Continuing coverage of the Lisbon Agreement Conference, Keri Johnston, Vice Chair of the MARQUES Geographical Indications Team reports on day 8.

Day 8 began at 10 AM with Main Committee II (MCII) resuming their work in the large main hall, recently finished and built at WIPO to accommodate all Member States of the General Assembly.  Since Day 1 of this Diplomatic Conference it has been somewhat sparsely populated despite the fact that the New Act is the closest the international community has gotten in 15 years to the possibility of enacting a multi-lateral agreement on the registration of GIs.  Despite the numerous empty seats before them, members of the MARQUES GI Team have taken up their posts in the second row of the back section (along with other Observers) every day that the Diplomatic Conference has been scheduled to meet.  Indeed, the MARQUES GI Team, primarily self-funded and running on volunteer hours, has not missed a single day of the 10 Working Group meetings or the Preparatory Committee Meeting that preceded this Diplomatic Conference.

This bears mentioning, in that the expertise and contributions of the Observers in attendance, (some of whom have participated fully in the process from the first day of the first Working Group Meetings) are sidelined from the Informal sessions that have now been held on three days of the scheduled Diplomatic Conference.

Indeed at noon on Day 8, the Secretariat announced that Main Committee I (MCI) which had been scheduled to follow MCII in the Main Hall was moving to Informal Sessions.  As no further announcements were forthcoming, several Observers remained behind in the afternoon to analyze the proposals among themselves, and to be available in the event that the evening session resumed in the Main Hall.  It did not, and the Informal Meeting of MCI continued following another dinner of sandwiches and apples for the beleaguered Member and Observer and Special Delegations.

For some of the Member Delegations who have financed their expert Delegations during the 10 Working Group Meetings and the 11 days of the Diplomatic Conference, mumbling could be heard over their dinner sandwiches that the apparent lack of progress is proving frustrating.  The thought that Observer Delegations are possibly seeking to run down the clock, could be heard.  Which begs the question of whether or not the tail has begun to wag the dog at this Diplomatic Conference.

An alternatively view was that it may be possible to reschedule the Diplomatic Conference in order to further contemplate the text of the New Act and Regulations for possible amendments.  For example, the MARQUES GI Team notes that the current draft text of the New Act does not contain a force majeur clause.  Should this have been contemplated and included, or will the Drafting Committee also note its absence?

If the supposition becomes that a New Act will NOT be signed at this Diplomatic Conference in the allotted time, one asks where does that leave brand owners who might benefit from the greater legal certainty a multi-lateral agreement might provide in a better legal position.  In particular, one might ask if there may be benefits for those brand owners whose companies register trademark globally including in those countries where a GI can be protected under a suis generis GI system (currently 15 such suis generis GI registration systems are in force in the EU).  In addition there are companies who may have gained market share and perceived quality benefits in the eyes of consumers from their brands association with a GI, and who are not adverse to an international registration system that protects their economic interest in that association with their brand.

The fact is, that despite the proliferation of bilateral, and plurilateral GI agreements since TRIPS, there has been virtually no progress on an international multilateral agreement dealing with the evolution of the legal landscape on the GI issue, which continues to evolve in the EU and elsewhere around the globe.  In a sense, a GI registration system has become the elephant in the room, and it is impinging on related issues such as domain names among others.

In this regard, brand owners are virtual pawns of the opposing views primarily espoused by the EU (protection and extension of GIs to include non-agricultural products) and the US (GIs can be protected under existing trademark regimes as certification or collective marks).  Arguably,  a New Act of the Lisbon Agreement might have offered a further opportunity, 15 years down the road from TRIPS, to move this international stalemate forward.  In addition, it creates an opportunity for the standardization at an international level of the requirement for specifications and other regulations that are absent in certain jurisdictions as the quid pro quo of the benefits offered to beneficiaries of an international GI registration system.

But we digress, and on Day 8 MCII worked from 10 AM to 12 PM in plenary, obtaining agreement with respect to two outstanding provisions under the Article dealing with the Assembly of the Special Union [Articles 22(3)(b) and 22(4)(ii) as revised].  The numerous contentious Articles referencing Article 24 (financing of the New Act) and parts of Article 24 remain open [Articles 22(2)(a)(ii); 24(2) - (5); 26(2); 27(1)].  In addition, Article 29(4) dealing with international registrations effected prior to Accession is awaiting proposed wording from the Secretariat on proposed wording relating to intergovernmental organizations; and the MCII is awaiting a written proposal from the Member Delegation of Italy with respect to relations between States party to both the New Act and the Lisbon Agreement OR the 1967 Act [Article 31(1)].

During the afternoon Informals the MARQUES GI Team Members present, namely the Chair Alessandro Sciarra and Vice-Chair Keri Johnston, took the opportunity (together with other Observers) to review all of the President's Non-Papers from No. 3 Revision 2 (released May 18, 2015) up to and including President Non-Paper 11.  In addition, the French Delegations proposal with respect to the content of protection of a registration was released for review (Article 11).

It is actually quite difficult to assimilate the proposed revisions while concurrently listening to the submissions of Member and Observer Delegations, Special Delegations and Observers, so the MARQUES GI Team was glad to have had the chance to reflect and discuss the provisions with the other Observers similarly excluded from the Informals.

It is unclear to the MARQUES GI Team at this point if the Informals have been fruitful with respect to the remaining outstanding issues contained in the proposed text of the New Act and draft Regulations.

In the interim, the afternoon review of the Presidential Non-Papers 3 (Revision 2); and 4 -10 Rev. inclusive, raised drafting issues for the MARQUES GI Team and other issues that will come before the Drafting Committee.

Day 9 is scheduled to commence at 10 AM with the MARQUES GI Team in attendance in the event that the work of Main Committees I and II continues in plenary.