MONDAY, 18 MAY 2015
MARQUES at the Lisbon Agreement Conference: an update

Class 46 has already posted two items (here and here) on the World Intellectual Property Organization's Diplomatic Conference for a New Act of the Lisbon Agreement on Appellations of Origin (AOs) and Geographical Indications (GIs). Now. via Keri Johnston (Vice Chair, MARQUES Geographical Indications Team), comes further news. Says Keri:

On Days 3 to 6, Member Delegations and a limited number of Observer Delegations met in longer than expected afternoon and an added evening session of Main Committee I ('MC1'). In addition, three "Informal Sessions" took place on Days 5 and 6 for Member Delegations and the limited number of Observer Delegations who were physically in attendance to facilitate "off the record" discussions regarding the pending draft Articles and Regulations in an effort to move the negotiations forward. The three Informals were closed to MARQUES and other Observers.

On Day 3, Wednesday May 13, MCI met to review the outstanding cluster of issues concerning those provisions relating to the scope of protection to be afforded to AOs and GIs under the New Act [Articles 11(1)(a) and (3) including a Draft Agreed Statement in footnote 1]; protection against AOs and GIs becoming generic (Article 12); and safeguards in respect of prior trade mark rights [Article 13 (1)]. This set of pending Articles crystallizes the current international stalemate in which 4 alternate drafts were before MCI with respect to Article 11(3) alone. Little progress was made at MCI in respect of those Articles, in which there is a clear divide between current Member Delegates and the observations of Observer Delegates with the exception of Israel, which is often aligned with the positions taken by the US, China, Korea, and Japanese Observer Delegations.

Later on Day 3, MCI moved to a third cluster of issues with respect to provisions relating to the legal effect of international registrations including negotiations following a refusal [Article 16(2)] which despite overwhelming support from Member Delegations, was not supported by any Observer Delegations. In a concession to Observer Delegations, it appears as if this Article may be removed in future drafts following a vote to delete it by Member Delegates, which passed by consensus.

The second issue in the group, involved the issue of a phasing-out period for third party use of a denomination constituting a registered AO or GI, which has been in use in a Contracting Party, but which is NOT safeguarded under other articles of the New Act and which is currently in square brackets pending inclusion into the draft New Act [Article 17(1)]. On this issue, both the EU and the African Intellectual Property Organization (OAPI) took the floor in favour of removing the square brackets and inclusion, in a position broadly supported among the Member Delegations. However, the US, China, Australia and Korea were in favour of non-inclusion.

The final issue in this cluster was whether the New Act should establish an exhaustive (Member Delegates) or non-exhaustive (Oberver Delegations in attendance) list of grounds for invalidation [Article 19(1)]. The President of MCI offered the suggestion that consideration could be given to a similar provision in the Madrid Protocol. Currently this issue remains outstanding.

On Day 4 (Thursday, May 14) the First Report of the Credentials Committee, under their President Mr. Filipe Ramalheira from Portugal, was released and confirmed that currently 10 Member Delegations (of 28) had credentials to participate in the Conference, sign the final Act, and full powers to sign the treaty to be adopted by the Diplomatic Conference [currently 18 Member Delegations lack such full powers ( LI/DC/10 dated May14, 2015)]. The work of the closed Credentials Committee is ongoing.

At 10 AM MCI resumed their work with their focus on the last remaining cluster of outstanding issues, concerning fees and the financing of the Lisbon System going forward. A full day of MCI was devoted to a review of the possible introduction of maintenance fees [Articles 7(3), 8(3) and 24(3)(vi)]; the re-introduction of provisions of the current Lisbon Agreement dealing with contributions by members of the Lisbon Union (currently in square brackets); provisions concerning the possible introduction of individual fees [Article 7(5)]; and the amount and setting of fees [Rule 8(1)]. No progress was evident from the perspective of the
MARQUES GI Team Member in attendance, with Observer Delegations showing little appetite for compromise on the issue of the financial viability of the proposed registration system, and Member Observers showing reluctance to adopt a strict regime based on fees.

On Day 5 at 10 AM, Main Committee II (MCII), under the guidance of its President Mr. Vladimir Yossifov from Bulgaria, met for the first time and completed its preliminary review of the Administrative and Final Provisions of the New Act. However, both Member Delegates and Observer Delegates reserved on numerous outstanding issues, linked to the outcome of the lack of progress on the finance issues at MCI on Day 4.

Returning in the afternoon of Day 6 MCII was again unable to make substantive progress on the financing of the proposed New Act (Article 24) despite the two informal sessions on the afternoon of Day 5 and morning of Day 6, which were held in place of the originally scheduled Committee Meetings. Moreover, during MCII on Saturday May 16, certain Member Delegations and Observer Delegations stated with respect to other administrative provisions that might otherwise have been settled, that as they were unable to get instructions (offices being closed) so they would reserve until discussions resumed on Monday.

The lack of substantive progress on the outstanding issues at both MCI and MCII is despite the closed Informals attended by Member and Observer Delegations behind closed doors (and off the record) which have now had three sessions, for a total of 9 hours, of the scheduled time allotted to the Diplomatic Conference, seemingly without much success.

Among the Observer Delegations in attendance on the days in which the Informals were held were the seven Observer Delegations who have been actively participating at both Main Committee I and II, namely Australia, China, Republic of Korea, Russian Federation, Switzerland, United States of America, and the United Kingdom, and the two Special Delegations of the African Intellectual Property Organization (OAPI) and the European Union (EU).

However, as is visible from the webcast, and protestations to the contrary, the vast majority of Observer Delegations invited to attend and participate have NOT been in attendance during the substantive work of either of the Main Committees, nor been present for the three Informal closed sessions between Member and Observer Delegations.

In light of the lack of substantive progress, it is to be noted that the Rules of Procedure adopted in respect of this Diplomatic Conference permit the closure of debate and CLOSED Committee Meetings.

In this regard, it is interesting to speculate if the Observer Delegations continue to drive the agenda, whether the Member Delegations shall exercise the right to manage the process such that they are able to conclude the discussion and drafting of the New Act and Regulations within the designated time-frame, failing which the Diplomatic Conference shall be rescheduled for continuation at a later date.

At the conclusion of MCII on Saturday evening, the Secretariat advised that no formal meetings of MCI or MCII Day would be held on Sunday May 17th (Day 7), and the schedule and order of the Main Committee meetings will be announced at 10 AM on Day 8, when the
MARQUES GI Team will be represented by their Chair, Alessandro Sciarra and Vice-Chair, Keri Johnston.

MARQUES GI Team Members have been in attendance and at the meetings of the Conference of the Main Committees on all days including Miguel Angel Medina, and Ortrun Guenzel on Days 1,2, and 3, and Keri Johnston on Days 1 to 6.

Posted by: Blog Administrator @ 07.40
Tags: Lisbon Conference, GIs,

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