RESTRICTEDWORLD TRADE
ORGANIZATIONIP/C/M/36/Add.1
10 September 2002
(02-4741)
Council for Trade-Related Aspects
of Intellectual Property Rights
MINUTES OF MEETING
Held in the Centre William Rappard
on 25-27 June 2002
Addendum
Chairman:  Ambassador Eduardo Pérez Motta (Mexico)
The present document contains the record of the discussion which took place on agenda
items A, B and D-Q during the TRIPS Council meeting held on 25-27 June 2002.  The discussion on
items C(i) and (ii) concerning paragraph 6 of the Doha Declaration on the TRIPS Agreement andPublic Health and the extension of the transition period provided for in paragraph 7 of the Declaration
is recorded in document IP/C/M/36.
Subjects discussed     Page Nos
A. N OTIFICATIONS UNDER PROVISIONS OF THE AGREEMENT ........................................................2
(i) Notifications unde r Article 63.2.......................................................................................2
(ii) Notifications under Articles 1.3 and 3.1 ..........................................................................3
(iii) Notifications under Article 69..........................................................................................3
B. R EVIEW OF NATIONAL IMPLEMENTING LEGISLATION ...............................................................3
(i) Follow-up to review s already und ertaken........................................................................3
(ii) Reviews of legislation of Qatar and of Saint Vincent and the Grenadines......................6
(iii) Arrangements for future reviews......................................................................................7
D. I SSUES RELATED TO THE EXTENSION OF THE PROTECTION OF GEOGRAPHICAL
INDICATIONS PROVIDED FOR IN ARTICLE 23 T O PRODUCTS OTHER THAN WINES
AND SPIRITS ............................................................................................................................... .9
E. R EVIEW OF THE PROVISIONS OF ARTICLE 27.3(B)...................................................................44
F. R ELATIONSHIP BETWEEN THE TRIPS A GREEMENT AND THE CONVENTION ON
BIOLOGICAL DIVERSITY ...........................................................................................................49
G. P ROTECTION OF TRADITIONAL KNOWLEDGE AND FOLKLORE .................................................49
H. R EVIEW OF THE IMPLEMENTATION OF THE AGREEMENT UNDER ARTICLE 71.1 ......................59
I. I MPLEMENTATION OF ARTICLE 66.2 .........................................................................................60
J. N ON-VIOLATION AND SITUATION COMPLAINTS .......................................................................62
K. E LECTRONIC COMMERCE ..........................................................................................................63IP/C/M/36/Add.1
Page 2
L. O THER OUTSTANDING IMPLEMENTATION ISSUES (TIRETS  93 AND 94 AND A
PROPOSAL BY LDC S ON THEIR TRANSITION PERIOD )..............................................................63
M. R EVIEW OF THE APPLICATION OF THE PROVISIONS OF THE SECTION ON
GEOGRAPHICAL INDICATIONS UNDER ARTICLE 24.2 ...............................................................64
N. T ECHNICAL COOPERATION AND CAPACITY -BUILDING ............................................................66
O. I NFORMATION ON RELEVANT DEVELOPMENTS ELSEWHERE IN THE WTO...............................66
P. O BSERVER STATUS FOR INTERNATIONAL INTERGOVERNMENTAL ORGANIZATIONS ...............67
Q. O THER BUSINESS ......................................................................................................................69
1. The Council adopted the agenda for the meet ing with the follow ing understandings:  first, that
the Council would ensure that all mandates relevant to each agenda item were met;  second , that this
was done within the specified time-frames;  and third , that the Council would ensure an equitable
sharing of the time between the different agenda items.
A. NOTIFICATIONS UNDER PROVISIONS OF THE AGREEMENT
(i) Notifications under Article 63.2
- Notifications from Members whose transitional periods under Article 65.2 or
65.3 expired on 1 January 2000 or acceded to the WTO after that date
2. The Chairman drew the attention of Members to the Secretariat's note reflecting the status of
the notifications received from the Members whose transitional period under Article 65.2 or 65.3
expired on 1 January 2000 or who had acceded to the WTO after that date (JOB(02)/64).  It showed
that, out of the 79 Members in question, there were seven who had not yet submitted any notificationconcerning their implementing legislation.  No tifications from a number of other Members were
incomplete.  Recalling that pursuant to Article 63.2 of the Agreement the notifications of the laws and
regulations in question were generally due as of 1 January 2000, he urged these Members to submit
the outstanding material without delay.  He also urged them, if not all the material to be notified was
ready yet, to submit whatever could be notified now and complement the notification as soon as otherparts of the material to be notified were ready for submission.  He reminded delegations that, under
the Agreement Between the World Intellectual Property Organization and the World Trade
Organization and decisions taken by WIPO's Gove rning Bodies, the International Bureau of WIPO
was in a position to assist delegations with the translation of their main dedicated intellectual property
laws and regulations, as required.
- Notifications from other Members
3. The Chairman said that Bangladesh had informed the Council about the enactment of a new
Copyright Act in line with the TRIPS Agreemen t, and stated that after some further minor
amendments, the English version of the Act and the rules thereon would be available for notification
(document IP/N/1/BDG/1).  Furthermore, he inform ed the Council that, since the previous meeting,
notifications of amendments to legislation notified earlier had been received from Canada, Costa Rica,
the Kyrgyz Republic and Tunisia.  These notifications would be available in the IP/N/1/- series ofdocuments.
4. The representative of Canada said that the notification that her delegation had just submitted
contained, in addition to the copies of the texts of amending laws and regulations, explanatory
background notes for each as well as other supporting documentation such as website addresses for
further information.IP/C/M/36/Add.1
Page 3
5. The representative of China said that his delegation had notified its main dedicated laws
relating to the TRIPS Agreement.  He expected that responses to the Checklist of Issues on
Enforcement would be submitted to the Council in the next few weeks.
(ii) Notifications under Articles 1.3 and 3.1
6. The Chairman informed the Council that, since the previous meeting, Chinese Taipei had
notified under Article 3.1 of the TRIPS Agreement that it was availing itself of the possibilities
provided in Article 6 of the Berne Convention as incorporated into the TRIPS Agreement
(subsequently circulated as document IP/N/2/TPKM/1).
(iii) Notifications under Article 69
7. The Chairman informed the Council that, since the previous meeting, new notifications of
contact points under Article 69 of the Agreement had been received from Bangladesh, Chinese Taipei,
Georgia and Grenada as well as updated information from the delegations of the Brazil, Cuba, Egypt,Israel and the Philippines (subsequently circulat ed in document IP/N/3/Rev.6/Add.1).  There were
now 114 Members who had notified contact points under Article 69.
8. The Council took note of the statements made.
B. REVIEW OF NATIONAL IMPLEMENTING LEGISLATION
(i) Follow-up to reviews already undertaken
- April 2001 review
9. The Chairman recalled that, at the previous meeting, it had been noted that five Members
whose reviews had been initiated in June 2001 had questions outstanding.  Since then, Cameroon and
Grenada had provided responses to most of the outstanding questions (documents IP/C/W/302/Add.1
and IP/C/W/301/Add.1, respectively), but there were still a few initial questions posed to theseMembers that remained to be responded.
10. No other further responses had been obtained since the last meeting.  Congo still had some
outstanding initial and follow-up questions and Suriname some follow-up questions.  Guyana had not
yet provided responses to any initial questions.
11. He said that the Secretariat had received answers to all questions, including follow-up
questions, from Namibia (document IP/C/W/248 and addenda), and proposed that the review of the
legislation of Namibia be deleted from the agenda, it being understood that any delegation should feel
free to revert to any matter stemming from this review at any time.
12. The Council so agreed.
- June 2001 review
13. The Chairman recalled that, at the previous meeting, it had been noted that nine Members
whose reviews had been initiated in June 2001, had initial or follow-up questions outstanding.  Since
then, Albania and the United Arab Emirates had provided responses to all questions, including follow-
up questions, posed to them (documents IP/C/W/267/Add.3 and IP/C/W/291/Add.3, respectively).
14. The representative of the United Arab Emirates said that, as for all WTO Members, it had
been necessary for his country to undertake legal reforms to cope with the commitments arising from
its WTO membership and to align the its intellectual property legal system with the provisions of theIP/C/M/36/Add.1
Page 4
TRIPS Agreement.  The reform had meant not only amending already existing provisions but also
introducing new rules, especially with regard to patent and copyright laws.  This and other
considerations of more constitutional nature had delayed the alignment of its laws with the TRIPS
Agreement.  The federal nature of the UAE and the need for more coordination at various levels had
contributed to this delay.  In spite of this s ituation, the UAE had begun its review at the Council's
meeting in June 2001 by providing the Council with answers to questions posed by Canada, Japan, the
European Communities, Switzerland and the United States (documents IP/C/W/291 and addenda 1-3).
The review had been undertaken on the basis of the already existing laws, namely the Patent and
Designs Law, the Trademarks Law and the Copyright and Neighbouring Rights Law.  The review had
also taken fully into account the amendments foreseen  at that stage to be introduced to these laws.
15. He said that the internal process of the UAE had been concluded and it stood ready to provide
the WTO with the three laws as amended, finalized and approved by the UAE legislative authorities atboth local and federal levels.  It only remained for the three bills, namely the Trademarks Law, the
Patent and Industrial Designs Law and the Copyright and Neighbouring Rights Law, to receive the
constitutional approval of the highest authority in the UAE, which was expected very soon.  The
approved amendments were designed:
- to restructure the legal texts being amended so as to introduce clearer technical and juridical
language in keeping with the current international terminology;
- to adapt the substantive provisions of the already existing laws to the TRIPS Agreement with
regard particularly to patents, industrial designs and copyrights;
- to introduce new terms of protection as stipulated by TRIPS provisions while keeping longer
periods where it was the case before implementing the TRIPS commitments such as for
trademarks;
- to enhance enforcement measures, including administrative, judicial and customs procedures
and bolster the powers of competent authorities especially as regards preventive and border
measures;  and
- to extend patent protection to new technological fields as well as to streamline and precise the
definitions regarding copyrights, so as to align the UAE intellectual property with the TRIPS
provisions.
16. Concluding, the representative of the United Arab Emirates said that he believed that the
amended laws reflected in full the TRIPS provisions and that his country would spare no effort to
cope with its obligations and enhance its intellectual property system.
17. The Chairman proposed that the reviews of the legislation of Albania and the United Arab
Emirates be deleted from the agenda, it being understood that any delegation should feel free to revert
to any matter stemming from this review at any time.
18. The Council so agreed.
19. The Chairman said that the Secretariat had just received responses to all remaining
outstanding questions from Oman, which had not yet been circulated to all Members (subsequently
circulated as document IP/C/W/282/Add.4).
20. No responses to initial questions had been rece ived from Mauritius, and from Saint Kitts and
Nevis.  The authorities of Saint Kitts and Nevis had informed the Secretariat that they would provide
responses to all questions posed to them by the end of this year.  In addition, some initial andIP/C/M/36/Add.1
Page 5
follow-up questions remained outstanding from Egypt and Fiji, and some follow-up questions were
outstanding from Kenya and the Philippines.
21. The representative of Mauritius said that the questions raised concerning the legislation of
Mauritius by few Members were all related to Mauritius' old laws.  His delegation had had extensive
consultations with the concerned delegations.  He expressed his gratitude to them for their valuableguidance and advice.  He added that his delegation had also consulted the Secretariat and that it had
been informed that it had taken care of all the issues that had been raised.  These issues had been duly
factored in the new draft legislation, which took care of all the queries that had been raised.  Copies of
the legislation had been circulated to all Members.
1  Since then, Mauritius had taken active steps and
was pleased to report that its new legislation was now before Parliament, having already gone through
the first reading.  The work of Parliament was expe cted to be completed by the late July or early
August.  Arrangements would then be made to provide the revised laws on TRIPS in due course to allMembers and the Secretariat.  He expressed his hope that this explanation would now set to rest the
questions raised and that the matter could be closed once the new laws had been circulated to
Members.
22. The representative of Kenya said that her delegation would be in position to submit the
remaining responses before the next meeting.
23. The representative of Egypt said that he expected to be able to provide responses to the
outstanding questions before the next meeting.  New legislation had been passed by Parliament two
weeks prior to the present meeting.  This would expedite the process of finalizing the review.
24. The representative of Switzerland noted that his delegation had not yet received responses to
the initial questions it had posed to Argentina.  At the time when these questions had been submitted,
Argentina had indicated that it could not provide responses since the issues raised in the questions
were under consultations between the United States and Argentina.  Referring to document
WT/DS171/3,2 he noted these consultations had now resulted in a mutually agreed solution.  He said
that his delegation was looking forward to receiving responses to the questions it had posed in due
time.  Furthermore, he thanked Oman and the United Arab Emirates for their responses and said thathe would study them in detail and, if neces sary, come back with follow-up questions.
- November 2001 review
25. The Chairman said that, with respect to the November 2001 review, responses to all
outstanding initial and follow-up questions had been received during the previous meeting or since
then from Antigua and Barbuda, Barbados, Brunei Darussalam, Gabon, Ghana, Sri Lanka, Thailand,
Tunisia and Uruguay.  These responses had been circulated in documents IP/C/W/317, 325, 318, 338,
343, 324, 319, 331 and 330, respectively, and in addenda to these documents.  He proposed that that
the review of the legislation of these Members be deleted from the agenda, it being understood that
any delegation should feel free to revert to any matter stemming from this review at any time.
26. The Council so agreed.
27. The Chairman said that also Malaysia had provided, since the previous meeting, responses to
all outstanding questions.  They had been circulated in addenda 1 and 2 to document IP/C/W/327.
Responses to the last outstanding questions had not yet been circulated to Members (subsequently
circulated as document IP/C/W/327/Add.3).
                                                     
1 See document IP/N/1/MUS/1.
2 See also paragraph 280 below.IP/C/M/36/Add.1
Page 6
28. No responses to initial questions posed at th at review had been received from Swaziland.  In
addition, some initial questions remained outstanding from Cuba and Zimbabwe.  Furthermore, there
were some initial and follow-up questions that rema ined outstanding from Brazil, India and Pakistan.
29. The Representative of Zimbabwe apologised for the delay and said that responses to the
outstanding questions would be provided shortly.
30. The Representative of Brazil said that his delegation was still analyzing the outstanding
questions from Canada and Switzerland and that he expected to be able to provide responses to them
shortly.
31. The Representative of India said that due to some procedural formalities not been fulfilled his
delegation had  not yet been able to respond to the about eight outstanding questions but expected to
do so in the near future.
32. The Representative of Pakistan said that his delegation would provide responses to the
remaining questions as soon as possible, but not later than the Council's next meeting.
- March 2002 review
33. The Chairman recalled that, at its meeting in March 2002, the Council had initiated the
reviews of Moldova and Nigeria, and agreed to postp one the review of the legislation of Saint Vincent
and the Grenadines to the present meeting.  As regards Moldova, there were still some initialquestions that remained outstanding.  Since the meeting in March, Nigeria had provided responses to
most questions that had been posed to it.  These responses had been circulated in document
IP/C/W/344.  However, there were still a number of outstanding initial questions.
34. The representative of Nigeria said that his delegation would provide responses to the
outstanding questions before the Council's next meeting.
35. The Chairman urged the delegations who had outstanding initial or follow-up questions from
earlier reviews to submit their responses to these questions without delay.  He noted that going
through all the outstanding questions from review s already undertaken was somewhat  complicated.
He suggested that the Secretariat be requested to circulate, in order to help the Council and the
Members in question, prior to the Council's meeting in September an informal note listing all theoutstanding material required to complete the various reviews.  Furthermore, he asked the Secretariat
to maintain contact with the delegations that had outstanding questions to respond.
36. The Council took note of the statements made and agreed
 to proceed as suggested by the
Chairman and to revert to this sub-item at its next meeting.
(ii) Reviews of legislation of Qatar and of Saint Vincent and the Grenadines
- Qatar
37. The Chairman said that Qatar's notification of its laws and regulations had been circulated in
document IP/N/QAT/2, and the texts of the notified laws in the relevant law series documents.
Qatar's responses to the Checklist of Issues on Enforcement had been circulated in document
IP/N/6/QAT/1.  Qatar had received questions from Australia, Canada, the European Communities and
its member States, Japan, Switzerland and the United States (documents IP/C/W/328, 314, 320, 208,
315 and 215 Addendum 1, respectively).  Qatar had provided responses to most of these questions(document IP/C/W/346), but there were still a number of questions from the European Communities,
Japan, Switzerland and the United States to which written responses had not been obtained prior to the
present meeting.IP/C/M/36/Add.1
Page 7
38. In accordance with the standard procedures, the delegation of Qatar provided a brief
introductory overview of the structure of its legislation in the areas covered by the TRIPS Agreement
and of the changes that it had had to bring about in order to make the legislation compatible with the
Agreement.  The record of the introductory stat ement as well as the questions put to it and the
responses given (including responses to any follow-up questions posed after the meeting) will becirculated in the following documents:  IP/Q/ QAT/1, IP/Q2/QAT/1,  IP/Q 3/QAT/3 and IP/Q4/QAT/1.
39. The representatives of Canada and Switzerland
 thanked the delegation of Qatar for the
introductory remarks and responses to their questions.  The representative of Switzerland said that he
looked forward to receiving responses to the outstanding questions number 6 and 7, and indicated that
he would submit one follow-up question in  the course of the following week.
- Saint Vincent and the Grenadines
40. The Chairman said that the delegation of Sain t Vincent and the Grenadines had informed the
Secretariat that it would not be able to attend the present meeting.  It was in the process of submitting
information to the Council for review.  This information would be made available to the Council as
soon as possible.  He suggested that the Council revert to the review of its legislation at its next
meeting.
41. The Council so agreed.
(iii) Arrangements for future reviews
- China
42. The Chairman recalled that, at its meeting in Ma rch, the Chair had said that he imagined that,
in regard to the TRIPS Agreement, Members would want to conduct China's normal TRIPS review
together with the review by the TRIPS Council fo reseen for this year in the transitional review
mechanism (TRM) under China's Protocol of Accession.  The representative of China had welcomed
this proposed combination of the transitional re view with the Council's normal review of China's
TRIPS implementing legislation.  The Council had agreed to revert to this matter at the present
meeting.
43. Since the meeting in March, he had consulted Members on the arrangements for these
reviews.  At the Council's informal meeting of 17 May, Members had indicated that they would agree
that the Council's normal review of China's TRIPS implementation and the review under the
transitional review mechanism would be combined at the Council's meeting scheduled for
17-19 September 2002.  The normal review would be conducted following the Council's standard
procedures.  By way of background information, he informed the Council that the Secretariat had
received a notification of the TRIPS implementing laws and regulations from China.3
44. He suggested that the Council confirm the dates for the submission of questions and responses
under China's normal review in accordance with the Council's standard practice as follows:
- questions should be submitted to China, with a copy to the Secretariat, by 9 July
2002, i.e. 10 weeks before the meeting in September 2002;  and
- responses to questions posed within that deadline should be submitted by 20 August
2002, i.e. four weeks before the meeting in  September 2002.
                                                     
3 The notification of China has been circulated in document IP/N/1/CHN/1 and the texts of its main
laws and regulations in the related law series documents.IP/C/M/36/Add.1
Page 8
45. As regards the procedures applicable for the reviews in September, he clarified that he was
suggesting that Members might use the standard TRIPS review procedures this year for the normal
TRIPS Council review, and that he was not sugges ting any special procedures for the TRM review
this year.  The question of what should be done by the TRIPS Council for future TRM reviews would
have to be considered next year, according to China's Protocol of Accession and in the light ofwhatever practice for such reviews had been evolved by other WTO bodies.
46. The representative of Japan said that he supported the initiation of the review of China's
legislation at the Council's meeting in September.  However, since China's notification of its
legislation had been circulated just before the expiration of the 9 July 2002 date for the submission of
questions, he was concerned about not having enough time to examine the legislation and to prepare
questions.  Therefore, he believed that it would be reasonable to allow the submission of further
questions for the November meeting of the Council.  Furthermore, he said that the legislation in some
areas, such as the protection of geographical indications and trade secrets as well as enforcement, had
not yet been notified, and hoped that the outstanding material would be notified as soon as possible.
47. Turning to the methodology of the whole review process, he said that, according to China's
Protocol of Accession, the review of legislation relating to the TRIPS Agreement would take place
after the accession each year for eight years and thereafter there would be a final review in the tenthyear or at an earlier date decided by the General Council.  Given that this was the first time the TRIPS
Council was to review legislation under the eight y ear term, the Council should seek an effective and
efficient method to do so.  In considering such a method for the review, it was extremely important to
take into account the following three points.  First, the eight year term given by the Protocol should be
utilized efficiently and effectively for both re viewing and reviewed Members.  Second, the review
mechanism in the TRIPS Council should be consiste nt with the review mechanisms applied by other
WTO bodies.  Third, the review mechanism in the TRIPS Council should, however, be based on the
nature of the IP system.  IP legislation and practices and/or operations under that legislation should be
reviewed separately and independently, given that practices and/or operations under the legislation
would develop over time.
48. Accordingly, it would be reasonable to divide th e whole review process into three stages.  The
first stage could be, for example, the normal review, the second stage could look at the practices and
operations under the legislation, and the third stage could focus on emerging issues.  While not
insisting on a three stage review mechanism, he believed that the Council should make its best efforts
to let the whole review process be a fruitful one for every concerned Member.
49. The representative of China agreed with the initiation of the review at the Council's meeting
in September using the procedures as suggested by the Chair.  Responding to the comments made by
Japan, he clarified that geographical indications and undisclosed information were covered by the
trademark law and certain other laws and regulations that had already been notified.  He reiterated that
China would submit its responses to the Checklist of Issues on Enforcement in the coming weeks.  As
regards the conduct of future reviews, he said th at China's Protocol of Accession already provided
how TRM reviews should be conducted in the various  bodies of the WTO.  In his view, the Council
could now agree to conduct the normal legislative re view combined with the first year's TRM review,
and discuss later how future TRM reviews should be conducted in light of the practice of other WTO
bodies as well according to paragraph 18 of China's Protocol of Accession.
50. The representative of the European Communities said that he was pleased that the review of
the notified legislation would be initiated at the September meeting, and hoped that outstanding
legislation would be notified as soon as possible.  Expressing sympathy towards the points raised by
Japan, he said that he would appreciate being given a full opportunity to address questions to China
once all laws and regulations had been duly notified.  It was in the interest of the entire membership
that the process work smoothly and that all Members be given the opportunity to examine thoroughly
the legislation of China as had been done with the legislation of all other new Members.  He was notIP/C/M/36/Add.1
Page 9
yet in a position to take a view concerning Japan' s ideas about the methodology for future reviews, but
indicated that he wished to ensure that a fruitful and effective review would take place.
51. The representative of Japan said that, while he did not insist on a three stage review
mechanism, he was ready to provide a non-paper to clarify his ideas to Members.
52. The Chairman said that the dates that he had suggested in accordance with the Council's
standard practice were aimed at facilitating a detailed review and providing sufficient time for
reactions from all delegations.  This standard practice also provided flexibility, including the
possibility to submit follow-up questions.  He reiter ated that there was agreement that the Council's
normal review of China's TRIPS implementation and the review under the transitional review
mechanism would be combined at the Council's m eeting in September 2002, but that the question of
what should be done by the Council for future TRM reviews would be considered next year,
according to China's Protocol of Accession and in the light of whatever practice for such reviews
would have been evolved by other WTO bodies.
53. The Council agreed to proceed as suggested by the Chair.
- Chinese Taipei
54. The Chairman recalled that the Council had de cided, at its meeting in March, to review the
legislation of Chinese Taipei at its meeting scheduled for 17-19 September 2002.  The Secretariat had
received a notification of the TRIPS implementing la ws and regulations from Chinese Taipei, as well
as its responses to the Checklist of Issues on Enforcement.  The notification of Chinese Taipei had
been circulated in document IP/N/1/TPKM/1 and the texts of its main laws and regulations in the
related laws series documents.  The responses to the Checklist on Issues of Enforcement were
available in document IP/N/6/TPKM/1.  He reminded delegations that that questions should besubmitted to Chinese Taipei, with a copy to the Secretariat, by 9 July 2002, i.e. 10 weeks before the
meeting in September 2002;  and responses to questions posed within that deadline should be
submitted by 20 August 2002, i.e. four weeks before the meeting in  September 2002.
55. The representative of Chinese Taipei thanked for the opportunity to have the IP regime of
Chinese Taipei reviewed.  His delegation hoped to receive all the questions by 9 July 2002, but might
need more time to prepare responses to them.  He  believed that through this process Chinese Taipei
would receive cooperation and technical assistance from Members to upgrade its IP regime.
56. The Council took note of the statement made.
D. ISSUES RELATED TO THE EXTENSION OF THE PROTECTION OF GEOGRAPHICAL INDICATIONS
PROVIDED FOR IN ARTICLE 23 T O PRODUCTS OTHER THAN WINES AND SPIRITS
57. The Chairman recalled that, in paragraph 18 of the Doha Ministerial Declaration, the
Ministerial Conference had noted that "issues related to the extension of the protection of
geographical indications provided for in Article 23 to products other than wines and spirits will be
addressed in the Council for TRIPS pursuant to paragraph 12 of this Declaration".  While there were a
number of different interpretations of this mandate, he believed that there was a common
understanding that the Council had to report on this issue to the Trade Negotiations Committee by the
end of 2002.  This set an important time-frame that the Council should take into account in organizingits work.
58. He recalled that, at its meeting in March, the Council had had a thorough discussion on the
substance of the issue.  Since that meeting, the Council had received a communication from
Switzerland on behalf of Bulgaria, Cuba, Cyprus, the Czech Republic, the European Communities and
their member States, Georgia, Hungary, Iceland, India, Kenya, Liechtenstein, Malta, Mauritius,IP/C/M/36/Add.1
Page 10
Pakistan, Romania, the Slovak Republic, Sri La nka, Switzerland, Thailand and Turkey (document
IP/C/W/353).
59. Introducing the communication in document IP/C/W/353, the representative of India said that
the list of its co-sponsors had increased and now included Bulgaria, Cuba, Cyprus, the Czech
Republic, the European Communities and their member States, Georgia, Hungary, Iceland, India,Jamaica, Kenya, Liechtenstein, Malta, Mauritius, Pakistan, Romania, the Slovak Republic, Slovenia,
Sri Lanka, Switzerland, Thailand and Turkey.  The names of the teas, coffees, rice, bananas, carpets
and handicraft of the co-sponsors of the communication were at stake and that it was their cultural
heritage that the co-sponsors sought to protect.  They wished to reserve the names of  their products
for their producers so that these producers could develop and, along with them, their countries.  He
said that, while certain countries argued strongly against extension and spoke of costs, it was
interesting to note that most of the "opponents" produced wines and spirits.  He wondered whetherthey would be on his side if wines and spir its would be the ones discriminated against.
60. He said that the communication built upon previous communications such as document
IP/C/W247/Rev.1 where it was explained why it was necessary to extend the protection of
geographical indications for wines and spirits also to geographical indications for other products, and
document IP/C/W/308/Rev.1 where it was laid down why the extension of protection would benefit
all WTO Members, trade and consumers.  The communication being presented showed how easily
extension could be incorporated in Section 3 of Part II of the TRIPS Agreement on "Geographical
Indications".  He said that he and the co-sponsors hoped that this would enable the Council to fuel the
discussions on the matter for the benefit of the entire membership.  Currently, only geographical
indications for wines and spirits benefited from the effective protection under Article 23 of the TRIPSAgreement.  Extension aimed to protect geographical indications of all products alike in the future in
an effective manner.
61. He recalled that long discussions had been held in the Council on the advantages and costs
that extension would involve or could involve.  Yet, no one had shown that the additional protection
for wines and spirits caused any costs when it had been first introduced in 1994.  He said that it wasnow time to enter into a more substantive disc ussion examining the concrete consequences of
extension so that Members of the Council could fo cus on what extension really meant within the
TRIPS Agreement and in their own countries.  The co-sponsors hoped to contribute, with the
communication, to a better understanding of what the concrete consequences of extension and
benefits of extension for Members were and hoped to create also a base for fruitful discussion in the
Council.
62. He said that extension would have no implications on the TRIPS Article 22.1 definition of
geographical indications, which applied to indications or signs borne by any product.  It was
undisputed that the definition was flexible enough to protect geographical names of localities (like
"Cognac" for spirits), regions (like "Napa Valley " for wines) or countries (like "Luxembourg" for
meat products).  Any name or sign that evoked a geographical origin on a product and that met the
requirements of the definition, in particular the link between the quality, reputation or othercharacteristics of a product and its geographical origin, was eligible for GI protection.
63. Currently, producers and other interested parties such as consumers had no effective means to
prevent the use of denominations such as "Antig ua Coffee produced in Argentina” or "Australian
Cortez Coffee" because judges might decide that such use of geographical indications did not mislead
the public and did not constitute an act of unfair competition because the real origin of the productwas indicated.  On the other hand, the use of "Napa Valley Wine from Spain" or "Australian
Saint-Emilion" was forbidden because of the effective protection granted to geographical indications
for wines and spirits by Article 23.1.  This illustrated the present imbalance between the standards of
protection under Article 22.1 and the additional protection under Article 23.1.  Article 23.1 permitted
interested parties to prevent, without having to prove that the public was misled or that there was anIP/C/M/36/Add.1
Page 11
act of unfair competition, the illegitimate use of geographical indications of wines and spirits on such
products.  Geographical indications for all products deserved to benefit from effective protection in
order to prevent the illegitimate use of a geographical indication on the same category of products as
the one identified by the geographical indication.
64. He said that extension would have positive effects for all Members.  The benefits of
additional protection would no longer be limited to a few countries which were producers of wines or
spirits, most of which were not developing countries.  He believed that the TRIPS Agreement would
finally be re-balanced .  Producers of Guatemalan coffee, Chinese tea, Darjeeling tea, Ceylon tea,
French ceramics, Turkish carpets, etc. would have an effective instrument allowing them to prevent
free-riding on the reputation of their geographical indications.  He believed that real progress would
be achieved when Members would be able to effectively prevent the use of geographical indications
on products not coming from the region identified by the geographical indication, even if such use didnot mislead the public or did not constitute an act of unfair competition, as was currently the case only
for geographical indications for wines and spirits.
65. The proposal being presented examined the effect  of extension on the provisions of Section 3
relating to the relationship between geographical indications and trademarks.  He recalled that
Section 3 did not allow that names for wines and spirits protected as geographical indications beregistered as trademarks.  Yet, if a geographical indication was for rice, coffee or bananas, it could be
registered as long as the consumer was not misled.   For example, there was a trademark for "Chuao
Cacao from Ecuador", but there could not be a tradem ark such as "Barossa Valley from Argentina".
He said that the cost of a consumer survey demonstrating that the consumer was misled could be in a
country like India thousands of dollars.  How could producers from developing countries afford this?
Why should wine producers from the European Union, United States, Australia, Chile, New Zealand
and Argentina, the main wine growing regions, benefit from this advantage and not theirs?  With
extension, Article 23.2 of the TRIPS Agreement would apply to all products.  Administrative
registrars or judges would refer to a simple and objective criterion:  does, for instance, tobacco
identified by the trademark containing the geographical indication "Arapiraca" actually originate fromthe geographical area in Brazil designated by this geographical indication or does it not?   In short,
with extension no costly consumer surveys would be necessary and uncertainty for consumers would
no longer exist.  Producers and consumers of that region would obtain more effective and less costly
protection for their geographical indications against illegitimate use of the indication in trademarks.
66. The representative of India further examined the effect of extension on the provisions of
Section 3 relating to homonymous geographical indications (i.e., where the name of two identical
locations in different countries were both protected as geographical indications).  Article 23.3provided that in cases of homonymous geographical indications for wines, both indications must be
protected.  WTO Members were prompted to keep their markets open in such cases with a mandate to
find adequate solutions for the coexistence of products bearing homonymous geographical
indications, taking into account interests of consumers and producers.  While this trade fostering
solution was currently limited to wines, it was clear that the same solution could benefit otherproducts, including spirits as well as all other products benefiting from GI protection.  He wondered
why carpets, rice and teas should not benefit from this very same solution that would open foreign
markets to them.
67. With extension, Article 23.3 would apply to homonymous geographical indications for all
products.  As explained in document IP/C/W/3 53, Article 22.4 would continue to apply for all
products for cases not covered by Article 23.3 as was currently the case for wines.  The advantages of
extension for homonymous geographical indications were evident and clearly illustrated the
advantages that extension would have for trade, producers and consumers alike.  Extending the scope
of Article 23.3 to geographical indications for all products would promote trade and keep markets
open.IP/C/M/36/Add.1
Page 12
68. The aim of extension was that all products would benefit from the more effective protection
under Article 23 currently available only to geographical indications for wines and spirits.  Referring
to the on-going negotiations on the establishment of a multilateral system of notification and
registration of geographical indications, he said that nothing in Article 23.4 prevented such system
being open in the future to any geographical indication which met the definition of Article 22.1.  Thiswas a logical consequence of the re-balancing of the GI protection under the TRIPS Agreement.
69. Paragraphs 4 to 9 of Article 24 contained a number of exceptions designed to provide
flexibility in implementing the protection provided  for in Articles 22 and 23 of the Agreement.  He
said it was important to note that extending the additional protection of Article 23 to geographical
indications for products other than wines and spirits would not have direct implications on these
exceptions and they would continue to apply.  This showed that the proponents of extension were
ready to take into account the concerns of those who still had questions.  Many delegations wanted tomake Members believe that extension would disrupt trade and make re-labelling necessary.  He
recalled that in 1994, when the additional protection was granted to wines and spirits, nothing of that
kind had happened.  In fact, none of the evils and the costs that certain delegations attributed to
extension had actually occurred when the additional protection had been granted to wines and spirits.
Why?  Simply because the exceptions of Article 24 had taken care of this matter.  Why shouldMembers now not be able to do the same?  By extending the protection under Article 23 to
geographical indications for all products, adjustments along the lines of the existing provision of
Article 24 might be needed.  The proponents were ready to work on that, since the aim of extension
was that geographical indications for all products benefit from the same protection as currently
granted by the TRIPS Agreement only to geographical indications for wines and spirits.  Adjustmentsto Article 24, where needed, should be guided in pa rticular by the following principles.  First, they
should not diminish the level of protection currently available to geographical indications.  Second,
they should enable a flexible solution taking into account the interests of various market participants;
use in good faith, uses for a long period of time, and not misleading the consumer should be the key
criteria when looking at the use of geographical indications qualifying for exceptions.  Third,adjustments to Article 24 should be crafted restrictively and allow only restrictive interpretations as
inherent in the nature of exceptions.
70. Concluding, the representative of India said that the present communication attempted to
describe the main elements of the extension of the additional protection to geographical indications
for products other than wines and spirits.  The co-sponsors of the paper proposed that the TRIPS
Council recommend to the TNC to adopt the follow ing guidelines for the negotiations on extension.
First, the protection under Article 23 should apply to geographical indications for all products.Second, the exceptions contained in Article 24 should apply mutatis mutandis .  Third, the multilateral
register to be established should be open to geographical indications for all products.  He added that
positive results on extension were a prerequisite for an overall balance in the different areas of the
negotiations of the Doha Development Agenda.
71. The representative of the United States shared the view of the Chair and the representative of
India that a detailed examination of the concrete effects of extension was needed.  Extension of
Article 23 of the TRIPS Agreement to cover geographical indications for all goods had been
advertised as a solution to what some regarded as unfair special treatment of geographical indications
for wines and spirits.  Extension had also been promoted as providing market access benefits to WTO
Members.  If extension of Article 23 were actually able to provide these claimed benefits, the UnitedStates had many goods that would stand to gain from such an extension.  For that reason, the
delegation of the United States had carefully reviewed all of the proposals aiming to extend Article 23
protection to products other than wines and spirits.  However, after examination, it was concluded that
extension would create new difficulties for Members and not the advertised benefits.IP/C/M/36/Add.1
Page 13
72. Introducing certain elements of a forthcoming communication4, he said that the potential
imbalance associated with extension had not yet been addressed.  One Member might only have a few
geographical indications for domestic products for which it was interested in getting additional
protection.  However, under the proposals, this Member would be obligated to protect hundreds or
thousands of geographical indications  from Members that had already established formal systems forsuch indications.  For example, the EC member St ates had registered over 600 names for foodstuffs
and beer under the EC geographical indications Regulation 2081/92 and Members could expect the
European Communities to pursue protection for each one of those 600 names in any such negotiation.
That was an imbalance for any Member only seeking to protect one or two names.  This imbalance
was exacerbated by the fact that according to his reading of Regulation 2081/92, the European
Communities did not in fact provide protection for non-EC geographical indications.  That meant that
the European Communities was not providing protection for place names of other WTO Members.The only exception was where there was a bilateral agreement between the European Communities
and another WTO Member or where the European Communities had determined that a country,
another WTO Member for example, had established a system of GI protection that was exactly
equivalent to that which the European Communities provided.  Therefore, he encouraged all Members
to examine the true commercial opportunities they would receive as a result of extension of Article 23compared to the protection they would have to provide to other WTO Members.  He wondered how
many of the co-sponsors of document IP/C/W/353 had been successful in their efforts to even obtain
the basic TRIPS protection for these products, for example, in the European Communities.  He
recalled that his delegation had earlier provided information on the extent to which Members had been
able to get protection for such products under the existing standards of the TRIPS Agreement in theUnited States.
73. He said that Article 22 was sufficient to provide adequate protection where Members
implemented such protection.  It provided protection against misleading use of geographical
indications.  He understood that that some Memb ers were concerned about geographical indications
becoming generic.  However, the Article 22 standard could ensure that this did not happen.  With theadvent of the TRIPS Agreement, if a more recent geographical term became generic, it was probably
due to the fact that its owner had not attempted to prevent its unauthorized use.  This was the
responsibility of the owner of a geographical indica tion since, as recognized in the Preamble to the
TRIPS Agreement, intellectual property rights were private rights.  In the United States, for example,
geographical indications such as "Stilton" for ch eese, "Parma" for ham, "Roquefort" for cheese and
"Swiss" for chocolate already received Article 22 level protection.  He said the owners of those
geographical indications had taken steps to prevent unauthorized uses of their geographicalindications in the United States.  The United States legal system presently offered the legal means to
prevent the unauthorized or misleading use of a geographical indication.
74. Referring to some examples raised at previous meetings, he said that the Swiss geographical
indication "Etivaz" for cheese which identified an indigenous cheese from Switzerland could be
asserted to prevent unauthorized use of the term "Etivaz" or a similar misleading term for any cheeseor related product that falsely suggests a connec tion to the "Etivaz" cheese from Switzerland.  As
regards "Basmati", his delegation was not aware that the term "Basmati" was protected as a
geographical indication in the country of origin and, under Article 24.9 of the TRIPS Agreement,
other WTO Members would not as a result of negotiations to expand Article 23 be obligated to extend
this protection to "Basmati".  Therefore, the term would not benefit from extension of Article 23 togeographical indications for products other than wines and spirits.  Some WTO Members might not
consider "Basmati" to be a term eligible for protection as a geographical indication since it did not in
fact identify an actual place to which the particular quality and characteristics of the rice were
attributable.  Additional issues might be raised if exclusive protection for this term was requested by
more than one Member.  As regards the term "Bulgarian yoghurt", it was apparently used as a genericterm in France.  Even if Article 23 were extended, France could apply the exception for generic terms
                                                     
4 Subsequently circulated in a document IP/C/W/360.IP/C/M/36/Add.1
Page 14
and Bulgaria would not receive the expected protection as a result of extension.  The use of the term
"Bulgarian" as a generic reference was consistent with the view of some WTO Members that country
names might not be eligible for protection as geographical indications.  These were some of the
reasons why concrete discussion was needed in order to decide whether the advertised benefits were
in fact available.
75. Turning to the issue of costs, he said that the implementation of extended Article 23 could
necessitate serious costs to governments, manufacturers and consumers in the form of new
administrative mechanisms to implement the broa dened standards.  This included re-labelling,
re-packaging and confusion costs to the consumer who could not find the products they were
accustomed to buying.  As regards costs to governments, he said that, were Article 23 to be extended,
implementation of the new Article 23 provisions would be required.  Once the Article 23.4
multilateral system negotiations would be completed, it would be likely that some Members wouldenforce implementation through dispute settlements based upon Articles 22, 23 and the Article 23.4
multilateral system.  Some Members placed high importance on their geographical indications and
their protection.  Because Article 23, in the EC view , essentially required a labelling regime wherein
all labels would be policed for compliance with Article 23 requirements, the implementation burdens
of such a system would become complicated.  Were Article 23 extended to cover geographicalindications for all goods, presumably the number of labels to be reviewed and policed would increase
exponentially.
76. Continuing, the representative of the United States said that the EC and Swiss systems for
recognition of geographical indications provided for government recognition, oversight and
enforcement of the standards established for the use of geographical indications.  In Members that didnot have such a system, for the government to assume those responsibilities would require
considerable resources to set up the system and ongoing resources to maintain it.  The recent EC
paper did not explicitly require governments to enforce geographical indications.  However, given that
the current EC system of GI protection, as well as  that of some other demandeurs, did not provide
national treatment but rather provided protection for other WTO Members' names only if the other
Member had an equivalent system of government enforcement, he was concerned that, rather than
amending a system to fulfil its national treatment obligations, demandeurs would seek to export this
heavily regulated government enforced system to all Members wishing to obtain reciprocal benefits of
extension.  He believed that Members should be conscious of that prospect in assessing what the costs
would be in agreeing to any such extension.
77. Turning to the relationship between trademarks and geographical indications, he said that, for
example, his delegation understood that the European Communities had deleted mineral waters fromcoverage under their GI regulations.  He believed that this might have been because of potential
conflict between European trademarks for mineral water and European geographical indications for
water.  The mark "Evian" for mineral water could also qualify as a geographical indication.  If the
European Communities received a GI registration application for "Evian", it would have to decide
whether its own regulations would apply so as to cause commercial harm to the "Evian" trademark byallowing the geographical indication and the trademark to co-exist, even if the "Evian" trademark was
established first or by going so far as to cancel the trademark altogether.  As an example, this potential
conflict highlighted why discussion of extension mu st include discussion of the proper relationship
between geographical indications and trademarks.  He believed that all Members had producers that
relied very heavily on trademark protection to establish the quality and source of goods that theyexported internationally.  Moreover, the European Communities' practice had been to demand the
elimination of the use of exceptions, such as those contained in Article 24 of the TRIPS Agreement,
as a condition for the bilateral agreements it had entered into.  There would be even more incentive to
demand elimination of the exceptions through the TRIPS process because it would apply to all WTO
Members.  Hence, it could accomplish this all at one time rather than through individual bilateralagreements.  Elimination of the exceptions in Article 24, such as the exception for generic terms,
would force US companies to abandon names even in the domestic market no matter how long thoseIP/C/M/36/Add.1
Page 15
names had been used or how much had been invested in them.  He noted in this regard a recent
decision of the European Court of Justice that the term "feta", considered to be generic in many WTO
Members, was a geographical indication for soft white cheese from Greece.  The European
Communities had since decided to adopt a regulation that would prevent non-Greek producers of soft
white cheese from using the term "feta" within th e European Communities.  It would be expected,
therefore, that the European Communities would seek to eliminate such use by producers in the
territories of other WTO Members should Members engage in a negotiation to extend to protection to
food products beyond wine and spirits.
78. Concluding, the representative of the United States said that extension of Article 23 to all
goods would not be the panacea that many Members envisioned.  The benefits of such extension
could accrue to those WTO Members that already had a significant number of geographical
indications protected under formal registration sy stems policed and enforced by their governments.
The burdens would fall on those Members with few geographical indications, those that protected
geographical indications through trademark and unfair competition regimes and those Members with
domestic food industries that had for many years used, in marketing their products domestically and
abroad, geographical terms that originated in countries from which the founders of those industries
had emigrated for political or religious reasons.  For the latter Members, the benefits of suchextension would be few and the obligations many.
79. The representative of Argentina said that the TRIPS Agreement protected private rights on the
basis of territorial application and was, therefore, a sui generis  agreement among the multilateral trade
agreements in Annex 1 of the WTO Agreement.  Among the general objectives of the GATT/WTO
which aimed at reducing tariffs and other trade barriers, the multilateral regulation of intellectualproperty rights became necessary to reduce distortions and barriers to international trade so that
proper protection of such rights would not become barriers to legitimate trade, as noted in the
Preamble to the TRIPS Agreement.  Consequently, Members should consider that the main objective
of these debates was to avoid intellectual property rights becoming barriers to trade.  The extension to
products other than wines and spirits was a claim which would strengthen territorial rights to thedetriment of liberalisation and facilitation of international trade.
80. In reply to a comment made that the countries that produce wine had additional advantages
and were nevertheless opposed to the extension of these so-called advantages to other products, she
pointed out that Argentina, a wine-producing country,  had not yet seen any of those advantages.  The
implementation of the protection system under Article 23 by Argentina had resulted in a financial and
administrative burden that was very difficult to cope with due to the lack of experience with this kind
of protection, the high costs of implementing the system corresponding to Article 23, and the costs ofcapacity-building.  In addition, some countries were questioning the implementation of the exceptions
Argentina was entitled to avail of under Article 24 and under Article 23.3.  If there were advantages,
they had been enjoyed to date by those countries that had a long tradition of this type of protection
and which happened to be those who were pushing strongly for the extension of protection.
Argentinian wines continued to face the same problems of access to certain markets as they had facedalready before the conclusion of the TRIPS Agreement.  The TRIPS Agreement had not removed any
barriers to trade in wine and, as a consequence of bilateral agreements on geographical indications,
the legitimate access of Argentinian wines to third party markets had been directly affected.
81. If difficulties had arisen in implementing protection at the national level for geographical
indications in respect of only two products, it would not be consistent to propose in the WTO anextension of this protection to other products.  The statements that the extension of protection would
not require the establishment of a new, expensive and complicated international mechanism were not
consistent with the reality faced by developing countries when they tried to implement existing
standards of protection under TRIPS.  If it were so simple and automatic to implement the protection
provided under Article 23, the Agreement itself would not provide for the establishment of amultilateral system of notification and registration for wines and spirits.  This also showed thatIP/C/M/36/Add.1
Page 16
protection under Article 23 was not "absolute", as some Members maintained.  The features of the
notification and registration system which would finally be established for wines and spirits would
determine the degree of complexity of the system and the costs to be borne by every Member at the
national level.  There would inevitably be a correl ation between the complexity of the system and the
burdens that Members would have to bear.  It had also been stated that the extension of the protectionunder Article 23 to other products merely signified that a geographical indication could be used for
certain products only if those products really originated in the indicated geographical region.  That
concept did not correspond to the definition of Article 22.1 because it took no account of the
requirements which were quality, reputation, or other characteristic of the good essentially attributable
to its geographical origin and which were elements inherent in the protection provided by
geographical indications.  On that issue, which was basic for the definition established in Article 22.1,
there had been a substantive debate during the prev ious week at the WIPO Standing Committee on the
Law of Trademarks, Industrial Designs and Geographical Indications.  Those statements corresponded
to appellations of origin and not to "geographi cal indications" as defined in the TRIPS Agreement.
82. She said that the costs for geographical indica tions being recognized abroad would depend in
some cases on the conditions that each country had established for the recognition of foreign
geographical indications.  Regarding legal costs, not hing indicated a priori that conflicts would not
continue or even deteriorate.
83. Article 22, applicable to all products, was the general rule of protection.  Article 23
complemented Article 22 and not vice versa, because Article 23 was the exception to the general rule.
Articles 22 and 23 were not different as regards the basic obligation on Members to provide legal
means so that interested parties could prevent the use of geographical indications.  In both cases, theobligation on Members was to provide legal means to the holders of any IPRs, recognized as private
rights in the Preamble to the TRIPS Agreement so that  these right holders could exercise them in their
respective national jurisdictions.  Article 22 contained a definition of geographical indications without
distinguishing between products.  This definiti on was an agreed upon, harmonized concept in itself.
Protection under Article 23 was not exclusive or absolute and was an exception to the general ruleestablished in Article 22.  Also, geographical indications required a link between a product and a
particular quality, reputation, or other characteristic.  Therefore, national authorities should not merely
examine whether the product originated from the place designated by the geographical indication.
84. She fully agreed on the importance of the exceptions in Article 24.  Exceptions were part of
the balance between rights and obligations that the Agreement tried to established.  It was still not
clear how those exceptions had been implemented in  national legislations and, still less, how they
prevailed in bilateral agreements concluded since the conclusion of the TRIPS Agreement.  Theinformation available on the latest agreements relating to wines showed that there had been a certain
erosion of those exceptions.  If countries in favour  of the extension of Article 23 protection considered
that exceptions in Article 24 should be fully valid, they should make sure that all Members shared that
point of view and encourage the collection of information as to how these exceptions had been taken
into consideration since the conclusion of the TRIPS Agreement.
85. Regarding homonymous geographical indications , she said that, in respect of paragraphs 21
to 24 of document IP/C/W/353, some of the countries that had submitted this document did not apply
this approach in practice.  In paragraphs 26 to 28 of the same document, they relativized what was
said in Article 23.3.  In addition, those paragraphs reaffirmed the importance of the connotation that
geographical indications  should have for the consumer.  Paragraph 4 of the same document arguedfor setting up a comprehensive system of protection of geographical indications, which seemed to
indicate that those delegations were not only promoting extension of the protection under Article 23
but also a re-writing of the TRIPS Section on geographical indications.  She said that her delegation
was surprised and concerned that in the same paragraph the document referred to the exceptions in the
Agreement and at the same time it claimed that there were "transition periods" for the use of certaingeographical indications, which were not at all provided for in the TRIPS Agreement.  She recalledIP/C/M/36/Add.1
Page 17
that, at the last Council meeting, one delegation had said that strict protection of geographical
indications, as had been demonstrated by the overwhelming support for the extension, was of
overriding priority for developing countries.  This did not correspond to the reality nor to the debates.
In light of the documentation submitted and interventions made at previous Council sessions, it might
be deduced that only a small number of developing country Members were expressly in favour ofextension.  That same delegation had argued that as a result of growing international competition
relating to generic agricultural products and commodities there could be a sharp fall in the income of
new Members, and that those countries needed other sources of income;  the protection of
geographical indications  would guarantee market access for those countries.  That statement had been
repeated in document IP/C/W/353.  In this respect, she said that some developing countries promoting
the extension of protection for geographical indications were foreseeing the possibility of protecting
generic agricultural commodities.  However, there was no proof that the protection of geographicalindications would overcome the present obstacles that existed in some countries to trade in
agricultural products such as dairy products.
86. Associating her delegation with the statement made by Australia at the Council's previous
meeting, the representative of Argentina said that the issue of immigration, culture and customs was
important.  Argentina was among the countries of the world that historically had had the greatestimmigration, estimated at 6 million people between 1850 and 1970.  In 1975, foreigners had
accounted for 25.5% of the population of the country.  That percentage had reached its maximum in
1914, a year when 2.5 million foreigners lived in Argentina.  In that same year, 49% of the population
of Buenos Aires was made up of foreigners.  Between the end of the second world war and 1952,
110,000 people per year came to Argentina, which was higher than the levels in previous years.  Shesaid that these figures showed that, while many delegations spoke of illegitimate or abusive use, there
were many legitimate uses because immigrants took customs with them when they immigrated, either
for economic, social or other reasons.  Therefore, customs were maintained and, in fact, were acquired
rights which Members could not wipe out in the course of negotiations.
87. The Doha Ministerial Declaration did not give a mandate to negotiate an extension of
protection under Article 23 to products other than wines and spirits.  Ministers had noted that issues
related to the extension of the protection of geographical indications provided for in Article 23 to
products other than wines and spirits would be addressed within the TRIPS Council pursuant to
paragraph 12 of the Declaration.  She said that it was obvious that the discussion did not cover the
establishment of negotiation modalities.  On the TNC decision of 4 February 2002, she believed that
the TNC was not empowered to amend the mandate in paragraph 18 of the Declaration.  She recalled
that the TNC had also indicated that other issues in paragraphs 18 and 19 would be addressed on apriority basis.  The TNC did not mention any specific issue nor did it establish any order of priorities
among the various issues dealt with either in paragraph 18 or 19.  Each body set up by the TNC, or to
which it assigned items determined by Ministers in Doha, would determine the form in which the
various items would be tackled.  The mandate that Ministers gave to the TRIPS Council was to submit
a report to the TNC which would decide on appropriate action.  She said that her delegation,therefore, was not in a position to support the proposal contained in paragraph 4 of document
IP/C/W/353.
88. The representative of Australia said that the interventions by Argentina and the United States
had begun to focus on the issues that the Council had to address.  He believed that no delegation
would ever deny another delegation the opportunity to table a proposal for negotiation on any subject,irrespective of whether the WTO was in negotiating mode or not.  However, it was presumptuous and
unhelpful for a group of delegations to put forward a proposal to extend rights and disciplines when
Ministers had specifically charged Members to examine the issues relating to the implementation of
an agreement which was already in force.  He was prepared to engage in a debate about the mandate
in the Doha Declaration relating to the extension of IP protection for products other than wines andspirits though his delegation did not think it was very valuable.  Taking account of the significant
differences that existed before Doha, Ministers had decided that the best they could do was to ask theIP/C/M/36/Add.1
Page 18
Council to look at the issues and to report to the TNC by the end of the year.  They had not initiated
negotiations.  He disagreed with the Chair's statement earlier in the meeting that a thorough discussion
of the issues had taken place at the March meeting.  Members had only began to talk about the issues.
He recalled the reaction the previous week at the TBT Committee to the new EC wine regulations
which were notified to the Committee.  There was little interest or incentive for a large number ofinterested delegations to begin contemplating a new set of obligations until Members were satisfied
that parties to the TRIPS and TBT Agreements were prepared to conform with their existing
obligations.  He said that a large number of non-European wine exporting countries voiced serious
reservations about the new EC wine regulations which, inter alia , were based on an interpretation of
the TRIPS Agreement that was not shared by others.  In their justification for new protectionist
measures, the European Communities had claimed that certain traditional terms which they had
reserved for their exclusive use were in effect covered by the TRIPS Agreement's definition ofgeographical indications.  This was despite the reassurance he believed he had heard at the last
meeting from the representative of the European Commission that traditional expressions had nothing
to do with geographical indications.  In those circumstances, his delegation was not interested in a
proposal to extend additional protection to products other than wines and spirits until there was an
agreed understanding of how the existing TRIPS Agreement was to be interpreted.  Accordingly, likeArgentina, his delegation was not in a position to engage in a discussion of the proposal in document
IP/C/W/353.  However, he remained committed to carry out the injunction which Ministers gave at
Doha.
89. Responding to the point made by the representative of India on the desire of the demandeurs
to protect their cultural heritage, the representative of Australia said that Australia, too, was concernedabout the protection of its cultural heritage and worried that extension might impact on its desire to do
that.  She recalled that her delegation had spoken extensively on that issue in at the Council's meeting
in March.  As regards India's comments on the fact that Article 23 covered only wines and spirits, she
said that her delegation understood the feelings that this generated and had some answers to that
concern.  She pointed out that Article 23 was not a negotiating goal of the wine and spirit sector inAustralia nor did it reflect an acknowledgement that the balance struck in Article 23 was an ideal one
for wines and spirits let alone other products.  Australia's experience of the high level of GI protection
in the wines and spirits sector had shown the costs associated with such protection, the administrative
burden, and the pure economic rent that it gave to a certain group of producers in one region of the
world.  She associated her delegation with Argentina in that it had not been able to discern any
practical benefits of this protection over and above that already contained in Article 22.  It had not
prevented Australia's trading partners from finding other means from keeping Australian wines out oftheir markets.  Finally, in response to India, on the term "Australian St. Emilion", she noted that,
according to some Members in the Council, Australia would not even be allowed to use the term so
that was a non-issue.
90. She recalled that at the Council's meeting in March, the Australian delegation had outlined a
number of issues that required discussion, including the trade and welfare implications of extension.It had raised the question of the competing interests that must be balanced in any GI protection regime
and how the appropriate balance of such interests could be determined.  As previous TRIPS Council
submissions by Australia and others had pointed out, the potentially conflicting interests included
those of consumers, producers of a product with a distinctive reputation or tradition of production, and
producers who had an interest in unrestri cted use of common product descriptions.
91. Referring to the case of the protection of "feta" cheese under EC Regulation 2081/92, and its
impact on non-Greek European producers of that product, she said that France, Germany and
Denmark had been contesting since 1994 a claim by Greece over the latter's bid to claim the exclusive
right to use the term "feta".  France, Germany and Denmark had claimed that, on the basis of patterns
of production and consumption in their countries, "feta" had, for them, become a generic term.Despite their best efforts, however, in June 2002, the EC had announced a proposal to register "feta"IP/C/M/36/Add.1
Page 19
under the European GI registration system.  The proposal would enter into force later in the year
unless the European Council voted against it.
92. Non-Greek EC producers were not happy about that.  At the WTO symposium in May 2002,
the Danish Dairy Board had expressed its views on the feta case.  It characterized feta as a "world
commodity" and that it was unacceptable that the term be reserved for the exclusive use of one ECmember State.  She said that it apparently had cost Denmark 1.5 million Euros to argue its case, which
it lost, before the Commission.  She believed there were similar situations with French and German
feta producers.  Under the Commission's proposal , Australia would be obliged to follow the EC
practice.  In an Australian delicatessen, there was Greek feta, Bulgarian feta, Danish feta, German feta
and French feta.  If the Commission had its way, consumers would find, in the delicatessen, Greek
feta and a variety of other white cheeses which they had no idea about.  Was this in the interests of
consumers?  Not Australian consumers.
93. She said that this case demonstrated perfectly the kind of administrative nightmare that could
arise over the use of just one term, and how inappropriate balances could be struck.  It also
demonstrated how the application of the TRIPS GI exceptions, in this case the customary use
exception, was far from cut and dried.  If the Commission succeeded in its proposal to reserve feta to
Greece, the decision would not only have implications for the three EC member States mentioned.Bulgaria, for example, was also a feta producer.  In fact, soft white cheese labelled as "Bulgarian feta"
commanded a premium price at gourmet food stores in Australia.  She believed that no Australian
consumer who bought "Bulgarian feta" was deceived or  misled about the origin of that cheese.  With
Bulgaria in the process of acceding to the EC, including the EC GI regime, if the European
Communities had its way, very soon Australian consumers would no longer be able to buy "Bulgarianfeta".  This would certainly be a loss for them.  But it would also be a loss for the Bulgarian feta
producers, who might never find a successful means of marketing their exported soft white cheese in
Australia.
94. Extension had been characterized by Ministers as an implementation issue and that, as such,
the Council should address the issues related to the extension of additional protection to products ofspecific interest to developing countries.  She drew  Members' attention to an article in the May edition
of the publication "Bridges" published by the International Centre for Trade and Sustainable
Development, entitled "Extension of Stronger Ge ographical Indications Protection: Against the
Interests of Developing Countries".  Taking the example of basmati rice, she said that a food
standards agency in that part of the world had recently undertaken an exercise, in the interests of
consumers, to find a legal definition for the term "b asmati".  The work invo lved research into the
establishment of DNA profiling to trace the properties of rice, and the development of a method oftracking certain premium rice varieties.  She said that the prospect of DNA profiling for basmati
suggested strongly that that term could not be a GI.  If the variety could be identified genetically, then
it was difficult to see how it could also have a geographical limitation.  If that was correct, then
extension of Article 23 to other products would have no added value for protection of basmati rice.
95. Her delegation had recently undertaken research on coffee production and trade in Africa.
With real coffee prices at around half  of what they were in the 1960s, it was understandable that
coffee producing countries, especially those that were heavily dependent on export income from
coffee, looked to ways to improve their returns.  In  that context, the potential benefits of geographical
indications for coffee had been held out as an an swer to the falling prices received by producer
countries.  However, considering a range of issues related to coffee production and trade, includingthe production chain, the way coffee was branded and marketed and by whom and the resources
involved in those activities, her delegation's research indicated that GI protection would offer no
solution to the systemic causes of declining coffee prices.  Indeed, her delegation had concluded that
as a potential legal remedy, geographical indications offered no obvious advantage over existing
alternatives.  The benefits promised through extension of additional GI protection to coffee areIP/C/M/36/Add.1
Page 20
illusionary.  Where coffee producers did stand to gain was through market access negotiations
directed at substantially reducing tariff escalation in major consuming markets.
96. Australia had for several years been saying that the Council should undertake a thorough
examination of national models of GI protection and thereby reach a better collective understanding
of the available implementation methods, what was effective and enforceable and what was not andwhat were the costs associated with each type of system.  Australia hoped that the debate later in the
week under Item M (Article  24.2 review) would shed light on those issues.  Her delegation urged for
input and advice from developing countries an essential first step was for the Council to engage in a
serious discussion about national systems.  This was a necessary precondition to enable Members to
come to an informed decision about what action, if any, Members should recommend to the TNC at
the end of the year.
97. The documentation submitted by developing country Members in their reviews of national
legislation appeared to indicate that some developing country Members did not yet have any GI
protection regime in place, nor was it clear when they would be enacted.  At the same time,
demandeurs,  including some without any GI protection in place, were claiming that the current TRIPS
text should be rewritten to extend Article 23 to all products.  She was concerned that demandeurs
were advocating a re-write of TRIPS text before some Members had  implemented the currentprotection, let alone had the chance to determine from practical experience what, if any, changes were
desirable.
98. Australia had also raised at the March meeting of the TRIPS Council a series of questions
concerning the practical operation of the Article 22.1 definition of geographical indication,
application of the various exceptions to GI protection and other technical issues related to the existingrules.   One month before the present Council meetin g, IP experts at a meeting of the WIPO Standing
Committee on Trademarks, Industrial Designs and Ge ographical Indications (SCT) took part in
perhaps the most substantive multilateral dialogue to date on geographical indications.  As a long-time
advocate of the need for substantive multilateral GI discussions, Australia was pleased to have
participated in that debate.  One of the things her delegation took from that meeting was that there wasa need for the TRIPS Council, as the body charged under TRIPS Article 68 with responsibility for
"monitoring the operation of the TRIPS Agreement", to undertake its own discussion on the issues
raised in the WIPO SCT as they related to th e specific rules set out in the TRIPS Agreement.
Intellectual property experts in the SCT had noted that it would be inappropriate for the SCT to
discuss specific TRIPS provisions.  For that reason, it was vital that the TRIPS Council undertake that
task as the responsible body.  She requested the Secretariat to circulate a copy of the SCT minutes as a
TRIPS Council document when they become available.
99. The representative of Australia said that one of the main topics of discussion at the SCT was
the definition of a GI.  The basic outcome of the debate was that more work was needed in this area
and it was agreed that the WIPO Secretariat would prepare a new paper on the topic for discussion at
the next SCT meeting in November.  Some of the to pics to be covered in that paper included the
application of the definition at the national level by different systems of protection, the practicaldifferences between the systems of protection of geographical indications such as appellations of
origin and the system of protection under collective and certification marks, links between the product
and its geographical origin and issues related to reputation, and whether the goods on which a GI was
used must necessarily be produced in a particular place.  She said that some of those issues were
fundamental to the very concept of geographical indication.  The fact that intellectual property expertswere having to consider them demonstrated that the international dialogue on geographical indications
was still at a very elementary level.  Her delegation was struck in WIPO by the number of developing
countries that had indicated their great interest in seeing the substantive dialogue continue and shed
more light on that difficult area.  The WIPO Secretariat had also been tasked to prepare a paper on the
issue of territoriality, i.e., the concept that intellectua l property rights were only valid in respect to the
territory for which they had been acquired and in which they could be enforced.  That paper wouldIP/C/M/36/Add.1
Page 21
consider two aspects, first, whether the criteria for eligibility of a term for protection as a GI were
determined by the country of origin of the GI or by the country where the protection was sought, and,
second, how relevant GI exceptions were applied.  Those issues raised very basic elements of how GI
protection regimes operated in practice.  There was a need to consider those issues with direct
reference to TRIPS rules.
100. She proposed, in response to the Doha Declaration mandate from Ministers that Members
consider "issues related to extension", that the TRIPS Council take up five issues for discussion at its
September meeting.  Firstly, the definition and application of TRIPS Article 22.1; secondly, the
impact of the principle of territoriality on the implementation of TRIPS Section 3; thirdly, the
interaction between trademarks and geographical indications in light of relevant TRIPS provisions,
such as Articles 16 and 24;  fourthly, the cost differential between Article 22 vs. Article 23 protection;
and finally, the Article 24 exceptions.
101. The new EC wine Regulation No. 753/2002 had b een notified to the WTO two weeks prior to
the Council meeting and discussed at the previous week's TBT meeting.  The new Regulation
restricted the use of descriptive and/or generic terms such as "chateau", "vintage", "ruby" and
"tawny", terms which had no specific connection with a geographical source, on the basis that their
use may cause consumer deception.  Australia was unable to accept the concept lying at the heart ofthe new Regulation that a WTO Member could reserve for the exclusive use of one of its industries
common adjectives and other descriptive terms.  She could not accept that reserving the exclusive use
of common English language words like "ruby" and "tawny" was the least trade restrictive means of
achieving any legitimate objective.  Nor would she accept the claim made by the European
Communities that so called "traditional terms" had an y connection with intellectual property rights.
Most of the terms listed in the various annexes to the Regulation were nothing more than common
descriptive adjectives, and the EC's efforts to reserve them for the exclusive use of the wine industries
of EC Member states could not be legitimized by seeking to claim them as intellectual property rights.
102. The representative of Pakistan said that the Doha Ministerial Declaration in its paragraphs 12
and 18 provided for the issues related to the extension of the protection of geographical indications to
be addressed in the regular meetings of the TRIPS Council on a priority basis along with other
outstanding implementation issues, leading to a recommendation to the TNC by the end of 2002 for
appropriate action.  He said that his delegation, along with a group of Members, had once again co-
sponsored a paper, presented by India, proposing certain guidelines for the negotiations on extension
to be recommended to the TNC for adoption.  The paper discussed the question of extension, its
implications and advantages at considerable length and also dealt with legal and administrative
components of extension in a comprehensive manner.
103. He recalled that his delegation had, on numerous occasions, advocated the need for extension.
The goal of the WTO agreements and a common interest of WTO Members was to establish or ensure
a fair and predictable legal framework within which international trade could flourish.  He associated
his delegation with Argentina's statement that the TRIPS Agreement, like other WTO agreements,
aimed to reduce trade distortions and impediments to international trade.  He believed that grantingthe level of protection of Article 23 not only to wines and spirits but to geographical indications for all
products, established a uniform level of protection for geographical indications  at the multilateral
level and remedied the legal uncertainty regarding the level of protection granted by WTO Members
to specific geographical indications.  It also allowed the TRIPS Agreement to provide a single
benchmark for protection, which would be complemented by Members at the national level,irrespective of the individual protection system they had chosen to apply.  Predictability, transparency
and legal security for the protection of geographical indications within the WTO framework would be
enhanced and the risk of trade distortions minimized.
104. Extension facilitated the protection and enforcement of geographical indications, since the
misleading test and/or the proof of a case of unfair competition would no longer have to beIP/C/M/36/Add.1
Page 22
established.  A simple examination as to whether the product actually originated from the place
indicated by the geographical indication used with that product would suffice, just as for wines and
spirits.  Extension, therefore, would bring cost savings for judicial and administrative authorities as
well as for those entitled to the use of a geographical indication and those interested in the
enforcement of their rights against misuse.  The purpose of extension was not to benefit thoseMembers with a large number of geographical indications at the expense of those with few.  The aim
was to achieve a level playing field under the TRIPS Agreement for all geographical indications,
enabling all Members and their products to benefit from additional, more effective protection.  Like
most developing country Members, Pakistan also attached great importance to the mandate regarding
implementation issues and concerns.  Positive results on extension as well as on other implementation
issues were a prerequisite for an overall balance in the different areas of the negotiations of the Doha
Round.
105. The representative of Switzerland said that proponents of extension had explained many times
in the TRIPS Council why extension was needed to achieve an improved and facilitated protection of
intellectual property under the TRIPS Agreement.  A fair and equitable protection of geographical
indications for all goods for the benefit of all Members was the goal.  People who would benefit
included honey producers from Chile, tobacco producers from Brazil, coffee producers from Congo,ceramic producers from Japan and Korea and carpet producers from Uzbekistan.  They should enjoy
the same effective level of protection as wine and spirits producers already had.  The current
imbalance of GI protection under the TRIPS Agr eement led to illegitimate free-riding on famous
geographical indications for products other than wines and spirits.  Such free-riding endangered the
investments local producers had made along the years to develop reputed quality products as well asthe future economic development of new local quality products to be marketed at the national and the
international level.  He recalled that the United States had given the example of "Bulgarian yoghurt"
produced in France and that Bulgaria would not get protection for its  yoghurt in France because of
the exceptions contained in Article 24 of the Agreement, and that the grandfather clause of
Article 24.4 and the generic exception clause of Article 24.6 would also apply to goods to whichadditional protection would be extended.  The representative of Switzerland said that the continued
application of these exceptions was indeed part of his delegations' communication, which showed that
his delegation proposed a balanced approach taking into consideration all interests of all parties at the
table.  What would be, then, the benefit for Bulgaria  if extension were approved?  It was to stop the
possibility to free-riding on famous geographical indications for products other than wine and spirits.
He urged the Council to continue without any further delay to work out the legal elements necessary
to do away with the current imbalance in the TRIPS Agreement in the field of protection ofgeographical indications.  The communication in  document IP/C/W/353, introduced by India on
behalf of its co-sponsors, provided the basis for that work with a view of reaching a mutually
agreeable solution.
106. Responding to the argument made by the United States that some Members might have
hundreds of geographical indications while others would have only a few and therefore an imbalancewould arise in case of extension, he said that he did not see any difference between geographical
indications and trademarks.  The United States had t housands of trademarks which had to be protected
in developing and least-developed countries whereas the United States had only a few ones from these
countries to protect.  The same was true for all intellectual property rights.
107. Proponents of extension were not asking for an extension on a particular Member's  level of
protection, they were not asking for the EC level of protection at the WTO.  They asked for a level of
protection that already existed, the one provided for in TRIPS Article 23 for geographical indications
for wines and spirits.  His delegation recalled that Members were free to choose how to implement
such a level of protection.  Members could choose to implement it by giving a right holder the right to
defend and enforce its geographical indication in court in case of abuse.  Thus, it was up to the rightholder to take charge of enforcement.  However, by granting the more effective protection of Article
23, Members would give the right holder an effective instrument to do that, unlike in the case ofIP/C/M/36/Add.1
Page 23
Article 22 protection.  By implementing Article 23 protection in this way and applying this more
effective protection to any geographical indication, it did not matter whether 500 or just a few
geographical indications benefited from this more effective level of protection and no imbalance of
costs and burdens for Members would arise.
108. He believed that the communication presented by  India would be a useful basis for addressing
extension and would enable the TRIPS Council to recommend to the TNC to adopt the guidelines for
the negotiations on extension as set out in part IV of the communication in document IP/C/W/353.
He added that positive results on extension were a prerequisite for an overall balance in the different
areas of negotiations of the Doha Round.
109. The representative of Turkey said that his delegation was one of the co-sponsors of
communication IP/C/W/353 and associated itself with the statements made by India, Pakistan and
Switzerland.  The issue of the extension of protection of geographical indications for wines and spiritsto geographical indications for other products was a very important issue for all Members.  This was
an outstanding issue on the TRIPS agenda and also a focus of attention when Members looked at
other negotiations carried out in the WTO.  While not wanting to underestimate the importance
attached to other TRIPS issues, he said that any progress which could be attained on this issue would
give his delegation fresh optimism for other negotiations.  There was a clear mandate given by theDoha Declaration that needed to be fulfilled by the end of the year.  If appropriate action could be
taken, Members could eliminate the imbalance existing in the TRIPS Agreement.  Elimination of that
imbalance would bring a more equitable and reasonable system of protection of geographical
indications through extension and establishment of a multilateral register as well as ensuring sufficient
flexibility already existing within the TRIPS architecture.
110. Current application of the TRIPS Agreement stipulated protection favouring certain products,
while discriminating others with an inadequate  system of protection.  Extension would bring
protection and security for many producers in different countries.  He stressed that the issue was
neither a North-South issue nor an issue emerging  between trading blocs with particular trade
interests.  The co-sponsors of the paper consisted of Members from 36 countries with different levelsof development and economic production structures.  His delegation joined other Members in
proposing that the TRIPS Council recommend to the TNC to adopt guidelines for the negotiations on
extension, namely the extension of protection for all products, the preservation of exceptions
accordingly and the establishment of a multilateral register.
111. The representative of Romania recalled that her delegation was a co-sponsor of document
IP/C/W/353.  A balanced coverage by the Agreement of all products would be the main advantage of
the extension.  The document proposed to set out a series of elements that should be taken intoaccount in debating the question of extension contained in the definition of geographical indications.
Article 22.1 drew no distinction between products a nd provided for a balanced protection of all
geographical indications.  Extension would mean th at it would no longer be necessary that the
interested party prove that the public had been misled or that there was unfair competition.  Regarding
the relationship between geographical indications and trademarks, extension would mean that Article23.2 would apply to all products.  Finally, rega rding homonymous geographical indications, Article
23.3 could be applied to all products.
112. The representative of Hungary recalled that, at the Council's meeting in March, the
representative of Australia had started off the discussion on the scope of extension by saying that the
debate over the last few years generated considerably more heat than light, confusion than consensusand passion than persuasion.  Than he went on, and some others later followed, by posing a great
number of questions that necessitated further study and called for clearer answers from demandeurs,
in particular on how and under what conditions ex tension was sought and should take place.  The
representative of Hungary said that many of the ques tions raised that were relevant to the issue had
already been answered, not only orally but also  through written communications.  Together withIP/C/M/36/Add.1
Page 24
fellow supporters, his delegation decided to make a further effort in providing answers in a clear,
straightforward and easily understandable format and set out how and why extension should take
place and what his delegation wanted to achieve by the end of the year.  The result was document
IP/C/W/353 that Hungary had co-sponsored.  He sa id that he hoped that the paper would generate
more light than heat, would result in more persuasion than passion and would lead Members fromconfusion towards consensus on that important issue.
113. The representative of Hungary said that Part III of the document gave a clear, unambiguous
indication of what extension would entail and analyzed the implications of it.  By doing so it
answered some of the basic questions put forward by  Australia and others.  For example, paragraph 8
explained that the debate on extension did not c oncern the definition of geographical indication  in
Article 22.1 and stated that it was not the intention of the demandeurs to seek changes to this
definition.  This also answered the question on whether the demandeurs wanted to include services inthe definition.  Paragraph 7 made it clear that in the view of the demandeurs names of localities,
regions and even countries could be geographical indications under Article 22.1, provided they met
the conditions set out therein, in particular regarding the existence of a link between the quality,
reputation or other characteristics of a product and its geographical origin.  He said that is was also
clear from the paper that rules of origin or indications of source and geographical indications shouldnot be mixed, and that rules of origin and indications of source did not indicate any quality, reputation
or other characteristic.  Part IV of the paper set out the expectation of the co-sponsors in regard of the
content of the Council's recommendation to be made to the TNC in its report by the end of the year.
He called attention in particular to paragraph 41(b) that, in response to enquiries by Members,
including Australia, confirmed that demandeurs would foresee the exceptions contained inparagraph 24 (relating to prior use, good faith prior application for and acquisition of trademarks,
generic expressions) to apply mutatis mutandis.  This showed that extension was for the future and
should ease the concerns of those that had not yet been convinced of its desirability.
114. He hoped that the arguments focussing on imaginary costs or implementation burdens,
especially from those Members that normally were  demandeurs in the IP field and those who did not
raise the same concerns in relation to patent protection of pharmaceutical products, would not get
undue attention.  He also hoped not to hear that the real reason for opposing extension was to retain
the right to start selling products under names that free-ride on other Members' geographical
indications, which would be a strange argument in the IP context.  At previous meetings, Australia
and others had referred to public policy exceptions and the need to retain them in the GI field.  He did
not understand that reasoning.  In relation to other forms of intellectual property, the scope of
exceptions, like Article 30 in the case of patents, were extremely limited and the possibility to retainthe right to start selling products under names that free-ride on geographical indications of others
would not seem to be such a limited exception.
115. Regarding the preservation of cultural diversity, his delegation was moved by the Australian
statement at the Council's last meeting on the cultural dimension of extending the scope of Article 23
protection.  By explaining how important it was for Australia to protect and preserve its culturaldiversity through the continued use of indications brought in by immigrants and used in relation to
agricultural products, foodstuffs and beverages, the representative of Australian had made a very
strong case for an important non-trade concern.  At the Council's present and last meetings, similar
arguments had been used by the United States, Argentina and Uruguay.  The representative of
Hungary welcomed the marked change in the position of some major agricultural exporters in relationto non-trade concerns, which he hoped would not be limited to the concerns of the countries that  were
referred to as part of the "new world" but would also include regional development, folklore etc. He
noted that extension was something that would mostly affect what would happen in the future, which
would not seem to be irreconcilable with this concern, unless the countries in question expected
further large scale immigration flows.IP/C/M/36/Add.1
Page 25
116. After the March meeting, his delegation had conducted research on whether Hungarian
geographical indications free-rided on in Australia were indeed used by expatriate Hungarians.  He
said that his delegation's findings did not support the assertions made by Australia.  For example, the
Hungarian geographical indication "Csabai", used in relation to a famous spicy salami, was used in
Australia by a company of Mr. Otto Wort whose name did not suggest any connection to Hungary.
The name of Hungary's most famous product, the wine "Tokaj", was used on labels by at least five
Australian producers.  The Australian labels in cluded, "Bailey's Liquor Tokaj", "Campbell's Fruit-
blend Tokaj", "R. L. Buller and Son's Victoria Tokaj", and "Stanton and Killeen Classic Tokaj".
117. Concluding, he said that he associated his delegation with the statements made by India,
Pakistan, Switzerland and others.  Progress in this area was needed also for his delegation for the
overall balance of the Doha negotiations.  His delegation saw a strong and natural connection between
improving the protection for geographical indications, both in terms of extending the productcoverage of Article 23 as well as through the establishment of an effective register under Article 23.4,
and the agricultural negotiations.  He said that his delegation's objective and expectation was to get a
decision from the TNC at the end of 2002 that woul d give an impetus to move forward substantially
with the negotiations on the scope of extension in  the framework of the Doha Round.  Failing to do so
would chip away from the enthusiasm his delegation might have in other negotiating areas, withinwhich they did not see adequate trade-off possibilities.
118. The representative of Estonia said that her delegation wished to be added to the list of
co-sponsors of document IP/C/W/353.
119. The representative of Japan said that his position on extension had not changed since the
Council's meeting in March.  A further examination of the issue was needed before a final position
could be decided based on the recognition of the advantages and disadvantages of extending the list of
products to which Article 23 applied.  In addition to analyzing the advantages and disadvantages of
extension, it was important to identify and examine basic elements such as the definition and the
requirements for additional protection.  Protection under Article 23 seemed extremely strong
compared to the protection of trademarks, especially as regards the territory of the protection and thenecessity of misleading the public as a requirement for protection.  Adequate attention should be paid
to the consistency with existing IP regimes, in particular the protection of trademarks.  He believed
that it would be beneficial to take account of the discussions at the WIPO SCT.  He noted that
paragraph 41 of document IP/C/W/353 proposed that geographical indications for all products should
be protected under Article 23.  This would make Article 23, rather than Article 22, the general rule.
This proposal should be examined very carefully because such a change would greatly affect the
present situation.
120. The representative of Korea said that geographical indications were very unique in many
respects compared to other IPRs protected under the TRIPS Agreement.  The form of protection in
regions with a long and settled history often differed from GI regimes chosen by other Members.  Due
to these differences, there was room for conflicts between geographical indications and existing
trademarks.  Uncertainties arose from having a geographical indication protected in one country whileit was a generic term in another.  The TRIPS Council discussions on extension had not yet resulted in
convergence of views on fundamental aspects.  In view of this, Members might aim at reaching
agreement on concepts rather than debating the pros and cons of extension.  In this regard, he
supported Australia's suggestion to focus the debate on substantive elements associated with GI
protection.
121. The representative of Canada said that previous speakers had addressed many important
arguments that needed to be considered before the Council would be able to report to the TNC later in
the year.   She informed the Council that her delegation would be a co-sponsor of the paper to which
the United States had referred earlier and associated her delegation with many of the views expressed
by the United States.  Like the United States, Australia, New Zealand, Korea and others, herIP/C/M/36/Add.1
Page 26
delegation could not support the approach of the paper on extension introduced by India.  The Doha
Ministerial Declaration required the TRIPS Council to continue to address these issues, not to
negotiate them.  Therefore, it was inappropriate to put forward proposals on modalities for the
extension of the GI protection.  She continued to believe that Members needed to do more thinking
and develop a better understanding of the situation before it was realistic to fully engage in adiscussion about extension.
122. She recalled that, at the Council's meeting in March, her delegation had asked countries who
were in favour of extending the protection of ge ographical indications to give examples of the
problems they had encountered when protecting geographical indications under Article 22.  She said
that, regrettably, no responses had been received.  She said that while Article 22 was not a popular
subject, there were some important issues that he r delegation wanted to raise.  It was important to
remember that the basis of protection for geographical indications  was found in Article 22 and thatArticle 23 was an exception to the general rule.  It was also essential to note the importance for
Members to protect geographical indications in their country of origin before claiming any
international protection.  This meant not only having the domestic legal means to protect geographical
indications, but also investing the time and effort required to have a given product associated with a
geographical place.
123. With regard to the definition of Article 22, she said that a common understanding of the scope
of the definition was needed.  For example, the definition of Article 22 referred to quality, reputation
and other characteristics.  It did not specifically refer to whether or not the entire chain of production
or just parts of the production needed to be carried out in a geographical location.  There was also a
question of origin of the raw material contained in  the final product.  For example, how would "dijon
mustard" be treated?  The issue of exceptions was also very important.  It was generally accepted that
Article 24 applied to wines and spirits as well as to other products.  This might cause unpleasant
surprises for many countries who sought extended protection when they would realize that the term
for which they sought protection was generic in other countries.  She did not see any reason for
changing the scope of the exceptions for products other than wines and spirits.
124. She said that those issues were important and had implications on principles such as national
treatment, i.e. they would determine and affect whether a Member's geographical indication would be
protected in other countries.  She recalled that her delegation, like other new world wine producers,
had neither requested or supported the inclusion of Article 23 in the TRIPS Agreement.  Also, Canada
had not benefited from having any increased market access for their wines.  Many interventions had
been made in previous TRIPS Council meetings that an imbalance existed in the level of GI
protection.  She said that while this might have been true notionally, factually it needed to beconsidered which countries benefitted from the extended level of protection under Article 23.  Like
Argentina and Australia, she said that her delegation had not realized any benefits for wine exports
beyond the protection provided for in Article 22.
125. The representative of Canada said that over the last 10 years or so, many Members might
have had meetings with specialized negotiating teams from particularly the European Communitieswho were interested in negotiating bilateral agreements pursuant to Article 24.  One of the reasons
was to have common terms which fell under Article 24 exceptions further protected given that many
terms that countries liked to qualify as geographical indications might not be protected because of the
exceptions for common terms contained in Article 24 of TRIPS.   There was an outstanding question
of whether other Members had the time, the money and the expertise to pursue this kind of bilateralnegotiations for other products.  Australia had not been able to protect "Australian Chardonnay" as a
geographical indication and Canada had not been able to secure access for "Canadian Icewine" as a
geographical indication in Europe through use of Article 23.  Continued efforts on Canadian
negotiators part to ensure that Canada was able to take advantage of Article 23 had been very costly.IP/C/M/36/Add.1
Page 27
126. Members needed to understand what countries sought to protect before deciding the best and
most efficient way of doing so.  From her delegation's experience, the ability to access and have
protection for wines and spirits had not provided any additional market access.  In the past, and most
recently, by the EC paper on extension, Article 23 had been linked to the promise of increased market
access.  This was not necessarily guaranteed.  She recalled a comment made by Australia on the draftEC wine labelling Regulation.  Her delegation was particularly concerned with the unnecessarily
restrictive nature of many of the provisions of that Regulation.  Some examples included tolerance for
alcohol declarations, protection of bottle shapes, varietal content criteria, requirements for wine
competitions and related MFN and national treatment considerations.  In the TRIPS context, it was the
use of certain descriptive terminology, otherwise known as "traditional expressions", in the EC that
also troubled her delegation.  Why should, for exampl e, wine producers from France enjoy exclusive
rights to the use of the word "château" which meant palace or country house?  European wineconsumers, it could be assumed, were well placed to know what a "château" was and to be able to
distinguish between Château Nenin in France or Château des Charmes from the Niagara peninsula in
Canada.  We would also ask if it was really necessary to legally define the term "dry" so as not to
confuse consumers? After all, governments would never be able to harmonize consumer preferences
to ensure that all Members agreed on what was sweet, tasty or fruity wine.  She said that herdelegation remained convinced that the level of protection offered by Article 22 was not only
sufficient for all products but also the most appropriate mechanism.  It provided Members with a good
degree of flexibility to implement their obligations.  This was very important as Members had, in the
past, complained about the high cost of implemen ting TRIPS.  Many countries were still in the
process of determining the best ways and means of protecting geographical indications domestically.She said that her delegation stood ready to continue work in the TRIPS Council so that it would be in
a better position to report on deliberations later in the year.  Finally, she expressed support for
Australia's request to the Secretariat to circulate the WIPO SCT minutes relevant to geographical
indications  to Members of the TRIPS Council.
127. The representative of Mexico believed that all Members agreed that it was important to
discuss the issue in depth.  He thanked those Members that had made submissions which his
delegation was examining.  As a preliminary remark he said that the issue had to be tackled with care.
He was not convinced that additional protection, as suggested, would provide any major benefits for
Mexico in light of complications inherent in extending the list of products, particularly since many
indications had become generic terms not only in their territory but in that of many other countries as
well.
128. The representative of the Slovak Republic, as a co-sponsor of the paper contained in
document IP/C/W/353, associated her delegation with the statements by India, Pakistan, Switzerland,
Turkey, Romania, Hungary and other Members support ing the extension of additional protection for
geographical indications to products other than wines and spirits.  The aim of the TRIPS Agreement
was to reduce distortions and impediments to international trade and to promote effective and
adequate protection of intellectual property rights based on the principle of non-discrimination.  Thatshould serve Members as a main premise in negotiations on this important issue.  The aim was further
reflected in individual parts of the Agreement, including the part on geographical indications.
Article 22 defined principles for the protection of geographical indications generally.  Article 23 set
out the additional protection for geographical indications available for a particular group of products,
namely wines and spirits.  This divided geographical indications into two groups, geographicalindications with additional protection and geographical indications with the basic level of protection.
There were many products of a given quality, reputation or other characteristics attributed to their
geographical origin that were generally known not only in their domestic markets but also abroad.
The quality and reputation gave important advantages both in domestic and foreign markets.
Additional protection for geographical indications should be available in a non-discriminatory mannerand therefore should be extended to all categories of products.  She said that equal protection of all
geographical indications would have a positive impact on both producers and consumers.  For
producers of such products, extension would be a va luable marketing tool increasing their chances ofIP/C/M/36/Add.1
Page 28
better market access and would prevent free-riding on the reputation of their products.  Extended
protection would facilitate product identification a nd prevent consumers from being misled.  The
multilateral register to be established should be open to geographical indications for all products.  She
shared the view presented by Hungary and said that it would allow the resolution of many problematic
issues with regard to geographical indications, for example Tokaj wine originating in the Tokaj regionof the Slovak Republic.  She hoped that the issue of extension be properly addressed in the TRIPS
Council within the framework of given mandates and that an appropriate solution on negotiations on
this issue would be found and included in the report of the TRIPS Council to the TNC by the end of
the year.  The TRIPS Council should recommend to the TNC to adopt the negotiating guidelines as
proposed in paragraph 41 of the joint communication.
129. The representative of the Czech Republic said that her delegation was a co-sponsor of the
document IP/C/W/353.  She recalled that, at the Singapore Ministerial Conference, Members had
agreed to enter into negotiations aimed at increasing the protection of individual geographical
indications, although no time-frame was specified.  Ministers confirmed this mandate in
paragraphs 12 and 18 of the Doha Ministerial Declaration.  She said that Members were now at the
stage of negotiations on extension and that positive results of these negotiations were necessary in
order to reach an overall balance in the different areas of the Doha round.  Members were not far fromconcluding the debate on the positive and negative effects of extension, and now they had to proceed
further in order to fulfil paragraph 12(b) of the Doha Declaration and report to the TNC for
appropriate action.  She proposed that the TRIPS Council recommend to the TNC that it take a
decision on the following main parameters of extension.  First, the protection under Article 23 should
apply to geographical indications for all products.  Second, the exceptions of Article 24 should applymutatis mutandis.  Third, the multilateral register, the establishment of which was negotiated in the
Special Session of the TRIPS Council, should be open to all geographical indications subject to the
definition of Article 22.1 of the TRIPS Agreement.
130. As regards generic terms, she assured that the proposal in document IP/C/W/353 would not
affect existing uses of any names and would not have  retroactive effect.  It led to a win-win situation
and would have a positive impact in every field of interest.  The present level of protection of
geographical indications was discriminatory in relation to products other than wines and spirits and
caused certain inconveniences for consumers who could rely on geographical indications indicating
the origin of wines and spirits but were forced to carefully study labels of other products bearing a
name of a geographical place in order to be informed of their true origin.  The enhanced level of
protection of geographical indications would be appreciated also by concerned producers for whom
legal protection and challenge procedures would be easier, more effective and less costly.  Theincentive for regional development and expansion of small and medium sized enterprises, in
developing countries should also be considered as an important benefit.  The document had no aim
other than to propose a decision leading to ensuring in the future the same conditions for producers of
all products with a quality that is attributable to their geographical origin, for development of all
regions irrespective of the nature of the products through which these regions had acquired reputationand for all consumers, without distinguishing whether they were consumers of wines, spirits or if they
preferred beer, cheese or something else.
131. The representative of Sri Lanka associated her delegation with the statement made by India.
At the Council's meeting in March, one delegation had asked "what was meant by protecting a
geographical indication"?  In response, she said that, like in any other area of IP, protecting ageographical indication meant protecting its rightful users who were entitled to prevent anybody from
using that geographical indication on goods that did not have the indicated geographical origin.  Like
trademarks, geographical indications were subject to the principle of "speciality".  They were only
protected for the kind of products on which they were actually used and "territoriality" meant that they
were protected for a given territory only and were subject to the laws and regulations applicable tothat territory.  An exception to the principle of speciality existed for geographical indications having a
reputation.  In order to obtain international protection for a geographical indication, the territorialIP/C/M/36/Add.1
Page 29
scope of a geographical indication should be extended through international agreements, either
bilateral or multilateral.
132. Responding to the questions on whose interests were sought to be enhanced or protected and
whether there was an aim to promote regional industries or was it to protect consumers, she said that
unauthorized use of a geographical indications took unfair advantage of, or was detrimental to thereputation of that geographical indication and, thus, constituted an act of unfair competition.  It was
therefore harmful to producers and consumers.  So in effect, interests of both legitimate producers and
the consumers would be protected.
133. Was the aim of the demandeurs simply to give exclusive rights in relation to protected
geographical indications?  Responding to this questions, she said that the TRIPS Agreement was all
about protecting private rights, as stated in its Pr eamble, whether it be trademarks, patents, copyrights
or geographical indications, thereby granting an exclusive right to the legitimate holder over suchrights.  However, there was a distinction to be made between trademarks and geographical
indications.  If protection of geographical indications was provided through a sui generis  system and
built on the provisions of the TRIPS Agreement,  then their protection would be governed by the
provisions of TRIPS Agreement.  Then a geographical indication would be considered as a generic
description, which was applicable to the use by all traders in a particular geographical location forgoods which emanated from that location.  Accordingly, the right to protect a geographical indication
against wrongful appropriation was enjoyed by all traders from the particular geographical location.
In practice, rights related to geographical indications were monitored and protected by the producers
of that location, thus preventing free transfer from one owner to another.  The user must have the
appropriate association with the geographical region and must comply with the production of thatlocation.  Hence, there were no individual private rights per se .  Trademarks, on the other hand, were
signs, which distinguished the products of a specific trader from those of its competitors.  Thus, they
were not likely to be descriptive and could not be generic.  Under certification or collective marks, a
geographical indication belonged to a group of traders or a producer association.
134. How was the Council to reconcile the interests of producers with a distinctive reputation or
tradition of production and those of producers who ha d an interest in the unrestricted use of common
product descriptions, personal names and unregistered trademarks and business names?  Responding
to this question she said that the definition in Article 22.1 set out the conditions that a geographical
indication had to fulfil.  In addition, there were  also exceptions in Article 24, which would be
applicable in deciding what could be protecte d.  The proposal in the joint communication was
designed to have effects only for the future trade and would not affect existing uses of names that
coincided with protected geographical indications to the extent that they had been in conformity with
the TRIPS Agreement, along the lines of what was embedded in Article 24.
135. Addressing the questions on which products deserved additional protection and whether
services should be included, she said that the extension of Article 23 protection to products other than
wines and spirits had no implications on the definition in Article 22.1.  This definition did not
distinguish between products and therefore would be applicable to all goods.  Extension of theproduct coverage would be subject to the exceptions provided in Article 24.
136. Were the demandeurs asking to embark on a re-write of the TRIPS Agreement?  Responding
to this question, she said that as the group's proposal outlined, once the Council would agree to extend
the protection of Article 23 to products other than wines and spirits, proposals would be submitted for
a suitable approach, which could be accommodated within the provisions of Article X of the WTOAgreement.  The demandeurs would certainly not believe that such approach, whether it be an
authoritative interpretation or an amendment, would necessitate a re-writing of the TRIPS Agreement.
As regards the question "Are  the demanders suggesting the removal of the consumer deception test
and the 'fair use' exceptions for geographical indications protection now clearly enunciated in the
TRIPS Agreement?", she said that the demandeurs did not expect to remove these provisions, as theIP/C/M/36/Add.1
Page 30
goods which did not qualify for additional protection could need to have protection under
Article 22.2.
137. The representative of Sri Lanka recalled that a question was asked whether the demandeurs
for extension of additional protection were seeking to change the definition provided for in Article 22.
The demandeurs believed, as also highlighted in their communication, that the definition provided forin Article 22 was flexible enough to identify the scope of its application and to differentiate
geographical indications from "indications of source" and "appellations of origin".  This definition
contained six conditions that had to be fulfilled.  First, geographical indications identified goods.
Second, geographical indications did not represent ideas or procedures, therefore geographical
indications had to exist in reality.  Third, goods had to be identified by an indication, but not
necessarily the name of a geographical place.  On this point, she recalled that several delegations had
claimed that only a geographical name could be protected and had cited the example of basmati ricenoting that it could not be protected because it did not relate to a geographical location.  In her view
this was not true since it was not only the place or geographical name that could be an  indication, but
other indications could also be protected, provided that they fulfilled the six conditions that she was
listing.  Fourth, an identification corresponded to a territory of a Member or a region or a locality of
that territory.  This meant that country names and also regional names could be protected providedthey fulfilled all other criteria.  Fifth, geographical indications had to identify their origin.  Sixth, there
had to be a special link between the origin and the quality, reputation or special characteristics.
138. Responding to the question "If a term is deemed generic in one WTO Member country, is it
necessarily perceived as having become generic in another Member country?", she said that if a
geographical indication became generic in its country of origin, it then became generic in otherMembers.  If the Council accepted the concept that a geographical indication could become generic in
a non-origin country and in consequence would become generic in another/all Member countries, it
could be misused.  Through unfair use, it would be possible to make most geographical indications
generic in any Member state.  An additional benefit of extension would be the elimination of the risk
that such names could in the future become generic terms.
139. She noted that there had been many questions about cost implications.  Some Members had
argued that the Council should first understand and quantify the relative costs and benefits and ground
its discussions on the practical impact of extension.  One delegation had suggested that the Council
look into the regulatory and administrative impact, the impact on trade, and the impact on consumers.
A number of delegations in presenting the above proposals were sympathetic towards developing
countries as to how they were going to bear the cost on implementation of additional obligations and
commitments if the Council extended the additional protection to products other than wines andspirits.  Developing countries were grateful to those developed country delegations for having
considered such cost implications.  Her delegation would be further grateful if some delegations were
also equally concerned about the cost implications of the implementation of TRIPS Agreement as a
whole and other WTO Agreements such as the SPS and TBT, in particular.  From different studies
undertaken on the subject of TRIPS implementation implications, it was clear that for a large numberof developing countries, enacting, implementing and enforcing an efficient and effective IP regime
would put stress and strain on the very limited resources and administrative skills available in them.
The UNDP Human Development Report 2001 analyzed different implications of TRIPS
implementation on developing countries.  It recognized the fact that implementing and enforcing the
intellectual property rights regime by developing countries put stress on their already scarce resourcesand administrative skills.  So if the Council was so concerned about the cost implications, the first
thing the Council must do was to delete the TRIPS Agreement from the book.  Was the Council
prepared to do this?  As long as the TRIPS Agreement remained, the cost implications of
implementation of all provisions of the Agreement also remained.  Did the same delegations also
consider the cost implications of granting patent rights at the national level to the holders of such
rights when they forwarded their patent applicat ion through the WIPO PCT system.  Studies showed
that the number of patent applications processed through the PCT, the majority of which belonged toIP/C/M/36/Add.1
Page 31
the applicants from developed countries, was increasing in an alarming way.  When these applications
entered the national process, how did patent officers, which were not ready to accommodate such a
large quantity, cope with such large numbers of applications for registration?  Were these delegations
also concerned  about the costs and benefits knowing very well that there were no benefits to the
country, who was obliged to provide adequate protection whether it be for trademarks or patents?This was to her delegation a clear example of accruing double standards, one for all other regimes in
the TRIPS Agreement and the other for geographical indications.
140. The representative of Sri Lanka said that some delegations had also talked about the loss of
market access opportunities, due to the increase in the product coverage of enhanced protection for
geographical indications.  Were those delegations also concerned about the loss of market access
opportunities due to the increase in the SPS and TBT standards which came into effect with the
emergence of the SPS and TBT Agreements?  She said that she had made a similar statement in theSpecial Session of the Committee on Trade and Development and expressed her willingness to
provide this information to any interested delegation.  Technical assistance provided by the WTO and
WIPO to developing countries in creating national legislation on intellectual property seemed to have
helped beneficiary countries.  In a similar vein, technical assistance could be provided to developing
countries to understand the issues posed by various delegations as relevant and requiring more clarity.Similarly, technical assistance could be provided to train the officials dealing with registration.
141. With respect to the protection of geographical indications under the TRIPS Agreement,
Members should have two issues in mind:  first, how to provide protection for foreign right holders;
and second, how to obtain protection for local right holders and how to provide protection for local
right holders in foreign countries.  What was the cost  involved in pursuing these issues?  On the first
issue, there was no additional cost that needed to be borne by the country which was legally bound to
provide protection, other than looking at the available data on prior registered geographical
indications and whether such claimed geographical indications satisfied the six criteria embodied in
the definition of Article 22.  These criteria were similar to those for assessing patentability.  What was
the cost that was going to be involved with respect to the second issue?  A Member would have tointroduce necessary provisions into its domestic legislation to protect local geographical indications.
Was there a cost in introducing those provisions?  Her delegation did not think that there was an
additional cost, but if a country so wished it could obtain technical assistance from WIPO for this
purpose.
142. The biggest challenge for developing countries was to identify potential goods that could be
protected as geographical indications at the national level.  Once these goods were identified, similar
protection needed to be obtained at the international level.  Provided that developing countries wereable to obtain protection in foreign countries under Article 22, any unfair act by unauthorized persons
would then need to be monitored by the countrie s who own geographical indications.  Due to resource
constraints, developing countries would not be able to monitor the respective markets, whether such
unfair practices were taking place or not.  So by default, those names could become generic due to
improper use.  Sri Lanka had had difficulties in monitoring the registration of geographical indicationsand patents in different countries.  A multinational company by the name of Unilever had launched an
application in the PCT system as a way to protect an innovation that the company claimed on black
leaf tea.  The application was submitted in 1997.  As required by the PCT, the company named the
countries where the patent should be registered.  The company had applied to patent this innovation in
all the major tea importing countries that were of interest to Sri Lanka.  This application had enteredthe national level after fulfilling the stages.  The main tea importing countries like the United States,
Australia and other major countries had granted the patent for this product.  She discovered this three
years later when it was too late to invoke the decision.  How was Sri Lanka going to challenge this
patent?  Sri Lanka claimed that this was a bad pate nt because those who taste tea and those who blend
tea and those who looked at the technical details provided for in this innovation claimed that this wasnot an invention.  This was a blend that had been used for over 200 years.  It involved national
knowledge that was exploited by a multinational company.  Developing countries did not have theIP/C/M/36/Add.1
Page 32
resources to go to every country and challenge this patent, because under the TRIPS Agreement
patentability criteria were vague and not rigid.  Similarly, if there was no additional protection under
Article 23 there would be no possibility to protect "Ceylon tea" in the major tea importing markets in
developed countries.  This meant that Sri Lanka would have to monitor each and every case where
unfair use was taking place.  Enhanced protection could benefit developing countries by reducing thecosts of enforcement and monitoring.
143.  Concluding, she said that Sri Lanka was a tea producing and exporting country.  It exported
60% of its production in bulk form because it did not own any brand.  These brands were mainly
owned by multinational companies.  Recently, a Sri Lankan tea exporter had developed its own tea
brand under the name "Dilmah" for the Australian market, surprisingly, under the concept that it
contained 100% Ceylon tea and came from the finest gardens in Sri Lanka.  This was a consumer
confidence building exercise that the company had launched.  The exporter carefully monitored theproduction and packaging processes in Sri Lanka, which had generated employment and value added.
This was a clear demonstration that a company could build up name recognition because of
protection.
144. The representative of Australia posed the following questions to Sri Lanka.  (i) Was "Dilmah"
a registered trademark in Australia?  (ii)  How the protection of geographical indications could solve
the patent problem that the representative of Sri Lanka had talked about?  (iii)  Did Sri Lanka protect
any geographical indications in its own market?  If it did not, it would be ruled out of any chance of
protection abroad because of the exception provisions in the TRIPS Agreement.
145. Responding to the third question, the representative of Sri Lanka said that the legislation was
still in draft form but these provisions had been intr oduced into it.  It used to recognize "Ceylon tea".
However, more products would be included through the latest amendment that had been submitted to
Parliament.  On the second question, she said that certain rights that her country could exercise on its
knowledge and products were being exploited and misused and by default her country had allowed
them to be used by other people.  The patent case was a bitter lesson for most tea producing countries,
because they could not export black leaf tea, it had instead to be exported by the company.  Ifadditional protection was not available for "Ceylon tea", then each and every country where this name
was misused had to be monitored.  Regarding the first question on "Dilmah", she said that the
company had been able to establish the trademark because it had entered the market with a 100-
percent Ceylon tea concept, which was a geographical indication.
146. The representative of Uruguay recalled the points made by the representatives of the United
States, Argentina, and Australia concerning problems such as costs related to extension.  The form
and content of any decision in this respect would need the approval of all Members.  While beingprepared to participate in the TRIPS Council, as in all the other bodies of the WTO, in a constructive
manner in discussions with a view to ensuring that  the Council could fulfil the mandate entrusted to it
and report to the TNC at the end of 2002, he said that in his view paragraphs 12 and 18 of the Doha
Declaration did not provide any mandate to establish modalities for extension.  In case of extension,
the different interpretations Members gave to the definition of geographical indications mightundermine the balance under the TRIPS Agreement.  Paragraph 39 of the document IP/C/W/353 was
not clear on the treatment of generic terms.  He was also concerned about the possible effect of
extension on products resulting from migration since the beginning of the last century.  Many terms
and names used to denominate various products were consequences of cultural traditions connected to
migration.
147. According to document IP/C/W/353, documen ts IP/C/W/247/Rev.1 and IP/C/W/308/Rev.1
had explained the reasons for which this group of countries believed that the protection under
Article 22 was clearly inadequate and insufficient.  Having re-read these documents, he still had his
doubts.  The reasons given related to the differences between the levels of protection stemming from
the text of Articles 22 and 23 of the Agreement.  But even though it had been repeatedly requested, noIP/C/M/36/Add.1
Page 33
information had been given on practical cases in which a country had experienced real difficulties in
protecting a geographical indication in another country in accordance with the provisions of the
Agreement.  While acknowledging that Article 23 provided a different level of protection for wines
and spirits, he did not accept the argument that the protection granted by Article 22 for other products
was inadequate.  Article 23 was a result of negotiations during the Uruguay Round that was acceptedat that time as part of a package of negotiations without it necessarily reflecting the interests of his
country or being particularly beneficial to it.  In the light of the subsequent experience, the application
of Article 23 had resulted in problems rather than benefits.  The fact that at that time his delegation
had agreed to the inclusion of Article 23, which it now believed was an error, did not mean to say that
now it was prepared to repeat that error.  Therefore, his delegation was not prepared to extend the
level of protection to other products since it believed that the present level of protection granted
pursuant to Article 22 was adequate.
148. Uruguay was a small country and it was a competitive producer of high quality wines which
were recognized world wide.  This was a sector  which had developed and slowly but surely was
making progress thanks to the major efforts that had been made.  Nevertheless, he agreed with the
delegations of Australia and Argentina that there were no benefits that had resulted from the TRIPS
Agreement.  On the contrary, there were cases where the difficulties in accessing certain countries'markets had been greater.  These problems were in no way connected to measures relating to
intellectual property, particularly geographical indications.  Therefore, his delegation did not agree
with the assertion that extension would imply per se  better opportunities for market access.  This
would have to be analysed and studied together with other measures which had been adopted by
various countries with a view to protect their markets.
149. As regards costs, he associated himself with th e comments made by the representatives of the
United States, Australia and Argentina.  It had been  claimed that the beneficiaries of extension would
be Members with different levels of development.  However, he believed that extension would benefit
just a few countries and would affect in a negative manner a larger number of Members.  The
extension which had been suggested would imply an imbalance and excessive cost for countries suchas Uruguay.  His country would then see itself obliged to provide additional protection to
geographical indications of a minority group of countries which had a large number of indications.
Costs would not be insignificant.
150. Concluding, the representative of Uruguay stated that he was very concerned that it was
suggested in document IP/C/W/353 that the multilatera l register for wines and spirits to be established
be extended to cover other products.  There was no doubt that this went well beyond the mandate
contained in paragraph 18 of the Doha Ministerial Declaration of Doha.  Therefore, he rejected anylink that anyone wished to establish between those two issues.
151. The representative of New Zealand said that document IP/C/W/353 appeared to be a
negotiating proposal.  There were a number of negotiating mandates, but geographical indication
extension was not one of them.  That sort of decision belonged elsewhere at another time and upon
agreement of all Members.  She recalled that many of the points raised by the United States had alsobeen raised by her delegation at previous meetings.  This time she wished to focus on her delegation's
recent experience with the regulatory development in one of the key markets which showed just how
far the concept of geographical indications in an extended form could be stretched as a means to
create regulatory and non-tariff barriers to trade.
152. Recalling her earlier remarks on the relationship between geographical indications and other
forms of IP protection and on competition issues, she said that viewing geographical indications
purely in an IP context might cause the Council to overlook some of the significant anti-competitive
and trade-restricting effects of extension.  The manner in which some Members were choosing to
implement their Article 23 obligations bore witness to this and called into question whether the
objectives and principles of the TRIPS Agreement, as reflected in its Articles 7 and 8, were beingIP/C/M/36/Add.1
Page 34
respected.  This point related to the concept of a level playing field or at least, balanced obligations.
Some demandeurs had pointed out the discriminatory treatment between wines and spirits and other
products under the TRIPS Agreement as it currently stood and accused others, especially those with
wine industries, of being unfair in seeking to deny extension to other products.  It was entirely the
experience with Article 23 for New Zealand's wine industries, particularly the recent experience,which meant her delegation could not support the concept of additional protection for other products.
Article 23 protection could restrict innovation, it could hurt market access and it could increase
regulatory costs in terms of meeting unjustified and unnecessary requirements in other markets.  New
Zealand's wine industry, while grateful for the level of protection afforded under Article 22 of the
Agreement, bemoaned the day that they were forced to accept Article 23 level protection.  One should
imagine the job that officials had had back home in outlining the issue of extension to other industries
when the wine industry had got there before them and had warned these others of the real commercialrisks.
153. She pointed out that in making this asse ssment, New Zealand's wine industry was not
bemoaning the fact that its access to geographical related terms of others was restricted – but rather all
the "bells and whistles" and "add-ons" that could be attached to an extended level of protection and
the problems this could create in using their own geographical indications in other markets, i.e. intheir attempts to compete on a similar basis with other more long established wine industries.  The
wine industries had just been presented with some new labelling regulations for products intended for
a major export market.  Members might wish to refer to the detailed comments and analysis given on
this Regulation by a significant number of countries at the previous week's TBT Committee meeting.
This Regulation attempted to restrict the use of certain production and process related product termsto certain individual geographical indications only, including generic terms such as colours.
Similarly, certain types of packaging containers were restricted to certain individual geographical
indications, again depriving other GI users of basic production and process related terms that had
nothing to do with a geographical indication.  A similar attempt was being made with respect to wine
varieties.  A further underlying aspect of the regulation was that it did not practically accommodatethe notion of equivalence, or the fact that regulatory approaches differed across the WTO
Membership, a connect which is enshrined also in the TRIPS Agreement.  This amounted to attempts
to export certain regulatory and enforcement ap proaches to other WTO Members.  Finally, this
Regulation provided for the use of country names as a geographical indication, an issue which was of
great interest to New Zealand.  However, such protection was to be only provided in "exceptional"
circumstances,  again seriously restricting its rights under the current TRIPS provisions.  These were
not necessarily intellectual property issues but TBT issues not relevant to the TRIPS Council'sconsideration.  However, on could not ignore these serious downstream non-tariff barriers and
regulatory effects stemming from the concept of extended GI protection that some Members might
choose to utilize.  The reason one could not ignore them was the very great and damaging practical
effect they could have on trade. This evidence went to show that having a protected geographical
indication did not guarantee market access.
154. Her delegation had asked for the identification of specific problems of the implementation of
the current TRIPS provisions of geographical indications, but had received none, which was a shame
because it made it difficult to take forward a discussion on what Members might do to assist others in
better implementation of the provisions, including possible assistance to developing countries seeking
to pursue their legal rights in third markets.  She was also concerned that the negative implications ofextension for innovation and access to terms that we re not envisaged now but might be in the future
could impact on those with fledgling export industries, particularly food ones.  A natural marketing
cycle for these industries appeared to be industry establishment through the production of more
generic products followed by diversification into higher value added and boutique products.  The sort
of regulatory and anti-innovation impacts associated with an expansive definition of geographicalindications might hinder that market development.IP/C/M/36/Add.1
Page 35
155. It appeared that the demandeurs would wish to give geographical indications precedence over
established trademarks for all products, not just for wines and spirits.  In her delegation's view, there
was no reason why one form of IP should take precede nce over another, especially in instances where
a trademark had been established first.  Again, the justification of providing legal certainty was given,
but this applied only to the GI owner and could cause considerable legal and market uncertainty forthe trademark owner.  When talking about uncertainty, one also needed to consider the consumer.
Extended protection, and the associated risk that it would override existing trademarks and tie up
terms which were seen as generic was, contrary to assertions by the demandeurs, likely to decrease
consumer choice.  As some consumer associations had recently pointed out, GI extension could mean
that consumers were provided with less information on objective qualities and the nature of products.
While welcoming the demandeurs view that the important exceptions in Article 24 would be
considered in the context of extension, she said th at the rather restrictive conditions which seemed to
be placed on such adjustments to the exceptions did not seem to acknowledge fairly the reality of the
large number of terms in use presently – particularly those of a perceived generic nature – and the
WTO's obligation to avoid trade and market disruption.  She referred to the examples given by the
United States that had shown the great uncertainties that could result for the terms in question, which
already benefited from secure protection under Article 22 and non GI-related mechanisms.  In manyof the examples provided, the concept of the definition of geographical indications seemed a crucial
one.  Finally, she welcomed Australia's proposal on a discussion structured along the lines that had
arisen in previous discussions, namely the definition of a geographical indication, territoriality issues,
the relationship between geographical indications and trademarks, the cost differentials between
Articles 22 and 23, and the Article 24 exceptions.
156. The representative of the European Communities associated himself with the comments made
by India, Pakistan, Switzerland, Turkey and others.  It was the first time that the European
Communities were co-sponsors of a communication advocating extension.  With this, the European
Communities had wanted to show their commitment to developing country demands in a round that
should be the Development Round.  This matter had become a prerequisite for the balance of thedevelopment agenda.  He said he was puzzled when several delegations had claimed that extension
was not in the interest of developing countries.  Responding to the comments on the discussions that
had taken place at the TBT Committee, he said that the regulation discussed there did not concern the
subject-matter covered by the TRIPS Agreement.  It was not a regulation aimed at providing the level
of protection which was compulsory under the TRIPS Agreement.
157. Recalling that, at the Council's previous meeting, the representative of Guatemala had asked
Members to indicate whether they were aware of the geographical indication "Antigua Coffee" beingused in any country but Guatemala, he told that his delegation had got in touch with the Specialty
Coffee Association of America, a US-based or ganization, founded in 1982 that represented 2500
companies around the world, including 100 US companies, 21 companies from Australia, 70
companies from Canada, 30 from Mexico, as well  as companies from New Zealand, Argentina and 13
companies from Guatemala.  They included retailers, roasters, roaster/retailers, producers, exporters,importers and, effectively, any company involved with the coffee industry that had any interest or
dedication to quality coffee.  Through them, his delegation got in touch with ANACAFE (National
Association of Guatemalan Coffees) and, in partic ular, with APCA (Producers Association of Antigua
Coffee).  The current president of the APCA had to ld it that each year over 50 million pounds of
coffee labelled as "Antigua" were sold throughout the world.  Yet, Antigua did not produce more thansix million pounds annually.  In other words, each year, 44 million pounds of false Antigua coffee
were sold around the world.  This meant that nearly 8 times more of false Antigua coffee was sold
around the world than genuine Antigua coffee.  He said that it was striking that more Antigua Coffee
was sold in US markets than actually entered the US territory.  What were the consequences of that
situation?  Consumers wishing to buy "Antigua coffe e" would not know what they were getting.  The
same report indicated that "although current US consumption was flat, consumers were purchasing
more value added products through the speciality coffee industry which was driving up the overall
market value".  In short, consumers were not drin king more coffee but they were drinking betterIP/C/M/36/Add.1
Page 36
coffee.  Coffee consumers had moved away from price-based purchasing to a purchasing trend that
focussed on product variety and quality.  The quality conscious purchasing trend had evolved coffee
from a beverage of pseudo-commodity characteristics to one with cultural and sensory ties.  The
APCA had pointed to that glut of "false" Antigua in the marketplace as one reason they were
receiving prices that did not reflect the true value of genuine Antigua coffee.  In a period of ten years,440 million pounds of false "Antigua Coffee", if not more, would be sold around the world.  He
referred to the steer price crises that the coffee market had been undergoing already for some years of
which countries like Brazil and Colombia suffered.
158. The International Coffee Organization (ICO) had recently stated that "without corrective
measures it was hard to see prices recovering in the near future.  If exporting countries take the
passive route, the law of the fittest will apply and it will be the smaller producers, several of which
depend on coffee for foreign revenue, who will be worst hit, as indeed is already the case.  One of theserious social consequences would be a very real risk that the farmers in some countries may find it
much easier to give in and start to grow illegal  crops.  Countries which, grow high quality beans
require real investment in terms of good husbandry.  But, due to the prices now being paid for their
beans, coffee farmers are on their knees  and the situation is poised to bring real problems in terms of
disaffection within producing countries, which could all too easily lead to social unrest coupled withpressures for migration to urban areas and to developed countries".  In order to remedy that situation,
the ICO was for example proposing to move towards quality and proposed to establish a system of
Certificates of Origin linked to quality.  The Speciality Coffee Association of America had argued for
extension before the USTR.  The chairman of that association had asked his delegation to pledge for a
better protection of "Antigua Coffee" before Guatemalan authorities.  He believed that everybodyagreed with the chairman of that association when he said that "for speciality coffees, geographical
indications and truth in labelling goes beyond issues of price.  Single-origin speciality coffees are
stories in a cup.  Exceptional single origin coffees create a connection to far-away locations, places
unknown to many people, intangible sense except through the cup.  Speciality coffee is about coffee
that could not have come from just anywhere.  We carefully prepare and serve single origin coffeesand say:  'This is what the foothills around Mt. Kenya taste like'."  Finally, the representative of the
European Communities expressed his support for a structured discussion.
159. The representative of Jamaica associated herself with the comments made by India on behalf
of the proponents of the extension of geographical indications to products other than wines and spirits.
Her delegation remained concerned about the disparity in the levels of protection for one and the same
intellectual property right, geographical indications.  The current level of protection for products other
than wines and spirits was inadequate.  Unlike Article 23, Article 22 did not prevent the use ofgeographical indications accompanied by expressions such as "like, kind, style or imitation".  Such
safeguards for wines and spirits as enshrined in Article 23 should be accorded to other products.
Many opponents had argued that they did not see the benefits of enhanced protection.  In fact, some
wine producing countries had informed the Council that they did not see any benefits accrued as a
result of enhanced protection for wines and spirits.  That might have had a lot to do with restrictionsencountered as a result of arrangements struck elsewhere rather than with the efficacy of Article 23.
She believed that a higher level of protection to safeguard legitimate producers of products actually
originating from the place indicated by the geographical indication was warranted.  It was necessary
to move beyond a mere "misleading" test to ascertain whether a right had been infringed.  There
needed to be a stronger mechanism, which could be achieved under Article 23.
160. She drew attention to paragraph 7 of document IP/C/W/353, which stated, inter alia , that "the
definition of geographical indications is flexible enough as it may protect geographical names of
localities, regions or countries".  New Zealand had expressed two concerns as regarded extension, one
concerning restrictions to market access and the other concerning restrictions to innovation.  Contrary
to the views expressed by New Zealand, her delegation was of the view that extension could, in fact,lead to innovation, including the development of  niche products with, for example, products with
particular characteristics which were attributable to their geographical origin and products whichIP/C/M/36/Add.1
Page 37
would be safeguarded because terms such as "like, kind, style, etc." would be prohibited.  Producers
of such niche products could become real competitors rather than seeking to usurp denominations of
legitimate producers of products originating from the place indicated by geographical indications.
She thanked the European Communities for their presentation of statistics regarding "Antigua
Coffee", which had made her very concerned about "Blue Mountain Coffee".
161. The representative of the United States said that, as Switzerland had observed, the United
States did have thousands of trad emarks which were protected in the markets of other WTO Members
pursuant to the TRIPS Agreement, but that there was a fundamental difference between the issue of
providing trademark protection and what was being discussed in the Council.  The difference was that
the United States provided full protection for the trademarks of other WTO Members.  Part of the
issue that was being discussed was whether th ere were commercial opportunities for Members
resulting from the expansion of GI protection.  Not all Members were enjoying the commercialadvantages of the GI protection that was negotiat ed in the Uruguay Round.  Should Members agree to
expand that protection, it was not guaranteed that all Members would enjoy the commercial
opportunities being promised by the demadeurs.  He regretted that certain Members  rather than
engaging in a dialogue on the existence of commercial opportunities, chose instead to suggest that
success on the issue of extension was a prerequisite for progress in other areas.  The Council shoulddiscuss the real world and the real facts and figure out what the benefits were.  He asked the
representative of the European Communities whether under EC Regulation 2081/92 on geographical
indications, Guatemala could obtain protection for their geographical indications without having to
provide what the European Communities decide d was an equivalent system of protection.
162. The representative of Kenya, associating himsel f with the statement by India on behalf of the
co-sponsors of the communication, said that he was seeking fair play and an opportunity for equal
gains from the intellectual property regime.  He indicated that Members of the Council should look at
all issues with an open and objective mind.  He recalled that the United States had indicated that some
Members asking for extension had not even conformed to the TRIPS requirements that were provided
for in the TRIPS Agreement.  He believed that some of those countries which had not yet conformedto the TRIPS Agreement in the GI area might be reluctant to do so because they had not seen balance
involved in the protection.  There was a high likelihood that once the issue of imbalance was solved
they could move fast to conform with their obligations.  The United States had also mentioned that the
obligations were many and the benefits few.  He foresaw that extensions would benefit the developing
world, including Kenya.  Also consumers would be better off choosing products with right indications
of origin.  It was true that not all Members would benefit equally from GI provisions;  they had
different capacities, some would have none while others several thousand geographical indications toregister.  However, this was the general trend observed in the whole intellectual property regime.
Members were already under an obligation to protect other IP rights including patents, trademarks and
so forth.  Some Members filed thousands of patent applications every year while others might not file
a single application in a given year.  What was important was to establish a system which enabled
Members to benefit equally.  If a Member was not able to draw benefits today, let that Member haveaccess to those benefits tomorrow.  Concerning Sri Lanka's experience on branding tea, he said that
there might be other similar cases.
163. The representative of Cuba, one of the co-sponsors of document IP/C/W/353, said that
extension was essential for its trade.  Geographical indications for tobacco associated with qualities
and characteristics which could not be repeated elsewhere had a long tradition in Cuba.  This led tothe illegitimate use of those geographical indications as trademarks by many multinationals in
different parts of the world. Cuba had invested ov er the last eight years some US$ 400,000 to defend
these geographical indications.  Nevertheless, it was still insufficient to establish its claims and obtain
indemnity in all the territories where illegitimate use was being made of those geographical
indications for tobacco.  There had been expenses which Cuba as a developing country had not beenable to cover.  A number of arguments had been presented to justify the insufficiency of Article 22
with a view to trying to ensure better protection.  She was surprised that certain Members felt thatIP/C/M/36/Add.1
Page 38
Article 22 was perfectly adequate though it could lead to discrimination.  Geographical indications for
tobacco were as import as those for wines and spir its.  Extension would be an element that would
contribute to improving the balance.
164. The representative of Chile said that it was still unclear what the potential effects of extension
were i.e. whether one would be better or worse off as a result.  Responding to the representative of the
Czech Republic who had justified her position by saying that the objective of the TRIPS Agreement
was to eliminate obstacles to trade, he said that this  did not seem to be an issue of market access;  to
the contrary, the debate was potentially leading to the limitation of market access.  The representative
of Sri Lanka had spoken of things which did not really concern the protection of geographical
indications.  A number of countries had said that there was an imbalance and that they wanted a level
playing field and benefits which existed for certain sectors for other sectors.  He believed that all of
that could be corrected by simply eliminating the additional protection for wines and spirits.  He askedfor consistency when delegations discussed for example agriculture, industrial products or import
subsidies.  He was in favour of a structured discussion, as suggested by Australia.
165. The representative of Switzerland said that, in order to fully benefit from the protection of
geographical indications, authorities and producers in Member countries, especially in developing and
least-developed country Members, needed to be proactive.  The WTO Secretariat trade policy reporton Mexico was an example of why geographical indications offered tremendous opportunities and
great benefits for the development and prosperity of Members' economies.  According to paragraph
226 of that report "Mexico's alcoholic beverages industry, an intensive user of trademarks and
geographical indications, has developed into one of the country's most dynamic export activities.
Mostly due to beer and spirit sales which account for almost 64% and 26% of beverage exports,Mexico enjoys a wide and growing surplus in th is product group.  This is in part the result of
concerted efforts by the authorities to ensure that Mexican denominations of origin received adequate
protection in foreign markets."  Paragraph 227 concluded that "Mexico's experience with regard to
Tequila is a prime example of the considerable financial benefits that could arise from the rights
granted through geographical indications".
166. In paragraph 40 of the report prepared for WIPO's Intergovernmental Committee on
Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore meeting, held on
13-21 June 2002, several countries referred to the importance geographical indications had in the
protection of traditional knowledge.  In his view , without any protection of geographical indications
Members would never succeed in having total pr otection for traditional knowledge.  Indigenous
people and local farmers in various countries had developed over the years their own knowledge for
obtaining food and medicines from their land.  Th at knowledge often evolved outside the legal
structure of intellectual property protection syst em.  Considering that many of those products
produced according to traditional and ancient methods had a given quality, reputation or other
characteristic essentially attributable to their geogra phical origin, they might be eligible for protection
by geographical indications.  Traditional knowledge was often linked to a specific place or region
where a certain product was made or to traditional methods or conditions prevailing in a specific area.That conferred on the products certain characteristics or reputation related to their geographic origin.
He cited the examples of Mexican enola beans, Peruvian yacon or Andean nuna beans.  Concluding,
he said that extension was a chance for all WTO Members.  It was important that each WTO Member
seized that opportunity for its own benefit.
167. The representative of Singapore said that the Council was dealing with an area that carried
high and important economic stakes.  This issu e had also come up in WIPO's SCT and the two
sessions on domain names.  The Ministers' decision at Doha to examine the issue was timely.  It had
been correctly noted that the issue had been solved towards the end of the Uruguay Round as part of a
deal.  Perhaps it was not time to examine whether that solution had been correct.IP/C/M/36/Add.1
Page 39
168. The representative of Brazil said that his delegation was committed to the mandate contained
in paragraph 18 of the Doha Ministerial Declaration and recognized the right of other Members to
bring proposals forth in light of that mandate.  His delegation would not try to re-interpret the
mandate that was at hand and would have systematic concerns if the mandate already established
would be changed.  In that respect, he thanked India for presenting the joint proposal in document
IP/C/W/353 on behalf of a number of delegations.  He said that he would revert back to the content of
the proposal in further discussions.  Brazil was a country rich in local products with quality and
reputation.  Within the domain of trademarks, it had protected consumers against deceptive practices
since the late 19th century and the implementation of the Paris Convention.  Since 1997, Brazil had
provided protection for geographical indications in line with the provisions of the TRIPS Agreement.
In spite of the existing legal framework to protect geographical indications, the reality in Brazil was
that producers had little or no experience in that kind of protection of intellectual property rights.Only in December 2001 did the Brazilian Government grant ex officio protection to the first Brazilian
geographical indication "Cachaca", a spirit.
169. He stressed that Brazil was not a demandeur on geographical indications on that particular
product or on any other product or service.  While respecting the legitimate trade interests of other
Members on that issue, his delegation followed the debate with a certain degree of caution in light ofthe potential costs and benefits that extension could result in.  His delegation shared the concerns
expressed by a number of delegations regarding the balance between protecting only a few if any
national geographical indications versus an obligation to protect a great number of foreign
geographical indications.  Another question was whether Members could realistically expect to
receive returns from extended protection of geographical indications.
170. He recalled that Australia had argued that GI protection would offer any solution to the
decline in coffee prices or any advantages, and that benefits would be illusionary.  The representative
of Brazil said that he did not necessarily think that geographical indications were illusionary or that
they would provide no obvious advantages or returns.  A better chance should be given to
implementation of Article 22 of the TRIPS Agreement so that countries could explore the potential ofthat particular provision to assess the positive effects that the protection of geographical indications
could provide.  He agreed with Australia that market access negotiations were a way to provide more
substantial gains.  He did not necessarily take th e point of the European Communities that survival of
the fittest would result if geographical indications were not put in place.
171. Responding to the intervention of Chile, he said  that he took the poi nt on the possibility of
lowering the standards of protection as one way of levelling the playing field.  While being fully
committed to respecting the TRIPS Agreement, his delegation could for the sake of coherenceconsider taking the same approach in other areas of intellectual property.  He said that he was not
totally negative about the point raised by Switzerland on the relationship between geographical
indications and traditional knowledge, but he did not see that as an answer to the protection of
traditional knowledge.  In fact, geographical indications would be just as limited and ineffective as
other forms of intellectual property rights.  Geographical indications would not be a means to preventbiopiracy.  Regarding the paper prepared by the WIPO Secretariat, he noted that quite a number of
delegations had asked the WIPO Secretariat to re-draft that document so that other IPRs could also be
considered.  It was felt that there was an imbalance and that there was no good reason to single-out
geographical indications as one way of protecting traditional knowledge.  Concluding, he associated
his delegation with the statement by Turkey that it was not a North-South issue.  Both developed anddeveloping countries, large and small, had expres sed eloquent arguments on both sides of the debate.
For that reason, the Council's discussions should aim at a balanced result after a consideration of all
concerns related to the issue.
172. The representative of Colombia said that before entering into a detailed discussion of the
proposals, it was necessary to have an in-depth analysis of different elements.  She supported theIP/C/M/36/Add.1
Page 40
themes suggested by Australia for a structured discussion, adding to the list of issues the relationship
between rules of origin, trademarks and geographical indications.
173. The representative of Morocco said that extension was a matter of priority in the work of the
Council.  Her delegation was examining document IP/C/W/353 and might become its co-sponsor.
The arguments put forward would lead to a climat e of security for the protection of geographical
indications and to a balance without differentiating between products.
174. The representative of Guatemala considered that the application of Article 23 was sufficient
to protect Guatemala's interests.  Countries producing products protected by Article 23 such as
Canada, Australia and Argentina considered that they did not have positive experience with that
additional protection.  He agreed that information on WIPO's work on geographical indications could
be useful for Members before they went on with further negotiations in the Council.  Regarding the
Council's mandate, he associated his delegation with the statement by Uruguay.  He expressed hisappreciation of the work that the European Communities had done on "Antigua coffee" and said that
his delegation would continue to discuss with Guatemalan producers and it would let the Council
know if it received a proposal from them.
175. The representative of Argentina said that the WIPO document referred to was a compilation
of replies to a questionnaire to which only 48 Members of the WTO had replied and five of those
Members had mentioned, among other categories of intellectual property, geographical indications.
As Brazil had pointed out, it was considered that paragraph 40 reflected in an unbalanced manner the
opinions of the countries that had replied.  There had been an agreement to re-word it because it was
considered that the Secretariat had gone too far as regards giving conclusions.  Regarding market
access, she asked Switzerland that if, for example, Argentina wanted to protect its cheese withgeographical indications, how would that facilitate  the entry of Argentinian cheese to the Swiss
market.
176. The representative of Mexico agreed with the representative of Switzerland that "tequila" was
a successful geographical indication, and invited him to try it to find out why it was successful.  The
fact that a product was protected by a geographical indication did not necessarily mean that it wouldbe successful, neither did it apply that it would have a greater access to markets.  Mexico protected
geographical indications for products not falling within the categories of Article 23.  It was important
to note that, precisely due to Mexico's experience, he considered that extension would, apart from
some Members who had hundreds of geographical indications, mean that the balance would finally be
negative for most Members.
177. The representative of the Philippines said that the meeting had confirmed the need to be
careful and cautious about attempts which sought to expand the various types of protection currently
afforded under the TRIPS Agreement.  He wondered whether the existing provisions had sufficient
flexibility if appropriately implemented or operationalized to afford adequate protection of products
for which GI protection was sought.  There wa s a divergence of views on the interpretation of
paragraph 18 of the Doha Ministerial Declaration.  While he appreciated the submission by 36
countries, he wished to view it simply in the cont ext of an examination of the issues related to the
extension of the protection of geographical indications  as mandated by paragraph18.  In that regard,
he was inclined to evaluate the submission in accordance with the checklist of issues suggested earlier
by Australia.  That included the definition, the application of Article 22.1, the impact of the principle
of territoriality on the implementation of Section 3 of the TRIPS Agreement, interaction between
trademarks and geographical indications, cost differentials between protection under Articles 22 and23 and exceptions under Article 24.  Submissions by Australia, the United States, Argentina and
others had adequately demonstrated the pragmatic difficulties which both consumers and
administrators among WTO Members would encounter if an extended system for protection of
geographical indications was ever put in place.  The Philippines too had certain products for which it
might wish to claim benefits flowing from additional GI protection, for instance the PhilippineIP/C/M/36/Add.1
Page 41
mangoes, Manila envelopes and Manila hemp, but he was concerned about the costs on the other side
of the equation ranging from those related to the anticipated shifts in production or marketing methods
or strategies to costs related to diminished market access.
178. A system of protection based on geographical indications concerned, in essence, private
rights.  The protection of geographical indications based on the existing system, i.e. trademarks,prevented the use of similar or identical names when the use was misleading or confusing to the
public.  There was an element of public interest involved in the latter system.  That element would be
obviated if the system of protection was based solely on geographical origin, as Article 23 required
the implementation of an absolute standard, i.e. if the goods did not come from the place named then
the geographical indication would be invalid regardless whether its use would mislead the public.  To
require the present regime to begin using a different standard that did not take account of the public
interest, necessitated a fundamental philosophical change, which he believed all Members should becautious to undertake.
179. The representative of Bulgaria said that it had been repeatedly argued that the extension of the
additional protection for geographical indications to products other than wines and spirits would
imply protecting hundreds of foreign geographical indications from some Members compared to a
few from some other Members and that this would constitute an imbalance.  That argument wentagainst the essence of intellectual property protection.  It was not made when the TRIPS Agreement
was included in the multilateral trading system fo r other intellectual property rights.  The TRIPS
Agreement was about the protection of a certain kind of property and setting minimum standards.
Therefore, if Members spoke of imbalances then they should look at the coherence itself and not
approach the question in terms of exchanging concessions.
180. Much had been said on the issue of costs, including on administrative difficulties and
confusion to consumers.  Some Members had repeatedly responded that there were no or negligible
costs resulting from the protection of foreign geogra phical indications;  only a change in legislation
was needed in order to allow courts to protect foreign geographical indications.  It was necessary to
provide domestic protection first before seeking foreign protection.  This would involve someadministrative framework and was an opportunity for producers who would be eager to bear those
administrative costs.  He wondered whether those Members who had been disappointed with the
benefits resulting from additional protection to their wines and spirits abroad had thought about
abolishing the domestic protection of the geographical indications for those wines and spirits, if that
protection was so costly and their industry was even against it.
181. It had been implied that the demandeurs were expecting more benefits than was true.  One
argument had been that the exceptions provided  under Article 24 on generic names, prior use and
grand-fathering precluded protection.  The United States had given the example of Bulgarian yoghurt.
He said that Bulgarian yoghurt was not generic, only famous.  The aim of extension was exactly to
put an end to the process of names becoming eventually generic.  The exceptions would ensure that
existing producers, including those that wanted to make good use of their cultural heritage, could
continue the production of the products they were producing.  Therefore, the argument on exceptions
was misplaced; it was an argument against the potential and real concerns of existing producers of
products which could claim GI protection.
182. It had been argued that extension would result in a barrier to trade but would not ensure
additional market access.  He clarified that he was not arguing that extension per se  would ensure
market access but it was definitely not a new barrier to trade.  He disagreed with the argument thatextension would imply restrictions on innovation since extension was meant to provide an incentive to
work for the reputation of a product and a region.  Many of the opponents arguments had nothing to
do with the relevance of the proposal to extend additional protection to all products and concerned
specific problems between some Members in the broad field of geographical indications.  Those
problems either had nothing to do with extension per se  or could be solved exactly by extending theIP/C/M/36/Add.1
Page 42
existing protection.  For example, the United States had asked why Article 22 protection was not
sufficient.  At present, yoghurt "à la bulgare" could be produced legitimately and could not be
challenged under the TRIPS Agreement.  With additional protection, such use would be illegal.
Responding to the comments by Australia on Bulgarian feta, he said that the problem was not that
Bulgarian feta was being sold in Australian gour met shops;  extension would not mean that the feta
would no longer be sold in Australian gourmet shops.  What he did not want was that Australian
gourmet shops could sell Bulgarian-like feta.
183. Several delegations had argued that there was no mandate for discussing modalities.  The
representative of Bulgaria said that he had not proposed discussions on modalities but on guidelines.
In the Doha Declaration, Ministers had expressed th eir determination to find appropriate solutions and
to propose appropriate action before the end of the year.  He was disappointed with the Australian
delegation which had refused to discuss the proposal of the co-sponsors in the paper presented byIndia.  Concluding, he said that, like others who had spoken on behalf of the co-sponsors, positive
results on the extension of additional protection for geographical indications to products other than
wines and spirits was a prerequisite for the overall balance of the negotiations within the Doha
Development Round.  For his delegation this meant that progress in this matter would influence other
matters, and the issue of extension had to do with more than just geographical indications.
184. Responding to the representative of Bulgaria, the representative of Australia said that his
delegation's contribution in the Council and in th e period leading up to Doha showed that it was
prepared to discuss the issue.  The case of Bulgar ian yoghurt and Bulgarian feta were the very issues
it tried to get at.  Bulgaria regarded their yoghurt and their feta as very famous products.  The
European Communities had just passed a regulation which would deny Bulgaria from sellingBulgarian feta in the EC, once the Council would have passed the regulation.  If his delegation
accepted the proposal by the co-sponsors, it too would have to deny Bulgaria the right to sell
Bulgarian feta in Australia.  On Bulgarian yoghurt, the question was whether the European
Communities would accept the words "Bulgarian yoghurt" as a geographical indication from
Bulgaria.  He betted that they would not.  The other issue was that even if the European Communitiesdid accept yoghurt, would Bulgaria as a country be accepted as a geographical indication?  A number
of countries had said that the IP definition of geographical indications was flexible enough.  He
believed that that was the problem;  the definition was so flexible that some countries were abusing it
by claiming that traditional terms, English adjectives that described a Portuguese product, were
somehow a geographical indication.  That was why the issue of the European Communities' wine
regulation was so relevant to the debate.  He said that he could understand that the European
Communities did not want to dwell on the EC system or the EC wine regulation but the fact was thatthey were critical to the question on extension.
185. Developing country Members had repeatedly said that they needed to level the playing field.
Kenya had asked wine exporters how they would feel if the tables were turned.  The representative of
Australia said that Chile had given an answer to that, and he was sure that if all non-European wine
exporters were asked whether they would cut Article 23 and go back to Article 22, the decision wouldbe unanimous.  That was because of their experience with Article 23 in relation to wine.  In recent
years, a number of countries in the new world, namely Chile, Argentina, South Africa, the United
States, Canada, New Zealand, Uruguay and Australia had developed a flourishing wine industry.  Was
that because they protected geographical indications  and sold wines on the basis of geographical
indications?  It was because of quality, innovation, marketing, investment and good reputation.   The
European Communities would say that the reason was the use of their names.  However, Australia had
agreed not to use their names at the time of the TRIPS negotiations.  Australia was now facing new
wine regulations going beyond geographical indications picking up terms which were ordinary
English adjectives.  Australia had a drink called "Port" and it accepted that the word was based on the
Portuguese word "oporto", so it willingly gave up on the use of the word.  Then, looking forsomething to use on the label, Australian producers used "vintage", "ruby" or "tawny", which were
English words and not English interpretations of Portuguese words.  Yet his delegation had been toldIP/C/M/36/Add.1
Page 43
they could not do that.  It had also been told that the European Communities owned certain bottle
shapes.   This was to say that in a few years time the champagne-type bottle which was used all over
the world would suddenly be declared as a traditional expression or a traditional shape.  In
Switzerland, the town of Champagne was being deprived of making a wine which was not even
champagne.  The point was that the whole definition of geographical indications  was beingperpetrated in a way that was not comfortable with and that was why he was concerned with the
extension issue.
186. He recalled that Kenya had said that developing country Members might be more comfortable
in complying with old obligations if the new obligations were balanced up.  He understood that to a
certain extent, but wondered whether it was genuinely true and whether that was the real reason why
some developing country Members had not introduc ed Article 22 protection let alone Article 23.  He
suspected it was because it was such a costly effort.  The reason he was promoting caution wasunderlined during the WTO Public Symposium.  Who were the people counselling his delegation to
be cautious?  They were the Danish Dairy Board and a Spanish wine producer, both of whom had
gone through a difficult times, the wine producer losing its trademark and spending many years
fighting to have it re-established and the Danish Dairy Board on the issue of feta.  Concluding, the
representative of Australia said that he was genuinely prepared to debate the issues and believed thatthe type of system the European Communities had was relevant.   The matter was not a simple issue
of changing Article 23 to cover all products.
187. The representative of Bulgaria said that the problems mentioned by Australia had nothing to
do with the issue on the table.  The example of problems relating to the protection of "feta" as a
geographical indication in the European Communities was not an issue relevant to extension;  itconcerned Article 22 protection, not Article 23 protection.  He added that Australia had not answered
his question on whether it had considered abolishing its domestic protection of geographical
indications for wines and spirits.
188. The representative of the European Communities said that he sympathized with Bulgaria's
comment that many points raised by Australia did not have anything to do with the debate at stake.
189. The Chairman proposed that, in order to have a more systematic discussion on this topic at the
Council's meeting in September, he would prepare a checklist of issues taking into consideration the
points raised in the discussion.  At that meeting, the Council should consider not only the substance of
the matter but also how it should report to the TNC by the end of the year.  Furthermore, he proposed
that the Secretariat be requested to circulate to Members the report of the eight session of the WIPO
Standing Committee on the Law of Trademarks, I ndustrial Designs and Geographical Indications,
held on 27-31 May 2002, once it became available.
190. The representative of Switzerland said that it was important not to mix up the item on
extension with the item on Article 24.2.  There should not be any repetition of what was discussed at
the WIPO Standing Committee on the Law of Tr ademarks, Industrial Designs and Geographical
Indications and under agenda item M.   He wished to focus on the issue of paragraph 18 of the Doha
Declaration and on agenda item D, namely the extension of protection under Article 23 to productsother than wines and spirits.
191. The representative of the European Communities associated his delegation with the statement
by Switzerland.  There should be no duplication of work in the different international organizations.
He hoped this could be avoided when the Chairman consulted with delegations in order to ensure that
the list produced would not be a duplication of work with what was happening in WIPO.  Manyarguments had been put on paper and their repetition should be avoided at the next meeting.
192. The representative of the United States said that the Chair's proposal was constructive and the
suggestions made by Australia contained some themes he might want to focus on.  He respected theIP/C/M/36/Add.1
Page 44
concern of the European Communities in not duplicating work done in another forum.  If a focus was
kept on TRIPS provisions, d uplication could be avoided.
193. The Council agreed to proceed as suggested by the Chair.
E. REVIEW OF THE PROVISIONS OF ARTICLE 27.3(B)
194. The Chairman recalled the request made by the TRIPS Council at the last meeting of March
2002 to the Secretariat to prepare short papers summarizing the relevant material that had been
presented to the Council during its earlier discussions and listing all the relevant documentation on
three subjects, namely the review of the provisions  of Article 27.3(b);  the relationship between the
TRIPS Agreement and the Convention on Biologic al Diversity (CBD);  and the protection of
traditional knowledge and folklore.  He informed Members that these three notes had been circulated
in documents JOB(02)/59, JOB(02)/58 and JOB(02)/60, respectively.  He also informed Members that
the TRIPS Council had received updated informat ion from the FAO, the CBD, UNCTAD and UPOV
on their activities and that this had been circulated in documents IP/C/W/347 and its addenda 1-3,
respectively.  The International Bureau of WIPO had also submitted a paper on issues relevant to the
work of the TRIPS Council which had been circulated in document JOB(02)/15.  In addition, a
communication on UNCTAD's work relating to paragra ph 32(ii) of the Doha Ministerial Declaration,
had been circulated jointly between the Committee on Trade and Environment and the TRIPS Councilin document IP/C/W/350.  Furthermore, the Secretariat had sent a reminder to Members in airgram
WTO/AIR/1756 on 26 March 2002 to provide responses to the questionnaire on the implementation
of the provisions of Article 27.3(b), but no further responses had been received.  The Secretariat
would update the synoptic table in its summary note, as requested by the Council at its last meeting,
once a number of new submissions had been received.  The Council had also received acommunication from Brazil, on behalf of a group of developing countries, namely Brazil, China,
Cuba, Dominican Republic, Ecuador, India, Pakistan, Thailand, Venezuela, Zambia and Zimbabwe,
on the relationship between the TRIPS Agreement a nd the CBD, and the protection of traditional
knowledge and this had been circulated as document IP/C/W/356.
195. The representative of the Secretariat introduced documents JOB(02)/59, JOB(02)/58 and
JOB(02)/60, and said that they were based on discussions in the TRIPS Council in the context of the
review of the provisions of Article 27.3(b).  The subject-matters covered in each document had been
presented in a manner that avoided undue duplication, although the task of separating the topics had
not been easy.  He explained that the reason for circulating the documents as informal papers was to
ascertain whether the approach taken was satisfact ory to all delegations.  Subject to any comments
that might be made, the documents would be issued as working documents.
196. The representative of WIPO gave an overview of the proceedings of the meeting of the
Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge
and Folklore (hereinafter referred to as the IGC), held in Geneva from 13 to 21 June 2002.  He said
that the meeting had covered a discussion of both the operation of existing forms of intellectual
property protection and new or adapted forms of sui generis  protection with respect to traditional
knowledge and folklore.  Almost every category of intellectual property covered in the TRIPSAgreement had been discussed at some level of detail.  There had also been discussion on sui generis
database protection and specific sui generis  forms of protection of traditional knowledge and folklore.
The meeting had made progress on specific issues re lating to genetic resources, traditional knowledge
and folklore (or expressions of traditional culture).  On genetic resources issues, the meeting had
endorsed the creation of an electronic database of contractual practices and clauses relating tointellectual property, access to genetic resources and benefit-sharing.  A wide range of stakeholders
would be invited to contribute contract and licence clauses and to share their experiences in licensing
and contracting on genetic resources and intellectual property.  The database would serve as a
practical resource to assist those concerned with intellectual property aspects of genetic resources.  It
had been stressed during the WIPO meeting that the database exercise would serve as an immediateIP/C/M/36/Add.1
Page 45
practical tool for those engaging in licensing negotiations and would also be a source for further study
of licensing and contractual issues relating to intellectual property and genetic resources.  Also
concerning genetic resources, the meeting had agreed that the WIPO Secretariat should commence a
technical study concerning laws requiring patent applications to disclose details such as the source of
genetic resources or of any traditional knowledge, innovations and practices used in a claimedinvention, as well as on similar measures concerning prior informed consent.  This decision was based
on an invitation to WIPO by the 6
th Conference of Parties to the CBD to conduct such a study, as
contained in decision VI/24 on access and benefit-sharing.  He informed the Council that WIPO
would be circulating a questionnaire, which would form the basis of the study, for comments in the
near future.
197. He continued that, with respect to the protection of traditional knowledge, discussions
covered both immediate technical measures for the protection of traditional knowledge againstadverse claims of intellectual property rights and broader conceptual issues relating to sui generis
legal systems for the identification, recognition and protection of traditional knowledge.  On technical
measures, the meeting agreed to develop a portal of traditional knowledge databases as a pilot project
to advance the study of intellectual property aspects of traditional knowledge databases.   Most
importantly, the databases would serve as a means to improve access of patent examiners to details oftraditional knowledge in order to facilitate identification of patent claims that cover existing
traditional knowledge.  He said that more information on the portal could be obtained from the WIPO
Secretariat or its website.  In addition, presentations of national initiatives on traditional knowledge
databases had been made by China, India, Venezuela and the North American indigenous community.
These database systems covered subject-matters ranging from traditional knowledge fully in thepublic domain;  traditional knowledge which was the subject of existing intellectual property rights
but was available for public access;  and traditional knowledge which was recorded in a database but
remained subject to restricted access.  The IGC had at this meeting agreed on a programme of
cooperation on the documentation of traditional knowledge in the public domain.  The programme
was to include a tool kit that gave practical advice to those assessing intellectual property implicationsof traditional knowledge documentation;  a survey of the objectives and functional requirements for
traditional knowledge databases;  and technical specifications of existing database initiatives.  On the
conceptual issues, substantial policy discussions took place at the meeting based on several Secretariat
studies and a review of existing legal approaches.  The discussions covered a range of legal options
for protecting traditional knowledge, including better ways of using existing intellectual property
laws, consideration of the elements of a possible sui generis  system for protecting traditional
knowledge and possible ways of defining the term "traditional knowledge".  He said that with respectto folklore or expressions of traditional culture, the IGC commissioned studies on national
experiences on the protection of folklore both through existing intellectual property systems, such as
copyright or specific folklore legislation and existing customary laws and protocols in the protection
of expressions of folklore as well as on the relationship between customary law and existing
intellectual property systems.  This would serve as the basis for improved capacity building activitiesconcerning the protection of expressions of traditional culture.
198. He said that the outcome of these various studies and activities would form the basis of IGC's
work at its meeting in December 2002.  The participants welcomed the collaborative efforts of WIPO
with other international organizations, in particular with the United Nations Permanent Forum on
Indigenous Issues.  The meeting also discussed and approved various forms of enhanced practical,legal and technical assistance to strengthen national protection systems on traditional knowledge,
folklore and related matters.  These activities would include work on intellectual property
documentation concerning traditional knowledge su ch as databases on traditional knowledge and
national legal systems for the protection of folklore.  They would also involve active partnership with
member States, representatives of traditional knowledge-holders and other stake-holders, to ensurethat they were practical and useful.  In conclusion, he said WIPO looked forward to further dialogue
with the WTO on these important issues.IP/C/M/36/Add.1
Page 46
199. The representative of Brazil appreciated the overview given of relevant work in WIPO.  The
TRIPS Council could have similarly benefited from information on the developments at the sixth
Conference of the Parties to the CBD held at the Hague and it was unfortunate that a representative of
the CBD could not give such a briefing to the Council.  Brazil believed that WIPO's work on specific
issues relating to genetic resources, traditional knowledge and folklore could be useful for Membersto implement technical measures to protect traditional knowledge, even though these were not norm-
setting exercises.  However, intergovernmental organizations other than WIPO had overlapping
mandates on this set of issues as demonstrated by the CBD's recent achievements on the protection of
traditional knowledge and folklore;  the FAO's recently concluded International Treaty on Plant
Genetic Resources for Food and Agriculture (hereinafter the FAO treaty on plant genetic resources),
and the WTO's Ministerial Declaration's mandate in paragraph 19 directing the TRIPS Council to
examine the relationship between the TRIPS Agreement and the CBD, and the protection oftraditional knowledge and folklore.  It was important that these organizations work in synergy and
Brazil hoped that the work in WIPO would be made use of in the TRIPS Council discussions,
particularly as databases could be an important way of protecting or preventing traditional knowledge
from misusing patents.  Brazil was pleased with the progress made in WIPO but would also like to
ensure that its programmes were in the right direction, namely in line with the principles andobjectives of the CBD.  He also noted that the Standing Committee on Patents in WIPO was currently
discussing the draft substantive patent law treaty, an issue of serious concern to Brazil since, if
approved, it could narrow down many of the flexibilities contained in the TRIPS Agreement.  Brazil
urged other delegations to participate in that exer cise to ensure that the flexibilities contained in
Article 27.3(b) on non-patentability of plants and animals, and in other Articles, were preserved.
200. The representative of Zimbabwe looked forward to working closely with all Members in
finalising the review of the provisions of Article 27.3(b) and hoped that the Doha mandate would spur
Members to work toward a satisfactory completion of the review process.  The Doha Declaration
stated clearly that the review must be undertaken taking into account the objectives and principles, as
set out in Article 7 and 8 of the TRIPS Agreement, and the development dimension.  Thus, thesolutions proposed and the outcome must reflect these overarching objectives and principles, must be
based on consensus and must take into account all concerns raised by Members.
201. Zimbabwe believed that it was possible for the TRIPS Council to adopt a decision reflecting
agreement among Members on certain issues without getting involved in protracted procedures.
Where there was no agreement, the TRIPS Council could focus on the urgent areas, drawing on
Members' proposals and elements of the work programme.  Areas of possible agreement include the
recognition of Members' right and freedom to determine and adopt appropriate regimes to protectplant varieties by an effective sui generis  system.  Such regimes could, for instance, include the
UPOV system or the African model law on genetic resources and community rights.  However, he
believed that the provisions of the TRIPS Agreement did not oblige Members to join UPOV or enact
UPOV-like laws and indeed, an appropriate and beneficial approach was to have systems of
protection which could address the local realities and needs.  The African model law legislation on theprotection of the rights of local communities, farmers and breeders and on the regulation on access to
biological resources was one example of a sui generis  system that had been developed to provide
appropriate and effective protection for the rights and knowledge of farmers and indigenous peoples
and local communities.  The preservation of non-commercial uses of plant varieties and the system of
seed-saving and exchange among farmers were matters of important public policy, regardless of thetype of sui generis  or patent systems adopted for protecting plant varieties.  In addition, ensuring  food
security and preserving the integrity of rural or local communities were important.  That, however, did
not imply that the legitimate rights of commercial plant breeders should not be protected but that these
should be balanced against the needs of farmers and local communities in developing countries.  Any
system should enable Members to retain their right to develop systems that would not undermine thetradition of their farming community and indigenous people in innovating and developing new plant
varieties that enhance biodiversity.  Another area of agreement could be the implementation of the
provisions of the TRIPS Agreement and the CBD in a mutually supportive and consistent manner.  InIP/C/M/36/Add.1
Page 47
this respect, Members should retain the right to require, within their domestic laws, the disclosure of
sources of any biological materials that constituted some input in the invention claimed.  Similarly, it
could be agreed that traditional knowledge and inventions of local communities could be protected
under appropriate regimes, on the understanding that the TRIPS Agreement provided only minimum
standards and did not prevent Members from adopting additional areas of protection.  It was importantto develop mechanisms for ensuring equity in rela tion to the use of traditional knowledge, through
appropriate international arrangements and mechanisms, to supplement domestic laws and measures.
The identification and documentation of genetic resources and traditional knowledge could provide a
means of assisting searches and examinations for novelty and inventive step, and a mechanism for
ensuring equity in the use of traditional knowledge.  Cooperation with all relevant international
organizations, such as WIPO and the CBD, and with  private sector organizations, would be important
in order to arrive at an appropriate solution to Members concerns raised under Article 27.3(b).Special consideration should be given to fully engaging and respecting the concerns of indigenous
peoples and local communities in developing any mechanism on traditional knowledge.  Definitions
giving precise meaning to certain terms in Ar ticle 27 such as micro-organisms, non biological
processes and essentially biological processes for the production of plants and animals would be
useful but any flexibility that Members have should, at the same time, be highlighted.
202. Once areas of agreement were reached on the review of Article 27.3(b), the TRIPS Council
could focus on the outstanding issues raised und er Article 71.1, other provisions on technology
transfer to least-developed countries, dispute settlement and other areas for possible negotiations, in
particular the use of additional protection to all geographical indications under the TRIPS Agreement.
He referred, in this context, to the African proposal that indicated possible areas of agreement anddisagreement.  He requested the Secretariat to identify and compile areas of agreement on the basis of
discussions so far and papers presented on the review of the provisions of Article 27.3(b).  In
conclusion, he urged Members to engage in this exercise in order to aid the Secretariat and determine
the way forward by the next TRIPS Council meeting.
203. The representative of Peru wanted her country to be added as a co-sponsor to document
IP/C/W/356.  She said that the TRIPS Council had a specific mandate, under the Doha Ministerial
Declaration, to review the relationship between the TRIPS Agreement and the CBD, in particular to
ensure that the two agreements were mutually s upportive, and the protection of traditional knowledge
and folklore.  Article 15 of the CBD stipulated clearly that Parties should adopt the necessary
measures to ensure equitable benefit-sharing and prior informed consent and, on this basis, many
Members had incorporated in their national and/or regional legislation provisions to give effective
compliance to those principles.  For instance, the joint industrial property regime of the AndeanCommunity had included provisions to ensure that patents based on genetic resources or traditional
knowledge were only granted after proof of a contract on access to the genetic resources or
authorization to use the traditional knowledge.  Ho wever, she said, rules adopted at the national and
regional levels were not sufficient to prevent misappropriation, which largely occurred in countries
that did not have such legislation.  It was therefore important to include, in the TRIPS Agreement,requirements for disclosure of the origin of genetic resources, equitable benefit-sharing and prior
informed consent.  These requirements were not more difficult to comply with than any other
requirements for granting a patent.  She recognized  that there were Members who maintained that it
would be complicated to have such requirements and who pointed out that the objectives of the CBD
could be obtained through signing of bilateral contracts.  If that were the case, she questioned whythere was a problem in adopting provisions at the multilateral level that reflected the principal
elements of these contracts.  She recognized that bilateral contracts afforded a certain degree of
protection but said that such contracts did not provide the necessary legal security since they were
voluntary in nature.  Furthermore, there was a need to ensure that the contracts were equitable and
beneficial to both parties and this was a particular difficulty at present because the vast majority ofindigenous communities did not have the appropriate legal training to negotiate contracts of this
nature.  There was, therefore, need to have provisions at a multilateral level that would preserve the
legitimate rights of the owners of genetic resources and traditional knowledge.  Peru believed that theIP/C/M/36/Add.1
Page 48
proposal contained in document IP/C/W/356 constituted a first step by calling for defensive protection
to prevent misappropriation.  However, this should be complemented by proposals to obtain positive
protection for traditional knowledge.
204. She informed the Council that Peru had drafted a proposal for a sui generis  protection regime
for collective knowledge belonging to indigenous peoples and communities.  The proposed regimecontains provisions on the protection of the knowledge of indigenous peoples or communities and on
the use of biological diversity.  It was drafted through a consultative process, taking on board the
concerns of the indigenous communities and addressing issues from a regional and community
context.  The main elements include the goals to promote, respect, protect and preserve the collective
knowledge of indigenous people and communities as well as the broad-based application and
development of such knowledge;  to guarantee its use based on prior informed consent; to promote
fair and balanced benefit-sharing;  and to prevent any wrongful grant of patents for inventions that didnot recognize the traditional knowledge on which the invention was based.  Indigenous peoples'
knowledge was not only valuable to the local communities since, for instance, such knowledge could
be a useful departure point for research and development of new products, particularly in the
pharmaceutical, biochemical and cosmetics industries.  Experience had shown that there were
increased chances of success when such research was based on traditional knowledge, thus reducingthe time and cost of conducting research.  Despite that, very few communities had, to date, received
any form of remuneration for sharing their knowledge with third parties and yet third parties had
received intellectual property protection for their products.  She alluded to other problems such as the
loss of traditional knowledge and the use of such knowledge without authorization.  At present
nowhere was there a legal framework to regulate the conditions of access to such knowledge and theentitlements of those owning it.  Although some international instruments recognized the rights of
indigenous people over their knowledge, there was no country that had provided an effective
protection regime.
205. Peru's proposed protection regime would require that any one seeking access to the collective
knowledge for industrial or commercial purposes, requests authorization from the appropriateorganization representing the indigenous peoples and communities.  Furthermore, a contract licence
specifying the conditions for appropriate remuneration and guarantee for benefit-sharing must be
signed and registered with the office of intellectual property in Peru (INDECOPI), which would
ensure compliance with a minimum set of conditions.  Indigenous peoples and communities signing
such a contractual licence would receive an initial payment, in monetary or other form, intended to
promote their sustainable development and a percentage of the gross pre-tax benefits obtained from
the utilization of that knowledge would be paid to the peoples themselves.  An indigenous peoples'
and communities' development fund, administered by five representatives of organizations
representing indigenous people and communities and two representatives from the national
commission of the Andean Amazonian and Afro-Per uvian people, would be created to ensure that
benefits from shared knowledge were also channelled to the broader communities other than those
holding a licence.  A percentage of the gross pre-tax sales would be paid to the fund, from whichindigenous peoples and communities holding contractual licences would receive direct remuneration,
while the rest would receive an indirect remuneration for the use made of their knowledge.  In
addition, three types of voluntary registers, aimed at protecting, preserving and safeguarding the
collective knowledge, interests and entitlements of indigenous peoples and communities over their
contents and to provide INDECOPI  with information, would be set up.  There would be a national
public register, a confidential register and  local registers on collective knowledge from indigenous
peoples and communities.  The first two registers would be administered by INDECOPI, while the
third one would be held and administered by the communities themselves.  Communities may institute
infringement proceedings with INDECOPI where knowledge had been disclosed, acquired or used
unfairly and/or without their consent.  INDECOPI may take procedural action similar to that laid
down for infringement of a patent and other industrial property rights.  However, indigenous peoples
and communities could continue to adopt agreements defining benefit-sharing and resolving their
conflicts in keeping with their customary laws and traditions.  Furthermore, a special Council, whoseIP/C/M/36/Add.1
Page 49
main purpose would be to monitor and follow up the application of the proposed regime of protection,
would be set up to protect indigenous knowledge.  She added that the Peruvian proposal did not claim
to be the last step but should be considered as the first step of departure for discussion among the
indigenous peoples and communities and civil societies.  Peru also intends to hold, within the next
one year, a broad-based consultative process with various indigenous communities aimed at providingexplanatory information and responding to queries regarding the proposed protection regime.  Two
workshops, one for indigenous facilitators and local consultations organized by these facilitators and
another national consultation to consolidate the proposal with the participation of indigenous
facilitators, would also be held.  Peru would conduct a legal technical review of the viability of the
proposal and draw up a legal instrument that would genuinely protect the interests of indigenous
peoples and communities.
206. The Council took note of the statements made and agreed
 to revert to the matter at its next
meeting.
F. RELATIONSHIP BETWEEN THE TRIPS A GREEMENT AND THE CONVENTION ON BIOLOGICAL
DIVERSITY
G. PROTECTION OF TRADITIONAL KNOWLEDGE AND FOLKLORE
207. The Chairman reminded Members that the Secretariat had received a joint communication
from Brazil, on behalf of a group of developing countries, on the relationship between the TRIPS
Agreement and the CBD and the protection of traditional knowledge, which had been circulated as
document IP/C/W/356.
208. The representative of Venezuela introduced the joint communication submitted by Brazil, on
behalf of a group of developing countries, and said that it was based on the negotiating mandate
contained in paragraph 19 of the Doha Ministerial Declaration.  It also contained a summary of the
relevant provisions in the CBD and made reference to the main provisions of the Bonn decision on
access to genetic resources and on fair and equitable benefit-sharing adopted during the 6th
Conference of Parties of the CBD in April 2002.  The co-sponsors of the communication believed thatthe TRIPS Agreement and the CBD should be mutually supportive and should promote sustainableuse of biological resources. While the CBD recognized the sovereign right of Parties over their
biological resources, the TRIPS Agreement allowed Members to grant patents on biological resources
i.e plants, animals and micro-organisms.  Furt her, the TRIPS Agreement did not contain any
provisions which would avoid acts of biopiracy committed through request for patents by a person in
one country on genetic resources under the sovereignty of another country, as evidenced in the
turmeric,  basmati rice and ayahuasca cases.  In addition, unauthorized patenting raised possibility of
potential  conflicts between the TRIPS Agreement and the principle of sovereignty of States over theirgenetic resources, as contained in the CBD, and thus an amendment to the TRIPS Agreement was
required.  Such an amendment should require patent applicants to indicate, as a condition for
acquiring patent rights on inventions based on biological materials or traditional knowledge, first, the
disclosure of source and country of origin of the biological resource and the traditional knowledge
used in the invention;  second, evidence of prior informed consent of the possessors of the biologicalresource through the approval of authorities under the relevant national regimes of the country of
origin;  third, evidence of fair and equitable benefit-sharing under the national regime of the country
of origin.  Failure to find a solution that woul d ensure mutual support between TRIPS and the CBD
could be prejudicial to the objective of both instruments and modification of the TRIPS Agreement to
include some CBD elements would have to be a necessary outcome of negotiations on pendingimplementation issues under the single undertaking principle in trade negotiations, as provided for in
the Doha Declaration.
209. The representative of Colombia said that the relationship between TRIPS Agreement and the
CBD, and the protection of traditional knowledge and folklore, were among the outstandingIP/C/M/36/Add.1
Page 50
implementation issues raised by Members.   Therefore, the TRIPS Council should take up, on a
priority basis, issues referred to in the Doha Declaration and report to the TNC by the end of 2002 for
appropriate action.  He appreciated the Secretariat notes in documents JOB(02)/58 and JOB(02)/60
which, in his view, gave a complete picture of the various proposals dealt with to date.  He drew
Members' attention to sections on access to genetic resources, potential conflicts between TRIPSAgreement and the CBD, and concerns regarding the grant of intellectual property rights on the basis
of traditional knowledge to persons other than indigenous populations or communities where the
knowledge originated.  In his view, the work in the various international fora relating to access to
genetic resources should be complementary and mutua lly supportive, particularly with regard to the
disciplines contained in the TRIPS Agreement and to the principles and objectives of the CBD.
According to Colombia, countries had the sovereign right to regulate access to genetic resources and
to protect the related traditional knowledge, but national and regional protection regimes were notsufficient to give international protection to third parties.  Therefore, international disciplines needed
to be strengthened through, for instance, the incorp oration in the TRIPS Agreement of  the objectives,
principles and measures contained in the CBD and of the Bonn guidelines on access to genetic
resources and the fair and equitable sharing of benefits resulting from their use, in order to avoid
biopiracy.  Furthermore, Members should require applications for patenting inventions based onbiological materials and/or related traditional know ledge, to first reveal the country of origin of
genetic resources and the traditional knowledge used in the invention;  second, provide evidence of
prior informed consent through approval of authorities and communities of the country of origin;  and
third, provide evidence of fair and equitable benefit-sharing of the country of origin and its local
communities.  He stressed that the Bonn guidelines were agreed upon without prejudice to domesticor regional existing rules and the sovereign right of States over their natural resources.  He supported
the proposal made by Brazil and other developing countries and considered it desirable to explore
other alternatives that did not imply modificatio n of the TRIPS Agreement, in addition to the
proposed mandate to review Article 27.3(b), such as having an interpretative understanding on the
relationship between the TRIPS Agreement and the CBD, as provided for in Article IV paragraph 1 ofthe Marrakesh Agreement.
210. The representative of Norway said that the TRIPS Agreement should play an important role
in the implementation of the CBD.  Having an ob ligation under the TRIPS Agreement to disclose the
origin of genetic resources when applying for patent protection could be one way of ensuring
transparency and enforcement of rights on genetic resources that are subject to patenting.  He urged
Members of the TRIPS Council to give full consideration to whether the TRIPS Agreement needed to
be strengthened in order to require or allow for the mandatory disclosure of the origin of genetic
resources in relation to patent applications.  He noted with interest the request of the contracting
parties to the CBD in their decision VI/24, directed at WIPO, to undertake inter alia  a technical study
on a number of issues, including methods consistent with obligations in treaties administered by
WIPO on disclosure requirements for patent application of certain elements.  In conclusion, he looked
forward to the result of WIPO's technical study which, in his view, would be an important element forthe TRIPS Council's forthcoming deliberations in assessing whether such a proposal would be a
feasible way to make the TRIPS Agreement better harmonized with the objectives of the CBD.
211. The representative of Pakistan found the Secretariat's three notes helpful and informative.  He
said that paragraphs 12 and 19 of the Doha Ministerial Declaration gave a mandate to introduce
proposals for negotiations in the context of outstanding implementation issues as an integral part ofthe work programme.  In addition, paragraph 47 specified that the conduct,  conclusion and entry into
force of the negotiations shall be treated as part of the single undertaking in the multilateral round of
trade negotiations under the Doha Development Agenda.  Speaking as a co-sponsor of the paper
presented by Venezuela, he said that the TRIPS Agreement and the CBD should be mutually
supportive and should promote the sustainable use of resources.  Genetic resources and the associatedtraditional knowledge were important and it was revealed in a recent study that 85 per cent to
90 per cent of the basic livelihood needs, such as food, medicines, shelter, of the world's poor were
based on direct use of biological resources and re lated traditional knowledge.  Over 1.4 billion poorIP/C/M/36/Add.1
Page 51
farmers relied on farm-saved seeds and local plant breeding techniques as their primary source of
seed.  He added that 57 per cent of the top 150 br and names of drugs, described during a six months
period in 1993, contained at least one major active compound devised or patented, at that time or at
some point, from compounds based on biological diversit y.  Similarly, of the 35 plants-derived drugs
included in these top 150 best selling drugs, 94 per cent contained at least one compound with provenuse in traditional medicinal practices by indigenous and local communities.  However, no benefits had
accrued to the indigenous communities who were the right holders of genetic resources and the related
traditional knowledge.  The TRIPS Agreement allowed private rights to be granted over genetic
resources that were subject to sovereign rights, thus subordinating public rights on the genetic
resources recognized in the CBD to the grant of private rights, such as patents, under the TRIPS
Agreement.  Article 27 of the TRIPS Agreement disregarded the fact that genetic material or
traditional knowledge could be used or incorporated in an inventive process without prior informedconsent and without benefit-sharing.  Pakistan believed that mechanisms that mandated the inclusion
of prior informed consent and warranted benefit-sharing were fundamental to achieving a cost-
effective solution legalizing the access to genetic resources and traditional knowledge.  The disclosure
of the origin of the genetic material and associ ated traditional knowledge would avoid initiation of
expensive judicial actions to revoke patents that used or incorporated illegally-acquired resources andassociated knowledge.  The proposed solution woul d not be more burdensome than any other regular
requirement concerning the ordinary disclosure of an invention.  National access legislation was not a
sufficient and adequate means to prevent situations where the genetic material had been illegally
accessed or used without authorization or incorporate d, in an inventive process or into an invention,
outside of the national jurisdiction.
212. The representative of India said that the cross-referencing in the three papers by the
Secretariat was testimony to the fact that the subjects addressed were interrelated and that it would be
incomplete to refer to any one of the three issues  without referring to the other two.  Commenting on
the proposals made by a group of developing countries, including his own, on the relationship
between the TRIPS Agreement and the CBD, and trad itional knowledge and folklore, circulated in
document IP/C/W/356, he said that the proposal included requirements on disclosure of the source of
origin of genetic materials and the associated traditional knowledge, evidence of prior informed
consent, and benefit-sharing in accordance with the national regime in the country of origin.  He said
that the co-sponsors of this proposal constituted around 45% of world's total population and thus
reflected the immense importance laid by people who would like protection of their valuable
resources and knowledge.  He noted that similar proposals had been presented in earlier discussions,
and commented upon, as reflected in the Secretariat's papers.  He observed that from a reading of thepapers it was clear that firstly, there had been no mention by any delegation that the problem of
biopiracy did  not exist.  In fact the possibility of an individual ignoring legal requirements and
obtaining samples of genetic material without entering into an access arrangement with the
appropriate party, had been recognized.  Secondly,  there were no arguments made that the proposed
solution to amend the TRIPS Agreement in order to  incorporate the disclosure requirements would
not solve the problem.  Arguments had only been made that a system of voluntary contracts and
criminal and/or civil remedies included in a country's laws, could tackle the problem, but these
arguments had already been effectively replied to.  The civil and criminal remedies provided under
national laws were obviously not a deterrent to check illegal use in third countries.  Several
developing countries had provisions in their domestic legislation specifying conditions for access,benefit-sharing and requirements of proof of prior informed consent of the communities owning such
resources and/or the relevant entities that serve them.  In short, such a mandatory disclosure
requirement would be complementary to the system of contracts and the civil and criminal remedies
in national laws.  Only mandatory disclosure requirements and national regimes for access and
benefit-sharing, when put together, could ensure a reasonable level of legal predictability againstmisuse of genetic resources and traditional knowledge of indigenous communities in developing
countries.IP/C/M/36/Add.1
Page 52
213. He said that previous responses to this proposal had made the following arguments:  (i) that
the proposed amendments were a legal and administrative nightmare and an unnecessary burden;
(ii) that the amendments would not be consistent  with the TRIPS Agreement and would conflict with
Article 62.1, which provided for "reasonableness" of procedures and formalities for grant of patents,
and with Article 27.1, which provided for non-discrimination in patent availability between fields oftechnology;  and (iii) that suggestions of a stand alone multilateral system and/or other solutions for
disclosing and sharing information on geographical origins could be discussed without affecting the
TRIPS Agreement, even while suggesting that those could later be brought into the TRIPS Agreement
if need be.
214. India's response to these arguments was that Article 29 of the TRIPS Agreement mandated
certain requirements for disclosure but did not preclude Members from imposing any additional
requirements for disclosure.  Therefore, any additional procedural formalities stipulated for the grantof patents should be within the realm of reasonableness and in accordance with the provisions of
Article 62.1.  Furthermore, it had been recognized that there would be a few individuals who might
access genetic resources and traditional knowledge in violation of domestic legislation.  In such a
case, assessment of the necessary evidence would be conducted as a matter of routine by the
designated authorities and would therefore not lead to additional burdensome obligations.  He wasconfident that no Member would oppose imposition of a little extra burden of disclosure where access
to genetic resources and traditional knowledge violated national legislation.  He suggested that
concerns relating to additional burden on patent seekers needed to be viewed in their proper
perspective.  The proposal of developing countries stemmed from the fact that the burden on
traditional or indigenous societies to seek annulment of wrong patents issued inadvertently wastremendous.  He questioned the concern that was shown for the convenience of only a few patent
seekers, who had not even cared to follow the laws of one country, and the lack of any concern for the
legitimate rights of a large number of indigenous people.  It was the balancing of a largely one-sided
agreement that Members were seeking under the aegis of the Doha Development Agenda.  In
response to the points raised about addressing th is issue elsewhere and only bringing it to the TRIPS
Council later if need be, he said that the very fact that the existence of the problem was not disputed
and no comments had been made that the proposed amendments on disclosure requirements would
not solve the problem, was in itself convincing enough to conclude that the TRIPS Agreement was the
most appropriate place to address the issue.  In conc lusion,  he said that mandatory introduction of the
requirements for disclosure of the source of genetic material and the associated traditional knowledge,
and the evidence of prior informed consent and bene fit-sharing in accordance with the laws of the
country of origin, was the simplest solution that Members could propose to restore the rights oftraditional communities in a legally meaningful manner.  It was his view that Members should now
begin engaging in finding appropriate modalities to give effect to the proposed solution.
215. The representative of Egypt welcomed and supported the paper presented by Venezuela and
observed that many questions had been raised relating to the impact of intellectual property rights on
biodiversity, access to genetic resources and the existence of and solution to a conflict between theCBD and the TRIPS Agreement.  According to him, the provisions of the TRIPS Agreement were
relevant to, and had implications for, the implementation and achievement of the CBD's objectives.
In his view, there seemed to be no contradicti on between the two instruments and neither were the
two instruments drawn up in a way that intended a conflict.  Instead, each one followed its path of
interest and the results covered similar grounds.  However, access to genetic resources under theTRIPS Agreement would be under the control of intellectual property right holders and subject to
private ownership and, in that case, governments would have no means of regulating access or
demanding a share of the benefits.  Therefore, minor changes might be needed to make the two
agreements mutually supportive and to ensure the development of a fair and equitable multilateral
framework on access to biodiversity and benefit-sharing between those with the resources and thosewith the technology.  Benefits could take the fo rm of compensation, sharing of profits from the
commercialization of the product derived from a genetic resource, or access to the supply ofIP/C/M/36/Add.1
Page 53
technology.  In addition, a sui generis  system compatible with the TRIPS Agreement should take into
account the objectives of other international treaties, especially those of the CBD.
216. On the subject of the protection of traditional knowledge and folklore, the representative of
Egypt said that traditional knowledge was a common factor between genetic resources and folklore
and that it was therefore difficult to treat these issues separately.  He believed that the inter-linkagebetween genetic resources and folklore should guid e the TRIPS Council's future work in treating this
topic and promised to provide substantive comments on this matter in the next meeting.
217. The representative of Indonesia shared the concerns raised in the joint communication by a
group of developing countries and supported that proposal (IP/C/W/356) on requirements for patent
application relating to biological material or traditional knowledge.  Indonesia was of the view that
the CBD and the TRIPS Agreement addressed the subject of biological diversity and traditional
knowledge in very different ways.  The CBD, on one hand, placed emphasis on the conservation ofbiological diversity, sustainable use of its compone nts, the fair and equitable sharing of benefits
arising over use of genetic resources and the need to respect, preserve and maintain traditional
knowledge.  The TRIPS Agreement, on the other hand, emphasized the primacy of private rights over
public rights but did not recognize prior informed consent and benefit-sharing on patents and other
intellectual property rights using genetic resources and traditional knowledge.  As a country rich inbiodiversity and traditional knowledge, Indonesia had long been concerned with the difference that
existed between the CBD and the TRIPS Agreement  with regard to biological diversity and
traditional knowledge.  Indonesia had many experiences of the unauthorized use of genetic resources
and traditional knowledge where patents were granted outside its territory without prior informed
consent and had undoubtedly resulted in loss in economic terms and ownership to the localcommunity and to the country.  Indonesia was of the opinion that a bilateral approach to the
protection of genetic resources and traditional knowledge and to benefit-sharing might not provide an
adequate solution.  Moreover, developing countries did not have the needed resources to monitor or
follow up each and every patent outside the country.  Therefore, Indonesia believed that more needed
to be done, at the multilateral level, to ensure that  agreements relating to biodiversity and traditional
knowledge were mutually supportive and promoted the sustainable use of resources.  In this regard,
Indonesia supported the proposal to have additional conditions in the TRIPS Agreement on acquiring
patent rights relating to biological material and traditional knowledge, such as disclosure of source
and country of origin of biological resources and traditional knowledge used in the invention;
evidence of prior informed consent; and evidence  of an equitable benefit-sharing as stated in
document IP/C/W/356.  Furthermore, a multilateral solution would be more cost-effective in
preventing biopiracy than the resort to the revocation of patents, which was time-consuming andexpensive.  According to Indonesia, the additional conditions would not be burdensome to patent
applicants as suggested by some.  Instead, the requirements would have a positive effect by ensuring a
predictable environment for governments, investors, traditional communities and researchers.
Indonesia encouraged the Secretariat to work closely with other related international organizations
such as WIPO, the CBD and FAO secretariats on th is issue.  In conclusion, Indonesia drew Members'
attention to the recommendations of the WIPO Asia–Pacific Regional symposium on intellectual
property rights, traditional knowledge and related issues held in Jakarta, Indonesia in October 2001.
Those recommendations emphasized, inter alia , the importance of access to and transfer of
technologies that made use of genetic resources, including technologies protected by patents and other
intellectual property rights.
218. The representative of Thailand said that traditional knowledge was a very important subject
that Thailand could hardly ignore or avoid expressing its needs and interests.  Thailand was one of the
countries that had much valuable, traditional and ancestral cultural heritage and therefore had the need
to preserve, respect and protect indigenous knowledge derived from generation to generation.
Furthermore, Thailand appreciated the efforts and contributions of the group of developing countriesin IP/C/W/356 on the relationship between the TR IPS Agreement and the CBD,  and the protection of
traditional knowledge.  It was in Thailand's inte rest to amend the TRIPS Agreement in a way thatIP/C/M/36/Add.1
Page 54
would strengthen the protection of traditional know ledge.  He said that the proposed conditions on
disclosure of the source, evidence of prior informed consent and evidence of fair and equitable
benefit-sharing were aimed at ensuring that indigenous peoples and communities were neither
exploited nor were their contributions forgotten by patent holders of new inventions, creations and
innovations.  Thailand also supported and shar ed the views expressed in a Communiqué of the
seminar on the systems for the protection and commercialization of traditional knowledge held in
New Delhi, India from 3 to 5 April 2002, as reflected in document WT/CTE/W/214.  It had been
recognized in the Communiqué that there was need to develop a sui generis  system of protecting
traditional knowledge and rewarding the knowledge-holders at the national and international levels.
According to Thailand, commercialization of trad itional knowledge based products and services,
should, where appropriate, be promoted with the emphasis on equitable benefit-sharing with local and
indigenous communities and proof of prior informed consent.  The transfer, utilization andcommercialization of traditional knowledge should take place through fair and equitable terms and
conditions.  The possible components for the international recognition of sui generis  systems were
also identified in paragraph 5 of that document and protection of traditional knowledge should be
given a broad interpretation to cover products as well as services, since the definition of traditional
knowledge and folklore went far beyond the scope of genetic resources that patent-owners might seekto protect under the patent regime.  Thailand reserved its rights to engage in more discussion on other
appropriate approaches in the context of negotiations under paragraphs 12 and 19 of the Doha
Declaration.
219. The representative of Brazil said that the paper presented by Venezuela, on behalf of a group
of developing countries including his own, raised im portant issues to be addressed in the context of
developments after the Doha Ministerial Conference.  The substance of the proposal in the document
should not have come as a surprise to Members, given that a number of individual delegations had
already presented this proposal to amend the TRIPS Agreement in order to incorporate some elements
of the CBD.  According to Brazil, the proposal had two main elements:  one, to give the necessary
political thrust to issues relating to biological resources and two, to recognize the negotiation mandate
set forth in paragraphs 12 and 19 of the Doha Ministerial Declaration.  He also noted other important
developments outside the WTO, such as the outcome of the CBD decision VI/24 of the 6th Conference
of Parties establishing the Bonn guidelines on access to genetic resources and fair and equitable
sharing of the benefits arising out of their utilization.  These guidelines stated, inter alia,  that
Contracting Parties should take appropriate legal, ad ministrative or policy measures in regard to the
use of genetic resources under their jurisdictions and support compliance with prior informed consent
of the Contracting Party providing such resources on mutually agreed terms of access.  They furtherstated that countries should also consider, inter alia , measures to encourage the disclosure of the
country of origin of the genetic resources and traditional knowledge, innovations and practices of
indigenous and local communities in the applications for intellectual property rights and consider
measures aimed at preventing the use of genetic resources obtained without prior informed consent of
the Contracting Party providing such resources.  Members should therefore consolidate, in asubstantive way, proposals in the context of the Doha negotiations and the above-mentioned
developments.  Brazil said that the proposal was aimed at achieving a recommendation by the TRIPS
Council to the TNC on a decision to amend the TRIPS Agreement provisions in order to allow
Members to require, as a condition of acquiring patent rights, that an applicant for a patent relating to
biological materials or traditional knowledge, di sclose the source and country of origin of the
biological resources and traditional knowledge used in the invention, provide evidence of prior
informed consent through approval of authorities under the relevant national regimes and provide
evidence of fair and equitable benefit-sharing under the national regimes of the countries providing
the biological resources and traditional knowledge.  He said that failure to provide a solution to ensure
mutually supportive relationship between the TRI PS Agreement and the CBD might be detrimental to
the objectives of both instruments.  Supporting the statement of the Indian delegation, he said that the
disclosure requirement should not be taken in isolation from other necessary measures aimed at
ensuring adequate implementation of the CBD, such as legislation on access to genetic resources and
establishment of bilateral contracts.IP/C/M/36/Add.1
Page 55
220. He also referred to a document, circulated by the United States at the last meeting of the
TRIPS Council, relating to bilateral contracts on access to genetic resources and said that such
contracts would constitute a means of implementing national and international legislation on access to
genetic resources.  However, it was clear to many Members that bilateral contracts alone were not a
sufficient way of providing adequate benefit-sharin g or prior informed consent.  Moreover, the issue
of bilateral contracts would be dealt with in a practical and more efficient way in the WIPO's IGC and
he encouraged the US delegation to consider raising this issue there.  The synergy between
discussions in WIPO, the WTO and the CBD would help countries in implementing such measures.
221. With respect to the proposal on the relationship between the TRIPS Agreement and the CBD
contained in a joint paper co-sponsored by Brazil, he said that it was based on the mandate and sought
to bring some balance and to avoid potential conflicts that could arise from inadequate
implementation of the TRIPS Agreement.  In Br azil's view, without the addition of the proposed
elements, the likelihood of the TRIPS Agreement resulting in the sanctioning of acts of biopiracy was
high and that there could be evidence that this wa s actually happening.  From a systemic point of view
these were important elements to be taken into co nsideration, in the context of the Doha Development
Agenda, as part of the outstanding implementation issues and the multilateral round of trade
negotiations established in the Doha Ministerial De claration.  He said that the joint communication, in
its paragraphs 15 and 16, addressed the issue of traditional knowledge from a defensive point of view.
Although it would be important to include safeguards in patenting procedures to prevent the misuse of
traditional knowledge from unauthorized sources, defe nsive protection was still insufficient to provide
adequate protection for traditional knowledge.  Therefore, it might be necessary for the TRIPS
Council to give further consideration to proposals, in the future, on a possible international framework
to provide positive protection as addressed in a seminar held by the Government of India and
UNCTAD on the protection and commercialization of traditional knowledge at New Delhi on
3-5 April 2002.  The input from that seminar would, in his view, be extremely helpful in the
elaboration of the above proposal.
222. The representative of Australia said that his delegation was conscious of the need to address
the concerns relating to biopiracy expressed by many delegations and had responded comprehensively
to them in its paper submitted to the TRIPS Council in 2001 and circulated as IP/C/W/310.  In that
paper Australia had pointed out that the problem of biopiracy should first be addressed through the
implementation of effective systems at the national level for regulating access to genetic resources
and benefit-sharing according to the CBD.  He said that Australia, as an active participant under both
treaties, did not consider that there was a conflict between the CBD and the TRIPS Agreement and
that this position was based on Australia's status as a mega bio-diverse country, like many otherparticipants in the debate, with a commitment to supporting an emerging biotechnology sector.  With
respect to national implementation, the Secretariat's comprehensive paper on the relationship between
the TRIPS Agreement and the CBD (JOB(02)/58) indicated that only four Members had made
submissions on their national legislation, practices and experiences in the area of genetic resources
and benefit-sharing.  That was not surprising as few Members had put in place CBD-implementingsystems.  Therefore, there was very little practical administrative experience to draw upon in
assessing their operational effectiveness.  However, he was pleased with the information shared by the
representative of Peru about her country's system and explained that the Australian draft regulations,
as summarized in IP/C/W/310, also sought to en sure that the community shared in the benefits
derived from the discovery of commercial uses of genetic material of Australian native plants, animalsand micro-organisms and to provide certainty to industry and to researchers.  A key element was the
requirement for agreements between the person or company seeking access to biological resources
and the provider of the resources, which Australia considered to be consistent with the CBD Bonn
guidelines.  He therefore urged Members to make submissions on national experiences as the Council
sought practical solutions.  With respect to the WIPO's IGC meeting held in June 2002, he pointed outtwo aspects which were relevant to the discussions in the TRIPS Council.  Firstly, the IGC had agreed
to establish a database of contractual practices and intellectual property clauses related to genetic
resources.  The contributions of government rese arch institutes, community groups, corporations andIP/C/M/36/Add.1
Page 56
other key stakeholders would, in his view, be useful  in assessing the need for and the nature of any
changes to national and international regimes.  Secondly, members of the IGC agreed to contribute to
a detailed programme work to assess the interrelationship between the TRIPS Agreement and the
CBD.  The IGC would, among other items, analyse the impact of intellectual property regimes on
access to and use of genetic resources and the efficacy of disclosures on country of origin and priorinformed consent in monitoring compliance with access provisions.  Australia believed that any
attempt to amend the international intellectual property regime to enforce compliance with CBD
obligations based on the preliminary information, which was still emerging, would be unusual in
international practice and premature.  Moreover, there was insufficient compelling evidence that
national systems could not work effectively to combat biopiracy and, even if there was such evidence,
other options, short of amending the conditions of patentability, could be used to address the problem.
Such options could include measures to enhance information-sharing between patent offices ordisclosure of the source of genetic material in patent applications.  Australia appreciated the
contributions contained in document IP/C/W/356 and looked forward to continued discussion in the
TRIPS Council in accordance with the Doha mandate.  In Australia's view, the substantial
contributions from Members would enhance mutual understanding of the problems and would allow
Members to consider possible solutions.
223. The representative of the European Commun ities said that the joint communication by a
group of developing countries was timely and valuable to the debate on the relationship between the
TRIPS Agreement and CBD.  It was an important contribution to several items which appeared to be
high on the Doha Development Agenda and would allow the TRIPS Council to have a focused debate
on the issue of disclosure of origin which lay at the heart of the relationship between the TRIPSAgreement and the CBD.  The intervention by the representative of WIPO was also valuable although
the EC delegation, like others, regretted that the TRIPS Council was not able to benefit from the
expertise of the CBD Secretariat.  He called upon the Chairman to try and convince the delegation
which still believed that it was not appropriate to have representation from the CBD Secretariat.
224. He said that proposals relating to the relationship between the TRIPS Agreement and the
CBD, and to the protection of traditional knowledge,  had been made in the last few years in the
context of the review of the provisions of Article 27.3(b).  He also said that the Secretariat's paper
JOB(02)/58 contained comprehensive overviews which would enable the membership to make
progress on that subject-matter.  He recalled that the European Communities had shown its openness
to discuss the proposal on disclosure of origin, especially with the view to creating more transparency
and to allowing Members providing access to their genetic resources to obtain information on the
commercial use of inventions based on genetic resources or traditional knowledge.  That had been themessage of his delegation at WIPO's IGC meeting.  He indicated that his delegation would comment
in detail on the proposal from developing countries at the next meeting but raised one question based
on the reference to paragraphs 12 and 19 of the Doha Ministerial Declaration in that paper.  He said
that it would be useful if the co-sponsors could identify which item or items of outstanding
implementation issues they would like to invoke for these discussions, as had been referenced in
paragraph 12 of their paper.  In conclusion, he informed the Members that the EC and their members
States were in the course of preparing a communication which would be submitted to the TRIPS
Council before the meeting in September 2002.
225. The representative of Japan questioned whether the proposed requirements for disclosure of
origin of the genetic resources and traditional knowledge in the patent applications relating to
biotechnology and evidence of prior informed consen t could be construed as being within the ambit of
the disclosure requirements stipulated in Article 29 of the TRIPS Agreement.  In his view, the
disclosure requirements in the TRIPS Agreement were sufficient, clear and complete for an invention
to be carried out and therefore the proposed requirements would be additional requirements.  He said
that Japan could not, at present, support the addition of new obligations by inserting elements such asthe proposed disclosure requirements into the TRIPS Agreement.IP/C/M/36/Add.1
Page 57
226. With respect to the protection of traditional k nowledge and folklore, he said that substantial
discussions had taken place at the IGC in WIPO, particularly from the intellectual property experts'
viewpoint.  He urged the TRIPS Council to take into  account the progress and results there since the
concepts of traditional knowledge and folklore protection seemed quite new to the field of intellectual
property system.  He also urged Members to take into account the consistency of such protection withthe existing intellectual property protection systems in order to avoid unnecessary conflict between
new and already existing systems.  When considering the protection of traditional knowledge and
folklore, there were many items requiring in-depth discussions such as the definition of
subject-matter, claims on who is the right holder, relationship between passive and active protection
and so on.  It seemed more reasonable to clarify these issues before discussing the framework for
protecting traditional knowledge and folklore.  Moreover, there were clear requirements for the
granting intellectual property rights, such as novelty, inventive step, and industrial applicability, butrequirements for the protection of traditional knowledge and folklore were not clear.  Therefore, he
believed that these discussions should take into account the expertise of WIPO's IGC.
227. The representative of China supported efforts aimed at bringing the relationship between the
TRIPS Agreement and the CBD, and the protection of traditional knowledge and folklore into WTO's
multilateral trade negotiations.  She said that paragraphs 12 and 19 of the Doha MinisterialDeclaration mandated the TRIPS Council to work towards the objective of negotiation and
recommend concrete proposals for the multilateral negotiation in its  report to the TNC at the end of
2002.  China viewed the proposal to amend the TRIPS Agreement to be important from the
perspective of sustainable development of mankind and that it could be achieved by interpreting and
implementing the TRIPS Agreement and the CBD in  a mutually supportive manner.  The two legal
instruments had many common features of which tr ansfer of technology from developed countries to
developing and least-developing countries was one.  However, there were differences that lay in the
relevant provisions.  For example, the CBD, on one hand, recognized national sovereignty over
domestic natural resources, including biological ones, the principles of prior informed consent,
equitable sharing of benefits arising out of the utilization of genetic resources and the protection oftraditional knowledge, includin g knowledge, innovations and practices of indigenous and local
communities embodying traditional lifestyles relevant for the conservation and sustainable use of
biological diversity.  The TRIPS Agreement, on th e other hand, recognized intellectual property rights
as exclusively private rights subject to certain exceptions and limitations provided therein.
Nonetheless, efforts had been made in the CBD and in the Doha Declaration to set out guidelines to
achieve the common goals of the two international legal instruments in a mutually supportive manner.
For instance, Article 16 (5) of the CBD recognized that patents and other intellectual property rightsmay have an influence on the implementation of that Convention, and obliged Contracting Parties to
cooperate in that regard, subject to national legislation and international law, in order to ensure that
such rights were supportive of and did not run counter to its objectives.  She pointed out that
paragraph 2 of the Doha Declaration stated that "we seek to place the needs and interests of
developing Members at the heart of the work programme adopted in this Declaration", whileparagraph 6 reaffirmed Members' "commitment to the objective of sustainable development".
228. She said that the developing country proposal, outlined in document IP/C/W/356, sought to
incorporate the basic rules recognized by the CBD into the TRIPS Agreement, such as national
sovereignty, prior informed consent and equitable share of benefits and that this was based on the
premise that sustainable development underlay both instruments.  Therefore, she believed that anamendment to the TRIPS Agreement was necessary.  China supported the proposals on conditions for
patent applications based on biological materials or traditional knowledge and on the development of
a multilateral database system on biological resources and traditional knowledge, which was an
effective checking and approval mechanism that would allow the competent national authorities to
keep track, at global level, of patent applications related to genetic resources and traditionalknowledge.  Further, China proposed that national laws and regulations to make retroactive the
compensation system for those who did not follow  the disclosure requirement should be allowed.IP/C/M/36/Add.1
Page 58
229. The representative of Canada agreed fully that the TRIPS Agreement and the CBD should be
implemented in ways that were mutually supportive.  The CBD, on one hand, sought to promote the
conservation of biological resources, the sustainable use of its components and the sharing of benefits
arising from the use of genetic resources.  The TRIPS Agreement, on the other hand, sought to
promote technological innovation and the dissemina tion of technology.  However, there was nothing
in any of these objectives that should bring them i nherently into conflict.  Canada supported fully the
work of the TRIPS Council in examining the re lationship between the TRIPS Agreement and the
CBD, as part of the ongoing review of the provisions of Article 71 and the instructions under
paragraph 19 of the Doha Declaration to continue discussions and  not to undertake negotiations, as
had been suggested by others.  She noted that while the TRIPS Council had a role to play in
examining the relationship between these two agr eements, these issues and related definitions were
currently being examined by WIPO.  Canada believed that WIPO's work on genetic resources, aspointed out by Australia, was very important as it would help shed light and allow WTO Members to
better understand the complex relationship between ac cess to genetic resources, benefit-sharing and
intellectual property rights.  In addition, WIPO's d ecision at the third session of the IGC to create a
database on sample contractual clauses and terms related to access and benefit-sharing represented a
concrete step forward towards the goal of ensuring  the attainment of the objectives of the CBD.  In
her view, the proposed database would allow donors and recipients of genetic resources to address the
issue of benefit-sharing and claims for intellectual property rights in the same contractual agreement.
She said that Canada supported, and would continue to support, the work of WIPO.
230. With respect to commitments under various intern ational agreements, she believed that it was
the responsibility of each party to ensure that they respected their international obligations when
implementing them at the national level.  Canada , along with many countries in the TRIPS Council,
was bound by obligations in both the CBD and the TRIPS Agreement and would work with others in
the CBD to ensure that implementation of decisi ons required as a result of CBD commitments and
respect other international agreements, including the TRIPS Agreement.  That was Canada's overall
goal in the negotiations of the recently concluded FAO treaty on plant genetic resources.  Canada wasamong the first to announce, at the World Food Summit in early June 2002, its ratification of this
treaty, which contains access and benefit-sharing provisions dealing with intellectual property issues.
She encouraged other Members of the TRIPS Council and the FAO to follow Canada's leadership as
such activities, whether in WIPO's Intergovernmental Committee or in various working groups of the
CBD, or in FAO, as it demonstrated that complicated issues could be resolved to everyone's
satisfaction within the parameters of existing agreements.  She said that Canada looked forward to
continued discussions in all these institutions and to develop the necessary tools that would allow both
donors and recipients of genetic resources to meet their objectives.  Further, she agreed with Brazil
that there had been some positive developments recently which would enable the TRIPS Council to
move forward along the path of resolving one of the complex issues that fell under the general
umbrella of traditional knowledge.  Lastly, she shared the view expressed by Thailand that issues
related to the CBD were only part of the overall traditional knowledge issue and said that Canada toohad a number of issues of interest to indigenous peoples.
231. The representative of the United States recalled that his delegation had submitted, in 2001 and
March 2002, detailed papers analysing the relationship between TRIPS and the CBD and outlining
how a contract system would be both efficient and effective for granting access to genetic resources
and for ensuring benefit-sharing, including through the transfer of technology.  The US delegationsupported Brazil's suggestion to ensure that all the information on contractual arrangements was made
available during the discussions at WIPO in the IGC and had been pleased to listen to Peru's
presentation and to learn that many Members were, in fact, implementing domestic regimes to provide
such protection.  He supported comments made by Australia that it was only after clearly determining
the failure of domestic systems to provide the necessary protection and access to benefit-sharing, thatMembers needed to examine whether other measures were, in fact, necessary.  With respect to the
paper co-sponsored by Brazil, he said the last paragraph stated clearly that the proposal would only
provide defensive protection for traditional communities from misappropriation of their knowledge,IP/C/M/36/Add.1
Page 59
while positive protection would have to be worked out elsewhere.  In the view of his delegation, the
surest and quickest way to resolve the concerns of Members brought before the TRIPS Council was
for delegations to focus their efforts in workin g out positive systems for providing the type of
protection and access to benefit-sharing, which was also an important aspect of WIPO's IGC.  With
respect to the proposal in the joint paper from developing countries, he said that it could only be oflimited utility if there were domestic systems in place that actually required that.  Finally, his
delegation did not find, in its examination of paragraphs 12 and 19 of the Doha Declaration, any
mandate to pursue such negotiations involving the TRIPS Agreement and certainly not to amend the
Agreement to change requirements for patent applicants.  Lastly, the United States was anxious to
further explore, through the WIPO forum and di scussions in the TRIPS Council, how contractual
means could be used to address Members' concerns.
232. The representative of Korea appreciated the joint communication by Brazil and others and
believed that the TRIPS Agreement and the CBD should be mutually supportive and implemented in a
way that would to enhance sustainable use of genetic resources and traditional knowledge.  He also
noted from the information note submitted by the CBD Secretariat to the TRIPS Council that the
6th Conference of Parties to the CBD had invited WIPO to prepare a technical study on methods,
consistent with obligations in treaties administered by the WIPO, on disclosure requirements in patentapplications of, inter alia , the country origin and evidence of prior informed consent.  In Korea's
view, the outcome of the technical study would be a useful input to the debate in the TRIPS Council
and Korea looked forward to the availability of the results of that study.
233. The representative of Kenya associated his country with the contents of document
IP/C/W/356 and the statements expressed in support.  He said that although Kenya did not appear as a
co-sponsor in the document, it would like to be added as one of the co-sponsors.  He reiterated
Kenya's position on the need for the TRIPS Council to collaborate closely with the WIPO and the
CBD Secretariats on matters relating to protection of traditional knowledge and folklore, access to
genetic resources, farmer's rights and other related topics.  Kenya  was pleased with the progress made
in collaborative efforts between the TRIPS Counc il and WIPO.  However, his delegation was still
waiting to see progress in the collaboration with the CBD Secretariat to ensure successful conclusion
of the work of the TRIPS Council.  Kenya joined  the EC delegation in advocating that the Member
opposed to this collaboration should reconsider its position.  In Kenya's view, harmonizing the
provisions of the CBD with those of Article 27.3( b) of TRIPS Agreement to recognize sovereignty
and access to genetic resources was of great importance.  There was also a need to harmonize the
provisions of the FAO treaty on plant genetic resour ces with respect to farmers' rights.  Furthermore,
there was need to adequately protect traditional knowledge and folklore, to use the language of theAfrican  Ministers of trade as expressed at the 4
th Ordinary Session of the OAU/AEC Conference of
Ministers of Trade in the Committee on Trade, Cu stoms and Immigration, held at Abuja, Nigeria,
from 19-23 September 2001.  Kenya would appreciate an amendment of the TRIPS Agreement to
reflect the needs of WTO Members, in particular those which impact on social and economic
development, and that a decision be reached in this regard as soon as  possible.
234. The Council took note of the statements made and agreed  to revert to the matter at its next
meeting.
H. REVIEW OF THE IMPLEMENTATION OF THE AGREEMENT UNDER ARTICLE 71.1
235. The Chairman recalled that a substantial number of suggestions for topics to be considered
under Article 71.1 review had been made prior to th e Doha Ministerial Conference, but some of them
overlapped with other items on the Council's post-Doha  agenda.  In considering how to best organize
its work, the Council had invited Members to submit ideas for issues to be taken up under this agenda
item by the present meeting, without prejudice to the right of Members to submit ideas at a later stage.To date, no suggestions had been tabled by any Members.IP/C/M/36/Add.1
Page 60
236. The Council agreed to revert to the matter at its next meeting.
I. IMPLEMENTATION OF ARTICLE 66.2
237. The Chairman recalled that at Doha, the Ministerial Conference had adopted a decision on
Implementation-Related Issues and Concerns (WT/MIN(01)/17).  Paragraph 11.2 of the Decision
stated: "Reaffirming that the provisions of Article 66.2 of the TRIPS Agreement are mandatory, it isagreed that the TRIPS Council shall put in place a mechanism for ensuring the monitoring and full
implementation of the obligations in question.  To this end, developed country Members shall submit
prior to the end of 2002 detailed reports on the functioning in practice of the incentives provided to
their enterprises for the transfer of technology in pursuance of their commitments under Article 66.2.
These submissions shall be subject to a review in  the TRIPS Council and information shall be updated
by Members annually."
238. The Doha Decision had set out a clear time frame for the submission of reports by developed
country Members, namely by the end of 2002. At the Council's meeting in March, the previous
Chairman had noted that since these reports were clearly a central component of the monitoring
mechanism that the Council was asked to put in place,  it would be logical for the Council to have
decided on this mechanism prior to the submission of the reports. He had also raised the question of
whether delegations would be in a position to submit proposals regarding this matter by the Junemeeting.  The Chairman noted that the Council had just received a communication from Uganda on
behalf of least-developed countries on a "Mechanism for Ensuring the Monitoring and Full
Implementation of the Obligations under Article 66.2 of the TRIPS Agreement in accordance with
Paragraph 11.2 of the DOHA Decision on Implem entation-Related Issues and Concerns"
(subsequently circulated as document IP/C/W/357).
239. The representative of Zambia, speaking on behalf of least-developed countries, said that least-
developed countries as a group had made an attempt, as the potential beneficiaries of the provisions of
Article 66.2, to suggest a way forward on the matter, which they had offered to the Council for
consideration as a starting point.  Highlighting the main points of the communication from least-
developed countries, he explained that its bac kground section gave information about where the LDC
group was coming from.  The second part of the communication contained considerations for
establishing a monitoring mechanism under Article 66.2.  It consisted of a list of about six elements
which in the group's view could constitute the monitoring mechanism.
240. The representative of Senegal associated himself with the statement made by Zambia on
behalf of LDCs.  He added that the Council had not yet found a solution to the issue of
implementation of Article 66.2 that would be satisfactory to least-developed countries.  He noted that
Ministers at Doha had agreed not only on the Decision on the Implementation-Related Issues andConcerns but also on a Declaration on the TRIPS Agreement and Public Health.  These texts
recognized the crucial importance of transfer of technology for the creation of a technological base for
access to drugs and public health.  Paragraphs 6 and 7 of this Declaration highlighted this particular
point.  This should serve as an additional incentive to complete the work that had been begun by
developed countries in the interest of developing countries in terms of technology transfer.  He wishedto find a satisfactory solution very soon, given that the mandate had been extended and it covered
public health and other areas.
241. The representative of the European Communities said that transfer of technology was an
important issue and referred to a communication from the European Communities submitted to the
Working Group on Trade and Transfer of Technology (WGTTT) circulated on 10 June 2002 asdocument WT/WGTTT/1.  The Council should bear in mind the activities which took place in the
WGTTT because that working group might also touc h on intellectual property.  Quoting from this
communication, he said that "[w]here the technology in question is subject to intellectual property
rights, the transfer of this technology implies transf er of the legal rights to the technology in questionIP/C/M/36/Add.1
Page 61
by selling patent rights or licensing the right to make use of the right.  Know-how and skills linked to
the licensed technology will normally become availa ble through the learning process of the licensee
country, and might be facilitated where the licensing was linked to investment […].  The decision to
license in a given country is that of the right-holder and forms part of the right holder's business
strategy or, in the event of a non-profit organization holding the right, its objectives.  The existenceand enforcement of an IPR system in the recipient country is often a prerequisite and the confidence
of the right-owner in that system is a key element.   It should be noted that most existing technologies
are not patented anymore and, in principle, can be exploited free of charge.  In such circumstances,
the core point is the access to technological information and the identification of the most appropriate
technologies to each country. Other channels, such as investment  or trade are relevant."
5
242. He said that he would comment in more detail the communication from least-developed
countries at a later stage.  At this point he drew attention to two matters.  Paragraph 5 of that
document contained a list of issues that "the type of mechanism that is established must ensure",
followed by six or seven points.  In relation to point (a), which referred to what enterprises or
institutions could do with regard to transfer of technology, he said that the Council should bear in
mind that often the confidential character of what was being transferred played an important role.
Secondly, subparagraph (f) read that, "there are measures to take against the developed country
Members if they fail to comply with the reportin g mechanism and if such a failure could amount to a
breach of WTO obligations".  He expressed his concern about such "measures to take against" certain
countries in this particular context.
243. The representative of the United States, associating his delegation with the comments made
by the European Communities, noted that he had an opportunity to only briefly review the paper just
introduced by Zambia.  Looking at various proposals to establish a monitoring system in the TRIPS
Council, he had been puzzled even before Doha just what exactly the failing of the monitoring system
already in place was.  As many Members were aware, the US delegation had gone to great lengths atprevious meetings to provide detailed information on the incentives it provided to its institutions to
contribute to technology transfer.  It had not received any questions or concerns or, frankly, comments
on the information it had provided.  It intended, regardless of how the Council proceeded to consider
the various proposals that had been tabled, to contin ue to provide this information to the Council and
to welcome reactions to it.  He hoped that other developed country Members would do likewise. Hisdelegation would benefit from a clearer understanding of why what it had provided was inadequate or
why the Council's review sessions were inadequate.  He wished to have a better understanding of the
suggestion that "measures might be taken against" Members for failure to provide this information if
they were in fact providing it.
244. Responding to the United States, the representative of Zambia said that it was true that the
Council had received notifications regarding the implementation of Article 66.2.  In several meetings
in the Council, he had reacted to these notifica tions, and raised several questions regarding the
notifications, questioning their validity in relation to the obligations envisaged under Article 66.2.  A
more important point was that these past discussions had been superseded by the paragraph 11.2 of
the Decision on Implementation-Related Issues and Concerns in which Ministers had requested that
the Council to establish a mechanism for ensuring the monitoring of this provision.  The
communication by LDCs was intended to be a proactive step towards meeting the instructions by theMinisters.
245. Reacting to the European Communities' comments on sanctions, he noted that the LDC group
had made minor amendments to the proposal that had been made available at the meeting as an
advance copy and that the revised paper was being made available to the Council.
6  Point 4 of
paragraph 4 of the revised communication read as follows:  "What measures should be taken in case
                                                     
5 Paragraphs 18-20 of document WT/WGTTT/1.
6 Subsequently circulated as document IP/C/W/357.IP/C/M/36/Add.1
Page 62
of failure to comply with the reporting mechanism?  In this regard, it would be desirable if such
failure could amount to a breach of WTO obligations."  He noted that this superseded the part that
was quoted by the European Communities and the United States.
246. The representative of Senegal agreed with the European Communities that transfer of
technology must be accompanied by respect for intellectual property rights, but IPRs should, on the
other hand, not be allowed to hinder transfer of technology.  The Council could consider requesting
the Secretariat to prepare, in cooperation with WIPO, an inventory relating to paragraph 6 of
technologies that had fallen into the public domain.  This would be a way to move forward with the
mandate.
247. The representative of Brazil, expressing his support to Zambia and least-developed countries,
said that he would be extremely concerned for systemic reasons if the mandate at hand was not
adequately fulfilled.
248. The representative of Zambia said that the Council's task was to embark on establishing a
mechanism.  The LDCs had taken a step to this effect.  Reporting on the implementation of
Article 66.2 in accordance with the Doha Decision was actually an obligation not for LDCs but for
their developed trading partners.  He said that the comments received on the LDC communication did
not relate to the question of whether developed countries had embarked or intended to embark on theimplementation of the Doha mandate, but, instead, were going back to where the Council was before
Doha.
249. The Chairman recalled that the mandate provided for the submission of reports by the end of
this year.  He suggested that he hold consultations on the matter prior to the Council's next meeting
with a view to finding a solution that would be satisfactory to all Members concerned.
250. The Council took note of the comments made and agreed  to proceed as suggested by the
Chair.
J. NON-VIOLATION AND SITUATION COMPLAINTS
251. The Chairman recalled that at Doha, the Ministerial Conference had adopted a Decision on
Implementation-Related Issues and Concerns (document WT/MIN(01)/17).  As requested by the
Council at its last meeting, the Secretariat had circulated in document IP/C/W/349 a summary note of
the points raised in the substantive discussion of this agenda item so far.  He had also circulated an
annotated agenda in document Job(02)/66 raising a number of questions that Members might wish to
address.
252. The representative of Canada thanked the Secretariat for producing document IP/C/W/349
summarizing the points raised in the discussi ons on issues surrounding non-violation complaints
under the TRIPS Agreement.  Based on previous comments by all Members, the summary noteproved an organized and useful framework for the Council's ongoing examination of the issue.  The
Doha Ministerial Conference had directed Members of the TRIPS Council to examine and to make
recommendations on the scope and modalities for these types of complaints under the dispute
settlement mechanism.  In that regard, she believed that continued work under the general headings
that had been referred to before such as the character of non-violation, the benefits of TRIPS, themeasures challenged, the legal thresholds and the remedies available continued to be a good way to
move forward.  She said that she would refer more substantially to the rest of her delegation's
intervention in the September meeting.
253. The representative of Malaysia noted that the issue was one which was mandated by the
Ministers in Doha.  She looked forward to the Canadian intervention at the next meeting and her
delegation hoped to also make comments by that date.IP/C/M/36/Add.1
Page 63
254. The Council took note of the statements made and agreed  to revert to it at its next meeting.
K. ELECTRONIC COMMERCE
255. The Chairman recalled that the Secretariat had been requested at the TRIPS Council's March
meeting to update its factual background note on intellectual property and electronic commerce as
circulated in document IP/C/W/128 in February 1999.  He asked the Secretariat to inform the Council
on the status of the requested document.
256. A representative of the Secretariat said he regretted that because of the heavy workload over
the last months and because of being below capacity in terms of staffing the Secretariat had not been
able to update this paper in time.
L. OTHER OUTSTANDING IMPLEMENTATION ISSUES (TIRETS  93 AND 94 AND A P ROPOSAL BY
LDC S ON THEIR TRANSITION PERIOD )
257. The Chairman pointed out that the Council had covered most of the outstanding
implementation issues under the previous agenda items and recalled that the remaining outstanding
implementation issues referred to in paragraph 13 of the Doha Decision on Implementation-Related
Issues and Concerns were the following:
- Tiret 93:  The transitional period for developing countries provided for in Article 65.2
shall be extended.
- Proposal by Least-Developed Countries, 22 October 2001:  The General Council
agrees that the transition period for LDCs shall be extended so long as they retain the
status of an LDC.
- Tiret 94:  Articles 7 and 8 of the TRIPS Agreement to be operationalized by providing
for transfer of technology on fair and mutually advantageous terms.
258. The representative of Cuba recalled that her delegation had stated at the Council's previous
meeting that it was going to make a contribution on this matter at the present meeting.  She said that
her delegation continued to pay attention to tirets 93 and 94, and that transition periods for developingcountries had been insufficient to meet the obligations relating to implementation.  Her delegation was
looking into the possibility of submitting a contribution to the Committee on Trade and Development,
and might also provide further contributions to the TRIPS Council.
259. The representative of Brazil reserved the right of his delegation to revert back to these issues,
particularly tiret 94, in future Council meetings.
260. The representative of Senegal, referring to the tirets regarding the extension of the transition
periods for developing and least-developed countries, said that he wished to achieve through this
exercise a new understanding of transitional periods.  In his view, transition periods should be used
not only to implement the legal provisions of the TRIPS Agreement, but, above all, to build capacity
in order to apply these texts.  The Council should find means to ensure that transition periods were not
set arbitrarily, but were set on the basis of reliable criteria so that they could be used by developing
and least-developed countries to build capacity so that they would not need transitional periods in thefuture.
261. The Chairman suggested that the Council take note of the statements made and agree to revert
to this item at its next meeting.  He also noted that it was important that the Council look not only at
the substance of this item during its next meeting, but also consider how it should report to the TNC
by the end of 2002.IP/C/M/36/Add.1
Page 64
262. The Council so agreed.
M. REVIEW OF THE APPLICATION OF THE PROVISIONS OF THE SECTION ON GEOGRAPHICAL
INDICATIONS UNDER ARTICLE 24.2
263. The Chairman recalled that, at its last meeting, the Council had discussed how to organize the
continuation of the review of the application of the provision of the Section on geographical
indications under Article 24.2 of the TRIPS Agreem ent.  The Council had urged Members that had
not yet provided responses to the checklist of questions which was contained in document
IP/C/13/Add.1 to do so before the present m eeting.  The Secretariat had issued airgram
WTO/AIR/1756, dated 26 March 2002, which had reminded Council Members to provide this
information.  Since that meeting further responses had been received from Poland.  The responses had
been circulated in document IP/C/W/117/Add.23.  Th e Council had now received responses to the
checklist from 40 Members.  Those responses were summarized in a Secretariat note in documentIP/C/W/253.  At the Council's meeting in March, some Members had indicated that they might make
presentations on their responses at the present meeting.  Furthermore, at the Council's informal
meeting on 17 May, Australia had informed the Council of its intention to ask the Secretariat to carry
out a survey compiling available information as to how Members had implemented additional
protection of geographical indications for wines and spirits.
264. The representative of Australia said that, considering the length of the meeting to that point
and the number of remaining agenda items, he would not give the presentation he had intended to give
on how Australia had implemented the provisions of the TRIPS Agreement on geographical
indications.  He had hoped it would have helped all Members understand how different Members
were implementing their commitments.  The principl e of territoriality was an important one when it
came to geographical indications and also how each individual Member implemented its obligations.
He recalled that the United States had noted earlier in the meeting that the European Communities had
576 names that they protected within their territory.  Australia had a register which he believed
contained 97 Australian geographical indications but 4,500 European indications.
265. The representative of Bulgaria referred to the statement by Australia that its industry was not
content with the protection of their wines abroad.  He wondered whether Australia was planning to
abolish that register if it was useless and if the administrative burden resulting from it was too heavy.
266. The representative of Australia responded that Australia would not abolish the existing
system due to its treaty obligations.  Its administration was a burden because Australia had had to pass
legislation in order to do it, but if Members got the sort of register proposed by some, it would
become triply burdensome.
267. The representative of Canada said that although she came prepared to discuss Canada's
protection of geographical indications under Article 22, she would revert to the issue at the Council's
meeting in September.
268. The representative of the European Communities said that he was disappointed not to hear
about Australia's GI legislation.  His delegati on had prepared some questions to Australia,7 that
related to the questions and answers which ha d been provided in document IP/C/W/117/Add.19 of
9 July 1999.  While not reading out the entire list of these questions, he nevertheless wished to give a
flavour of them.
269. One of the questions was on the Australian Wine and Brandy Corporation Act of 1980 and
some auxiliary acts.  This Act stated in its Article 40 that a person must not knowingly sell, export or
import wine with a misleading description and presentation.  Article 40F(3) indicated that the
                                                     
7 Subsequently circulated in document JOB(02)/97.IP/C/M/36/Add.1
Page 65
description and presentation of wine was misleading if two conditions were fulfilled:  first, it included
a translation of a registered geographical indication, of a registered traditional expression or of a
registered ancillary protected expression;  and, second, that the inclusion of the translation was likely
to mislead consumers to the country, region or locality in which the wine originated.  He noted that
Article 23.1 of the TRIPS Agreement forbid the use of geographical indications for wines even wherethe geographical indications were used in translation regardless of whether there was consumer
deception.  That was the greatest difference between Article 22.2 and Article 22.4 and the protection
of Article 23.1 of the TRIPS Agreement.  The latter forbid certain conduct such as the use of a
geographical indication in translated form regardless of whether the consumer was misled.  This was
also confirmed by the United States Patent and Trademark Office which stated on its website that "in
other words, for wines and spirits, even if the public would not be deceived by use of a particular GI,
a GI may not be used if the wines or spirits did not originate in the place indicated by the GI".However, he said that Article 40F(3) of the Act forbade the use of translations of geographical
indications for wines only if they misled consumers.   He noted the use of the word "and" between the
two subparagraphs (a) and (b) of that provision.  Could Australia explain how that extra requirement
was compatible with Article 23.1 of the TRIPS Agreement, which appeared to establish the opposite
rule?  How had the provision been interpreted by Australian courts?  How had the provision beeninterpreted by administrative authorities in Australia?  Could Australia provide specific examples of
the application of the provision?
270. Article 40E of the same Act provided that a person must not knowingly sell, export or import
wine with a misleading description and presentation.  Article 40F(2) indicated that "the description
and presentation of wine was misleading if, (a) it included a registered geographical indication, aregistered traditional expression or a registered and protected expression;  and (b) the indication or
expression was used in such a way in the description and presentation as to be likely to mislead as to
the country, region or locality in which the wine originated".  Article 23.1 of the TRIPS Agreement
forbid the use of geographical indications for wines and vines not originating in the place indicated by
the geographical indication in question, even where the true origin of the goods was indicatedirrespective whether there was consumer deception.  That was the greatest difference between
Article 22.2 and Article 22.4 and the protection of Article 23.1 of the TRIPS Agreement that forbid
certain conduct regardless of whether the consumer was misled.  More importantly, indicating the true
origin of the product was a typical manner to escape the test of consumer deception.  While
Article 23.1 of the TRIPS Agreement overtly forbade the use of a geographical indication in
conjunction with the true origin of the product irrespective of consumer deception, Article 40F(2)
permitted the use of geographical indications for wine if they did not mislead the consumer.  He notedthe use of the word "and" between subparagraphs (a) and (b).  Could Australia explain how that extra
requirement was compatible with Article 23.1 of the TRIPS Agreement, which appeared to establish
the opposite rule?  How had that provision been interpreted by the Australian courts and by the
administrative authorities in Australia?  Could Australia provide some examples of the application of
the provision?
271. Concluding, he said that his delegation looked  forward to receiving comprehensive responses
to its questions by the next meeting.
272. The representative of Bulgaria said that he was not satisfied by Australia's response to his
question.  He could not see how treaty obligations could impose the maintenance of a register, though
a treaty could give some incentives to do it.  He requested for a more comprehensive response to hisquestion at the September meeting.
273. The representative of Australia said that his delegation would be delighted to answer the
questions posed by the European Communities.  If all Members came prepared to discuss the
implementation of obligations under the TRIPS Agreement, it would provide the Council with a better
basis on which to lead to the next discussion abou t possible extension or about the register.  It was
precisely the kind of debate his delegation had hoped to spark over the last couple of years but someIP/C/M/36/Add.1
Page 66
Members had been refusing to indulge in the discussion.  He said he would give a response to
Bulgaria both privately and at the next meeting and that he would respond to the questions from the
European Commission.  He believed that it was an i ssue that needed more time allocated to it during
the Council's meeting.
274. The Council took note of the statements made and agreed to revert to the matter at its next
meeting.
N. TECHNICAL COOPERATION AND CAPACITY -BUILDING
Annual Updates on Technical Cooperation Activities
275. The Chairman recalled that the Council had traditionally undertaken the annual review of
technical cooperation at its September meeting.  He suggested that once again the Council invite
developed country Members to supply information on their activities pursuant to Article 67 of the
TRIPS Agreement.  Other Members who also made available technical cooperation should beencouraged to share information on these activities if they so desired.  He also suggested that the
Council invite those intergovernmental organizations that had observer status in the TRIPS Council to
provide information on their activities of relevance and, further, request the WTO Secretariat to report
on its activities.  The Council should request that this information be made available by the end of
August, so that it could be circulated before the Council's meeting scheduled for 17-19 September.
276. The Council so agreed.
Joint Initiative
277. The Chairman recalled that the WIPO and WTO Secretariats had launched on 14 June 2001 a
Joint Initiative on Technical Cooperation for Least-Developed Countries.
278. The representative of the Secretariat said that the Secretariat planned to submit a written
report to the Council's September meeting on this topic. He recalled that the Joint Initiative had two
phases. The first phase was the organization of regional workshops for least-developed countries.  The
first such workshop, which was for the least-developed sub-Saharan African countries, was held at the
end of April 2002 in Dar Es Salaam in cooperation with the Government of Tanzania.  More that 120
officials from 33 least-developed countries participated.  It had been a successful and useful event.The second of the regional workshops, which would be for least-developed countries in the Asia and
Pacific regions, would be held in Bangladesh during the second week of December 2002. The
Secretariat had also been working out with WIPO  how to respond to the bilateral requests for
individual country activities under the Joint Initiative.  They were planning to respond to as many as
possible of these requests before the end of 2002.
279. The Council took note of this information.
O. INFORMATION ON RELEVANT DEVELOPMENTS ELSEWHERE IN THE WTO
Dispute settlement
280. The Chairman informed the Council that by means of a communication, dated 31 July 2002,
the United States and Argentina had notified the Dispute Settlement Body that they had reached an
agreement on all of the matters raised by the United States in document WT/DS171/1 ( Argentina –
Patent Protection for Pharmaceuticals and Test Date Protection for Agricultural Chemicals ) and in
document WT/DS196/1 ( Argentina – Certain Measures on the Protection of Patents and Test Data ).
This communication had been circulated as  document IP/D/18/A dd.1 and IP/D/22/Add.1.IP/C/M/36/Add.1
Page 67
281. The Council took note of this information.
P. OBSERVER STATUS FOR INTERNATIONAL INTERGOVERNMENTAL ORGANIZATIONS
282. The Chairman said that, since its meeting in March, the Council had received one new request
for observer status, namely from the African Intellectual Property Organization, known by its French
acronym OAPI.  The letter from OAPI together with its attachments had been faxed to all Memberson 23 April 2002.  The Council currently had 16 pending requests before it.  An updated list of
pending requests for observer status in the TRIPS Council had been circulated in document
IP/C/W/52/Rev.10.
283. In addition, the Secretariat had received additional information in relation to two pending
requests for observer status.  A letter from the International Office of Vine and Wine, known by its
French acronym OIV, provided information on the changes brought about by the Agreement of
3 April 2001 establishing the International Organisation of Vine and Wine.  A letter from theSecretariat of the Convention on Biological Di versity (CBD) provided information on decisions
adopted at the Conference of the Parties to the CBD  held in the Hague, the Netherlands in April 2002
and contained a renewal of the CBD's pending request.  This information had been passed to the
Members of the Council by the aforementioned fax and a fax dated 14 June 2002.
284. As suggested at the Council's meeting in March, he had conducted consultations on the
pending requests.  At the Council's informal meeting of 17 May 2002, there had seemed to be
agreement on the granting of ad hoc observer status to the African Regional Industrial Property Office
(ARIPO), the African Intellectual Property Organi zation (OAPI), and the Cooperation Council for the
Arab States of the Gulf (GCC). These three organizations operated regional intellectual property
offices and, hence, were directly involved in implementing the TRIPS Agreement in their membercountries.  The Chairman reminded the Council that ARIPO provided services to sub-Saharan English
speaking countries, OAPI served sub-Saharan French speaking countries and the GCC served the
Arab States of the Gulf, i.e.  the United Arab Emirates, Bahrain, Saudi Arabia, Oman, Qatar and
Kuwait.  He also noted that the GCC had observer status in the Committee on Trade and
Development.
285. Accordingly, he proposed that the Council grant observer status to ARIPO, OAPI and the
GCC on an ad hoc basis, i.e. subject to review in the light of any further guidance from the General
Council on the grant of observer status to other intergovernmental organizations.
286. The representative of Egypt said that he was re ady to accept all the pending requests in the list
contained in document IP/C/W/52/Rev.10.  However, he was hesitant to take any selective approach
by picking up specific organizations from the list.  In particular, while the organizations referred to by
the Chair were dear to his delegation, a selective approach that excluded other organizations withpending requests was systemically flawed.  He understood that consultations were going on within the
purview of the General Council, which were aimed to resolve this problem.
287. Since there did not appear to be concensus with  respect to this issue, the Chairman suggested
that the Council revert to it at its meeting in September, at which time he hoped the Council would be
in a position to make a decision.
288. The representative of the European Communities expressed his puzzlement over the failure to
reach concensus on this matter.   His impression was that concensus had been reached in the informal
meeting on 17 May 2002.  He referred to the text of a daily bulleting released after that meeting in
which it was stated that "there was agreement on the granting of ad hoc observer status" to the three
organizations mentioned by the Chair and that a decision on this matter would be taken at thismeeting.  While noting that the Council cannot force concensus on any Member, he expressed
disappointment.IP/C/M/36/Add.1
Page 68
289. The representative of Brazil referred to a request that had been made earlier by the European
Communities regarding consultations concerning observer status of the CBD.  It was very important
that the CBD Conference of the Parties had renewed its request for observer status.  He wondered if
the Council would be ready to grant observer status to the CBD at the present meeting.
290. The representative of Senegal associated his delegation with the comments of the European
Communities.  At the informal meeting in May, it had been decided that these three organizations
would be granted observer status at the present meeting.  He took note of the objections raised by the
representative of Egypt concerning the systemic nature of observer status, but said that this should not
block the grant of observer status to these organizations.
291. The representative of China echoed the delegates of the European Communities and Brazil
regarding observer status of the CBD.  She hoped that there would be some decision on this matter
during the present meeting.
292. The representative of Sri Lanka supported the proposal of Brazil that there would be
consultations regarding the request for observer status by the CBD.  Since the CBD had already
renewed its application, it behoved the Council to take a decision on this issue.
293. The Chairman asked whether the representative of Egypt would be willing to reconsider his
position given the comments made by other delegations and since there was an agreement at the
informal meeting in May that the granting of observer status to these three organizations would be
formalized by the Council at the present meeting.
294. The representative of Egypt said that his delegation had not been in attendance at the informal
meeting in May, probably due to other meetings taking place at the WTO.  His delegation was
unfortunately not in a position to join any concensus to grant observership on a selective basis, butwas willing to engage in consultations with other delegations with a view to be in a better position to
reach consensus at the September meeting.
295. The representative of Mexico noted that Annex 3 to the rules of procedure applicable to the
TRIPS Council contained clear-cut rules on the grant of observer status to intergovernmental
international organizations and wondered, given these rules, what the delegation of Egypt was stillawaiting.
296. The Chairman asked whether the Council was in a position to grant ad hoc observer status to
the CBD.
297. The representative of the United States said that he had thought that his delegation was the
only impediment to granting observer status to the CBD, but it seemed that the delegate of Egypt
opposed any selective granting of observer status.  He asked whether this was a correct understanding
of Egypt's position.
298. The representative of Egypt said that he had no objection to the list contained in document
IP/C/W/52/Rev.10, including the CBD.  He noted that, if a Member had an objection with particular
organizations in the list, it should bring it up.
299. The Chairman noted that the Council did not seem to be in a position to make any decision on
observer status.
300. The representative of Brazil said that one should not conclude from the discussion that the
Council was not ready to take a decision and added that his delegation was indeed ready to do so.IP/C/M/36/Add.1
Page 69
301. The representative of the European Communities associated his delegation with the comments
of the representative of Brazil.  If there would not be a favourable decision with regard to these
organizations, and in particular with regard to the CBD, it would be a matter of regret that the Council
would not be able to benefit from the expertise of the secretariat of the CBD.
302. The Council took note of the statements made and agreed  to revert to the matter at its next
meeting.
Q. OTHER BUSINESS
303. The representative of Canada wondered if the Chair could investigate the possibility of adding
more time to the Council's meeting in September, be cause the Council had an overloaded agenda and
all items were important and seemed to need further discussion.
304. The Chairman asked the Secretariat to look into  the possibility of extending the time allotted
for the Council's meeting in September.  He added that it would be useful if progress could be made in
the informal meeting on 24-25 July so that the agenda of the September meeting would be less
burdened.
__________