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AIDV Conference Labelling and Intellectual Property Paris, 23-24 March 2009

AIDV Conference Labelling and Intellectual Property Paris, 23-24 March 2009. The World Trade Organization and the TRIPS Agreement Thu-Lang TRAN WASESCHA Counsellor, Intellectual Property Division WTO Secretariat. TLTW/ March 2009. Structure of the presentation. The WTO: What it is

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AIDV Conference Labelling and Intellectual Property Paris, 23-24 March 2009

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  1. AIDV ConferenceLabelling and Intellectual PropertyParis, 23-24 March 2009 The World Trade Organization and the TRIPS Agreement Thu-Lang TRAN WASESCHA Counsellor, Intellectual Property Division WTO Secretariat TLTW/ March 2009

  2. Structure of the presentation • The WTO: • What it is • How it works • The TRIPS Agreement • Relevant provisions • Ongoing negotiations and discussions in the area of TRIPS

  3. The WTO: Three basic functions • Set of rules for international trade • Forum for negotiations • Forum for monitoring implementationand resolution of disputes

  4. A set of rules for international trade • The Agreement Establishing the World Trade Organization (Marrakesh Agreement): • Multilateral Agreements on Trade in Goods • GATT (1994) • agreements on specific issues • The Agreement on Trade in Services • The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) • The Dispute Settlement Understanding • [Plurilateral agreements: civil aircraft, government procurement] • [Information Technology Agreement]

  5. The WTO in 2009 (1) • Member-driven organization • Membership: 153, including customs territories; 29 acceding Observers: they are "participants in the negotiations" in the Doha Work Programme • Main bodies • Ministerial Conferences (in principle every two years) • General Council • The three pillars: Council for Trade in Goods; TRIPS Council; Council for Trade in Services • Dispute Settlement Body • Trade Policy Review Body

  6. The WTO in 2009 (2) • Ad hoc bodies (for the Doha Round): • Trade Negotiations Committee (TNC) • Negotiating Groups, including the Special Session of the Council for TRIPS (register for wines and spirits) • Delegations (missions) in Geneva: also cover other fora such as WIPO and WHO • Role of Secretariat • Decision-making: consensus rule in Article IX of the WTO Agreement • Effective dispute settlement system

  7. A forum for monitoring the implementation of rules • Great bulk of our daily life. • Some examples: • Market access • TBT • SPS • Anti-dumping • Subsidies • TRIPS (in the Council for TRIPS) • Art. XX GATT 1947, reflected in specific agreements • Proportionality and treatment no less favourable

  8. A forum for the resolution of disputes • Growing number of disputes, mostly in the area of goods, some in services (ex. Banana case) and in TRIPS • TRIPS alone: latest case US-China on enforcement; TRIPS + goods: US/Australia – EC on geographical indications • Amicable resolution of disputes • Retaliation • Cross-retaliation (ex.: Banana case; e-gambling) • Non-violation

  9. A forum for negotiations • Round of negotiations • Single Undertaking concept • The “Doha Work Programme”; the “Doha Development Agenda”

  10. Agriculture (2007) AustriaBelgium  Bulgaria Cyprus Czech R        Denmark Estonia Finland   France Germany Greece Hungary Ireland       Italy      Latvia Lithuania        Luxembourg Malta Netherlands Poland Portugal    Rumania Slovakia Slovenia   Spain Sweden  UK Armenia FY Rep Macedonia Albania Georgia Croatia Jordan Moldova Oman USG–1 G–90 LDCs Bangladesh Cambodia Maldives   Myanmar Nepal ACP ChadBurkina Faso Burundi  Togo Central African Rep Djibouti    DR Congo Mali   Gambia   Guinea   Guinea Bissau    Lesotho    Malawi  Mauritania  Niger Sierra Leone    Rwanda    Recent new Hong Kong, Ch Saudi Arabia El Salvador Macao, Ch Singapore Kyrgyz R Qatar UAE Brunei Kuwait Bahrain Ecuador EU (27)  Solomon Islands Gabon Ghana Namibia Mexico G-20 Haiti Dominica Fiji Papua New Guinea Benin Madagascar Senegal Uganda Zambia India China Venezuela Belize Barbados Antigua/Barbuda Dominican Rep Grenada    Guyana St Vincent/Grenadines Trinidad/Tobago Jamaica   Suriname St Kitts/Nevis      St Lucia Botswana Cameroon Congo Côte d’Ivoire Kenya Mozambique Tanzania Cuba Indonesia Pakistan Philippines G-33 Chile Brazil Bolivia Uruguay  Thailand  Paraguay Argentina     Honduras  Mongolia Nicaragua           Panama     Peru   Sri Lanka   Turkey Nigeria Zimbabwe Australia Canada  Colombia Costa Rica  Guatemala   Malaysia  N Zealand Mauritius R Korea Angola Swaziland Egypt Iceland  Israel  Japan    Liechtenstein  Norway Switzerland Ch Taipei Tunisia Morocco Cairns Group African Group G-10 S Africa

  11. CURRENT NEGOTIATIONS CURRENT NEGOTIATIONS Process: concentric circles Formal plenaryFull membership Speeches/consensus decisions Big meetings, small meetings Informal, heads of delegations All members, no recordreports from consultations, /reactions ‘Green Room’Informal small group consultations Key players,reps. of all groupshard bargaining, drafting Bilateral, very small group consultations DG Lamy Conference chair John Tsang ‘Inclusive’: all coalitions represented in consultations ‘Transparent’: reps. report back to coalitions

  12. Part I: Art. 1.1.; National and MFN treatment (Art. 3-5); Art. 8 (principles) Section 2 of Part II, mainly: Section 2 on trademarks Section 3 on geographical indications In Section 5 on patents, Article 27.2 for inventions relating to processes for example Enforcement (Part III) Dispute settlement (Art. 64) See also Article XX of GATT 1947 TRIPS: some relevant provisions

  13. Minimum requirements Provisions regarding public order, morality not addressed  national laws Article 20 (other requirements)? Trademarks

  14. Register: Article 23.4 “In order to facilitate the protection of geographical indications for wines, negotiations shall be undertaken in the Council for TRIPS concerning the establishment of a multilateral system of notification and registration of geographical indications for wineseligible for protection in those Members participating in the system.” • Highlighted: elements where delegations have differences of views

  15. The Doha Declaration and GIs (1) Register of GIs for wines and spirits • Paragraph 18, first sentence: With a view to completing the work started in the Council for Trade-Related Aspects of Intellectual Property Rights (Council for TRIPS) on the implementation of Article 23.4, we agree to negotiate the establishment of a multilateral system of notification and registration of geographical indications for wines and spirits bythe Fifth Session of the Ministerial Conference.

  16. Extension Paragraph 18, second sentence "We note that issues related to the extension of the protection of geographical indications provided for in Article23 to products other than wines and spirits will be addressed in the Council for TRIPS pursuant to paragraph 12 of this Declaration." The Doha Declaration and GIs (2)

  17. "Work programme Implementation-Related Issues and Concerns ... we agree that negotiations on outstanding implementation issues shall be an integral part of the Work Programme... and that agreements reached at an early stage in these negotiations shall be treated in accordance with the provisions of paragraph47 below. In this regard, we shall proceed as follows: (a) where we provide a specific negotiating mandate in this Declaration, the relevant implementation issues shall be addressed under that mandate;(b) the other outstanding implementation issues shall be addressed as a matter of priority by the relevant WTO bodies, which shall report to the Trade Negotiations Committee, established under paragraph46 below, by the end of 2002 for appropriate action.” Members have different views on the mandates Doha Declaration and GIs (3)

  18. Ongoing discussion/work and proposals on GIs in the WTO • TRIPS Council (regular session) • TRIPS Council Special Session • GC/TNC  DG consultations • Committee Agriculture, Special Session • Art. 63.2 notification/review + Art. 24.2 review (examination of implementation) • Negotiations on the establishment of a multilateral system of notification and registration of GIs for wines and spirits (Art. 23.4 + Doha) • Issues related to the extension of the protection of GIs provided in Art. 23 to products other than wines and spirits • “Other issues: ...V. [...B. GIs]” (TN/AG/W/4/Rev.2)

  19. The main actors in the Special Session: European Communities, supported by Switzerland and some developing countries which are more interested in GI extension Joint Proposal Group: Argentina, Australia, Canada, Chile, Colombia, Costa Rica, Dominican Republic, Ecuador, El Salvador, Guatemala, Honduras, Japan, Mexico, New Zealand, Nicaragua, Paraguay, Philippines, South Africa, Chinese Taipei, US, etc. Hong Kong, China Less or no interest from other delegations Register W&S (1): the actors

  20. Register W&S (2): proposals on the table • Secretariat’s document TN/IP/W/12: side-by-side presentation of: • TN/IP/W/8 by Hong Kong, China: in Annex AAlternative Model for a Multilateral System of Notification and Registration of Geographical Indications Established under Article 23.4 of the TRIPS Agreement • TN/IP/W/10/Rev.2by the Joint proposal Group(Argentina, Australia, Canada, Chile, Costa Rica, Dom. Rep., Ecuador, El Salvador, Guatemala; Honduras, Japan, Mexico, New Zealand, Nicaragua, Paraguay, South Africa, Chinese Taipei and US): Draft Decision by the Council for TRIPS • TN/IP/W/11 by the European Communities: in Annex:Multilateral System of Notification and Registration of Geographical Indications; new thinking in November 2007 + latest proposal in TN/C/W/52.

  21. Register W&S (3): issues discussedd • Divergence on 2 key issues: • The extent to which the registration of a geographical indication should create legal effects at the national level; and • The question of participation, in particular whether legal effects under the system should apply in all WTO Members or only on those opting to participate in the system • Other points, including costs and administrative burdens, in particular for developing countries; Special and differential treatment (S&D) • Some good technical discussion on the notification phase

  22. Register W&S (4) : legal effects Joint Proposal (TN/IP/W/10/Rev.2) • A Participating Member commits to ensure that its procedures include the provision to consult the Database when making decisions regarding registration and protection of trademarks and geographical indications for wines and spirits in accordance with its domestic law. • Non-Participating Member are encouraged but not obliged to consult

  23. Register W&S (5) : legal effects HKC proposal (TN/IP/W/8): Registration of an indication on the Register shall be admitted as prima facie evidence to prove: • ownership of the indication; • that the indication satisfies the definition in Article 22.1 of the TRIPS Agreement as a geographical indication; and • that the indication is protected in the country of origin (i.e. Article 24.9 of the TRIPS Agreement does not apply)

  24. Register W&S (6) : legal effects EC in earlier proposals: • TN/IP/W/11: In participating Members, rebuttable and irrebuttable presumptions if no opposition at multilateral within certain time limit. Some presumptions in non-participating Members too. • New ideas in 2007 EC in TN/C/W/52

  25. Different processes up to July 2008: TRIPS Special Session for the register Chairman’s report in TN/IP/18 of 9 June 2008 GI extension and TRIPS-CBD as implementation issues: consultative process by DG/DDG Yerxa DG’s report (in his capacity as DG) in WT/GC/W/591 - TN/C/W/50 of 9 June 2008 What are “modalities” in Agriculture and NAMA (non-agricultural market access) negotiations? What is the “horizontal modalities process”? Current state of negotiations/discussions (1)

  26. Proposal for “Draft modalities for TRIPS related issues” by more than 100 Members - TN/C/W/52 and Addenda of 19 July 2008 The alliance Linkages and parallelism (or symmetry) Parameters (draft modality texts) in terms of substance and process for: Register of GIs for wines and spirits TRIPS/CBD disclosure Extension Current state of negotiations/discussions (2)

  27. Other positions: TN/IP/W/10/Rev.2 (register W&S) on the table GI extension and TRIPS/CBD No mandates Disruption of balance in the Doha Development Agenda (DDA) and endanger possible outcome of the whole DDA Cannot be part of the single undertaking Case not made Artificial parallelism between the three issues Positions reflected in DG’s report WT/GC/W/591-TN/C/W/50 Current state of negotiations/discussions (3)

  28. TN/C/W/52 Each WTO Member shall provide that domestic authorities will consult the Register and take its information into account when making decisions regarding registration and protection of trademarks and geographical indications in accordance with its domestic procedures. In the framework of these procedures, and in the absence of proof to the contrary in the course of these, the Register shall be considered as a prima facie evidence that, in that Member, the registered geographical indication meets the definition of "geographical indication" laid down in TRIPS Article 22.1. In the framework of these procedures, domestic authorities shall consider assertions on the genericness exception laid down in TRIPS Article 24.6 only if these are substantiated Text based negotiations shall be intensified, in Special Sessions of the TRIPS Council and as an integral part of the Single Undertaking, to amend the TRIPS Agreement in order to establish the Register accordingly. Register of W&S in W/52

  29. Main actors: EU, other European countries, certain DCs (China, India, Guinea, Jamaica, Kenya, Morocco, Pakistan, Sri Lanka, Thailand, Tunisia, Turkey, etc.). Argentina, Australia, Canada, Chile, Ecuador, Guatemala, New Zealand, Philippines, South Africa, Chinese Taipei, United States, etc. Proposed coverage for products: agricultural, foodstuffs, handicrafts, industrial products? One of the "outstanding implementation issues" Secretariat’s compilation of points made and issues (WT/GC/W/546 -TN/C/W/25) Extension: the main actors

  30. TN/C/W/52 Members agree to the extension of the protection of Article 23 of the TRIPS Agreement to geographical indications for all products, including the extension of the Register. Text based negotiations shall be undertaken, in Special Sessions of the TRIPS Council and as an integral part of the Single Undertaking, to amend the TRIPS Agreement in order to extend the protection of Article 23 of the TRIPS Agreement to geographical indications for all products as well as to apply to these the exceptions provided in Article 24 of the TRIPS Agreement mutatis mutandis. Special and Differential treatment shall be an integral part of negotiations in the three areas above, as well as special measures in favour of developing countries and in particular least-developed countries. GI extension in W/52

  31. TRIPS/CBD • Review of Article 27.3(b) by TRIPS Council since 1990; relationship TRIPS/CBD (Convention on Biological Diversity) and protection of TK (traditional knowledge) and folklore explicitly added to TRIPS Council work by Doha Declaration (para. 19) • Also an “outstanding implementation issue”. • Main focus now on TRIPS-CBD, and more particularly of the disclosure requirement in patent applications • Some DCs see it as part of a balanced outcome of DDA negotiations, i.e. as a developmental issue • The different actors

  32. TN/C/W/52 Members agree to amend the TRIPS Agreement to include a mandatory requirement for the disclosure of the country providing/source of genetic resources, and/or associated traditional knowledge for which a definition will be agreed, in patent applications. Patent applications will not be processed without completion of the disclosure requirement. Members agree to define the nature and extent of a reference to Prior Informed Consent and Access and Benefit Sharing. Text based negotiations shall be undertaken, in Special Sessions of the TRIPS Council, and as an integral part of the Single Undertaking, to implement the above. Additional elements contained in members' proposals, such as PIC and ABS as an integral part of the disclosure requirement and post grant sanctions, may also be raised and shall be considered in these negotiations. TRIP/CBD

  33. In July 2008: TRIPS issues = “in-between” category with Rules and Services after the first category of Agriculture-NAMA The July 2008 “mini Ministerial meeting” DG’s consultations of a group of 7 + 7 on TRIPS issues Consultations continued by DG’s Friend, Norwegian Minister Jonas Støre, in various formats, bilaterally, separate groups, in 7+7 group. Minister Støre read out the possible elements for a modalities text if Ag-NAMA resolved: Any commonly shared objectives on each issue? Work programme ? Process ? Stumbling block in Agriculture (TNC of 30 July) July 2008 process

  34. After July, delegations went back to their initial pre-July positions New Chairman of the Special Session of the Council for TRIPS since 29 October 2008: Amb. Trevor Clarke (Barbados). Series of consultations with individual Members or small groups  Room F-type consultations with a group of Members representative of the spectrum of positions  Open-ended informal consultation in December. Questions posed to the EC Post-July 2008 (1)

  35. Focus on Ag-NAMA in December 2008 In 2009: work in all negotiating groups Pace of work for the coming months Ministerial Conference (2nd half of 2009)? Importance of a result in the WTO to restore confidence and trust in a context of economic and financial crisis Post-July 2008 (2)

  36. Register for wines and spirits mandate clear, controversy about the mandate for the other two issues TRIPS Special Session: technical work Chair: not to go faster than the other groups but not to lag behind either Extension and TRIPS/CBD: consultations by DG himself pursuant to para. 39 of the Hong Kong Ministerial Declaration 2009

  37. How one side sees the issue of linkages GI register AG Implementation issues (GI extension) Implementation issues (TRIPS-CBD)

  38. How another side sees the issue of linkages Implementation issue of GI extension GI register AG Implementation issue of TRIPS-CBD

  39. Consult our website www.wto.org Other questions to: • thu-lang.tranwasescha@wto.org; tel.: +41 22 739 57 05; # 3066

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