David A Kirby  03/25/2009 10:37:26 AM  From  DB/Inbox:  David A Kirby

Cable 
Text:                                                                                                                                                       
UNCLASSIFIED
TELEGRAM                                           March 25, 2009


To:       SECSTATE WASHDC - ROUTINE

Action:   IO

From:     USMISSION GENEVA (GENEVA 257 - ROUTINE)

TAGS:     ETRD, USTR, WTRO

Captions: USDOC

Subject:  SPECIAL SESSION OF THE TRIPS COUNCIL MARCH 5, 2009

Ref:      None
_________________________________________________________________

Additional Addressees:
None

cc:
DEPT OF AGRICULTURE WASHINGTON DC
USDOC WASHDC
WORLD TRADE ORGANIZATION COLLECTIVE

Distribution:

TED2442
ACTION IO-00    

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                  ------------------46B7F3  251038Z /38    
R 251016Z MAR 09
FM USMISSION GENEVA
TO SECSTATE WASHDC 8207
INFO WORLD TRADE ORGANIZATION COLLECTIVE
DEPT OF AGRICULTURE WASHINGTON DC
USDOC WASHDC

UNCLAS GENEVA 000257 
 
 
EEB/TPP/MTAA FOR CRAFT 
PASS USTR FOR ROHDE 
USDA/FAS FOR ONA 
USDOC FOR ITA 
USDOC PASS USPTO FOR LOIS BOLAND 
 
E.O. 12958: N/A 
TAGS: ETRD WTRO USTR
SUBJECT:  SPECIAL SESSION OF THE TRIPS COUNCIL MARCH 5, 2009 
 
Summary:  This cable reports on the Special Session of the TRIPS 
Council held on March 5, 2009, for which there were two agenda 
items:  Negotiation on the establishment of a multilateral system of 
negotiation and registration of geographical indications for wines 
and spirits; and other business.  The session focused on responses 
by the EC to questions about its co-sponsored proposal (TN/C/W/52) 
that were answered informally in December, and requests by Members 
for further responses and clarification.  These questions dealt 
primarily with legal effects of the registration of a Geographical 
Indication, mandatory participation by all Members, administrative 
burdens and costs, practical effects of the register, special and 
differential treatment and the concept of priority.  The EC 
responded that whether a GI is protected in a country would be 
decided under that country's domestic regime; that participation 
would be mandatory for all Members (even those with no export market 
for wines or spirits) because eventually the higher level of 
protection accorded GIs for wines and spirits would be extended to 
other products; that the administrative burden and cost for 
implementing this system would be de minimis, both for the WTO and 
Members; and that special and differential treatment would be 
addressed after the key concepts were established.  As for the 
question from the United States on priority, the EC requested 
engagement in a bilateral dialogue to fully understand the concern. 
The EC did not respond directly to the questions related to 
practical effects of the Register.  India, China and Brazil stressed 
the importance of parallel treatment of extension and TRIPS/CBD. 
The Chair recalled that Members wished to intensify negotiations 
and, at the end of the session, asked that inter-sessional meetings 
be held; and that a formal Special Session be held after the next 
TRIPS Council in June.  End summary. 
 
The Chair announced at the beginning of the meeting that on March 2, 
2009, he consulted with about fifteen Member delegations and invited 
those not included in those consultations to make interventions, in 
informal mode, if they wished.  There being none, the Chair 
announced that the meeting would proceed in formal mode. 
 
He recalled that in the October 2008 Special Session Members 
requested discussion of technical issues.  At that time, the EC 
clarified that the TN/C/W/52 ("W/52") paragraphs 1 through 3 reflect 
the position of the EC and its co-sponsors on the GI Register for 
wines and spirits-(the sole mandate of the Special Session).  Then, 
in informal sessions of the Special Session, on December 4 and 5, 
2008, the EC verbally provided answers to questions from co-sponsors 
of the Joint Proposal and from Singapore; and subsequently provided 
written responses to these questions to all delegations by fax on 
February 25, 2009.  In response to the EC's request on March 2nd 
that additional questions to their responses be provided prior to 
the Special Session on March 5th, New Zealand and Canada submitted 
additional questions.   Australia, the United States, and other 
Joint Proposal co-sponsors noted that additional time would be 
needed to review fully the EC Responses but that preliminary 
reactions will be provided by or during the Special Session.  The 
Chair invited the delegations to have a full and wide-ranging 
discussion on legal effects of the registration of a Geographical 
Indication, notification and registration processes, and other 
elements. 
 
The EC (Luc Devigne) began by reiterating that the W/52 proposal is 
co-sponsored by 108 Members, who fully support the three paragraphs 
on the Register.  He commented that this is the only proposal that 
includes a development dimension-to which Canada later responded 
that the Joint Proposal does not need a development dimension 
because the proposal does not require mandatory participation by all 
Members.  Devigne answered questions that were initially answered in 
December 2008, by reminding everyone that legal effect would be 
determined within the framework of each domestic system-whether as 
an administrative process or a judicial one.  He also said that 
their proposal no longer includes an international opposition 
component-(which would have allowed interested parties to prevent 
inclusion of a GI on the register by the country of origin)-and that 
this provision was eliminated at Members' request.  Canada and 
Australia later asked how Members could be sure that the 
designations placed on the Register actually qualified as GIs. 
Additionally, what type of information would be required to show a 
designation was protected in the country of origin?  Further 
questions dealt with sub-appellations of origin. 
 
In response to what "rebuttable presumption" means in the context of 
W/52, Devigne said that if a designation is on the Register it is a 
GI as defined by Article 22.1; and it is left to the country where 
protection is denied to prove that it is not a GI-for example, 
because it is generic in the country where protection is sought.  He 
added that all the exceptions provided in TRIPS would still apply 
under the W/52 proposal; and that participation would be mandatory 
under the proposal. 
 
Canada, New Zealand and others said that they were interested in 
market and practical effects and pointed to areas where the EC's 
responses still did not clarify how their proposal would work in 
practice.  They also stressed that placing a greater evidentiary 
burden on countries where protection is sought defies existing 
jurisprudence by shifting the burden of proof.  Many co-sponsors of 
the Joint Proposal expressed their discomfort with the mandatory 
nature of W/52 and asked that co-sponsors of W/52 confirm that they 
support mandatory participation in the GI Register for wines and 
spirits, especially those who do not have an export market for these 
products.  The EC responded that the effect of their proposal is to 
facilitate the right holder's ability to protect its GI.  Devigne 
further noted that this proposal does not increase obligations of 
Members because there is already an obligation to protect GIs under 
TRIPS. 
 
Ecuador, Costa Rica and other co-sponsors of the Joint Proposal 
expressed concerns for developing countries; and also pointed out 
disregard for the basic tenet of territoriality.  El Salvador and 
Guatemala said that the system must be voluntary.  Australia said it 
views W/52 as a considerable administrative burden-requiring 
thousands of foreign GIs to be protected.  The question of what 
legislative, regulatory and other changes must be implemented to 
accommodate this proposal, needs to be explored as well.  Most 
importantly, W/52 essentially can result in granting monopolies to 
GI right holders on once-generic products, resulting in higher costs 
to consumers.  There is a need to see a fully-developed proposal; it 
is important for the details not to be left until later.  Chile 
supported all the statements of the Joint Proposal co-sponsors and 
asked for a legal text to be submitted by the EC making it easier to 
analyze and compare with the other proposals.  So much time has gone 
by since the EC has introduced this proposal; prior versions were 
"beyond the pale."  Chile reiterated that a voluntary system-as put 
forth in the Joint Proposal-is the best form of special and 
differential treatment for developing countries. 
 
The U.S. intervention repeated the concerns expressed by other Joint 
Proposal co-sponsors, including with respect to territoriality, 
legal consequences, concern regarding mandatory participation and 
the administrative burden and further requested clarification on how 
the EC proposal addresses the concept of "priority."  The question 
posed on the priority issue was whether placement of a GI on the 
Register conferred any date of priority.  The U.S. model was put 
forth explaining that in order to obtain a priority date in the 
United States, a party must file an application; use the designation 
in commerce that is regulated by Congress; or establish reputation 
as measured by the U.S. consumer.  Devigne left the room after the 
intervention; and when he returned to answer the intervention, he 
described the U.S. intervention incorrectly, including improperly 
attributing comments to the United Stated that were not part of the 
U.S. intervention, and based on these misstatements called the 
United States unsophisticated in its knowledge and claimed the 
United States is trying to make everyone adopt a trademark system, a 
position "the United States lost fifteen years ago."   The United 
States responded politely to the EC's response by explaining again 
the concept of priority and requested clarification on how the EC 
proposal would address the question of priority.  Devigne noted he 
could not answer the question and suggested the EC and the United 
States engage in a bilateral dialogue on the issue so that the EC 
could better understand the concept. 
 
Another question centered on how a GI would be removed from the 
register; which the EC said was up to the country of origin to 
decide.  As to questions concerning administrative burdens and 
costs, the EC said that all the remaining issues would be discussed 
after the key policy choices have been made.  However, Devigne said 
that administrative costs would be de minimis to the WTO and, as for 
national costs, since countries are already protecting GIs, there 
should not be a noticeable increase there either. 
 
As for W/52 co-sponsors, India referenced resumption of 
consultations with DG Lamy under the Hong Kong Declaration on issues 
of GI Extension and TRIPS/CBD.  China took issue with the points 
raised by the Joint Proposal co-sponsors and added that the issues 
of the Register, extension and TRIPS/CBD are politically and 
technically ripe and should be dealt with in parallel.   Brazil 
emphasized that parallel treatment of the Register, extension and 
TRIPS/CBD is essential. 
 
The Chair commented that the discussions have been excellent.  Under 
"Future Work," he proposed continuing technical work with 
capital-based experts at the next formal meeting in June on the 
margins of TRIPS Council.  He suggested engaging informally two or 
three times before then.  The EC fully agreed to inter-sessional 
meetings.  The United States and New Zealand asked the W/52 
co-sponsors to submit a formal written proposal to address the 
ambiguity of what is actually on the table; Chile said that although 
 
 
we cannot force the EC to submit a legal text, it would be helpful 
for developing countries.  Other requests included information about 
Special and Differential Treatment; discussion of the joint 
proposal; and how trading partners would implement the register 
within their national systems.  The Chair concluded the session 
announcing that the next Special Session will be held after TRIPS 
Council, on June 10, 2009. 
 
ALLGEIER