Panel report - World Trade Organization

World Trade
Organization | | |
| | |
| |WT/DS174/R |
| |15 March 2005 |
| |(05-0955) |
| | |
| |Original: English |
EUROPEAN COMMUNITIES - PROTECTION OF TRADEMARKS AND GEOGRAPHICAL
INDICATIONS FOR AGRICULTURAL PRODUCTS AND FOODSTUFFS Complaint by the United States
Report of the Panel
TABLE OF CONTENTS I. INTRODUCTION 1
II. FACTUAL ASPECTS 2
A. Measures at Issue 2
B. Procedural History 2
1. Preliminary ruling prior to the first written submissions 2
2. Request for extension of time 3
3. Request for separate reports 3
4. Request for factual information from the International Bureau of WIPO
4
III. PARTIES' REQUESTS FOR FINDINGS AND RECOMMENDATIONS 4
A. United States 4
B. European Communities 4
IV. ARGUMENTS OF THE PARTIES 4
V. ARGUMENTS OF THE THIRD PARTIES 5
VI. INTERIM REVIEW 5
VII. FINDINGS 12
A. Preliminary Issues 12
1. Consistency of panel requests with Article 6.2 of the DSU 12
2. Measures adopted after the date of establishment of the Panel 20
3. Claims under Article 2(2) of the Paris Convention (1967), as
incorporated by Article 2.1 of the TRIPS Agreement 21
4. Claim regarding objection procedures under GATT 1994 23
5. Request by a third party for a suggestion on ways to implement a
recommendation 23
6. Order of analysis of claims 24
B. National Treatment Claims 24
1. Availability of protection 24
(a) Do the conditions in Article 12(1) of the Regulation apply to WTO
Members? 24
(b) National treatment under the TRIPS Agreement 38
(c) National treatment under GATT 1994 61
2. Application procedures 65
(a) Description of application procedures under Articles 5 and 12a of the
Regulation 65
(b) National treatment under the TRIPS Agreement 66
(c) National treatment under GATT 1994 73
3. Objection procedures 78
(a) Description of objection procedures under Articles 7, 12b and 12d of
the Regulation 78
(b) National treatment under the TRIPS Agreement 79
(c) National treatment under GATT 1994 87
4. Inspection structures 88
(a) Description of inspection structures (Articles 4, 10 and 12a of the
Regulation) 88
(b) National treatment under the TRIPS Agreement 91
(c) National treatment under GATT 1994 98
5. Labelling requirement 106
(a) Factual aspects of the labelling requirement in Article 12(2) of the
Regulation 106
(b) National treatment under the TRIPS Agreement 110
(c) National treatment under GATT 1994 112
C. Trademark Claim 115
1. The relationship between GIs and prior trademarks 115
(a) Introduction 115
(b) Description of Article 14(2) of the Regulation 115
(c) Article 14(3) of the Regulation 118
(d) Relationship between protection of GIs and prior trademarks under the
TRIPS Agreement 129
(e) Article 24.3 of the TRIPS Agreement 139
(f) Article 17 of the TRIPS Agreement 141
D. Other Claims 150
1. MFN treatment claims 150
(a) Availability of protection: MFN treatment under the TRIPS Agreement
150
(b) Availability of protection: MFN treatment under GATT 1994 154
(c) Application and objection procedures 155
(d) Execution of the Regulation by authorities of EC member States
156
2. Minimum standards of GI protection 157
3. Claims under Part III of the TRIPS Agreement 163
4. Claim under Article 1.1 of the TRIPS Agreement 164
5. Claim under Article 65.1 of the TRIPS Agreement 165
VIII. conclusions and recommendation 165 LIST OF ANNEXES ANNEX A SUBMISSIONS BY THE UNITED STATES |Contents |Page |
|Annex A-1 United States' Response to the European Communities'|A-2 |
|Request for a Preliminary Ruling (15 March 2004) | |
|Annex A-2 First Written Submission of the United States (23 |A-14 |
|April 2004) | |
|Annex A-3 Oral Statement of the United States - First |A-60 |
|Substantive Meeting (23 June 2004) | |
|Annex A-4 Replies by the United States to Questions posed by |A-73 |
|the Panel and the European Communities to the Complaining | |
|Parties following the First Substantive Meeting (8 July 2004) | |
|Annex A-5 Second Written Submission of the United States (22 |A-113 |
|July 2004) | |
|Annex A-6 Opening Statement of the United States - Second |A-167 |
|Substantive Meeting (11 August 2004) | |
|Annex A-7 Closing Statement of the United States - Second |A-192 |
|Substantive Meeting (12 August 2004) | |
|Annex A-8 Replies by the United States to Questions posed by |A-197 |
|the Panel following the Second Substantive Meeting (26 August | |
|2004) | |
|Annex A-9 Comments of the United States on the European |A-245 |
|Communities' Replies to Questions posed by the Panel and to | |
|Questions posed by Australia following the Second Substantive | |
|Meeting (2 September 2004) | |
|Annex A-10 Comments of the United States on the Reply of the |A-288 |
|International Bureau of WIPO to the Panel's Letter of 9 July | |
|2004 (28 September 2004) | |
ANNEX B SUBMISSIONS BY THE EUROPEAN COMMUNITIES |Contents |Page |
|Annex B-1 European Communities' Request for a Preliminary |B-2 |
|Ruling (24 February 2004) | |
|Annex B-2 First Written Submission of the European Communities|B-20 |
|(25 May 2004) | |
|Annex B-3 Oral Statement of the European Communities - First |B-107 |
|Substantive Meeting (23 June 2004) | |
|Annex B-4 Replies by the European Communities to Questions |B-121 |
|posed by the Panel following the First Substantive Meeting (8 | |
|July 2004) | |
|Annex B-5 Second Written Submission of the European |B-164 |
|Communities (22 July 2004) | |
|Annex B-6 Oral Statement of the European Communities - Second |B-238 |
|Substantive Meeting (11 August 2004) | |
|Annex B-7 Replies by the European Communities to Questions |B-288 |
|posed by the Panel following the Second Substantive Meeting | |
|(26 August 2004) | |
|Annex B-8 Replies by the European Communities to Questions |B-347 |
|posed by Australia following the Second Substantive Meeting | |
|(26 August 2004) | |
|Annex B-9 Comments of the European Communities on Australia's |B-351 |
|and the United States' Replies to Questions posed by the Panel| |
|following the Second Substantive Meeting (2 September 2004) | |
|Annex B-10 Comments of the European Communities on the Reply |B-376 |
|of the International Bureau of WIPO to the Panel's Letter of | |
|9 July 2004 (28 September 2004) | |
ANNEX C ARGUMENTS OF THE THIRD PARTIES | | |Page |
|ARGENTINA |C-1 |
|BRAZIL |C-5 |
|CANADA |C-10 |
|CHINA |C-19 |
|COLOMBIA |C-25 |
|INDIA |C-26 |
|MEXICO |C-27 |
|NEW ZEALAND |C-31 |
|SEPARATE CUSTOMS TERRITORY OF |C-44 |
|TAIWAN, PENGHU, KINMEN AND MATSU | |
|EXHIBIT NZ-1 |C-49 |
|EXHIBIT NZ-2 |C-52 |
ANNEX D MISCELLANEOUS |Contents |Page |
|Annex D-1 Request for the Establishment of a Panel by the |D-2 |
|United States | |
|Annex D-2 Letter dated 9 July 2004 from the Panel to the |D-4 |
|International Bureau of WIPO | |
|Annex D-3 Reply from the International Bureau of WIPO to the |D-5 |
|Panel's Letter dated 9 July 2004, received by the Panel and | |
|the WTO Secretariat on 14 September 2004 | |
TABLE OF CASES CITED IN THIS REPORT |