All WIPO Members Should Be Able to Participate Equally in Lisbon Agreement Diplomatic Conference

US NATIONAL STATEMENT – AGENDA ITEM 2
(CONSIDERATION AND ADOPTION OF THE DRAFT RULES OF PROCEDURE)

Delivered by Ambassador Pamela Hamamoto
U.S. Permanent Representative to the United Nations and Other International Organizations in Geneva

Thank you, Mr. Chair and good morning colleagues.

As a member of the World Intellectual Property Organization (WIPO) and a strong supporter of its fundamental objectives and rules, the delegation of the United States of America is deeply troubled by what has transpired at WIPO to this point in the context of these negotiations to expand the Lisbon Agreement to include geographical indications.

We are concerned by the precedent the Lisbon Agreement parties have set and seek to continue at this diplomatic conference.

This is about more than the legitimacy of the Lisbon Agreement itself. This issue has alarming implications for the future of WIPO as an organization.

The Lisbon Union members have chosen to depart from fundamental and long-standing principles of inclusiveness and participation by all WIPO members in norm setting.

They have chosen to deny an equal or meaningful voice in the negotiations to the vast majority of WIPO members, all other than themselves, and to limit us to observer status—and to include the largest GI demandeur, the European Union, which is itself not a party to the Lisbon Agreement.

This breaks with a long tradition of open participation in WIPO diplomatic conferences.

All WIPO members should be able to participate equally in this diplomatic conference, as they have done in all diplomatic conferences at this organization for the past 25 years.

Some Lisbon members have argued that two tiers of WIPO membership is justified or even required under international rules. We do not agree, and we are not alone.

All delegations should be entitled to preserve their sovereign rights and defend their national interests in this organization, and several have written to the Lisbon Union members to state the importance of that principle.

Our Congress has also written to the Director General to express strong concerns.

And there is nothing in international law that excuses excluding the vast majority of WIPO members from what the Lisbon Agreement parties insist is a WIPO treaty negotiation. A small number of WIPO members should not be able to declare themselves to be more equal than others.

If international rules provided such a justification, then why have WIPO members repeatedly chosen the opposite course – that of inclusiveness and participation? Why have they granted all WIPO members full participation rights even when they were not yet members of the treaty being updated? Are all past diplomatic conferences inconsistent with international law? Of course not.

Why is this issue any different? Why do GIs merit different treatment, but not copyright and trademarks?

The long term interests of the many and of WIPO should not be sacrificed for the short term interests of the few. The goal here should be an inclusive treaty that bridges differing national approaches and allows participation by the entire WIPO membership.

Our delegation has engaged throughout the development of these negotiations, but like 160 other WIPO members, we have always been observers.

Many delegations have raised their strong concerns with both this process and the current text in the meetings of the Lisbon Union, including the Prep Com, the Coordination Committee, the Budget Committee, and the General Assembly.

We may have been heard, but to little effect. With regard to the draft Rules of Procedure, as well as the Basic Proposal text which omits fundamental due process rights of objection, we have had no ability to meaningfully engage in negotiations.

The draft Rules of procedure have effectively stripped 160 WIPO members of their rights to vote, propose and second amendments to the basic proposal, to participate in working groups, to serve as elected officers or on committees, or to count toward a quorum, raise points of order, or move to adjourn or close debate.

Mr. Chair, my delegation has heard complaints from US businesses for years that obtaining protection for their GIs in other countries is bewildering and uncertain.

The United States has valuable geographical indications, and we have stakeholders who seek protection in their export markets.

These stakeholders have repeatedly approached the US Government to intervene with foreign governments that require the government itself to negotiate protection for their GIs, which are private property rights.

US trademark owners and exporters of products bearing common names have also repeatedly approached us to intervene with foreign governments to prevent their rights being taken away or diminished in established export markets simply because a GI list was negotiated in that market.

This mechanism of seeking or objecting to GI protection in foreign markets stands in stark contrast to the way that other global IP registration systems operate.

If, as they say, the Lisbon Agreement parties seek a sustainable and broadly supported international filing mechanism that works with any type of GI protection system, that will take more flexibility than we have seen from them so far.

And such flexibility will not be possible without full participation and contributions by all WIPO members.

As a result, this delegation and 11 other countries–Argentina, Australia, Canada, Chile, Japan, New Zealand, Panama, Republic of Korea, Saudi Arabia, Singapore, and Uruguay–have re-submitted our proposal to amend Rule 2 of the draft Rules of Procedure in “LI/DC/2 prov” to provide for all WIPO members to be considered “Member Delegations.”

Let me take a minute to look back at past discussions at WIPO on geographical indications. This history brings into sharp focus the departure the Lisbon Union is taking from consistent WIPO practice in deciding to “revise” the Lisbon Agreement as an exclusionary small club.

In 1972, the International Bureau, at the request of the Lisbon Union, conducted a survey on the protection of appellations of origin and geographical indications among the countries of the Paris Union for the Protection of Industrial Property.

Significantly, the survey was sent to all members of the Paris Union, including those that were not also Lisbon Union members, in an effort to inclusively obtain information about different views and systems.

In 1974, WIPO invited all Paris Union members to attend the Committee of Experts on the International Protection of Appellations of Origin and Other Indications of Source.

The Committee was convened to discuss whether to advance the protection for geographical indications through the revision of the Madrid Agreement on False Indications of Source, revision of the Paris Convention, revision of the Lisbon Agreement, or the creation of an entirely new treaty.

In 1975, the International Bureau analyzed the similarities and differences between the draft treaty they were discussing and the Lisbon Agreement, finding that the conclusion of a new treaty was more appropriate than a revision of the Lisbon Agreement due to the significance of the changes being proposed, most of which are also contained in the current Basic Proposal.

My delegation raises this historical perspective to illustrate the divergence in practice between now and then:

a. All WIPO members were invited to join the Committee of Experts where the question of protection for GIs was discussed;

b. A text was developed that has many of the same elements that are in the current Basic Proposal;

c. The IB advised the Committee that a new treaty was the appropriate approach based on the differences between the texts at issue;

d. All WIPO members in the Committee of Experts were empowered to decide what mechanism should be pursued.

This divergence can be remedied today and we can embrace the presumption of inclusiveness enjoyed by all WIPO Members in those 1970s discussions.

Mr. Chair, we are potentially poised on the brink of a momentous event: we may be concluding–at the end of these two weeks–a global GI filing system, one that will appropriately balance interests of all WIPO members as it provides more certain protection for GI owners around the world.

But our concern is that this is not the direction in which we seem to be heading.

There are two critical steps needed to reach this goal.

The first is this: full participation rights for all WIPO members. Full participation rights are consistent with the New Act being a new treaty, as this seems to be, or the New Act being considered a revision.

The amended rules that we have proposed should be adopted.

You see, my delegation views WIPO as a member driven, inclusive organization.

If the discussion this week or even today demonstrates otherwise, WIPO faces a serious credibility problem.

If negotiations here are not inclusive, we cannot claim that the resulting norms represent a legitimate multilateral WIPO treaty.

The second necessary step is to improve the Basic Proposal so that it can create a truly global system.

Unfortunately, because the Lisbon Union did not invite all WIPO members to be full participants in this negotiation, many GI experts are not here. Their governments viewed the probability of an open diplomatic conference to be remote and could not justify sending an expert to attend a meeting where they would not be permitted to participate in.

So we are already at a profound deficit: this process has effectively excluded many whose expertise and insight would have improved the result.

Nonetheless, many delegations are here with experts who are ready

to fully participate and create a new filing system that fills the needs of all, not just a few.

We look forward to working with all delegations present, and with you, Mr. Chair, to reach an acceptable outcome from this diplomatic conference.

Thank you, Mr. Chair.

 

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