the mandated question of the register to the register’s extension to other products and the relationship between TRIPS and the UN Convention on Biological Diversity (CBD). Only the register has a mandate under the Doha Round of trade liberalisation talks. According to sources, Brazil and India found that not enough support has been given to the issue of disclosure of the origin.

Discussions on the GI register fall under a Special Session of the Council on TRIPS. The full WTO membership was invited to meet on 18-19 April to go through the latest version of a “composite text,” pulling together different earlier proposals, built through a series of meetings of a small drafting group of governments. Members were under pressure to complete the exercise by this week, as part of a larger push to conclude the Doha Round in 2011.

Chair Issues Report with Draft Text

Today, Darlington Mwape of Zambia, chair of the Special Session, issued a report on the negotiations, as did all other negotiating chairs preparing draft texts for the Doha Development Round. Those reports will be presented to the Trade Negotiations Committee on 29 April.

According to his report, “all delegations have made a genuine effort to find common language while defending their interests. The devil being in the details, I do believe that working on treaty language formulations regarding, the structure, operation and implications of the register has – for the first time – helped all delegations to have a clearer view of each other’s positions, proposals and wordings.”

The chair is confident that the draft composite text “provides a good basis on which to continue negotiations towards a multilateral system of notification and registration for geographical indications for wines and spirits.”

Chairman Mwape’s report includes the draft composite text, still heavily bracketed, and as it was agreed on 19 April, as an annex.

The joint proposal countries were opposed to the text being submitted to the TNC, in fear that this could reopen the issue of the mandate of the Special Session, according to a source. Some W/52 countries were in favour of submitting the text, as it would give it some strength, according to another source. In his report, the chair acknowledged the differences and said he felt “that it is not prejudicial to the outcome of this negotiation or to any delegation’s position if this text is attached as the factual representation of the state-of-play in this negotiating group.”

Formal meetings of the GI register negotiations may take place before or after the next regular TRIPS Council meetings on 7-8 June and 25-26 October, a source said.

The composite text was built on language representing the different positions of countries on the issue, and as a result, shows a number of brackets. At the beginning of March, the text included over 200 brackets (IPW, WTO/TRIPS, 4 March 2011). The version of the text [pdf] from which the delegates worked on 18 April still showed a number of areas of disagreement, with brackets attributed to the countries that asked for them. Some brackets have been cleared this week, which sources said were considered unimportant.

The composite text has been based upon six areas of discussions identified by Mwape. The six focal points were: notification, registration, legal effects and consequences of registration, fees and costs, special treatment for developing countries, and participation.

W/52 Coalition Shows Cracks

According to Brazilian and Indian officials, the W/52 group members had been trying to reach an agreement on a set of three common texts on the register, the extension to other products than wines and spirits, and the relationship between the TRIPS and CBD, concerning in particular the disclosure of genetic resources and traditional knowledge in patent applications. However, last week, no consensus could be found, they said.

One of the major interests for a number of W/52 countries to belong to this coalition is to treat the three issues in parallel, which members of the joint proposal do not, said sources.

The so-called joint proposal group, composed of countries such as the Argentina, Australia, Canada, Japan, Mexico, South Africa, and the United States, advocate a non-binding register and no extension of protection to other products than wines and spirits. They also refuse to discuss the CBD component in this round of negotiations.

Because an agreement could not be reached on the three W/52 texts, countries have tabled different papers on the three issues (register, extension, CBD). One is on the GI extension, and has been tabled by some W/52 members, not including Brazil, India and several other developing countries. Another paper on TRIPS/CBD [pdf] tabled by Brazil, China, Colombia, Ecuador, India, Indonesia, Peru, Thailand, the African, Caribbean and Pacific Group, and the African Group. It has not been sponsored by Switzerland, the EU or Turkey, Brazil and India said. This document proposes to amend the TRIPS agreement by inserting a new article on disclosure of origin.

Brazil never had a strong interest in GIs, the Brazilian official told Intellectual Property Watch. At this point, the three issues are being considered in isolation and, in this configuration, Brazil is not in favour of a strong register, he said. In the draft composite text, Brazil supported the brackets limiting the binding effect of the register. Brazil also now favours limiting the register to wines and spirits, as shown in the draft composite text. India, on the other hand, still supports extending the register.

An Indian official said the EU submitted a GI register text “on its own without taking India and others on board. The cracks in the W/52 coalition started appearing since then.”

According to an EU source, the coalition is still very much alive. The EU feels it has already downsized its ambitions on the issue, by agreeing to a tone-downed version of a 2005 proposal to rally a broader span of countries in 2008, the source said.

China supported the extension to geographical indications to other products, according to a Chinese official. According to a source, Israel joined the joint proposal group.

Lamy Reports on Extension and CBD

Reports were issued from WTO Director General Pascal Lamy, on whose behalf informal consultations were held, on the register extension and on the relationship between the CBD and TRIPS. According to the document, no convergence was found on the specific question of extension of Article 23 protection to all products. During discussions, “it was clarified that trademark systems were legitimate forms of protecting GIs, in line with the general principle that members are entitled to choose their own means of implementing their TRIPS obligation.”

On the CBD issue, the Lamy report said members “have agreed to the need to take steps to avoid erroneous patents, including through the use of databases, as appropriate, to avoid patents being granted on existing traditional knowledge or genetic resources.” However, members “continue to differ on whether the formulation and application of a specific tailored disclosure mechanism” would be useful and effective in “ensuring that the patent system promoted CBD objectives.”