U.S. Statement on the Adoption of the Geneva Act of the Lisbon Agreement

As delivered by Ambassador Pamela Hamamoto,
at the World Intellectual Property Organization (WIPO) Diplomatic Conference for the Adoption of a New Act of the Lisbon Agreement for the Protection of Appellations of Origin and Their International Registration

Geneva,
May 20,  2015

Mr. President:

The United States must make clear that we do not support adoption of the new Act. We did not have an opportunity to speak before the President gaveled the decision. The Conference under the Rules of Procedure is the competent body to adopt the new Act.  We do not believe there is a consensus of all Conference members in favor of adoption.

In fact, Mr. President, the United States is profoundly concerned with the Lisbon diplomatic conference and its outcome, the Geneva Act of the Lisbon Agreement.

The decision taken before the conference to strip 160 WIPO members of meaningful participation rights has been a negative undercurrent leading up to and throughout the negotiation.

Despite the opportunity – and the pleas of WIPO members — to do otherwise, the Lisbon parties chose to elevate their interests over the long-standing WIPO principles of inclusiveness and participation by all WIPO countries.

As a result, without full participation rights, the United States and the great majority of WIPO members have been negotiating at a profound disadvantage throughout this diplomatic conference.

We knew that at any time the Lisbon countries could depart again from consensus – which is a fundamental principle of multilateralism.

Today that happened. This departure from precedent presents broad and alarming implications for WIPO as an institution.

The legitimacy of these negotiations is in question.  The legitimacy of the Lisbon outcome is now also in grave doubt.  We do not believe that the ends justify the means.

We have heard from several Lisbon parties that the goal of this diplomatic conference was to improve the Agreement and make it more attractive for a broader array of WIPO members and their stakeholders.

However, what we saw instead was that the long-term interests of the many — and of the system — have been sacrificed for the short-term and narrow interests of the few.

It is hard to understand how the new Geneva Act of the Lisbon Agreement will actually advance the stated objectives of the current Lisbon parties, when the negotiation process and its outcome were undertaken without consensus by only 15 percent of the WIPO membership.

We do not see how WIPO countries with trademark systems will be able to participate in this new system.  We continue to have grave concerns regarding the texts, including with respect to critical issues such as the scope of protection, genericness, trademark protections, and financial sustainability.

Regarding financial sustainability in particular, this has not been achieved.  The existing Lisbon system runs at a chronic deficit, despite an obligation on Lisbon parties to make contributions to the system – an obligation they’ve never fulfilled.

We continue to be highly concerned by the confirmation this week that this deficit is financed by fee income from the Patent Cooperation Treaty and the Madrid Agreement filing systems.

This standing practice is particularly perverse given that the fees of patent and trademark applicants under the PCT and Madrid are subsidizing GI beneficiaries and the Lisbon parties themselves.

All the more troubling is that the overwhelming majority of PCT and Madrid applicants come from WIPO countries that were denied meaningful participation rights in this diplomatic conference, and who will be unable to join the Geneva Act because the Lisbon members refused to make it compatible with trademark systems.

In short, regarding trademark holders and users of generic terms, the WIPO members with the greatest interests in protecting these stakeholders were given the least ability to meaningfully engage in these negotiations on their behalf.

For the same reasons, we have many questions regarding whether the new Act will perpetuate this objectionable practice.  We will continue to scrutinize this issue closely.

Likewise, it is hard to see how the interests of key stakeholders, including trademark holders and users of generic names, have been adequately safeguarded.

Many of our stakeholders are small producers and small businesses, including those that rely heavily on trademark protection and continued generic use.  Like several of the principal Lisbon demandeurs, we also have large producers and businesses.

We cannot lose sight of the reality of the broad array of stakeholder interests impacted by the Geneva Act.  Many WIPO countries rely on trademark protection and continued generic use to support economic development, job creation, and the production and export of local products.

This effort to advance the singular interests of GI holders comes at a cost.  What happens to trademark holders and generic users who have relied on these legitimate uses, some for generations, for their livelihoods and those of their employees?  What happens when, as a result of this new Act, they can no longer sell and export their goods?

We continue to have serious concerns regarding the inadequacy of safeguards for these producers, particularly in light of the extensive safeguards for GI holders provided under the new Act.

To conclude, we are extremely disappointed with this process and its outcome, which raise fundamental questions about the legitimacy of the new Geneva Act.

We also continue to have serious concerns with the precedent set at WIPO over the past two weeks and what that precedent means for the future of this multilateral institution, which is responsible for the setting of global IP norms.

Thank you Mr. President.

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