Two trade-related IP stories for this morning, c/o the Bridges Weekly Trade News Digest.

First, a patent story: WTO members are clashing over whether patent-seekers should be required to disclose the source and country of origin of any genetic resources and traditional knowledge used in the development of an invention. In short:

India, Brazil, Bolivia, Cuba and Pakistan (IP/C/W/459) argued that the US’ favoured contract-based approach (IP/C/W/449) is not sufficient to prevent the theft of genetic resources and associated knowledge. India and Brazil emphasised that many delegations believe that disclosure requirements would constitute an efficient, workable solution to biopiracy. They acknowledged that the US contract-based suggestion could be one part of this solution. Peru introduced a paper (IP/C/W/458) analysing the potential benefit that a disclosure requirement could have made in the case of the Camu Camu plant, a Peruvian fruit that was patented in Japan. Australia, the EU, Canada and New Zealand said that further discussions on disclosure requirements were necessary, though they did not support India’s paper as it was.’

And on the issue of geographical indications, there are clashes too. The EU has come forward with a deeper plan to cut agricultural tariffs – but conditional on the extension of geographical indication (GI) protections, currently available only to wine and spirits like Champagne, to all food products. There are three parts to the EU proposal:

  1. The protection available today for GIs for wine and spirits under Article 23 of the TRIPS Agreement should be extended to all products. This means that the obligation to provide the legal means to prevent use of a GI and the obligation to refuse or invalidate trademarks containing or consisting of a GI, should be extended to all cases concerning products of the same kind not originating in the place indicated by the GI. We … are prepared to resolve the problem [of existing trade marks] … by adjusting the exceptions of Article 24 of the TRIPS Agreement accordingly (WT/GC/W/547). In brief, this implies that existing trade marks would not be affected. This would obviously be a very major concession by the EU.In other words, you recall the feta cheese decision I recently mentioned? That kind of rule would apply universally – including to cheeses, meats – and anything else people can think of.
  2. …[A] multilateral system of notification and registration of GIs should be established. The register should be open to GIs for all products and have legal effects for both participating and nonparticipating Members not having lodged a reservation to the registration of a GI. … , there should be an international register. A country could lodge GIs in the register, and WTO member countries would have a limited opportunity to oppose the registration of such GIs. After that limited opportunity, all WTO members would be obliged to provide protection to the registered GI (although there might be a reservation system of some kind).
  3. In addition, for a limited number of well known GIs which are being used in third countries in a manner highly detrimental to our market access objectives, their use by others than the right holders should be prohibited. In other words, it should not be possible to invoke the exceptions provided for in Article 24 of the TRIPS Agreement to refuse protection to the GIs on this short list. The EC would be equally prepared to review this third element of its proposal to address the concerns of other Members in relation to trademark rights.In other words, there should be absolute protection for an EU shortlist of products, including certain wines but also, notably, feta, asiago, Fontina, Gorgonzola, Mortadella Bologna, Mozzarella di Bufala Campana, Parmigiano Reggiano, Pecorino Romano, Prosciutto di Parma and Roquefort. Producers would not be allowed to label their material ‘In the style of Gorgonzola’ either.

For an extensive consideration of how extending GIs would not be in Australia’s interests, see the article by Michael Handler, ‘The EU’s Geographical Indications Agenda and its Potential Impact on Australia’ (2004) 15 Australian Intellectual Property Journal 173-194.