In a media release on 7 October, 2007, Trade Minister Warren Truss announced that Australia has decided to participate - along with Mexico, Japan and the EC - as a third party in the World Trade Organisation (WTO) dispute brought by the USA against China on the protection and enforcement of intellectual property rights.
The press release is available here. Details of the dispute can be found here. The Chinese Government's response to the US decision to bring the case in the first place can be viewed here.
According to the Minister “the case raised important commercial and systemic issues in relation to WTO rules on intellectual property protection, including the meaning of counterfeiting or piracy 'on a commercial scale’ ”. He added that the action does not mean that Australia is “taking sides”. He may have said that because mainland China recently became Australia's biggest trading partner (overtaking Japan). But he may not have meant it, because a finding that China has failed to comply with WTO rules would make available to Australia WTO sanctioned retaliation measures.
On the Lawfont blog, Kim Weatherall says the case is about technical compliance with the letter of TRIPS rather than improving enforcement and rather wonders why Australia got involved if not simply in uncritical support of the US. Her article can be viewed here.
However, it is not so surprising. Australia is a keen user of the WTO dispute resolution procedure, and is currently listed as complainant in 7 cases. There are five stages to the procedure:
- Consultations, where the parties meet in an attempt to resolve the complaint;
- Panel hearing, where a panel of three members hear arguments from those involved then makes a ruling;
- Appeal, on issues of law covered by the panel report;
- Implementation; and
- Arbitration on retaliation.
Relevant to trade marks, Australia is presently involved in a particular case, together with USA, against the EC. Jointly, they complained that EC Regulation 2081/92 did not provide national treatment with respect to geographical indications (GI's) and does not provide sufficient protection to pre-existing trade marks that are similar or identical to GI's.
In March 2005, the Panel held no finding that the substance of the EC system of GI protection, which requires product inspection, is inconsistent with WTO obligations. The Panel also agreed with the EC that, although its GI Regulation allows it to register GI's even when they conflict with a prior trade mark, the Regulation, as written, is sufficiently constrained to qualify as a “limited exception” to trade mark rights.
However, the Panel agreed with the United States and Australia that the EC’s GI Regulation does not provide national treatment to other WTO Members’ right holders and products, and that foreign nationals do not have guaranteed access to the EC’s system for their GI's, unlike EC nationals. The EC did not appeal and presently argues that the European Parliament has fixed this, but Australia and the US continue to dispute that the issue has been adequately remedied.
Them's the rules
In a February 2007 foreword to a DFAT publication: Ten Years of WTO Dispute Settlement: Australian Perspectives, the Minister for Trade Warren Truss, said;
"A binding and enforceable WTO dispute settlement system was one of the major advances over the GATT panel system for addressing trade disputes. It binds all WTO Members regardless of their size. Equally, no Member can decide unilaterally that another Member has breached the rules. It must use the system to determine this. All Members have a means to seek redress against unilateral and arbitrary behaviour by other Members. The WTO dispute settlement system provides a neutral ‘umpire’ to decide disputes. As in any dispute, one side (or sometimes both) may be unhappy with the umpire’s decisions. No country likes an adverse finding. Balanced against this, disputes initiated by Australia have delivered real benefits in various sectors including lamb, beef and sugar. It is important that all countries, including developing countries, look to use the WTO dispute settlement in the way that Australia has done where they believe the WTO rules are not being respected.."
At page 107 of that publication, Bryan Mercurio writes:
"A substantial part of Australia’s status is derived from its active participation in developing the rules of international trade through its leadership in such activities as the Cairns Group, as well as its participation in other multilateral organisations. Australia continues to build upon its reputation as an active world player through its participation in the WTO dispute settlement process."
Consistent with these motherhood statements, the two cases cited concern genuine anomalies that deserved to be addressed.
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