The Future of TRIPS issues in the Doha Round

Transcription

1 The Future of TRIPS issues in the Doha Round (Geneva, 21st October 2008) Sergio Balibrea, Counsellor Delegation of the European Communities to the International Organisations in Geneva

2 1. TRIPS issues : the way towards TRIPS modalities : post-ur on GI Register 2001 : DDA mandate on GI Register, GI Extension and TRIPS/CBD : DDA work May-July 2008 : 100+ TRIPS coalition 17 July 2008 : draft modalities on TRIPS issues by 100+ coalition

3 : GI Register 1995 TRIPS Art (under heading "GIs") : "In order to facilitate the protection of geographical indications for wines, negotiations shall be undertaken in the Council for TRIPS concerning the establishment of a multilateral system of notification and registration of geographical indications for wines eligible for protection in those Members participating in the system. But no progress

4 2001 : DDA mandate on GIs and TRIPS/CBD Par 11 (under General chapeau and before listing all issues of the Doha Work Programme") : "we hereby agree to undertake the broad and balanced Work Programme set out below. ( ) : GI Register (Par 18, 1st sent., under TRIPS ) : "With a view to completing the work ( ) we agree to negotiate the establishment of a multilateral system of notification and registration of GIs for wines and spirits ( )". GI Extension (Par 18, 2nd sent., under TRIPS ) : issues related to the extension of the protection of GIs ( ) will be addressed ( ) in the Council for TRIPS pursuant to paragraph 12 of this Declaration + negotiations on outstanding implementation issues shall be an integral part of the [Doha] Work Programme. (Par. 12, under "Implementation ) TRIPS/CBD (Par. 19, under "TRIPs") : "We instruct the Council for TRIPS, in pursuing ( ) the work foreseen pursuant to paragraph 12 ( ) to examine, inter alia, the relationship between the TRIPS Agreement and the CBD + Par 12

5 : DDA work Friends of GIs (GI45, e.g. EC, China, India, Morocco, Pakistan, Switzerland, Tanzania, Thailand, Turkey...) : proposal on GI Extension (DCs!), principle of GI Register Friends of TRIPS/CBD (CBD76 e.g. ACPs, Africa Group, Brazil, China, India, Indonesia, LDCs, Pakistan, Peru, Thailand...) : proposal on TRIPS/CBD disclosure requir. Friends of both GI and TRIPS/CBD : no much overlap, just 11 Members (Barbados, China, Guinea, India, Jamaica, Kenya, Madagascar, Morocco, Pakistan, Tanzania, Thailand) Neutrals : most other WTO Members Opponents to TRIPS issues : small but vocal minority Hundreds of hours and of WTO Secretariat pages of work

6 May-July 2008 : 100+ TRIPS coalition 26 May : on process, 100+ call for Ministerial discussions on 3 TRIPS issues : «include these issues as part of the horizontal process in order to have modality texts that reflect Ministerial agreement on key parameters» 6 June : 8 against (US, Canada, Mexico, Chile; Australia, New Zealand; Chinese Taipei, Korea) 19 July : on substance, 100+ propose modalities on the 3 TRIPS issues. First such a coalition in IP negotiations.

7 Draft modalities on TRIPS issues TN/C/W/52 of 19 July: Albania, Brazil, China, Colombia, Ecuador, the European Communities, Iceland, India, Indonesia, the Kyrgyz Republic, Liechtenstein, the Former Yugoslav Republic of Macedonia, Pakistan, Peru, Sri Lanka, Switzerland, Thailand, Turkey, the ACP Group (57 members) and the African Group (40 members) + others joining later On process : similar to 26 May, Ministerial agreement on the key parameters On substance : proposed modalities on GI Register TRIPS/CBD disclosure GI Extension

8 2. GIs in TRIPS modalities GIs are IPRs protected by TRIPS They are important to - protect a high-quality product - protect a community of producers - protect age-old culture and traditions - protect the consumer from being misled

9 What is Parma Ham? Parma + crown Italian authentic! Italian flag It must be Italian

10 External Where Trade is this cheese from? Perfect Italiano Italian flag It must be Italian!!! Sold in Singapore

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13 and European Problem? BOURBON WHISKEY NO! Bourbon County, Kentucky, USA? Mexican Bourbon? Canadian Bourbon?

14 GIs in TRIPS modalities Result of a difficult negotiation with compromises by both sides Dramatic reduction in ambition to ensure support by a large majority Balance of interests Attention to burden & costs Modalities = key parameters at Ministerial level; Technical details later

15 GI Register Proposal, Par 1 Members agree to establish a register open to GIs for wines and spirits protected by any of the WTO Members as per TRIPS. Following receipt of a notification of a GI, the WTO Secretariat shall register the notified geographical indication on the register. The elements of the notification will be agreed.

16 GI Register Proposal, Par 2 Each WTO Member shall provide that domestic authorities will consult the Register and take its information into account when making decisions regarding registration and protection of trademarks and GIs in accordance with its domestic procedures. In the framework of these procedures, and in the absence of proof to the contrary in the course of these, the Register shall be considered as a prima facie evidence that, in that Member, the registered GI meets the definition of "geographical indication" laid down in TRIPS Article In the framework of these procedures, domestic authorities shall consider assertions on the genericness exception laid down in TRIPS Article 24.6 only if these are substantiated.

17 GI Register Proposal, Par 3 Text based negotiations shall be intensified, in Special Sessions of the TRIPS Council and as an integral part of the Single Undertaking, to amend the TRIPS Agreement in order to establish the Register accordingly.

18 TRIPS 1995 all products Definition for all GIs Art GI are ( ) indications which identify a good as originating in ( ) a region ( ) where a given ( ) characteristic of the good is essentially attributable to its geographical origin. Protection for all GI Art ( ) Members shall ( ) prevent: (a) the use of any means that ( ) suggests that ( ) [a] good ( ) originates in a geographical area other than the true place of origin in a manner which misleads the public ( ); (b) any use which constitutes an act of unfair competition within the meaning of Article 10bis of the Paris Convention (1967)" [Article 10bis reads : "(2)... contrary to honest practices ( ) (3) create confusion ( ) of a competitor; ( ) 3. ( ) allegations ( ) liable to mislead the public]

19 TRIPS 1995 wines and spirits Protection for wines and spirits "Art ( ) prevent use ( ) even [a] where the true origin of the goods is indicated or [b] the GI is used in translation or [c] accompanied by expressions such as "kind", "type", "style", "imitation" or the like. In these cases, objective evidence of unfair practice is sufficient; no need subjective proof of "misleading the public or unfair competition Wide exceptions in both cases to grandfather existing problems, notably via genericness and prior trademark/use

20 GI Extension - proposal Members agree to the extension of the protection of Article 23 of the TRIPS Agreement to geographical indications for all products, including the extension of the Register. Text based negotiations shall be undertaken, in Special Sessions of the TRIPS Council and as an integral part of the Single Undertaking, to amend the TRIPS Agreement in order to extend the protection of Article 23 of the TRIPS Agreement to geographical indications for all products as well as to apply to these the exceptions provided in Article 24 of the TRIPS Agreement mutatis mutandis.

21 All TRIPS issues - SDT Special and differential treatment shall be an integral part of the negotiations in the three areas above, as well as special measures in favour of DCs and in particular LDCs

22 Conclusions TRIPS issues firmly established in DDA negotiations. High political visibility. De facto part of single undertaking. Reasonable proposals acceptable by parties with very different interests TRIPS issues are part of the DDA solution, not part of the problem Issues will not go away and Ministers will tackle them at modalities