1. CAPACITY BUILDING TRAINING PROGRAMME ON IPR, WTO RELATED ISSUES AND PATENT WRITING April 28-May 2, 2008 Session 10 GIs negotiations in the WTO and other IGOs’ work relating to IPRs Atul Kaushik Adviser (Projects), CUTS International

2. WHAT ARE GEOGRAPHICAL INDICATIONS? Geographical Indications are indications which identify a good as originating in the territory of a (WTO) Member, or a region or locality in that territory, where a given quality, reputation or other characteristic of a good is essentially attributable to its geographical origin

3. HOW MANY TYPES OF GIs ARE RECOGNIZED IN TRIPS? Normal level of protection: protection against use/representation of an indication for a good in a manner which misleads the public as to the true origin of the good, or which is an act of unfair competition Higher level of protection: protection against use/representation of an indication in respect of wines and spirits even if the true origin is indicated or the use is accompanied by expressions such as ‘kind’, ‘type, ‘style’ etc. In the second case, the TRIPS Agreement mandates negotiations to establish a register of Wines/Spirits GIs.

4. NEGOTIATIONS ON GIs REGISTER (FOR WINES AND SPIRITS) EXTENSION (OF THE HIGHER LEVEL OF PROTECTION TO GOODS OTHER THAN WINES AND SPIRITS

5. THE NEGOTIATION OF A REGISTER FOR WINES AND SPIRITS Politically difficult for the ‘New World’ countries to agree to a register as they use geographical names of their countries of origin for their wines and spirits. Further complexity arises when we examine the legal effects of accepting an item on a multilateral register Developing countries add the additional problem of not being able to bear the burden of running a complex registration system in their national GIs system For EC, it is a very important market access and political issue for selling the Doha Round to their member states For India, the register will primarily be a burden. However, it has to be balanced with possible commercial benefits from the extension negotiations

6. NEGOTIATIONS ON EXTENSION OF HIGHER LEVEL OF PROTECTION TO ALL GOODS No built in negotiating mandate in the TRIPS Agreement; only a review of GIs Section of the TRIPS Agreement is mandated In the review, developing countries wanted to extend the higher level of protection to goods of their export interest; EC also would benefit, therefore played along Opponents (mainly ‘New World’) claim lack of negotiating mandate, while the proponents peg the mandate on their reading of paras 12 and 18 of the Doha Declaration.

7. STATUS OF NEGOTIATIONS ON GIs The negotiations in the Doha round are currently active on agriculture market access and subsidies and on market access for industrial products; other issues are waiting for these main issues to show progress The Wines and Spirits register negotiations are in the Special Session of the TRIPS Council, while the extension issue is being discussed in the TRIPS Council as well as in a group chaired by DDG Xerxa, which is discussing the CBD-TRIPS issue as well Some discussions have taken place in the green room also, under the category of horizontal issues, but positions have not changed

8. A COST BENEFIT ANALYSIS It will be useful for India to undertake a cost-benefit analysis to determine its bottom line on these issues Extension of a higher level of protection to products like basmati rice, Darjeeling tea, and some ethnic products may increase returns on their exports Agreeing to a register on wines and spirits will mainly help European wines and spirits gain better market in India; Indian wines and whiskey are yet to get any traction in the international market On the other hand, since the register is based on a clearer negotiating mandate, agreeing to the register may become a compulsion if extension is to be agreed to

9. OTHER INTERGOVERNMENTAL ORGANISATIONS: WIPO Agreement for complementing each other’s work between WTO and WIPO Provisions from four treaties of WIPO incorporated into TRIPS Agreement The Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (the IGC) The Development Agenda The Committee on Development and Intellectual Property (the CDIP) Ongoing efforts to strengthen Patent (Substantive patent law treaty) and Copyright law, among others

10. OTHER INTERGOVERNMENTAL ORGANISATIONS: CBD CBD work relating to access and benefit sharing relevant Ad Hoc Open-ended Working Group on Access and Benefit-sharing to elaborate and negotiate an international regime Bonn Guidelines on Access to Genetic Resources and Fair and Equitable Sharing of Benefits Arising out of their Utilization Controversy also regarding grant of observer status to CBD in the TRIPS Council of WTO

11. OTHER INTERGOVERNMENTAL ORGANISATIONS: UNCTAD Very little mandate with UNCTAD to work on the issues under negotiations Based on request by some developing countries, some work undertaken by UNCTAD in experts groups on the CBD-TRIPS issue Last important work was a paper by Carlos Correa on requirements for legal basis for international recognition to national level ABS regimes Technology transfer, however, an integral part of UNCTAD capacity building mandate

12. OTHER INTERGOVERNMENTAL ORGANISATIONS: FAO International Treaty on Plant Genetic Resources for Food and Agriculture Material Transfer Agreements Information Transfer Agreements

13. OTHER INTERGOVERNMENTAL ORGANISATIONS: WHO Public Health responsibilities main concern; IP issues only relevant as they impact their core responsibilities Recent controversies about availability of affordable medicines for the poor due to patents has drawn WHO into this issue as well Conducted an important meeting in cooperation with WTO in Oslo in 2002 on Differential Pricing IGWG set up in 2006, work ongoing in Geneva this week

14. OTHER INTERGOVERNMENTAL ORGANISATIONS: COHERENCE There is a clear overlap of work in some UN agencies and the WTO on CBD-TRIPS issue Not much overlap on the GIs issue There is a clear need for coherence in mandate and activities of IGOs working on related issues in IP, as in any other area