Last week WTO intellectual property talks, on geographical indications became the latest to aim for an endgame spurt in early 2011 and a conclusion to the whole Doha Round by the end of the year.
According to the WTO news item released on 10th Dec 2010, members in an informal meeting, supported chairperson Darlington Mwape’s plan to produce the negotiating group’s first draft text by the end of the first quarter following a six-point sequence point by point — described as “elements” of the procedure for the register:
• notification — eg, how a term would be notified and which member would do it (also related to “participation”)
• registration — eg, how the system would be run and the WTO Secretariat’s role
• legal effects/consequences of registration, in particular any commitments or obligations on members arising from a term’s registration (also related to “participation”)
• fees and costs — including who would bear these burdens
• special treatment for developing countries (officially, “special and differential treatment”)
• participation — whether the system is entirely voluntary, or whether a term’s registration would have some implications for all WTO members.
The plan had already been discussed with a small group of key members on both sides of the debate in earlier consultations.
The news item reports that the timetable is designed to synchronize with plans for all subjects in the Doha Round, as outlined by WTO Director-General Pascal Lamy’s statement to ambassadors at an informal meeting of the Trade Negotiations Committee, which he chairs, on 30 November. This, in turn, was based on political declarations from the G-20 summit in Seoul and APEC meeting in Yokohama.
Mr Lamy noted “a collective sense emerging that revised texts in all areas of the negotiation will have to be developed so that they appear towards the end of the first quarter of 2011.”
All delegations said their preference would be for a process that is based on a text with input from members, and driven by the members themselves.
Topic by topic. Amb.Mwape said each of the six topics will be discussed in sequence with the aim of producing a single negotiating text under each heading before moving on to the next one. The text could include “bracketed alternatives and options” if members cannot agree on a single set of provisions.
The first topic, notification, will be discussed in consultations in the week of 10 January, followed by a meeting of the full membership. The schedule will be tight if the end-of-March target is to be met, he said.
It is reported that Amb.Mwape urged members to help the drafting move ahead by focusing on each topic, avoiding getting distracted by related issues, and to try to work among themselves to produce suitable drafts.
Meanwhile the following are the current alternate proposals on the table that the Members will be discussing:
• The Joint Proposal TN/IP/W/10/Rev.2 from Argentina, Australia, Canada, Chile, Costa Rica, Dominican Republic, Ecuador, El Salvador, Guatemala, Honduras, Japan, Rep.Korea, Mexico, New Zealand, Nicaragua, Paraguay, Chinese Taipei, South Africa, the US. This envisages the register as a database. Members would choose whether or not to participate in the register. The intellectual property authorities of participating members would consult the database when considering protection for individual trademarks or geographical indications within their countries.
• TN/C/W/52 of 19 July 2008, from over 100 WTO members, which includes a modified and stripped-down version of the EU’s original proposal for the multilateral register. It is now in the form of proposed “modalities” or a blueprint of the final outcome, with details to be negotiated later. Described as a negotiated compromise among the sponsors, the proposal envisages a system applying to all members although members could choose whether or not to register their own geographical indications.
All members would have to take a term’s registration “into account” and treat it as “prima facie” evidence (first sight, or preliminary, before further investigation) that the term meets the definition of a geographical indication. Further procedures for that term within each country would be handled entirely within the country’s domestic legal system. These include confirmation that the term is an eligible geographical indication, possible challenges, and whether it is subject to exceptions such as because the term is generic.
(Previously the EU had proposed that if a term is registered the assumption — the legal phrase is “irrebuttable presumption” — would be that it should be protected in all WTO members except those that have successfully challenged the term.)
Opponents of this proposal also object to the link with two other intellectual property issues: “extending” to all products the enhanced protection currently given to wines and spirits; and requiring patent applicants to disclose the origin of genetic materials and related traditional knowledge used in their inventions.
• TN/IP/W/8 from Hong Kong, China: if a term is registered, this would be preliminary (“prima facie”) evidence — which could be rebutted — about who owns the term, that it is protected in the country of origin, etc, but only in those countries choosing to participate in the system. Hong Kong, China also proposes an initial period of four years for this system followed by a review.
