“WTO Must Not Be The Odd One Out” – Members Revive Talks On GIs, Genetic Resources

Members of a 2008 World Trade Organization coalition are trying to rekindle a negotiation to provide the same level of protection granted to wines and spirits to other geographical indications, and to grant intellectual property protection to genetic resources and traditional knowledge. The discussion might not make it to the December WTO ministerial, but the group hopes to open a “fresh window” for discussion.

The topic of a 17 October conference held at the WTO was “Fairness and Transparency in Intellectual Property Rights for an Inclusive International Trade: the Case of Geographical Indications, Genetic Resources and Traditional Knowledge.” It took place in the lead-up to the 20-21 October meeting of the WTO Council for Trade-Related Aspects of Intellectual Property Rights (TRIPS).

The event was co-sponsored by Brazil, China, the European Union, India, Indonesia, Nigeria, Peru, Switzerland, and South Africa, all members of a 2008 coalition of some 109 WTO members, a majority of the total membership of 164, known under the name of the W52 Group after the number of the document they submitted at the time.

The document suggested draft modalities for the establishment of a register of geographical indications for wines and spirits protected by any of the WTO members, and on the extension of the higher protection for wines and spirits to geographical indications for all products, including the extension of the register.

This catered to the members of the coalition favourable to GIs, such as members of the European Union.

The document also included draft language on an amendment to the TRIPS agreement to include a mandatory requirement for the disclosure of the country providing, or the source of, genetic resources and/or associated traditional knowledge in patent applications. This provision catered to the requests of many developing countries.

Among countries opposing those draft modalities at the time were Australia, Argentina, Japan, and the United States, referred to as the “joint proposal group,” which agreed only to discuss a non-binding register.

Since 2011, when cracks appeared in the coalition with countries submitting separate proposals, the W52 group had not been very vocal, according to sources.

WTO Cannot Ignore GIs, GR and TK Discussions, Group Says

Swiss Ambassador Didier Chambovey, opening the event, said the “WTO cannot and must not be the odd one out” when it comes to discussing the issues of geographical indications (GIs), genetic resources (GRs), and traditional knowledge (TK).

The 11th WTO Ministerial Conference, which will take place in Buenos Aires from 10-13 December, is an opportunity to consider the way forward on the three issues, Chambovey said, adding that the organisers were seeking to open a “fresh window” on the three topics.

Stefano Inama, chief of the Division for Africa, Least Developed Countries (LDCs) and Special Programmes at the United Nations Conference on Trade and Development, described UNCTAD’s strategy for LDCs regarding GIs. He said LDCs have a variety of traditional products generated by rural communities, and which belong to them. GIs could have the potential to diminish rural exodus, he said, and raise the price of products exported by LDCs.

UNCTAD conducted a number of case studies on countries and their particular production, such as Bhutan for rice, Ethiopia for coffee and honey, and Madagascar for pink rice. Challenges face the establishment of GIs, among which is the need to have a stable community of producers, which might be fragmented and not well organised, he said.

Establishing GIs also requires the involvement of several ministries, and Inama said there is a need for awareness-raising of what GIs are, because in the field there is a lot of misunderstanding of GIs. To be effective, GIs should be part of an overall strategy, he said, linked to trade promotion and aid for trade.

China, Cambodia Keen on GI Protection

Fan Ye of the Chinese Ministry of Commerce detailed the GI protection in China, through different legislations under the Ministry of Agriculture, the State Administration for Industry and Commerce (SAIC), and the General Administration of Quality Supervision, Inspection and Quarantine (AQSIQ).

Some 2,159 agricultural GIs have been registered in China, he said, such as the Qianjiang lobster. The SAIC protects GIs through a trademark system. China also protects foreign GIs, such as Parma ham, Scotch whiskey, Bordeaux wine, and Mexican tequila, he said.

Xin Yao of the Chinese State Intellectual Property Office presented the efforts of the country to protect and manage its biological and genetic resources on the international scene, such as at the TRIPS Council and at the World Intellectual Property Organization. China also works at the national level with a number of government agencies involved in the protection of GR and related traditional knowledge, such as the Ministry of Environmental Protection, the Ministry of Agriculture, and the Forestry Bureau.

The aim of those efforts is to make full use of the IP system to grant protection to innovations based on GRs and associated TK, he said. Also part of the effort is the build-up of examination capacity and establishing defensive protection mechanisms to prevent the undue granting of IP rights such as patents, he added. A revision of the patent law of 2008 introduced disclosure requirement articles (Article 5.2 and 26.5).

Thay Bunthon, deputy permanent representative of Cambodia to the WTO and coordinator for the LDC Group, said the LDCs at the TRIPS Council had been focusing on the extension of the period during which LDCs do not have to comply with international rules of intellectual property rights protection. In 2015, the LDCs were granted a general extension until 2021 (IPW, WTO/TRIPS, 12 June 2013), and a particular extension for pharmaceutical products until 2033 (IPW, WTO/TRIPS, 6 November 2015). The group is now turning their interest to GIs, he said.

GIs, he said, could promote export and help build value chains, and they are different from other forms of IP, and belong to a community, he added. LDCs have a rich biodiversity and products which cannot be replicated. Cambodia has two GIs: Kampot pepper and Kampong Speu palm sugar, he said.

GIs can have a positive impact on local economic development, increase the price of goods, increase tourism, and help to increase quantities, improve the quality of products, and help develop product value chains, according to Bunthon.

CBD, WIPO

Beatriz Gomez of the UN Convention on Biological Diversity (CBD) secretariat explained the aims and functioning of the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity. The Nagoya Protocol now has 104 ratifications, with 26 countries in which the ratification process is underway, she said.

Very few mentions of IP rights appear in the Nagoya Protocol, she remarked. One is on benefit-sharing, for which joint ownership of IP rights is part of the possible way to share benefits.

Alexandra Grazioli, director, Lisbon Registry, Law and Legislative Advice Division, Brands and Designs Sector at WIPO, presented the two instruments managed by the organisation which deal with geographical indications: the Madrid System for the International Registration of Marks, and the Lisbon Agreement for the Protection of Appellations of Origin and their International Registration, and its new Act: the Geneva Act of the Lisbon Agreement on Appellations of Origin and Geographical Indications.

There are different ways of protecting GIs, she said, including sui generis legislation, trademark systems with collective and certification marks, administrative systems such as labelling, and legislation relating to anti-competition.

One of the new features of the Geneva Act is enhanced recognition of the different means of GI protection, she said. This is in particular in Article 10 (Protection Under Laws of Contracting Parties or Other Instruments). Another feature is the possibility of parties to request individual fees when requested to examine a new registration, in Article 7 (Fees).

Private Sector, Genetic Resources, GIs

The South African Red Dawn company discovered the high content of anti-oxidant in rooibos and honeybush and developed an alternative preservative to sulphur dioxide usually used in wine. The product can also be used to make beer.

According to Trevor Strydom of Red Dawn, the company registered a patent in 83 countries, but shared its IP with all South African wine producers.

Dawie Villiers, managing director of Cape Natural Tea Products, detailed the different uses of rooibos beyond tea, such as rooibos espresso, flavouring in the dairy industry, skin preparation, and herbal supplements. Villiers said discussions are ongoing with the TK holders in terms of the size of the benefit-sharing and which form it will take.

Emmanuel Nzenowo from Cameroon detailed the process for the development of the GI for Penja pepper. The project started in 2008 with a group of producers gathered in an association. They received support from the Organisation Africaine de la Propriété Intellectuelle (OAPI), the French Development Agency, and the French International Centre of Agricultural Research for Development.

Promotion and valorisation of Penja pepper was established through a traceability system and the construction of a center for processing and packaging the product. Getting a GI allowed the producers to ask for higher prices (almost tripled), he said, and to improve the product quality and packaging.

Over a few years, the number of producers and stakeholders increased (from about 30 producers to over 300 stakeholders including producers and retailers, as did the productivity (less than 50 tons produced, to more than 300 tons), the exports (less than 10 percent to more than 30 percent), and the cultivable surfaces (from 100 ha to 500 ha), which led to investment and job creation, he said.

TRIPS Council Special Session

The difficult issue of the international register for wines and spirits has been discussed in TRIPS Council special sessions.

Yesterday, after six years, the TRIPS Council Special Session reconvened in a formal meeting. According to a source, this meeting was aimed at preparing for the upcoming WTO Ministerial Conference.

According to the source, one of the questions posed to members was how they see the GI register negotiations continuing after the Ministerial Conference.

Countries did not agree on the utility of further meetings of the Special Session in preparation for the Ministerial Conference, but the chair said he would welcome any constructive suggestions on how to reflect the TRIPS Special Session negotiations in any ministerial outcome, the source said.

 

Image Credits: Catherine Saez