THURSDAY, 14 MAY 2015
Latest from Lisbon: what the MARQUES GI Team has been doing
On Day 2 of the Diplomatic Conference for a New Act of the Lisbon Agreement on Appellations of Origin and Geographical Indications [on which click here for a bit of background], primarily Member States with a significantly reduced attendance by Non-Member States commenced the work of Main Committee 1. In addition, elections of the Officers and Members of the Credentials and Drafting Committees were completed.
Days 2 to Days 4 are devoted primarily to the work of Main Committee 1, which is open to Member States, Observer Non-Member States and all other accredited Observers -- naturally including MARQUES.
Under the adopted Rules of Procedure for the Diplomatic Conference, Main Committee 1 is responsible for proposing for adoption the substantive provisions of the New Act, the Regulations and any recommendation which refers back to the objective of the Diplomatic Conference - namely to negotiate and adopt a New Act and Regulations under that New Act.
MARQUES GI Team Members in attendance were Miguel Angel Medina, Ortrun Guenzel, and Keri Johnston, all of whom actively participated in the Team observations.
On Day 2 of the Diplomatic Conference, at Main Committee 1, the MARQUES GI Team in attendance made three observations with respect to the articles under discussion.
First, the MARQUES GI Team observed, in support of the interventions of certain Member States and Observer States, that the Member States retain the new provisions permitting applications for trans-border geographical indications jointly and individually. [see Articles 2(1) and 5(4)].
Secondly, when the debate turned to whether it should be mandatory to include filing particulars concerning the quality, reputation or characteristics, the MARQUES GI Team voiced a preference for the mandatory versus the permissive provision, observing that filing a GI application without specification would be analogous to filing a trade mark application without a list of goods and services thereby making the scope of the GI unclear and creating legal uncertainty. In addition, on a practical level such a mandatory requirement would help in practice to distinguish products which comply with the specification of the GI from those which do not. In the alternative, and in line with the position taken by Member States, the MARQUES GI Team concurred with the observation of the President of Main Committee 1 Mr. Ficsor that the practical effect of Alternatives A and C would be the same. [See Rule 5(3) Alternatives A, B or C].
Finally, in a third intervention dealing with the issue of not claiming protection for certain elements of a GI, The MARQUES Team (with some reservations with respect to the drafting) supported the principle that when protection in the country of origin is not granted for certain elements of the AO/GI, the international application shall expressly indicate this on the basis that such a mandatory provision provides greater legal certainty, is clearer for consumers and entrepreneurs and allows free competition in the market. The MARQUES GI Team further observed that should this mandatory requirement not form part of an application for a GI, it may be possible that elements of the GI which are not protected in the country of origin could receive protection in the receiving country thereby essentially perverting the system and preventing competitors in the receiving countries from using word elements that are not protected in the country or origin. Interestingly, the President of Main Committee 1 observed that in the debate around this Rule, the current Member States were essentially evenly split between the mandatory or permissive alternatives whereas the Observer Member States had a clear preference for the mandatory alternative. [See Rule 5(5) Alternatives A or B]
Day 3 of Main Committee 1 is discussing issues relating to the scope of protection and numerous provision proposed by Non-Member Observer States are under review, including footnotes currently within square brackets. It is expected that Main Committee 1 will add a further evening session from 7 to 10 PM in order to complete the review of the New Act and Regulations.
The intention of Main Committee 1 on Day 4 (a national holiday in Switzerland) is to go through the entire list of pending issues, and after taking stock of the oral submissions of the Member and Non-Member Observers, it is intended that having concluded the first reading the Main Committee 1 will come back to the pending issues.
All working documents relating to the Diplomatic Conference can be found on the WIPO Website, including the historical documents of the Working Group Meetings.
The relevant documents under review from Day 2 to Day 4 are:
1. Document LI/DC/3 "Basic Proposal for the New Act of The Lisbon Agreement on Appellations of Origin and Geographical Indications; and
2. Document LI/DC/4 "Basic Proposal For the Regulations Under the New Act of The Lisbon Agreement on Appellations of Origin and Geographical Indications.
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