RESTRICTEDWORLD TRADE
ORGANIZATIONIP/C/M/22
9 April 1999
(99-1407)
Council for Trade-Related Aspects
of Intellectual Property Rights
MINUTES OF MEETING
Held in the Centre William Rappard
on 17 February 1999
Acting Chairperson:  Ambassador Carlos Pérez del Castillo (Uruguay)
Subjects discussed:
A. NOTIFICATIONS UNDER PROVISIONS OF THE AGREEMENT
B. REVIEW OF LEGISLATION:
(i) Follow-up to the reviews already undertaken
(ii) Arrangements for future reviews
C. IMPLEMENTATION OF ARTICLE 70.8 AND 70.9
D. IMPLEMENTATION OF ARTICLE 66.2
E. TECHNICAL COOPERATION
F. REVIEW OF THE APPLICATION OF THE PROVISIONS OF THE SECTION ON
GEOGRAPHICAL INDICATIONS UNDER ARTICLE 24.2
G. IMPLEMENTATION OF ARTICLE 23.4
H. TRADE FACILITATION
I. ELECTRONIC COMMERCE
J. REVIEW OF THE PROVISIONS OF ARTICLE 27.3(b)
K. ARTICLE 64.3
L. INFORMATION ON RELEVANT DEVELOPMENTS ELSEWHERE IN THE WTO
M. OBSERVER STATUS FOR INTERNATIONAL INTERGOVERNMENTAL
ORGANIZATIONS
N. ELECTION OF THE CHAIRPERSON OF THE COUNCIL FOR TRIPS
O. OTHER BUSINESS.
1. In the absence of Ambassador István Major, Chairperson of the Council, the meeting was
chaired by Ambassador Carlos Pérez del Castillo (see also paragraph 162 below).IP/C/M/22
Page 2
A. N OTIFICATIONS UNDER PROVISIONS OF THE AGREEMENT
(i) Notifications under Article 63.2
2. The Chairperson informed the Council that new notifications of legislation had been received
from Ecuador, Germany, New Zealand, Romania, Spai n, Sweden and Uruguay.  The notification from
Uruguay concerned the provisions of Articles 3, 4 and 5 of the Agreement and informed the Councilthat Uruguay was availing itself of the transitional period of Article 65.2.  All these notifications
would be available in the IP/N/1/- document series as soon as possible.
(ii) Notifications under Article 69
3. The Chairperson informed the Council that new notifications under Article 69 had been
received from Ecuador and the Maldives, which brought the number of Members that had notified
contact points under this provision to 89.  Brazil , Korea, the United Kingdom and Venezuela had
notified updated information concerning their contact points under Article 69.  Information on thesecontact points had been made available in the IP/N/3/- series of documents.
(iii) Other notifications
4. The Chairperson informed the Council that no tifications had been received from Zambia
relating to Article 14 bis(2)(c) of the Berne Convention as incorporated into the TRIPS Agreement and
under the provisions of the Appendix to the Berne Convention as incorporated into the TRIPSAgreement.  These notifications had been distributed as documents IP/N/5/ZMB/1 and 2.
B. R
EVIEW OF LEGISLATION
(i) Follow-up to the reviews already undertaken
5. The Chairperson recalled that, at the previous  meeting, the European Communities and their
member States had addressed a number of questi ons to Mongolia and Panama.  Responses from
Panama to all questions posed to it by the EC had been received by the Secretariat, except those
relating to the area of copyright and related rights, for which the delegation of Panama had informed
the Chairperson that it was in the process of preparing responses.  No answers had been received from
Mongolia.  He suggested that the Council urge the delegations in question to complete their responses
without delay.
6. The Council so agreed.
7. The Chairperson also recalled that, at the previous meeting, the Council had urged Members
to provide any outstanding material without delay.  The Secretariat had informed him that there were
still two Members who needed to complete the records of the review of their legislation on
enforcement, namely Portugal and the Slovak Republic.  He suggested that the Council urge these
delegations, once again, to do their utmost to provide the material due soon and that the Council revert
to this matter at its next meeting.
8. The Council so agreed.IP/C/M/22
Page 3
(ii) Arrangements for future reviews
- Kyrgyz Republic and Latvia
9. The Chairperson recalled that the Kyrgyz Republic and Latvia had recently acceded to the
WTO and were not applying a TRIPS transition period.  No notifications of legislation had been
received from these Members as yet.  He suggested that the Council urge the Kyrgyz Republic andLatvia to make the required notifications of their legislation without delay and that, in view of the
procedures for the preparation of reviews of TRIPS implementing legislation, the review of the
legislation of the Kyrgyz Republic and Latvia could then be taken up at the end of 1999.
10. The Council so agreed.
- Arrangements for reviews after 1 January 2000
11. The Chairperson reported on the consultations that he had held on the practical arrangements
to be put in place for the reviews of legislation of developing countries after 1 January 2000. He
recalled that delegations had been asked to inform him or the Secretariat about their thinking on this
matter so that he could suggest a schedule to the Council early in 1999, and informed the Council that
Mexico had joined the seven Members that had already agreed to have their TRIPS implementing
legislation reviewed in the first part of the year 2000.  The discussion had focused, in particular, on
how the work for these reviews should be divided, since there were some 70 Members whoselegislation would have to be reviewed as of 1 January 2000 - whether this should be done on a
country-by-country basis or on a subject-by-subject basis.  His consultations had also addressed the
question of the criteria that might be employed for determining the order in which countries'
legislation might be taken up in the event that the country-by-country approach were adopted.
Another point had been the number of countries w hose legislation should be examined in the year
2000;  in this regard, he had been consulting on the basis that the Council should plan to review the
legislation of all the countries in question by the end of 2001.  He thanked delegations for the
flexibility they had shown and for the useful inputs they had made in the process of consultations.
Whilst it was not his intention, at this stage, to attempt to draw any conclusions or put to the Council
any specific proposals, it was his sense that a majority of Members would favour the country-by-country approach, notably on the ground that it would obviate the need to send experts to Geneva on
several occasions.  The point had been made, however, that for such an approach to work, entailing as
it would only one review meeting per country, it would be necessary to ensure that the review process
was organized with a maximum of efficiency so as to enable that one meeting to be as productive as
possible.  As for criteria for determining the order in which countries might be taken up, a number of
suggestions had been made and it was his intention to continue consultations. He sensed, however, a
wide view that it would be desirable, to the maxi mum extent possible, to base the order on countries
volunteering to have their legislation reviewed.  He therefore very much encouraged the delegations
concerned to make every effort to volunteer to have their legislation reviewed either in the early part
of 2000 or in the second part of that year.  It was his intention, with the help of the Secretariat, to
consult as many delegations as possible in this regard.  To sum up, therefore, his consultations, while
showing a positive and constructive approach on the part of delegations to this issue, had indicatedthat the matter was not yet ripe for the Chair to put forward a proposal to the Council.  He would
therefore continue his consultations with the aim of putting to the Council a specific proposal for a
decision by the Council at its next meeting, at the end of April 1999.
12. Continuing, he reminded Members that, under the notification procedures agreed by the
Council (document IP/C/2), Members obliged to  comply by 1 January 2000 were called upon to
notify their implementing legislation in accordance wi th those procedures by the end of January that
year.  Delegations were also reminded that, under the WTO/WIPO Cooperation Agreement and
decisions taken by WIPO's Governing Bodies, the In ternational Bureau of WIPO was in a position toIP/C/M/22
Page 4
assist delegations with the translation of their main dedicated intellectual property laws and
regulations, as required.
13. The representative of Brazil said that it would be ideal if countries could be selected on a
voluntary basis and the review could be conducted on  a country-by-country basis.  His delegation did
not believe that the use of further checklists or questionnaires would be appropriate for the review ofdeveloping country Members' legislation.  The notifi cation of legislation should be sufficient for a
good review exercise.  His delegation asked that the Chair maintain, in the spirit of the voluntary
character of notifications, contact with those Members who were interested in commencing the review
as from January 2000.  He emphasized that these Members had to begin preparing their notifications
in 1999, some three months in advance of their obligations under Article 65.2, which would in itself
involve a great effort. For this reason his delegation insisted on the voluntary nature of the review so
that it could be carried out in those countries which already understood themselves to be ready toparticipate in this exercise.
14. The representative of Morocco agreed with the view expressed by the representative of Brazil
in regard to checklists of questions.
15. The Council took note of these statements.
C. IMPLEMENTATION OF ARTICLES 70.8 AND 70.9
16. The Chairperson informed the Council that notifi cations had been received from Turkey and
Uruguay.  Both these Members had notified supplementary information concerning the
implementation of Article 70.8 and 70.9.  These notifications had been distributed in documents
IP/N/1/TUR/1/Add.2 and IP/N/1/URY/2.  He recalle d that questions had been put to certain Members
by the United States (document IP/C/W/113) and informed the Council that responses received from
Uruguay to those questions by the time of the December 1998 meeting had been circulated in
document IP/C/W/121.
17. The representative of Argentina provided responses to these questions, subsequently
circulated in document IP/C/W/135.
18. The representative of Egypt informed the Council that his delegation had handed over to the
Secretariat, for circulation to Members, full and de tailed responses to the questions that had been put
by the United States.1
19. The representative of Paraguay regretted that he was not able to present responses as he
would have wished to do to the questions that had been put by the United States.  He indicated his
delegation's commitment in this matter, and that the responses were being prepared in his capital and
would shortly be presented in writing to the C ouncil.  His delegation wished to thank the United
States for the interest which it had shown in Para guay's national legislation and hoped in the future to
be able to answer questions from Members and recognized the importance of establishing clarity and
transparency regarding the legal framework in the field of intellectual property rights as in other fields
of trade.
20. The representative of the United States thanked the representatives of Argentina, Egypt and
Paraguay for their statements and the responses pr ovided or foreshadowed.  With regard to the
responses from Argentina as well as those provided earlier by Uruguay, in particular those relating to
the content and scope of exclusive marketing rights under Article 70.9 of the Agreement, he referred
                                                     
1 These responses have been circulated in document IP/C/W/136.IP/C/M/22
Page 5
to paragraphs 76 to 84 of the Appellate Body Report in India - Patent Protection for Pharmaceutical
and Agricultural Chemical Products (document WT/DS50/AB/R) and announced possible follow-up
questions.  He reserved his delegation's right to put follow-up questions to Egypt and Paraguay once it
would have received and assessed the answers from these Members.  His delegation was also
considering posing questions to other Members which had availed themselves of the transition periodunder Article 65.4.
21. The representative of the European Communities said that his delegation would analyse in
detail the responses provided.  The responses provided by Uruguay had raised some concerns in his
delegation which might wish to put follow-up questions.  He invited more Members to submit similar
information to the WTO in a comprehensive manner.
22. The representative of Uruguay said that he had taken note of the comments of the
representatives of the United States and the Eu ropean Communities which would be communicated to
his capital.  His delegation was open to continue discussion on this subject.
23. As regards the reference made by the United States to the Appellate Body Report on the
dispute between the United States and India (WT/DS50/AB/R), the representative of Morocco said
that that Report concerned only two Members and that the recommendations in it were not addressedto other WTO Members, on whose rights and obligations it had no bearing.
24. The Council took note of the statements made and agreed
 to revert to the matter at its next
meeting.
D. IMPLEMENTATION OF ARTICLE 66.2
25. The Chairperson recalled that, at the previous meeting of the Council on 1 and
2 December 1998, the delegation of Haiti had requested information from developed country
Members on how Article 66.2 was being implemented and the Council had agreed that this question
be circulated in an informal document of the TRIPS Council to all Members and that developed
country Members be invited to supply informa tion in response to this request (which had
subsequently been circulated in informal documen t No. 7093 of 23 December 1998).  At that meeting,
the delegation of Switzerland had already provided some information to the Council.  Since then, awritten submission had been received from New Zealand, which would be circulated shortly as
document IP/C/W/132.
26. The representative of Venezuela thanked the delegation of New Zealand for the information it
had presented, which his delegation found very useful.  However, for bilateral requests for technical
cooperation, it would be useful to include the name of the government agency responsible for
administering relevant programmes, where approp riate.  His delegation also hoped that other
delegations would respond to the request from the delegation of Haiti.
27. The representative of Australia said that her Government was putting together a response to
the request from Haiti, which she hoped to provide as soon as possible.
28. The representative of Japan said that his delegation was preparing a paper for submission in
due course.  He wished briefly to explain Japan's activities in relation to Article 66.2.  The
Government of Japan had been conducting technica l cooperation activities in many fields, including
intellectual property.  Some of these activities had already been reported to the Council.  One of the
most important objects of cooperation activities was promoting and encouraging technology transfer.
On this point, he mentioned two activities:  first, based upon requests by least developed countries, the
Japanese Government despatched experts in various fields, mainly to the governments concerned.
About 3,000 such experts had been despatched each year.  Second, there were the activities of theJapan Overseas Cooperation Volunteers (JOCV), which had been established in 1965 to provideIP/C/M/22
Page 6
offshore Japanese technical assistance.  It was staffed by young experts who had volunteered to assist
developing countries in the task of improvement of a sound and viable technological base.  JOCV had
despatched more than 18,000 young men and women to some 63 countries around the world.  This
assistance took the form of volunteers working directly with the people of the host country;  it was the
firm belief of the JOCV that the true needs of the host countries could be best understood in this wayand a deeper understanding of their culture and traditions could be achieved as well.  The Government
of Japan believed that the activities of JOCV would contribute to raising the level of technological
infrastructure in least developed countries, which would bring further technological transfer by
enterprises or institutions themselves.  In those two activities, namely despatching experts and the
activities of the JOCV, it was possible for experts in the enterprises or institutions to maintain their
status in the enterprises or institutions and, at the same time, to be despatched to the countries
concerned.  In those cases, especially, the JOCV might provide financial assistance to the enterprisesconcerned for the personal expenses of the despatched people so as to facilitate the despatch of the
competent experts.
29. The representative of the United States informed the Council that his delegation was about to
submit the texts of various laws and a brief description of each of them for circulation to all Members,
but expected that his delegation would make an additional submission later in the year once furtherprogrammes of the United States Government relevant to this issue had been identified and the
information had been compiled.  The attitude of his Government in this area was based on the United
States belief in the importance of economic well-being for all countries.  President Franklin D.
Roosevelt had expressed this, in 1944, when he had st ated that "A basic essential to peace, permanent
peace, is a decent standard of living for all individual men and women and children in all nations.Freedom from fear is eternally linked with freedom from want.  [And] it has been shown time and
time again that if the standard of living in any country goes up, so does its purchasing power – and
that such a rise encourages a better standard of living in neighbouring countries with whom it trades".
President Roosevelt's successors after the Second  World War had acted upon that belief, with the
Marshall Plan, the establishment of the World Bank and International Monetary Fund at the BrettonWoods Conference, and the creation of a more open world economy through the GATT.  The United
States current technical assistance policies drew on these lessons and were designed to encourage
positive developments around the world.  In the United States, there were, for example, special
programmes that gave countries special access to the United States market.  One was the Generalized
System of Preferences, which gave developing countries more duty-free treatment than most of the
United States' trading partners.  Another, the Caribbean Basin Initiative, gave extra privileges to the
United States' neighbours in the Caribbean and Central America.  The newest was the African tradepolicy that the late Secretary of Commerce Ron Br own had begun, and President Clinton had raised to
a new level in his historic visit to the continent last year.  Many programmes under United States law
were expressly aimed at encouraging the transfer of technology to developing and least developed
countries to enable them to create sound and viable economies.  Some of these programmes were of
long standing, while others had been recently enacted.  The United States would submit the texts oflaws and a brief description of each, demonstrating its fulfilment of the obligations of Article 66.2.  In
addition to notifying the laws, the United States had included descriptions of some specific
programmes aimed at technology transfer to Sub-Saharan Africa and to Haiti in direct response to its
request.  His delegation remained willing to respond to specific written questions regarding this issue
in accordance with the provisions of Article 63.3.
30. The representative of New Zealand referred to the information submitted by his delegation
(IP/C/W/132) on the technology transfer activitie s undertaken by his Government and which his
delegation believed were relevant to Article 66.2.  He hoped that this information would be of interest
and use to Members.  In response to the comment from the representative of Venezuela, he informed
the Council that the responsible government or ganization was the Development Division in the
Ministry of Foreign Affairs and Trade in Wellington.  Contact details were available from the New
Zealand mission in Geneva.IP/C/M/22
Page 7
31. The representative of the European Communities confirmed the commitment of the EC and
their member States to providing the information pursuant to Article 66.2.  Both the European
Communities and the member States had begun to collect the relevant information but his delegation
wished to provide it in a comprehensive manner.  He emphasized that a considerable amount of
material had been identified already.  He also  referred to information already submitted to the
Secretariat in the context of the usual reports on technical cooperation and drew the attention of
Members to the large number of technical assistance programmes conducted by the EC and their
member States with developing countries, in particular with least developed countries.
32. The representative of Malaysia said that his delegation was appreciative of the information
provided concerning activities under Article 66.2, particularly by the delegation of New Zealand, but
that it would also like to know what were the types of incentives provided to private enterprises and
institutions as stipulated in Article 66.2.  Some clarification from the representative of New Zealandwould be most welcome.  He thanked the representatives of the European Communities and the
United States for the statements that they had made, but pointed out that Article 66.2 did not merely
concern the provision of technology transfer and all the activities undertaken thus far, but rather
concerned precise incentives given to private enterprises.  For example, the Generalized System of
Preferences was on a government-to-government basis and did not really relate directly to the privatesector as such.  His delegation would therefore like to hear more from those delegations.
33. The representative of Ecuador said that this agenda item was of great interest to his delegation
and he thanked the delegations of developed country Members which had provided information and
asked those which had foreshadowed responses to provide them as soon as possible.
34. The representative of the Philippines expressed his Government's appreciation for all of the
technical assistance which it had received from many developed countries.  In the year 2000,
developing country Members were expected to comply with their obligations under the TRIPS
Agreement.  Part of the exercise in many capitals was explaining to constituents why laws had to be
amended and many constituents had been asking whether those Members who were supposed to
comply with their obligations under the TRIPS Agreement earlier, i.e. the developed countries, had socomplied.  This was a political issue in many developing countries and there was a need to be able to
say, truthfully, that other Members had likewise complied earlier.  He concurred with the statement of
the representative of Malaysia, that technical cooperation under Article 67 was not the same as
providing incentives to enterprises and institutions under Article 66.2.  The submissions under this
agenda item should focus on the kinds of incentives provided, not necessarily to ascertain compliance
with Article 66.2, but to share information on what developed countries could do by way of granting
incentives to business enterprises to transfer technology to least developed countries.  It would beuseful to have information not only about the nature of the incentives but also the names and number
of firms that had thus far availed themselves of those incentives.
35. The representative of Morocco thanked the delegation of New Zealand for the information it
had provided and those delegations which had promised to provide information.  Many delegations
had spoken about programmes of incentives to ente rprises but, in order to  comply with the TRIPS
Agreement and the predictability and transparency it required, his delegation believed that it was
necessary to have legislative or regulatory measures.  The TRIPS Agreement had to be implemented
in its entirety and the provisions of Article 66.2 had to be respected by all Members.
36. The representative of Egypt thanked the delegation of New Zealand and others which had
promised information concerning Article 66.2.  He echoed the comments of the representatives of
Malaysia and the Philippines that the Council should differentiate between the assistance provided
under Article 67 and the creation of a sustainable technological base under Article 66.2.  His
delegation appreciated the information submitted by delegations but wished to see precise and
concrete information about the incentives themselves and how they encouraged and helped to create
this technological base in a sustainable manner in these countries.  His delegation would welcomeIP/C/M/22
Page 8
more information and asked other developed country Members to submit their information in a
precise manner.
37. The Chairperson suggested that the Council take note of the statements made under this
agenda item.  Several delegations had said that they would submit information shortly.  Several
developing country delegations had asked that developed country Members' information define moreprecisely the programmes intended to encourage and promote technology transfer by the private
sector in their territories.
38. The representative of the United States believed that it was important to bear in mind, when
reviewing the information submitted under this agenda item, that the obligation under Article 66.2
was limited to providing incentives to enterprises and institutions in developed country Members' own
territories.
39. The Council took note of the statements made and agreed  to revert to the matter at its next
meeting.
E. TECHNICAL COOPERATION
(i) Updated information on technical cooperation activities
40. The Chairperson informed the Council that, since the last meeting, a notification of updated
information on technical and financial cooperation activities had been received from Norway.  This
notification could be found in document IP/C/W/ 109/Add.6.  For the year 1998, the Secretariat had
received updated information on technical and financial cooperation activities from 16 Members.  If
Members also took into account information provided in the previous years, the Council had received
information altogether from 18 different Members.  There were still some developed country
Members that had not provided information on their technical and financial cooperation activities.Since the December meeting, the Secretariat had, as suggested by the Chairperson at that meeting,
contacted those Members that had not yet provided such information.  He urged those Members to
provide information on their activities as soon as possible.
41. The representative of Australia informed the Council about a two-week training programme,
held in Australia in 1998, for senior researchers and officials from the APEC region on biotechnology
and intellectual property.  This programme had been designed to improve the participants' skills base
in this area.  It had been held in response to a need identified by a number of APEC members as a
priority to improve the technical expertise in biot echnology and to help their countries make practical
use of the intellectual property system, facilitating technology transfer and cooperative research
projects, to engage effectively in licensing and other negotiations, and to be able to protect and
commercialize the fruits of biotechnological research.  The seminar had involved 26 participants from
the APEC region, comprising government officials and senior researchers involved in patentadministration and policy-making and biotechnological-r elated research.  This mix of participants had
enabled valuable cross-fertilization and networking between Australian commercial research and
government contacts and those in the region.  The programme had also benefited from substantial
support from industry, the legal profession, the research community and a range of government and
non-government agencies in the field of biotechnol ogy.  It had been designed to show how the
intellectual property system functioned at each stage from the breakthrough research to
commercialization.  One of Australia's leading technology-licensing consultants had also taken
participants through the negotiating skills required for research collaboration, technology transfer and
access to biological resources.  Hands-on training  in biotechnology had also been provided by IP
Australia and had been welcomed as one of the practical benefits of disclosure of state-of-the-arttechnology in patents.  The basic aim of the programme had been to meet some skills requirements, to
give participants practical hands-on skills to deal with biotechnology research and also in their
capacity as administrators to ensure that the intellectual property system was effectively used toIP/C/M/22
Page 9
achieve their national development objectives.  The programme had neither presumed nor prescribed
any particular policy on biotechnology and intellectual property but focused on generally applicable
practical skills such as the drafting and analysis of documents, use of information resources, licence
negotiation skills and development of cooperative research agreements.  A key element of feedback
from participants had been the need for a grea ter exchange of information about the practical
application of intellectual property systems in countries throughout the region.  She noted that this
information was being provided in the Council and her delegation hoped that it addressed a real need.
Her delegation hoped that an increased focus on the development of these skills and the flow of
technical information would assist all economies with the policy and practical challenges in this area.
Australia shared a need with other Members to build up skills and was planning to contribute on an
ongoing basis to cooperative efforts.
42. The representative of the Republic of Korea suggested that, as the transitional period for
developing country and transition economy Memb ers under Article 65.2 and Article 65.3 would
expire at the end of 1999 and taking into account that there were other multilateral and regional
organizations which were carrying out technical cooperation programmes, the Secretariat compile
information on existing programmes and circulate it to Members and coordinate more closely with
those organizations so that different cooperation programmes could be conducted in a more efficientand organized manner.
43. The representative of India thanked the representative of the European Communities for the
information he had provided at the last meeting on their technical cooperation programmes for certain
countries in the south Asian region, including India.   He had checked with the Ministries concerned in
his Government and noted that the EC had proposed about five years ago to consider modernizationof the intellectual property administration system in India.  India much appreciated this initiative and,
after consultations, the terms of reference had been finalized early in 1998.  Since that time, whilst
there had been three or four bilateral discussions, India was awaiting further progress from the
European Commission on this proposal.
44. The representative of Japan, as a convenor of the APEC Intellectual Property Experts Group,
informed the Council of the APEC technical cooperation symposium on intellectual property that
would be held in June in Korea to assist AP EC member economies which were behind in the
implementation of the TRIPS Agreement and to facilitate the implementation of the TRIPS
Agreement in those economies.
45. The Council took note of the statements made.
(ii) Joint UPOV/WIPO/WTO Symposium
46. The Chairperson referred to the Symposium on "The Protection of Plant Varieties under
Article 27.3(b) of the TRIPS Agreement", which had been organized jointly by the Office of the
International Union for the Protection of New Varieties of Plants (UPOV), the International Bureau of
WIPO and the WTO Secretariat on Monday 15 February 1999 at the Centre International de
Conférences in Geneva.  The Symposium, which had been scheduled to coincide with the present
meeting of the TRIPS Council, had been intended to provide a high-level forum for discussion andanalysis of the challenges and opportunities for developing countries which were considering how to
protect plant varieties in order to satisfy their obligations under the TRIPS Agreement, particularly in
the light of the imminence of 1 January 2000.
47. The representatives of Bolivia, Brazil
, Ecuador  and Argentina  expressed appreciation for the
Symposium and asked for copies of the papers to be made available in the three WTO working
languages.  The representative of Argentina asked whether there was a document containing
conclusions from the Symposium, or of the round-table session at the end.IP/C/M/22
Page 10
48. The representative of the Secretariat undertook to make available Spanish, French and
English texts to all Members of the Council in the normal way.  The Secretariat had not yet discussed
with the Secretariats of UPOV and WIPO what sort of record, if any, should be made available of the
points made during the discussions in the panel session.  No attempt had been made during the
Symposium to draw conclusions, its purpose being to share information.
49. The Council took note of the statements made.
(iii) WIPO-WTO Joint Initiative on Technical Cooperation
50. The Chairperson recalled that the WIPO and WTO Secretariats had launched, in July 1998, a
Joint Initiative on Technical Cooperation to assist developing countries to meet their commitments
under the TRIPS Agreement by the year 2000.  This Joint Initiative built on the existing cooperation
between the two Organizations and their existing programmes in this connection.  He recalled that, in
December 1998, the Council had agreed to request the Secretariat to report on progress in theimplementation of the Joint Initiative.
51. The representative of the Secretariat recalled that, when he had reported to the informal
meeting of the Council in December 1998, he had indicated that some 30 developing country
Members had expressed interest in taking advantage of the Joint Initiative.  One new request had been
received since that time specifically referring to th e Joint Initiative. This figure of slightly more than
30 countries included two Members who had not ye t specified the forms of cooperation which they
were seeking.  A number of other requests had been received which did not specifically refer to the
Joint Initiative.  The technical assistance programmes of the Organizations, individually, or jointly
under the WIPO-WTO Cooperation Agreement concluded at the end of 1995, covered a larger
number of countries.  Since December 1998, the Secretariat had gone through the specific requeststhat had been received with the International Bureau  of WIPO in detail, so as to work out and agree
upon appropriate follow-up action.  As a result of this, in a few cases, either the WTO Secretariat or
the International Bureau of WIPO was consulting with the requesting countries to discuss their
requests in more detail.  As regards the other requests, it had been agreed that, in a limited number of
instances, the WTO Secretariat would take the lead ;  in a number of other instances, joint events
would be organized;  and in respect of the remain ing requests, which constituted the great majority of
requests received, the International Bureau of WIPO would take the lead by integrating these requests
into its programmes of assistance to each of the countries for 1999.  The WTO Secretariat would
contribute to those activities of WIPO to the extent that its limited human resources permitted.
Finally, he mentioned that the ability of the WTO Secretariat to contribute to the Joint Initiative
through the organization and financing of WTO or joint events was beginning to be seriously
constrained by a shortage of funds.  As Members were aware, the WTO technical cooperationprogramme relied very heavily on trust funds for the financing of such activities.
52. The representative of WIPO said that, since the WIPO-WTO Cooperation Agreement had
entered into force on 1 January 1996, the two Organizations had been working closely.  The Joint
Initiative had strengthened the cooperation due to the approaching deadline for implementation of the
TRIPS Agreement for the majority of Members.  Therefore, it was important to note that the figure ofslightly more than 30 countries that had requested assistance under the Joint Initiative did not give the
full view of the situation.  As WIPO had announced in a press release dated 11 December 1998, the
number of countries and territories that had received or were receiving assistance under WIPO's
ongoing programmes in respect of TRIPS implementation amounted to well over 80 for the year 1998
alone.  She stressed the number of countries and territories that had been assisted by WIPO under itsongoing programmes, because the requests made under the Joint Initiative, in most cases, did not
differ from the assistance already provided under those ongoing programmes.  More specifically,
those requests were not limited to assistance in one area, such as legislation, but included all the areas
of assistance available, such as training, institution building, modernizing intellectual property
systems and enforcement.  As the Council was aware, this assistance had been provided by WIPO toIP/C/M/22
Page 11
WTO Members pursuant to the Cooperation Agreement and she restated WIPO's commitment to
continue to do so.  WIPO would share a full report of WIPO's assistance on TRIPS implementation to
developing countries for the years 1996, 1997 and 1998 with WTO Members later in 1999.
53. The representative of the European Communities recalled that it was his delegation which had
suggested in December 1998 that the Secretariat provide a regular report on the cooperation between
WIPO and the WTO Secretariat and he thanked the representatives of both for having done so.  His
delegation hoped that both Organizations would continue to work together effectively and looked
forward to further reports at future meetings.
54. The Council took note of the statements made.
F. REVIEW OF THE APPLICATION OF THE PROVISIONS OF THE SECTION ON GEOGRAPHICAL
INDICATIONS UNDER ARTICLE 24.2
55. The Chairperson recalled that, at the last meeting, the Council had taken stock of the
responses to the Council's Checklist of Questions on the subject that had been received by that time
and had had some discussion about the next step to be taken in the review under Article 24.2.  Several
delegations had indicated that they were still analysing the material provided and the Council had
agreed to revert to the matter at the present meeting.  Since then, new responses had been received
from Switzerland, Mexico, Iceland, Peru and Romania, making a total of some 30 Members so far.All responses to the Checklist would be made available in documents IP/C/W/117 and Addenda.
56. The representative of the United States said that his delegation continued to analyse the
responses to the Checklist and found the information provided useful in assessing the status of
protection and in educating United States businesses regarding the protection and enforcement of
geographical indications around the world.  His delegation had tried, in developing its proposalregarding Article 23.4 which would be discussed under the next agenda item, to take into account the
full variety of legal regimes Members used for the protection of geographical indications, and had
tried to ensure that its proposal did not favour any particular regime but could accommodate all those
which had been reflected in the responses.  His delegation urged Members which had not yet
responded to the Checklist to do so, if possible, in order to create as complete a picture as possible ofthe protection for geographical indications throughout the world.
57. The representative of the European Communities said that it was encouraging that still more
Members had responded.  He wished to come back to the question that had been raised at the previous
meeting of the Council of how the Secretariat co uld assist Members in making the information
provided available in a way which would allow easier understanding of the subject-matter.  He
continued to consider it appropriate for the Secretariat to prepare a synopsis or summary of the
responses, as his delegation had proposed at the previous meeting.  He invited the Chair to considerproposals in order to help the Council in advancing its discussion of the subject-matter.  In this regard,
he also wished to put the matter in a broader cont ext and drew attention to informal note No. 800 of
12 February 1999, in which suggestions from the Chair had been circulated for a structured approach
to the issues under debate in relation to the implementation of Article 23.4, but which also took into
account, as agreed, the responses to the Checklist of Questions on Article 24.2.
58. The representative of New Zealand said that his delegation believed that each of the responses
to the review under Article 24.2 stood by itself and that the responses provided demonstrated that
there was a broad variety of ways in which Members could implement their obligations under
Section 3 of Part II of the TRIPS Agreement.  As a result, his delegation had some difficulty in seeing
the value of a proposal that the Secretariat compile a synoptic overview of Members' responses,because such a synoptic overview would lose the distinctiveness of each Member's system.  It should
also be noted that it was this distinctiveness which needed to be borne in mind when discussing the
notification and registration system envisaged under Article 23.4.IP/C/M/22
Page 12
59. The representative of Argentina said that her delegation wished to know how many and which
developed country Members had not yet replied to the Checklist of Questions.
60. The representative of Venezuela said that he would present in the coming days responses to
the Checklist concerning the common Andean regime for geographical indications.2  T h i s  r e g i m e
applied to the Andean Community nations and Venezuela would respond in conformity with thatregime and the domestic legislation developed under it.
61. The representative of Mexico said that her delegation was analysing the responses to the
Checklist provided by other delegations and might have some comments to make on them. She
believed that it would facilitate an analysis of this  information to consider the EC proposal to ask the
Secretariat to prepare a synopsis of the responses received.  This exercise should be without prejudice
to the rights and obligations under the Agreement and on the understanding that the purpose of this
exercise would be to assist Members in obtaining a general panorama in a comparative form of thevarious systems used in different Members to provide protection for geographical indications.  This
exercise would be most useful for the work under Article 23.4.
62. The representative of Colombia said that his delegation would submit responses to the
Checklist concerning the legislation of the Andean Community in respect of geographical indications.
A synopsis prepared by the Secretariat would assist  Members in obtaining a global view of how the
protection of geographical indications was dealt with in Members.
63. The representative of Australia, responding in part to the question posed by the representative
of Argentina, informed the Council that her country was one of those Members still in the process of
preparing responses to the Checklist.  Her delegation regretted the delay but had found it to be a long
and complicated task.  She hoped to provide the answers in as short a time as possible.  Her delegationshared the aims of Mexico and others in ensuring that this exercise was useful, provided good quality
information to Members about the various regimes employed and, for that reason, queried whether the
EC proposal was the best way to achieve that.  In the view of her delegation, reduction of the volume
of information, especially when comparing a range of different models, would not necessarily give the
most accurate picture of how Members protected geographical indications.  This was especially truein this case, where there was such a wide range of approaches, all of which fully met the TRIPS
obligations in question.  There was not a single model or series of indicators or flags that would give
the same picture across a number of jurisdictions.  This was why her delegation queried whether this
was the way to make the information more readily accessible to users.
64. The representative of Hungary reiterated his delegation's support for the EC proposal
concerning the preparation of a summary by the Secretariat.  A synopsis or summary would help, in
particular, smaller delegations like his in the work under Article 23.4.
65. The representative of Switzerland appreciated the reasoning of the representative of Mexico
and supported the EC proposal for a synoptic table.  Those delegations which were interested in the
subtleties or specifics of certain systems could always go back to the documents which the relevant
Members had submitted.
66. The representative of Brazil said that his delegation, like that of New Zealand, was not
convinced of the necessity for a synopsis, at least at this stage of the negotiations, if, since not all
Members had notified responses to the Checklist, it would be difficult to provide a balanced picture.
Therefore, his delegation was of the view that the Council should devote more time to the analysis of
each of the responses on its own merits, so as to allow their proper assessment.
                                                     
2 These responses were subsequently received an d made available in document IP/C/W/117/Add.18.IP/C/M/22
Page 13
67. The representative of Canada preferred to have more time to examine the responses that had
been submitted recently and those which were expected to be submitted shortly.  Given the variety of
responses, there would perhaps be a challenge in developing an approach towards consolidating this
information in some comparative form.  He noted  that the EC had referred to informal document
No. 800 of 12 February 1999, thus suggesting that a similar approach might be a way to look at theresponses to the Checklist on Article 24.2 as well.  In his delegation's view, it was very difficult to
devise one approach for comparative analysis that would accommodate the variety of models at issue.
The approach that had been suggested in informal document No. 800 was in fact an approach suited to
a particular model that might be used but might not necessarily be suitable to the variety of models
that were in place in WTO Members.  His delegation preferred to take a little more time and to reflect
more on how best to put together this information in a comparative way to assist all WTO Members in
understanding the various approaches to this matter.
68. The representative of South Africa said that his Government was preparing responses to the
Checklist on Article 24.2.
69. The representative of Morocco said that his delegation supported the EC proposal concerning
the preparation of a synoptic table, which it believed would facilitate understanding the different
systems of protection in Members.
70. The representative of Singapore said that, whilst individual Members' responses were
certainly useful, in order to handle this matter in a meaningful way, it would be best dealt with
through a synoptic approach.  Difficulties arising from the differences among models in place in
Members could probably be tackled by pointing out certain distinctive elements or particularities
which there might be in certain Members.  A synoptic approach would allow the Council to see thetrends.  Delegations were not interested in the particularities which each Member had, but were
interested in the broad thrust of how these provisions were being interpreted.  This did not preclude
any Member which had an interest in a specific area from looking more closely at the individual
responses.
71. The Chairperson, responding to the question of the representative of Argentina, said that, to
date, the Secretariat had received responses from Bulgaria, Canada, the Czech Republic, Ecuador, the
European Communities and eleven of their member States, Hungary, Iceland, Japan, Liechtenstein,
Mexico, New Zealand, Norway, Peru, Romania, th e Slovak Republic, Switzerland, Turkey and the
United States, making a total of 29 Members.  As to how to proceed with discussions under this
agenda item, there was no uniform view.  Some Members believed that the EC proposal for the
Secretariat to prepare a synopsis of the various responses could assist the Council in its deliberations
on the matter, whilst others, by contrast, had indicated that the Council should devote more time to theanalysis of each set of responses.  He suggested  an intermediate path according to which the
Secretariat would, before the next meeting, present an outline of how it would intend to order the
information in such a manner as to facilitate Members' understanding, while not losing the diversity of
elements indicated in the various responses.
72. In response to questions, the representative of the Secretariat said that the Secretariat could,
before the next meeting, put to the Council an outline of a possible summary paper which would set
out the structure that such a paper might have, i.e., the headings under which the information in a
summary paper would be organized.  In the light of the points made in the discussion, the Secretariat
would take special care to ensure that the struct ure would be one capable of taking into account the
diversity of national approaches.  The outline would not be a paper but only a structure or theheadings under which a paper, if the Council were to agree to ask the Secretariat to prepare the actual
paper, would be organized.IP/C/M/22
Page 14
73. The representative of Colombia said that the Secretariat's clarification was sufficient, but he
wished to emphasize that it should wait a little longer in order to take account of further responses
from more Members.
74. The Council took note of the statements made and agreed  to proceed as proposed.
G. IMPLEMENTATION OF ARTICLE 23.4
75. The Chairperson recalled that the discussion on this matter, after the information-gathering
exercise in 1997, had focused on the question of what the next step should be for carrying forward
work concerning negotiations for the establishment of an international system for the notification and
registration of geographical indications under Article 23.4.  A proposal on the matter received from
the European Communities and their member States (document IP/C/W/107) had been discussed at
the meetings of the Council in September and December 1998.  At the last meeting, it had been
agreed that, with a view to organizing the discussion on the implementation of Article 23.4, the Chairshould come forward with suggestions for a more structured approach to the issues under debate.  In
this context, the responses to the Checklist on Article 24.2 and proposals made could also be taken
into account.  In an informal document, No. 800 of 12 February 1999, such suggestions had been
circulated by the Chair.  They consisted of a list of seven points that delegations might wish to address
in their contributions to the debate on the matter at the present meeting.  These suggestions were, ofcourse, without prejudice to adaptations that might be necessary as a result of further proposals
submitted to the Council and were not intended to be exhaustive.  He said that a joint proposal from
Japan and the United States for a multilateral system for notification and registration of geographical
indications for wines and spirits based on Article 23.4 of the TRIPS Agreement had been received and
was available in photocopied form in the back of the room.
 3  A second paper, from the United States
alone, was also available and contained a suggested method for domestic recognition of geographical
indications for WTO Members to produce a list of nationally protected geographical indications.4
76. The representative of the United States introduced the proposal which his delegation had
developed in cooperation with Japan. As noted at previous meetings, the purpose of negotiations
under Article 23.4 was to facilitate protection and not to create new obligations or burdens for WTOMembers.  In light of the Singapore Ministerial Decision, the scope of negotiations should include
both wines and spirits and the proposal reflected that belief.  He believed it also satisfied each of the
criteria his delegation and others had identified during the last meeting of the Council as appropriate
for any system of notification and registration of geographical indications that might be established
under Article 23.4.  The proposed system would simplify and facilitate the protection of geographical
indications for participating WTO Members and would not impose substantive obligations regarding
protection of geographical indications beyond those currently set out in Section 3 of Part II of theTRIPS Agreement.  It would allow voluntary participation, as reflected by the words in Article 23.4
"in those Members participating in the system".  A WTO Member would not be required to participate
in the system to obtain full TRIPS protection for its geographical indications for wines and spirits.
The proposed system would also recognize and accommodate the various regimes of WTO Members
for protection of geographical indications described in the responses to the Checklist of Questions onArticle 24.2, if those regimes were consistent with the TRIPS Agreement.  The system would also be
simple and not costly for those Members choosing to participate in it.  It would allow WTO Members
and others to use information submitted without undue burden or cost.  Finally, the proposed system
would not impose undue administrative burdens and costs on the WTO Secretariat.  His delegation
recognized that Members had just received the prop osal and would not have had time to review it or
to consult with capitals, but it would appreciate initial reactions, understanding that those reactions
might be subject to change after consultation.  He  looked forward to a full discussion of the proposal
at the next meeting.
                                                     
3 Subsequently circulated as document IP/C/W/133
4 Subsequently circulated as document IP/C/W/134IP/C/M/22
Page 15
77. The representative of Japan introduced the joint proposal by explaining his delegation's
philosophy on the proposed multilateral system of notification and registration of geographical
indications under Article 23.4.  Firstly, the establishment of this system did not generate further
obligations under the TRIPS Agreement.  Secondly, each WTO Member would be free to participate
in the system.  Thirdly, each Member would determine the domestic legal effects of the system aslong as it was in compliance with the TRIPS Agreement.  Fourthly, the cost to administer and manage
this system would be as low as possible for participating Members and their nationals.  Finally, the
information gathered under this system would be available to all WTO Members.
78. The representative of Canada, providing some initial reactions to the joint proposal from
Japan and the United States, said that it embraced certain concepts which his delegation considered
critical in terms of looking at protection for geographical indications, i.e. that the system was
voluntary, facilitative, simple, low-cost and did not create new substantive obligations. The proposalalso recognized that there was a variety of regimes for the protection of geographical indications, and
was a useful contribution to the examination of this question.
79. The representative of Australia also found that the joint proposal from Japan and the United
States contained some of the elements that her de legation wanted to see and met some of the concerns
that her delegation had expressed previously.  In particular, this system was more in line with whather delegation had envisaged in that it did not create TRIPS-plus treatment, i.e. additional burdens and
protection that was not currently envisaged in the TRIPS Agreement.  Her delegation particularly
liked the way in which it made use of existing national systems and recognized the different national
systems that existed.  It was also much easier for Members to use systems that Members already had,
or would have, than to have to invent a cumbersome superstructure or extra layer.  Her delegationliked the voluntary nature of the scheme which was in keeping with Article 23.4 and believed that this
could have a useful trade facilitation effect in allowing for a free exchange of information.  She
foreshadowed further comments on the details of the proposal.
80. The representative of Argentina would transmit the joint proposal from Japan and the United
States to her authorities for their consideration and would explain her delegation's position at the next
meeting.  She had some comments on the communication from the European Communities circulated
in informal document No. 7111 of 23 December 1998, which contained clarifications on the
comments made earlier by other delegations concerning the EC proposal.  Firstly, her delegation did
not believe that these clarifications allayed all the doubts expressed by various delegations, including
her own, at the last meeting.  Her delegation understood the EC proposal circulated in document
IP/C/W/107 as establishing obligations additional to those provided for in the TRIPS Agreement.
This was so, for example, with the presentation of evidence and negotiations between parties.Furthermore, the EC's communication, in particular paragraphs 8 to 11 thereof, confirmed that the
system, despite its voluntary nature, would become obligatory for all Members.  Lastly, according to
paragraph 19 of the EC's communication, there were apparently doubts about what would be the
applicable system of dispute settlement.  She would appreciate further explanations on these points.
81. The representative of Brazil considered it useful for the work on this agenda item to have
received another proposal.  He wished to emphasize certain aspects of the joint proposal from Japan
and the United States which merited thorough analysis.  The system would not contain any TRIPS-
plus obligations beyond those found in Section 3 of Pa rt II of the Agreement.  The voluntary nature of
the system was interesting, as was the fact that this system could accommodate the various national
regimes in Members.  These preliminary comments were without prejudice to instructions that hewould receive from his capital.
82. The representative of New Zealand expressed general support for the joint proposal from
Japan and the United States.  It was in accordance with the system of registration and notification
envisaged under Article 23.4 of the Agreement.  Among his delegation's preliminary observations
was, first of all, that the proposal did not appear to introduce a further layer of obligations forIP/C/M/22
Page 16
Members;  it was simply an information register for Members.  Second, the proposal fully recognized
Article 23.1 of the Agreement, under which Member s had implemented the obligations contained in
the Agreement in relation to geographical indications in a variety of ways, and were entitled to do so
as long as they were consistent with the Agreement.  Third, the system proposed was voluntary in the
sense that it had no implications for those Members who decided not to participate in it.  Also, theproposal did not, at first glance, impose any undue burdens in terms of finances and resources on the
Secretariat or Members.  Lastly, the proposal appeared to recognize that, if there were any objection
to the listing of a geographical indication by a participating Member, any such objection would need
to be pursued via the domestic jurisdiction of the Member which had listed the purported geographical
indication, without implications for the dispute settlement mechanism.  This proposal broadlyreflected the intent and language of Article 23.4 and was a workable proposal from a practical and
administrative perspective.  His delegation would like to note, however, that the proposal did refer tospirits and, as indicated previously, would question whether the incorporation of spirits within the
notification and registration system envisaged by Article 23.4 was legitimate.  The Singapore
Declaration only referred to "preliminary work bein g undertaken on issues relevant to a system for
spirits".  This was a significant step removed from an amendment to Article 23.4 which would insert
the words "and spirits" after the word "wines".   Whilst fully recognizing that the Singapore
Ministerial Declaration had in fact mandated Members to conduct preliminary work on spirits, his
delegation did not believe that it meant that spirits were to be bracketed together with wines in
relation to the negotiations referred to in Article 23.4.  The proposal from Japan and the United States
had moved the Council in the proper direction in relation to the system envisaged by Article 23.4 and
formed the basis of a system that his delegation could support.
83. The representative of Venezuela, addressing the scope of application of the proposed system,
wished to reiterate his delegation's view that it was necessary to include spirits, and any other
agricultural or industrial product might be included in the future as well.  He also had certain
preliminary technical comments to make.  These were in line with those he had made on the EC
proposal at the December meeting.  Firstly, his delegation wished to know what were the effects  erga
omnes  in the national legislation of Members, if a notification was registered under a system to be
established under Article 23.4.  Neither was the proposal from Japan and the United States clear as to
the relationship with retroactivity where there was an effect erga omnes .  His delegation was also
concerned about the relationship between geographical indications and collective or certification
marks.  At least in Venezuelan legislation, collective and certification marks were part of the
trademark system and could not be geographical indications.  Geographical indications and collective
marks were subject to different norms and requirements.  The requirements for collective marks weremuch simpler.  Geographical indications referred to the quality and particular characteristics of a
product and were very distinct.  The procedures for protecting collective and certification marks were
also different from those for the protection of geographical indications.  Registration of trademarks
must be renewable as long as the conditions under which they were created were the same, which did
not apply to geographical indications.  The  proposal from Japan and the United States could be usefulfor the work under this agenda item but it would also present many problems.  He recommended that
the issue of collective and certification marks be addressed in the year 2000 review of the whole
Agreement.
84. The representative of Chile said that the proposal from Japan and United States had positive
elements, such as the voluntary nature of the multilateral system for notification and registration.
Nevertheless, his delegation had problems with certain aspects of the proposal.  In particular, Chile
did not agree that the Singapore Ministerial had extended the coverage of Article 23.4 to spirits.  The
TRIPS Council was only empowered to negotiate the establishment of an international register for
wines, as stipulated in the text of the Agreement.  The mandate given in the Singapore Declaration,
which was a political declaration and not a treaty, while approving the Report (1996) of the TRIPSCouncil, was that the Council could include in its pr eliminary work aspects relevant to the notification
and registration of geographical indications for spirits.  In Chile's opinion, a political declaration could
not extend, broaden or modify what had been established in an international treaty like the TRIPSIP/C/M/22
Page 17
Agreement.  For Chile, therefore, the establishmen t of a register for spirits was an issue for future
negotiation and not one of implementation, which applied only to wines.  Chile was not opposed to an
international register for geographical indications relating to spirits similar to that for wines, but that
had to be looked at in the context of a future round of negotiations.  In the TRIPS negotiations, a
register for spirits had figured in an earlier draft of Article 23.4, but it had disappeared from the so-called Dunkel text of 1991.  Chile agreed with the United States that participation in the international
system of registration of geographical indications for wines was voluntary for those Members that
wished to participate and therefore could not have a binding effect.  His delegation considered the role
to be played by the registration and notification system for wines to be one of informing other
Members which geographical indications were registered in a particular country.  The register could
in no way produce any effect regarding the validity or the granting of rights for the items registered.
The registration was just to make known the existence of geographical indications of countrieswithout this implying recognition by other countries, whether or not they participated in the system.
Notification and registration of an indication of origin would not prevent any Member from invoking
and applying, regarding such registration, any of the exceptions mentioned in Article 24 of the TRIPS
Agreement.
85. The representative of Korea said that the joint proposal from Japan and the United States had
many elements which his delegation  thought the sy stem should have.  He also expressed concerns on
the inclusion of spirits in the proposal.  Article 23.4 clearly stipulated that the multilateral system to
be established should only be for wines.  The issue for expanding its scope should be discussed under
Article 24.1.
86. The representative of Morocco hoped that the Secretariat could make available a French
version of the joint proposal from Japan and the United States, since this would facilitate its
examination.  As a preliminary matter, he asked the delegations of Japan and the United States
whether the proposal allowed for the extension of this notification and registration system to products
other than wines and spirits.  He underlined that the EC proposal provided for the possibility of
expanding the system to include other products, which his delegation found particularly positive.  Hisdelegation was not in favour of any system which was limited to wines and spirits and desired the
system to be expanded to products such as agricultural products, arts and crafts.  Some delegations
had indicated earlier that the obligations under the TRIPS Agreement in this regard were limited to
wines, but he considered that, in this respect, the TRIPS Agreement was not a holy book, but an
agreement drafted in a way to develop over time.  He did not see any reason why this system should
be limited to wines only.  The Singapore Ministerial Declaration had extended this system to spirits
and his delegation wished to see the next Ministerial Conference extend it to other products.  Hesuggested that the Secretariat prepare an informal note on systems for the registration of products
other than wines and spirits.  Members could be in vited to help the Secretariat in this regard by
indicating the bilateral or plurilateral agreements that they had signed as well as lists of products
capable of identification by their geographical origin.
87. The representative of Mexico said that her delegation considered it very important for the
Council to make progress in the preliminary work on the establishment of a multilateral system of
notification and registration for wines and spirits in accordance with Article 23.4 and also the mandate
given by the Singapore Ministerial Conference.  Her delegation considered that the EC proposal
constituted a useful foundation for the work and had listened to the comments of other delegations on
that proposal.  Her delegation had also received the joint proposal from Japan and the United States,which it considered provided a new approach and elements which were worthy of further analysis.
Mexico would provide detailed comments later on both proposals and, as indicated earlier, was
preparing its own proposal, which it hoped to present shortly. She hoped that it would enrich the
discussion on the subject further and that a consensus could be generated on the issue of fulfilling the
mandate received under Article 23.4.  As far as the scope of the system was concerned, in accordancewith Article 23.4, the Singapore Ministerial Declaration and Article 24.1 of the TRIPS Agreement,
Members were required to undertake negotiations for the improved protection of geographicalIP/C/M/22
Page 18
indications under Article 23, which referred to and covered both wines and spirits.  In the light of
these provisions, her delegation considered that there clearly existed a basis for this system to cover
both types of products, without excluding the possibil ity of considering the extension of the system to
new products in the future.
88. The representative of the European Commun ities, making general comments on the joint
proposal from Japan and the United States, said that, in terms of change of existing obligations, costs
and the voluntary nature of the system, he wished to refer to his comments at the last meeting, when
he had explained his own delegation's proposal, and had clarified the aim of establishing an effective
system which would not impose new obligations, was low in cost and was based on voluntary
participation.  It had not been shown that the proposal from Japan and the United States would
necessarily be less costly and, concerning its voluntary nature, he invited Members to read his
delegation's communication circulated in informal document No. 7111 of 23 December 1998.  Certainaspects of this proposal for the protection of geographical indications might be considered surprising.
Firstly, one could doubt whether it was truly multilateral, given that the proposal seemed limited to
the creation of a database without any truly legal effect at the international level.  The proposal
seemed to deny the very objective of Article 23.4, which consisted of setting up a registration as well
as a notification system for the protection of geographical indications.  For example, the proposal didnot contain any possibility of settling potential disputes, either through an opposition procedure or
dispute settlement.  It seemed to be limited to an optional information system intended for national
authorities.  He asked the delegations of Japan and the United States to confirm whether their proposal
was anything more than the juxtaposition of national systems and, further, to specify the internal legal
effects which their proposal was intended to attach to the establishment of a multilateral register.Transparency alone, in the view of his dele gation, would not provide sufficient value-added
considering the cost involved.  Article 23.4 was aimed only at the opening of negotiations for the
establishment of a multilateral system for notification and registration of geographical indications for
wines and spirits without imposing a particular model for protecting geographical indications.  WTO
Members were therefore free to adopt the protection system of their choice as long as it conformed toSection 3, Part II of the TRIPS Agreement.  However, the proposal from Japan and the United States
seemed to wish to impose a particular model.  Furthermore, it was, at the very least, difficult to say
whether a system of marks, even collective marks and certification marks, would have the appropriate
merit without risking denying the specific features of the protection of geographical indications, for
which Section 3 was precisely intended to establish an ad hoc regime.  Another question was why, in
a framework of a system for the protection of geographical indications, the United States and Japan
were promoting a trademark system, given the costs of such a system.
89. The representative of India thanked Japan and the United States for having presented some
other options available to implement Article 23.4.  He was intrigued by the separate proposal of the
United States to consider the option of using collective or certification marks to address this issue.
His delegation had been holding domestic consultations to consider how to implement Section 3 of
Part II of the Agreement and had looked into the possibility of using collective or certification marksto provide the protection required under Article 23.  It had found that there could be several
difficulties.  In fact, it had been found that the existing common law protection through passing off
could be a better option than the protection that could be obtained through collective or certification
marks.  There was existing jurisprudence in common law and elsewhere on certification marks which
could dilute, to some extent, the protection that was envisaged under Article 23.  India would belooking at the joint proposal from Japan and the United States more closely and would revert to the
matter later.  However, he appreciated that one of the aims of the proposal was to keep a transparent
and simple system which did not add to the obligations of Members under the TRIPS Agreement.  He
added that there was an extent of evolution built into Article 23 in that the negotiators had envisioned
the establishment of some systems which could provide the level of protection required underArticle 23, as compared to that required under Article 22.  Recalling the earlier comments made by his
delegation at the last meeting on the EC proposal, consultations with stakeholders were continuing in
India and it had been found that there were quite a few merits in the EC proposal, as it did notIP/C/M/22
Page 19
envisage adding on to the burdens or obligations of Members either.  Further, it allowed for the
expansion of the scope of protection to products othe r than wines.  As far as the question of coverage
and the level of protection was concerned, he found a lot of merit in the comments made by the
representative of Morocco, and in the comments of the representative of Venezuela on the extension
of scope to spirits.  He said that other products, like agricultural products and artisan ware, could alsobe looked at during the information-gathering exercise, to avoid having to duplicate the effort later
during the review provided for in Article 24.1 and Article 24.2.
90. The representative of the United States introduced his delegation's separate paper regarding
the suggested method for domestic recognition of geographical indications.  After listening to the
comments made in the Council by the representative of Venezuela and others, he felt certain points
made in the paper needed clarification that perhaps had not been adequately conveyed in the text of
the document.  He said that, after reviewing the material submitted under Article 24.2, his delegationhad noted that there were many acceptable means of protecting geographical indications that met the
requirements of the TRIPS Agreement.  For example, some Members protected geographical
indications under their unfair competition regimes, as trademarks, or in other ways.  However, when
looking at the issue of a notification and registra tion system, his delegation thought of identifying an
option that would produce a list of geographical indications for notification under Article 23.4 andwhich might be desirable for Members which did not currently have such a system in place to employ,
as it would aid in producing an easily identifiable list of nationally protected geographical indications.
His delegation only wanted to identify one such system of both protecting geographical indications
and producing a list of protected geographical indications.  His delegation had suggested registering
geographical indications as collective or certification trademarks, but did not insist that this was theonly method of protecting geographical indications or necessarily the most desirable one for all
countries, although it was certainly an attractive option.  Even in the United States, this was not the
only way of protecting geographical indications.  However, this method was the one most consistent
with his delegation's view of geographical indications as source-indicating and quality-indicating.  In
regard to informal note No. 800, dated 12 February 1999, containing suggestions from the Chair onhow to organize the discussions in the Council on the topic, he noted that the last sentence of the third
paragraph of the paper mentioned that "these suggestions are of course without prejudice to
adaptations that may be necessary as a result of further proposals to be submitted to the Council and
are not intended to be exhaustive".  He submitted that, in reviewing the proposal made by his
delegation, the particular categories listed in the note were not, in every instance, directly applicable.
91. The representative of Switzerland said that her delegation supported the statement made by
the representative of Morocco who had spoken against the limitation of protection to wines and spirits
only.  Her delegation also supported the proposal to ask the Secretariat to prepare an informal paper
on products other than wines and spirits.  Furthermore, her delegation had not yet commented on the
EC proposal but considered it, as well as the clarifications provided subsequently, to be a good basis
for discussion.  Her delegation would have some questions seeking certain clarifications which it
would raise at the next meeting.  Coming to the joint proposal from Japan and the United States, aswell as to the United States paper entitled "Suggested Methods", her delegation believed that these
documents gave focus to the debate and provided alternatives enabling the Council to explore and find
out the advantages and disadvantages.  Afte r an initial reading, she said that the raison d'être  of
Article 22 was very different from that of Article 23.  If the negotiators had had a different intention,
they would have provided for a register in Article 22 and not just in Article 23.4.  The proposals andsuggestions that had been made were, therefore, a fairly free interpretation of the letter and spirit of
the Section on geographical indications.  Secondly, as raised by the representative of Venezuela, she
said that the trademark system was based on a philosophy totally different from that of geographical
indications.  To take just one example, a geographical indication did not have an expiry date as did a
trademark.  If the trademark system was fully capable of protecting geographical indications, thisissue would have been settled in the Section on trademarks.  Having said that, the system of
trademarks and of examining trademark applications differed from country to country.  The proposal
from Japan and the United States transferred the power to decide on the existence of geographicalIP/C/M/22
Page 20
indications, which should belong to the country of origin, to the country where the trademark
application had been filed.  In conclusion, the system of collective marks or certification marks had its
merit, but it could in no case exclude the one which Article 23.4 demanded imperatively be created.
92. The representative of Cuba considered the joint proposal from Japan and the United States to
constitute a good basis, albeit preliminary, for negotiations, subject of course to the necessary changes
to satisfy the goals of these negotiations.  Her delegation considered that the earlier EC proposal also
contained interesting elements and both the proposals would be analysed in her capital.  Nevertheless,
she felt that the exercise could cover not just wines and spirits but other product categories as well, in
the light of an interpretation which could perfectly well be given of Article 24.2.
93. The representative of Egypt said that the joint proposal from Japan and the United States had
some useful elements for the establishment of a system of notification and registration of geographical
indications.  This and the EC proposal could form a good basis for the work of the Council in thisregard and both were under discussion in his capital.  He said that, in principle, Egypt favoured a
simple and effective system which would not impose new burdens on the Secretariat or Members and
which at the same time had a voluntary nature.  He agreed with the proposal, made by Morocco, that
expansion of the coverage was important and that the Council should look at the issue of including
other products, and not only wines and spirits.  He also agreed that the Secretariat be asked to producea note on ideas to expand the coverage.
94. The representative of Venezuela said that his delegation supported the views expressed by the
delegations of Morocco, Switzerland and Cuba.  He also said that, while his delegation was looking
forward to the proposal from Mexico, the proposal for a note from the Secretariat might be required,
at a later stage, on the scope of application of a multilateral system of geographical indications.  Whenthe discussions had reached a more substantive stage, a synopsis of the written and oral submissions
could, at least, begin to set out the different scopes and categories which could exist in a multilateral
system of geographical indications.
95. The representative of South Africa said that the joint proposal from Japan and the United
States was an important contribution on the topic and added to the EC proposal tabled earlier.  He said
that his delegation did not see the two proposals as being mutually exclusive.  Rather, both had certain
positive elements which could be useful.  There were a few questions which needed to be resolved
before his delegation defined its own position.  The discussions in the Council had centred mainly on
the issue of scope, and whether the provisions contained in the Singapore Ministerial Declaration and
in Article 23, taken together, meant that spirits shou ld be included.  It might help if the Secretariat
would produce a paper showing all the provisions that related to the question of coverage, i.e., those
from the Singapore Ministerial Declaration, the Report (1996) of the Council, Article 23.4 and otherrelevant provisions of the TRIPS Agreement.  This topic should be addressed informally before the
next formal meeting of the Council took place.  The discussions could then move forward more
rapidly.
96. The representative of Malaysia, speaking on behalf of the ASEAN country Members present
in the meeting, namely Indonesia, Malaysia, the Philippines and Thailand, said that he supported the
proposal made by Morocco calling for the Secretariat to prepare a paper on the extension of the scope
of geographical indications to products other than wines and spirits, which might include the
implications of such an extension.  The proposal by the representative of South Africa also merited
the consideration and support of all Members.
97. The representative of the Philippines expressed his delegation's appreciation for the joint
proposal from Japan and the United States and said that it deserved close study.  As a preliminary
comment on the earlier EC paper, he said that, wi thout delving into the modalities it proposed, it
attempted to go beyond proposing a system of notification and registration.  Reading the context of
Article 23.4, he said that it was not enough to have a system of notification and registration but thatIP/C/M/22
Page 21
there needed to be some value-added, which was to facilitate protection.  While differences of opinion
could exist as to how that was to be achieved, this feature should be part of whatever system was
created without, of course, changing the rights and obligations that already existed under the TRIPS
Agreement.  Whilst still studying the EC paper, his delegation recognized that it attempted to have
value-added in the right direction.  In respect of the coverage, i.e. whether it should be wines or winesand spirits or other products as well, his delegation supported the idea expressed by the representative
of Malaysia that there should be a Secretariat paper on the implications of including other products.
Finally, he said that the key was in the word 'vol untary':  if the proposed system was voluntary, what
could prevent having one system of registration for wines, one for spirits and other products?
Certainly, he said, those Members who preferred wines only or wines and spirits only could not object
to other delegations requesting, if that was possible, that there should be a register for geographical
indications for other products as well.
98. The representative of Turkey supported the proposal of Morocco for the preparation of an
informal note by the Secretariat regarding the extension of the scope of the protection.
99. The representative of the United States, noting that the discussion had turned towards
including other products in the proposed registration and notification system, clarified that the
proposal his delegation had jointly tabled with Japan could, in fact, lend itself to facilitating protectionfor products beyond simply wines and spirits, without prejudice to his delegation's eventual view on
what additional products should be considered.
100. The Chairperson outlined some of the points that had been made under this agenda item.
Delegations had welcomed the new proposal put forward by Japan and the United States;  the
proposal had aroused a valuable discussion.  A large majority, if not all speakers, had stated that thedocument had not yet been reviewed in detail in their capitals and more time was required to enable
analysis.  Preliminary comments had been divergent.  Many comments had been in favour of the
proposal, especially in relation to the issues of voluntary participation, transparency, simplicity, the
fact that it did not add obligations to those already imposed in the Agreement and the low cost
involved.  Others had expressed doubts, disagreements and divergent ideas on the proposal, forexample regarding coverage, i.e. whether the system should be extended to other products, beyond
wines and spirits.  The multilateral nature, which the system should have, had been addressed and
compared with systems at the national level.  The legal basis for the Council's work under this agenda
item had also been addressed and a comparison had been made between commitments in the TRIPS
Agreement and those flowing from the Singapore Mi nisterial Declaration.  Many countries had, once
more, commented on the EC proposal and had mentioned the interesting elements contained therein;
others had posed additional questions about it.  He said that the discussion had been useful and thatthe subject merited additional reflection in the light of a more detailed examination of the proposals
which had been made.  Other delegations had announced that they would submit their own proposals
shortly.  He believed that the Council had a good basis to carry on its work.  As regards useful work
that could be done by the Secretariat at this stage, he called for further comments.
101. The Council had an exchange of views on the suggestions made for Secretariat papers,
focusing on:  (i) systems for the protection of geographical indications for products other than wines
and spirits;  and (ii) the issue of provisions releva nt to coverage.  At the invitation of the Chair, the
representative of the Secretariat said that, as to the latter, it would be relatively simple to put together
the relevant parts of the TRIPS Agreement and the Report of the TRIPS Council to the SingaporeMinisterial Conference which addressed the issue of coverage.  On the other point, he recalled that, inregard to national systems for the protection of geographical indications, including for products other
than wines and spirits, there had been an earlier discussion in which agreement had been reached on
the preparation of an outline of a possible Secretariat document based on the information provided in
connection with the review of Article 24.2.  As he understood it, that document would, by its nature,
cover the range of national systems for the protection of geographical indications and might,therefore, go quite far in responding to the request for information about coverage in national systems.IP/C/M/22
Page 22
With regard to international systems - bilateral,  regional and multilateral - he recalled that the
Secretariat had prepared an earlier document  (document IP/C/W/85) which addressed such
international systems for the protection of wines and spirits.  Most of these systems were applicable to
other products as well, such as that of the Lisbon Agreement.  Most of the information that the
Secretariat would have to provide was therefore already contained in the earlier document.  If theCouncil asked the Secretariat to provide an addendum  to cover additional relevant material, it would
be happy to do so, but the amount to be said would probably be relatively modest.
102. The Chairperson suggested that the Council ask th e Secretariat to look to see what additional
information it could provide on national and international systems for the protection of geographical
indications relating to products other than wines and spirits, taking into account that, as far as national
systems are concerned, information on such systems would be covered in the work that the Secretariat
had been asked to undertake in the context of the review under Article 24.2 and that, as regardsinternational systems, the note prepared by the Secretariat which had been circulated as document
IP/C/W/85 provided information which was also relevant to product areas other than wines and
spirits.
103. The representative of India wished the Council to take note that the informal paper that his
delegation had submitted in the autumn of 1997 in the context of Article 24.2 was also relevant in the
context of Article 23.4.5
104. The Council took note of the statements made and agreed  to proceed as suggested by the
Chair.
H. TRADE FACILITATION
105. The Chairperson recalled that this matter was on the agenda of the Council for Trade in
Goods as a result of a decision at the Singapore Ministerial Conference, and that the Council for
TRIPS had agreed to consider this issue following a letter, dated 1 September 1998, received from the
Chairman of the Council for Trade in Goods.  The letter specified that the purpose of the work of the
Council for TRIPS should be to address those aspects of trade facilitation which the Council for
TRIPS regarded as being related to the TRIPS Agreement, and asked the Council for TRIPS toconvey the results of its discussions on the issue by March 1999.  At the last meeting, the Council for
TRIPS had agreed to request the Secretariat to prepare a short background note on the relationship
between the TRIPS Agreement and trade facilitation, and to revert to the matter at the present meeting
with a view to concluding its discussions, so as to be able to report to the Council for Trade in Goods
in March 1999, as requested.  This background note was circulated to Members on 5 January 1999 in
document IP/C/W/123.  He also recalled that the European Communities had presented a discussion
paper on this subject, which had been circulated as informal document No. 7109 of23 December 1998.
106. Continuing, the Chairperson suggested that the simplest approach to this matter would be if
Members could agree to authorize him to convey to the Council for Trade in Goods the record of the
discussions on this agenda item as reflected in the minutes of the TRIPS Council together with copies
of the papers that had been presented to the Council on this matter, namely the Secretariat'sbackground note and the European Communities discussion paper.
107. The Council so agreed.
                                                     
5 Informal document No. 5021 of September 1997IP/C/M/22
Page 23
I. ELECTRONIC COMMERCE
108. The Chairperson recalled that the General Council, at its meeting of 25 September 1998, had
established a Work Programme on Electronic Commerce for the relevant WTO bodies, namely the
Council for Trade in Services, the Council for Trade in Goods, the Council for TRIPS and the
Committee for Trade and Development.  Paragraph 4.1 of the Work Programme on ElectronicCommerce provided that the Council for TRIPS should examine and report on the intellectual
property issues arising in connection with electronic commerce, including issues concerning the
protection and enforcement of copyright and related rights, the protection and enforcement of
trademarks, and new technologies and access to technology.  At its meeting in December 1998, the
Council for TRIPS had heard information provided by a representative of WIPO on WIPO's activities
relevant to electronic commerce.  At that meeting, the Council had also requested the Secretariat to
prepare a factual background note examining the provisions of the TRIPS Agreement relevant toparagraph 4.1 of the Work Programme on Electronic Commerce, which was also to provide
information on the relevant activities of WIPO and other intergovernmental organizations.  This note
had been circulated in document IP/C/W/128.
6  Furthermore, the Council had agreed to revert to the
matter at the present meeting and invited Members to make contributions at any time.  In considering
what the next steps should be in approaching the issues referred to in paragraph 4.1 of the WorkProgramme, there seemed to be three main questions:
- Firstly, whether there was any further information that the Council would wish to
obtain from the Secretariat, or from other intergovernmental or non-governmental
organizations.
- Secondly, whether there should be any particular focus of further work in the
Council.  The Secretariat note aimed to cover comprehensively electronic commerce
issues relevant to the TRIPS Agreement.  The question before the Council was which
of these issues, if any, needed to be the subject of further work in the WTO context.
In this connection, it might be asked whether there were issues in regard to
intellectual property that had not been sufficiently addressed in other fora, forexample whether there were some trade-related aspects that would need to be
addressed in the context of the TRIPS Agreement.
- Third, procedurally, how the Council should  carry forward its further work on this
matter.  He recalled that the General Counci l would carry out an interim review of the
situation of work on this subject on 14 April 1999, which meant that the TRIPS
Council should inform the General Council of  the elements or status of its work at
that time.  Thereafter, there was the deadline of 30 July 1999, by which the TRIPSCouncil had to transmit its final report.
109. The representative of Korea did not wish to comment on the questions outlined by the
Chairperson, but sought clarification of a few points concerning a document submitted by the United
States on 12 February 1999.  Firstly, one of the document symbols on the United States paper in
question was from a series used in the Council for TRIPS.  He understood from the informal meetingof the Council for Trade in Goods held on 5 February 1999 that the United States had submitted the
paper for discussion on cross-cutting issues at the General Council level.  He wondered whether the
United States intended to have it discussed in the Council for TRIPS as well.  Secondly, the United
States paper was given the symbol IP/C/16, but he recalled that papers submitted to the Secretariat by
delegations were all circulated in the IP/C/W/- series.  He wondered what was the nature of thedocument.
                                                     
6 The Chair informed the Council that the French an d Spanish versions of this document were expected
to be available in the second part of March 1999.IP/C/M/22
Page 24
110. The representative of the European Communities said that his delegation believed that the
Secretariat background note would be useful to conduct the examination of the issues as requested in
the work programme of the General Council on this subject.  His delegation believed that the
traditional objectives of the TRIPS Agreement remained  valid also for the on-line environment.  In its
view, TRIPS language was sufficiently technology-neutral to cover on-line as well as off-line issues.However, technological developments might require certain adjustments to existing rights and the
creation of new rights and in this respect he wished to make three observations.  First, there appeared
to be a need to examine the impact of the global character of communication systems on national
differences in standards of protection and on the territorially based protection and registration systems
for certain rights.  Closely related to this were questions concerning the applicable law and choice of
law, notably in the enforcement area.  The main  question that remained was whether the TRIPS
Agreement could and should address these questions.  It had to be borne in mind that the TRIPSAgreement was built on existing international conventions and it could be difficult to address these
fundamental questions in the short term.  Some items, like liability of service providers, appeared to
be of such a horizontal nature that they might have to be addressed in a more general context.
Second, on certain issues, progress had already been  made, such as through the adoption of the two
WIPO treaties in the copyright area.  It was important that these treaties were ratified andimplemented.  WIPO was currently also examining fu rther issues in the copyright area, such as on
audiovisual performances, the sui generis  protection of databases and additional rights for
broadcasting organizations, as well as in the trademark area.  The Council could reflect on the impact
of the work of WIPO for the TRIPS Agreement and avoid duplication of work.  Third, there remained
issues which were currently not addressed in th e TRIPS Agreement or in WIPO and which appeared
to be important for the provision of adequate protection to creators and inventors in the on-line world.
These related to adaptations of basic concepts, notably in the copyright sector, such as the definition
of "publication", of "the country of origin" and of  "the right holder".  He suggested that Members
reflect on whether, how and where to address these items.  He reiterated that the TRIPS Agreement
already provided for a sound basis for intellectual property right protection in the off-line world whichcould be built upon.  The Council should look ahead and examine in detail whether certain provisions
might need to be clarified or even have to be adapted to take the new developments into account so as
to provide the necessary legal environment for electronic commerce to develop to the benefit of all
participants.
111. The representative of Canada supported the comments of the representative of the European
Communities.  His delegation believed that the Secretariat paper was a comprehensive compilation of
the issues and, as it had pointed out, the basic notions, principles and objectives contained in theTRIPS Agreement appeared to be relevant for digital technology and was a useful guidepost as to
where to continue to go with this work.  What the Council needed to consider in the context of
electronic commerce was what were the basic notions, principles and objectives that the Council
wished to see for electronic commerce.  This was an issue which went beyond intellectual property,
but necessarily had to be thought through as the Council needed to consider how those broadprinciples applied with respect to intellectual pr operty issues.  His delegation was still studying the
question of which categories of issues needed to be addressed and how they should be prioritized.
Some of the issues might be resolved by the right holders themselves and by the private sector
through changes in technology that would allow them  to enforce some of their rights in a way that
could not currently be done.  However, apart fr om those kinds of issues, the Council needed to
identify the specific issues that governments themselves should and would want to address in terms of
facilitating electronic commerce and facilitating the objectives of the TRIPS Agreement.  Finally, he
referred to another complication to which the European Communities had already referred, namely
the horizontal nature of certain issues.  By "horizontal" he meant issues that were either linked to
other electronic commerce issues - jurisdiction being one of the issues which needed to be consideredin the broader context of electronic commerce - and issues which touched upon more than one of the
intellectual property rights.  His delegation was also  looking forward to the results of the work being
done in WIPO and would like to avoid overlap.  His delegation hoped that, by July 1999, there would
be greater clarity on the issues concerned.IP/C/M/22
Page 25
112. The representative of the United States said that the thoughtful and thorough factual
background paper of the Secretariat would provide an excellent starting-point for Members as they
began to consider the issue.  Associating hims elf with the comments of the delegations of the
European Communities and Canada, he said that to further the work on the issue it could be
appropriate for Members to be invited to submit their own observations on the issue and for theCouncil to be able to discuss those observations in future meetings.  With respect to the questions
raised by the delegation of Korea on the document with the symbol IP/C/16, he clarified that it was
the intention of the United States ultimately to submit a separate document to the TRIPS Council,
although that submission would be based on the same thoughts as those in the paper for the General
Council.  He believed that it would be appropriate if the interim report of the TRIPS Council to the
General Council would reflect that the Secretariat's paper had been submitted to Members and would
serve as a basis for further discussions along with any papers submitted by Members in the course ofthe discussions between the current meeting and July 1999.
113. The representative of South Africa found the Secretariat's paper useful as it also provided
answers to questions in the context of other WTO bodies like the Council for Trade in Goods and the
Committee on Trade and Development.  The paper was being examined in his capital and his
delegation's comments would be provided soon.
114. The representative of Australia considered the Secretariat paper comprehensive and a good
basis for further discussion and suggested that the Council invite Members, on a voluntary basis, for
any reactions, thoughts or observations on the issues covered in the paper or any other issues which
they felt were relevant.  For the purpose of the interim report of the Council to the General Council,
perhaps any such submissions could be summarized or attached.
115. The representative of Japan said that his delegation believed that proper protection of
intellectual property rights was one of the important elements for the development of electronic
commerce.  However, in discussing how the TRIPS Council should deal with the issues identified in
the document, it was important to consider the developments in WIPO and other international
organizations so as to avoid duplication of the discussions and activities.  At this time, he wouldsuggest that the Council take note of the content of the document and agree to the idea suggested by
the United States that Members be invited to submit observations.
116. The representative of Hong Kong, China, c onveying his delegation's preliminary comments,
said that the Secretariat paper was helpful in showing that the traditional principles of copyright law
should be sufficiently flexible to accommodate the issues arising from electronic commerce, and it
was useful in differentiating between those subjects that fell under intellectual property-type rules and
those that might fall under classification questions under the GATS.  At the present stage, he thought,three areas could be accorded priority from amongst the areas identified in the paper.  First, in relation
to the definition of publication, pursuant to Arti cles 3 and 4 of the Berne Convention and Article 3.1
of the TRIPS Agreement, did posting a work on a website constitute publication within the meaning
of Article 3(3) of the Berne Convention and in which country or countries should the first publication
or simultaneous publications be considered to have taken place?  Second, how should it be determinedwho were the right holders eligible for protection under the TRIPS Agreement?  Third, issues relating
to enforcement and remedies should be addressed, i.e., the jurisdictional issues, the extraterritorial
application of intellectual property laws, liabilities of service providers, application of standards, etc.
117. The representative of Morocco said more time was required to examine the Secretariat
document, of which the French and Spanish versions were still to be provided.  He suggested that the
TRIPS Council establish its own work programme independent of the work programme of the
General Council, as he did not think a conclusion could be reached within the present time-frame.
118. The representative of Norway, noting that the Secretariat paper acknowledged the increased
importance of trade-related intellectual property rights in the global trade in goods and services asIP/C/M/22
Page 26
accentuated by electronic commerce, said that this area was a highly dynamic one which needed a
thorough discussion in the Council, for which the paper should be the basis.  He thanked the
United States for its paper which, he said, had provided information for further studying the topic.
Regarding the issues to be addressed for a more thorough discussion in the forum, he endorsed the
views expressed by the European Communities;  Hong Kong, China;  and others.  His delegation wasstill studying the implications of intellectual property right issues on electronic commerce and would
come back later with more detailed comments.  He therefore requested the Chairperson to reserve
enough time for discussion at the next meeting.
119. The representative of Venezuela thanked the Secretariat for its comprehensive paper, which
touched on virtually all points of intellectual property related to electronic commerce.  Electronic
commerce seemed a paradoxical issue.  The more one investigated it and obtained information, the
more one had concerns rather than answers.  He had some preliminary comments which basicallyrelated to electronic commerce and copyright.  Firstly, his delegation had many concerns regarding
moral rights.  Moral rights were protected in many countries, but not in others.  What would happen
when transmissions of a large quantity of authors' works began, and the right of integrity was
protected in some countries but not others?  Secondly, his delegation had many questions with respect
to the problem of the efficacy of protection.  There currently existed, according to the two WIPOtreaties concluded in 1996, several measures of protection for copyright, both on-line or by wireless
media.  Measures of this kind also existed in the Digital Millennium Copyright Act of the United
States, namely measures for authorization to communicate to the public and measures against
technological circumvention.  His delegation had many doubts in relation to this matter, as it did not
have experience in it, nor the latest technology in this area.  For example, his delegation had doubts asto how these measures were protected in practice, in terms of law and jurisdiction;  as to how
individuals or natural persons who might have infringed intellectual property rights were identified;
what was the acceptance or order of evidence in these cases;  did means of security exist and were
copyright works protectable on the net or were they unprotectable?  The truth was that his delegation
had little idea and there existed many proposals in law for protecting works on the net but, at thepractical level, there were many doubts in many pa rts of the world, including in the United States
itself, and among different lobbies, with different views on the feasibility of protection.  He welcomed
the comments of any country which might have experience in these matters to facilitate the Council's
understanding of the matter.
120. The representative of Uruguay did not yet have substantive comments, but his delegation was
thankful to the Secretariat for such a complete and useful document and, having conveyed it to the
capital, was awaiting comments from its authorities.
121. The representative of Mexico, associating with those welcoming the complete and interesting
document on the link between the provisions of the TRIPS Agreement and electronic commerce, said
that the document facilitated a better understanding of the possible implications of the impact that the
global nature of the Internet and the expansion of electronic commerce could have for the
implementation of intellectual property rights which, as had been indicated, was traditionally based onterritorial systems with jurisdictions limited to national territories.  The new challenges which faced
the intellectual property system resulted from the facility and speed with which protected material
could be copied and transmitted on the digital network across national frontiers.  This situation posed
a number of questions concerning the protection and enforcement of intellectual property rights, more
particularly within the framework of copyright and related rights.  However, questions had also arisenin relation to the question of trademarks and their relationship to so-called Internet "domain names".
She added that the new situation involving the expansion of electronic commerce could involve other
areas of intellectual property as well.  Her delegation wished to have more time to make a more
detailed study of this document and to consider where it wanted to go in the future.  As a preliminary
remark, she said that an important subject on wh ich some work could be focused in this instance
would be the relationship between trademarks and domain names.  The Council should take note, as
pointed out in the Secretariat document as well, of the activities in various international fora, moreIP/C/M/22
Page 27
particularly in WIPO and UNCTAD.  Her delegation was keen to receive the results of these activities
with the objective of avoiding duplication.
122. The representative of India said this was a new issue for many Members, including India.  His
delegation would get back with more substantive comments later on the Secretariat paper, which had
been received recently.  However, on a preliminar y examination, he said there were two issues on
which further discussions might be held in the Council and which would help the General Council to
make progress on the matter.  These were, first, new technologies and their access, including adequate
availability at affordable terms, as reflected in paragraphs 21 through 27 of the Secretariat document.
Second, as some other delegations had mentioned, there was the issue of the relationship between
trademarks and domain names.  In this regard, the Secretariat had very well encapsulated some of the
concerns in paragraph 60 of the paper.  This was also being discussed in other fora, including WIPO,
and paragraphs 86 and 87 mentioned some work that had already been done there.  He found itinteresting to note that there were some differences between trademarks and domain name
registrations.  Finally, he said that the objective before WIPO and before the WTO, for the future,
would be how to minimize conflicts between in tellectual property rights on the one hand and
commercial interests arising out of domain name registrations on the other.
123. The Chairperson, summing up the debate, said that first of all it was to be noted that
widespread thanks had been expressed by the Council for the valuable contribution made by the
Secretariat in giving an exhaustive and useful document.  Secondly, he asked the Council to take note
of the preliminary statements made in the course of the debate.  Thirdly, he urged all delegations to
submit as early as possible, before the next Council meeting, any observations or comments in
connection with the Secretariat's paper together with any other proposals on the issue which Memberswished to raise.  Fourthly, he suggested that th e Council take note of the need expressed to avoid
overlap with work done in other fora.  Finally, he said enough time should be set aside at the next
meeting for an in-depth debate on the issue.  As to the input that the TRIPS Council should convey to
the General Council, he suggested, recalling that the next meeting of the TRIPS Council was
scheduled for 21-22 April 1999, that the Council authoriz e him to prepare a letter from its Chair to the
Chairman of the General Council describing the st eps taken in the TRIPS Council in considering this
issue.  After more substantive debate at the next meeting of the TRIPS Council, it would make a more
substantive report to the General Council in July 1999.
124. The Council so agreed.
J. REVIEW OF THE PROVISIONS OF ARTICLE 27.3(b)
125. The Chairperson recalled that, at the last meeting, the Council had had an initial exchange of
views on how the review  of the provisions of Article 27.3(b) of the Agreement should be carried out.
In the light of informal consultations on the matter, it had been agreed to initiate the review process
through an information-gathering exercise.  First, those Members that were already under an
obligation to apply Article 27.3(b) had been invited to provide information on how the matters
addressed in this provision were presently treated in their national law.  Other Members had been
invited to provide such information on a best-endeavours basis.  The target date for the provision ofthis information had been 1 February 1999.  Second, while it had been left to each Member to provide
information as it saw fit, having regard to the specific provisions of Article 27.3(b), the Secretariat
had been requested to provide an illustrative list of questions relevant in this regard in order to assist
Members to prepare their contributions.  Third, the Secretariat had been requested to contact the FAO,
the Secretariat of the Convention on Biological Diversity and UPOV, to request factual informationon their activities of relevance.  It had been understood that this information-gathering would be
without prejudice to the nature of the review provided  for in Article 27.3(b).  Once this information
was received, the Council would revert to the question of whether any further information might be
requested from the Secretariat.  At the meeting in December, the delegation of Mexico had indicated
that it would submit a non-paper on certain items that it would like to see included in the illustrativeIP/C/M/22
Page 28
list to be prepared by the Secretariat.  This non-paper had been circulated to Members in an informal
document, No. 6954 of 8 December 1998.  The Secretariat had taken these suggestions into account in
preparing the illustrative list, which had been circulated in document IP/C/W/122.  To date,
information had been received from the following Members in response to the Council's request:
Bulgaria, Canada, the Czech Republic, the European  Communities and their member States, Hungary,
Japan, Korea, New Zealand, Poland, Romania, Slovenia, the United States and Zambia.  The
contributions from those Members were available in documents IP/C/W/125 and Addenda.  The
Secretariat had also received a joint communication from the delegations of Canada, the European
Communities, Japan and the United States (document IP/C/W/126);  in this communication, these
delegations had informed the Council of the method th at they would use in structuring the information
solicited by the questions in the illustrative list prepared by the Secretariat, and encouraged other
delegations to use the same method.  Of the three intergovernmental organizations that had beenrequested to provide information, to date, responses had been received from the Office of UPOV and
from the Secretariat of the Convention on Biological Diversity.  The information from UPOV was
available in document IP/C/W/130 and that from the Secretariat of the Convention on Biological
Diversity would be circulated  in document IP/C/W/130/Add.1.
126. The representative of Australia informed the Council that her delegation would be submitting
information in response to the questionnaire shortly, which would include her delegation's responses
to an OECD questionnaire on a similar topic.  Her delegation would be available to provide any
further information that Members might need.
127. The representative of the United States said that his delegation had not as yet examined the
submissions in detail, but it seemed that certain delegations had expressed their responses in simple
terms, thus facilitating comparison of the information.  Nevertheless, the information was very
complex and very technical and had to be analysed thoroughly in capitals.  To facilitate that work, he
suggested that the Secretariat might be asked to compile the information that had been submitted, or
would be submitted shortly, for consideration at the next meeting.
128. The representative of Morocco informed the Council that his delegation would shortly
communicate to the Council a summary note on the pr otection system for plant varieties in Morocco.
129. The representative of South Africa said that his delegation was in the process of preparing a
paper on his country's sui generis  system and expected to submit the information as soon as possible.
130. The representative of Argentina supported the proposal from the United States to ask the
Secretariat to provide a document containing the responses of the countries that had submitted
responses to the questionnaire.  She would appreciate Spanish versions of the responses being
available shortly.
131. The representative of Norway informed the Council that the Norwegian delegation was in the
process of completing its answers to the questionna ire from the Secretariat and would submit them in
the near future.  The information would be submitted in  both formats, i.e. the format suggested by the
Secretariat and that suggested by Canada, the European Communities, Japan and the United States.
132. The representative of the European Communities believed that it would be helpful if the
Secretariat could undertake some work as it would help Members to prepare a discussion of the
matter.
133. The Chairperson said that the responses rece ived and those foreshadowed constituted a
critical mass of important information.  To facilitate an analysis of this material, he suggested that the
Council ask the Secretariat to compile, in an informal note, the information in the form of a structuredsummary overview, before the next meeting.IP/C/M/22
Page 29
134. The Council so agreed.
K. ARTICLE 64.3
135. The Chairperson said that, under this provision, the Council was required to examine the
scope and modalities for complaints of the type provided for under Article XXIII:1(b) and (c) of
GATT 1994 ("non-violation" disputes) made pursuant to the TRIPS Agreement.  He recalled that theCouncil had requested the Secretariat to prepare a factual background note on the experience with
disputes so far under the TRIPS Agreement, including any references made to non-violation issues,
the negotiating history of paragraphs 2 and 3 of Article 64, the experience with non-violation
complaints under the GATT/WTO, and any information available on the use of the non-violation
concept in disputes on intellectual property matters elsewhere.  This Secretariat note had been
circulated in document IP/C/W/124.
7  He informed the Council that a paper on the matter had also
been received from the delegation of Canada, which had been circulated in document IP/C/W/127.7
136. The representative of Canada said that his delegation had tried to crystallize in three pages
what it thought were the major concerns with respect to the application of this remedy in the context
of intellectual property.  Some of the concerns arose from uncertainty as to the scope of the remedy
and others from the potential undermining of regulato ry authority, in particular in relation to areas
where governments exercised regulatory authority in support of policy objectives, such as health andenvironment.  Regarding the Secretariat paper, he said it provided a good basis for understanding the
extent to which this remedy had been applied in the past.  He thought the Secretariat's paper made the
point very well that in fact the experience had been very limited.  One other point of the paper which
he appreciated was that it pointed to some of the concepts that underlay the non-violation remedy,
notably the notion of reasonable expectations of benefits accruing from the obligations entered into.Canada would like to see a discussion in the TRIPS Council on the issues involved and on the
essential elements of the remedy.  He proposed that, at its next meeting, the Council have a discussion
based on the meaning of the term "benefits" in the context of intellectual property rights.  This
discussion, he said, should emanate from Members as they were the ones to take on obligations and to
assess how the remedy might affect their ability to regulate.
137. The representative of India said that his delegation appreciated the Secretariat paper, which it
was examining in detail.  The document did highlight some of the concerns in the minds of many
Members.  He also thanked Canada for its paper which, he felt, very succinctly identified three of the
issues which would need to be discussed during the debate on the issue.  He fully agreed with Canada
that the Council needed to discuss in detail the issu e of "benefits" and, as mentioned at the beginning
of the paper, how the TRIPS Agreement related to  other general goods issues covered by the DSU
and, therefore, the extent to which the exemption in the TRIPS Agreement was relevant.
138. The representative of the United States firmly believed that the information provided in the
Secretariat's paper should allay any fears that the expiration of the moratorium on non-violation cases
in the context of the TRIPS Agreement would result in a flood of disputes claiming non-violation
nullification and impairment.  He thought that the Secretariat's paper made it plain that very few
claims of non-violation nullification and impairment had ever been made and that in a number ofdisputes the use of the dispute settlement system in situations that were not per se  violations had
certainly been appropriate.  He quoted the Secretariat paper where it said that "the protection of
legitimate expectations is central to creating secu rity and predictability in the multilateral trading
system".  He said that, as was the case with other WTO Agreements, when interpreting the text of the
TRIPS Agreement, the legitimate expectations of WTO Members concerning the TRIPS Agreementhad to be taken into account, as well as standards of interpretation developed in past Panel Reports in
the GATT framework, in particular those laying down the principles of protection of conditions of
competition flowing from multilateral trade agreements.  He believed that the conditions established
                                                     
7 Translations into French and Spanish would not be available until the second part of March 1999.IP/C/M/22
Page 30
in Article 26 of the Dispute Settlement Understanding provided all necessary assurances and
safeguards to handle any disputes that might arise alleging non-violation nullification and impairment
under the TRIPS Agreement.  He stated that the United States could not and would not agree to any
proposal that would diminish the rights of WTO Members under the TRIPS Agreement and thereby
weaken the Agreement itself.  Welcoming the paper from Canada, he said that his delegation lookedforward to discussing the issues raised so that, at the end of the day, one could say that the issues had
been thoroughly examined.
139. The representative of Malaysia, speaking on behalf of all the ASEAN members who were
WTO Members, thanked the Secretariat for its paper, which was being examined by these delegations.
He also thanked the delegation of Canada for its paper which, in many ways, reflected the concerns of
the ASEAN members who were WTO Members and hoped that it could be discussed at the next
meeting.
140. The representative of Japan appreciated the contributions of Canada and the Secretariat and
said that the fundamental differences in opinion among Members on this issue needed to be
overcome.  His Government was concerned that lack of consensus on this issue could result in
unforeseeable and unpredictable disputes among Members.  In his delegation's view, the principal aim
of the inclusion or introduction of this sort of provision was not to sanction WTO Members who
nullified or impaired the interests of other Member s, but to give predictability in order to prevent
Members from nullifying or impairing the interests of other Members.  Unfortunately, he said, the
current status of the discussions on this issue was extremely unclear and there was no consensus as to
what conduct was covered by non-violation liability.  In this context, his Government believed further
and extensive discussions were essential amongst all WTO Members.
141. The representative of Australia said that her delegation was studying both papers and that the
Secretariat paper provided a good basis for a debate on the issue.
142. The representative of Hong Kong, China said th at Members knew that the drafting history of
the Article was politically charged and that the results represented the negotiating compromise.  He
said that Members needed to study the compromise very carefully.  Without going into the details as
to the reasons and the clear explanations given in the Secretariat paper for why the Article existed in
the GATT, it did lead him to believe that it was difficult to see the analogy between, on the one hand,
a tariff concession negotiated and accepted by all WTO Members with, on the other hand, a
multilateral recognition of rights of nationals under the TRIPS Agreement.  At this stage, his
delegation supported the views of Canada and Korea, expressed at the last meeting, and he reiterated
that it had serious concerns about the use of the non-violation remedy in the context of the TRIPS
Agreement and looked forward to further discussions.
143. The representative of Korea reiterated his delegation's position expressed at the last meeting,
where it had said that, in its view, it was premature to discuss the scope and modalities of non-
violation complaints in regard to TRIPS issues before fully understanding the concept of non-
violation and its applicability to intellectual property issues and having adequate experience.  In this
context, he said, his delegation supported a discussion based on the Canadian paper.
144. The representative of New Zealand informed the Council that, whilst his delegation had not
finalized its position in relation to the issue as yet, it believed that the contribution from Canada
usefully highlighted that the TRIPS environment was different from the GATT and the GATS
environments and that Members had to consider this  as they developed their views on this issue.  In
this regard, New Zealand supported Canada's suggestion for a detailed discussion at the next meetingon the whole issue of benefits.IP/C/M/22
Page 31
145. The representative of Mexico thanked Canada for its contribution and the Secretariat for its
comprehensive document on the antecedents and the provisions concerning non-violation and the
experience that there had been with it in practice to date in GATT and the WTO.  Her delegation had
noted that there had been very few non-violation complaints.  The content of the document appeared
useful in that it provided references for the review that the Council had to complete as required byArticle 64.3, above all with respect to the parameters and remedies for these complaints.  It would be
interesting to study them more closely.  Her dele gation believed that the Council had to initiate a
serious review of those parameters and those concepts which had been pointed out, such as "benefit"
and "reasonable expectations", before it could make a well-informed decision on the future of this
provision.  She asked the Secretariat to distribute the Spanish version of its paper as soon as possible.
146. The representative of the Philippines said the provision called for an examination, which
implied that all Members should start with an open mind as to whether or not non-violation and
situation complaints were proper under the TRIPS Agreement. His delegation was not willing to
believe the notion that it would be proper under the TRIPS Agreement merely because it was proper
under the GATT.  The basis could be different, as pointed out by Canada's paper.  In this regard, he
also drew attention to the fact that, to date, the ge neral rule in public international law was that states
were liable, in general, for the violation of treaties and that a parallel discussion was going on in theInternational Law Commission on non-violation compla ints.  At a certain stage of the discussion,
although not immediately, he felt it would be useful to request the Secretariat for information on the
present state of play in the International Law Commission on the evolution of the concept of liability
of states in respect of acts not in violation of treaties.
147. The representative of the European Communities said that his delegation was still examining
the matter and that the discussion at the next meetin g should be on any matter relevant to the issue and
not on any one particular matter.
148. The Council took note of the statements made and agreed  to revert to this item at its next
meeting.
L. INFORMATION ON RELEVANT DEVELOPMENTS ELSEWHERE IN THE WTO
(i) Dispute settlement
149. The Chairperson recalled that, at the last meeting, the representatives of Sweden and the
United States had informed the Council that they were in the process of finalizing their mutually
agreed solution in a matter concerning measures affecting the enforcement of intellectual property
rights.  This solution had subsequently been notified to the DSB and could be found in document
IP/D/10/Add.1.
150. He further recalled that, at the meeting in December, the representative of Canada had
informed the Council that his delegation had requested consultations with the European Communities
concerning patent protection for pharmaceutical and agricultural chemical products.  This request had
subsequently been circulated in document IP/D/15.  The United States, Australia and Switzerland had
requested to join the consultations.
151. Furthermore, he informed the Council that, on 14 January 1999, the United States had asked
for consultations with India under Article 21.5 of the DSU regarding the Patents (Amendment)
Ordinance 1999, promulgated to implement the rulings and recommendations of the DSB in dispute
WT/DS50.  This request had been circulated  in document WT/DS50/11 and the European
Communities and their member States had expressed their wish to join in the consultations requested
by the United States.IP/C/M/22
Page 32
152. On 26 January 1999, he said, the European Communities and their member States had
requested consultations with the United States concerning Section 110(5) of the US Copyright Act.
This request had been circulated in document IP/D/16 and Australia, Canada and Switzerland had
expressed their interest in joining the consultations.
153. Finally, he informed the Council that, at its meeting of 1 February 1999, the DSB had
established a panel to examine the complaint by the European Communities and their member States
concerning patent protection for pharmaceutical products in Canada (dispute IP/D/11).  Eleven
Members had reserved third party rights in this dispute - Australia, Brazil, Colombia, Cuba, India,
Israel, Japan, Poland, Switzerland, Thailand and the United States.
(ii) Accession
154. The Chairperson recalled that, at the meeting in December, the Council had noted that the
accession negotiations with Latvia had been concluded and that, since that meeting, Latvia had
deposited its instrument of ratification and had become a WTO Member as of 10 February1999.  The
Protocol of Accession of Latvia included, in rela tion to the TRIPS Agreement, a commitment that no
transitional period under the TRIPS Agreement would be invoked.
M. OBSERVER STATUS FOR INTERNATIONAL INTERGOVERNMENTAL ORGANIZATIONS
155. The Chairperson said that the Council had eleven outstanding requests for observer status
from intergovernmental organizations before it.  The only new development in this regard was that, in
response to a request by the Council at its last meeting, the Secretariat of the Convention on
Biological Diversity and the South Centre had submitted additional information.
156. He said that, at its last meeting, the Council had agreed that, while it should be appreciated
that horizontal issues existed, further informal consultations would be held to see if any requests couldbe dealt with in a way that would not impact on th ese issues.  However, following these consultations,
he was not in a position to make any specific suggestions for how the Council might respond to the
different requests.  He would therefore continue his consultations, having regard for the consideration
being given to the general issue of observer status by the General Council.
157. The Council took note of this statement.
N. OTHER BUSINESS
Question from Cuba on the protection of trademarks in the United States8
158. The representative of Cuba said that, at the previous meeting, the delegation of Cuba had
informed the TRIPS Council that it would forward to  the Permanent Mission of the United States a
written paper in conformity with Article 63.3 of the TRIPS Agreement, requesting detailed
information regarding Section 211 of the Omni bus Consolidated and Emergency Supplemental
Appropriations Act 1998 for the fiscal year 1999, approved on 21 October 1998, so that the Cubanauthorities could form an accurate opinion on the a pparent incompatibility of these rules with the
obligations imposed on Members by the Agreement, in particular those concerning acquisition,
maintenance and enforcement of intellectual property rights.  This request had been remitted, on
10 December 1998, to the Permanent Mission of the United States.  Given that, to date, the Mission of
Cuba had received no response, he formally reiterated this request to the delegation of the UnitedStates to provide information regarding the presumed  incompatibility of the restrictions established in
the said Section 211 on marks, trademarks and trad e names with the obligations that all Members had
to assure an adequate protection of industrial property rights, without requirements that exceeded
                                                     
8 See document IP/C/W/120 (IP/C/W120/Rev.1, in English).IP/C/M/22
Page 33
those requirements established in the TRIPS Agreement and, in the same way, concerning the
presumed incompatibility of the said restrictions with the obligations of non-discrimination against
nationals of other Members such that they could cause an unjustified prejudice to the legitimate
commercial interests of public or private enterprises and affect, in consequence, the rights which
corresponded to Members according to the rules of the TRIPS Agreement.  He requested that thiscommunication be included in the minutes of the meeting and distributed to all Members.
159. The representative of the European Communities said that his delegation had also requested
information from the Government of the United States with regard to the application of Section 211,
to which the representative of Cuba had referred.  He informed the Council that his delegation had
bilaterally expressed concern with regard to the Section's possible incompatibility with TRIPS
provisions.  His delegation was concerned about the retroactive application of the provisions.  This
concern had been expressed on many occasions but, unfortunately, no response had been received.He stressed that the matter did not concern an academic exercise and that right holders from the EC
believed that they would be affected by the provision.
160. The representative of the United States said that his delegation was aware of the questions
that had been posed and was endeavouring to provide the answers to the questions and would do so as
soon as reasonably possible.
161. The Council took note of the statements made.
O. ELECTION OF CHAIRPERSON OF THE COUNCIL FOR TRIPS FOR 1999
162. Turning to the election of the next Chairperso n of the Council for TRIPS, the representative
of the Secretariat recalled that the Chair of the General Council had carried out informal consultations
on a slate of names for appointment as Chairpersons of various WTO bodies, in accordance with the
established guidelines for election of officers and that, at its meeting of 16 February 1999, the General
Council had taken note of the proposed nominations.  On the basis of the understandings reached, he
proposed that the Council for TRIPS elect H.E. Ambassador Pérez del Castillo of Uruguay as
Chairperson of this body by acclamation.
163. The Council so agreed.
164. The Council expressed its appreciation to H.E. Ambassador István Major for the job he had
done as Chairperson of the Council for 1998.
__________