Statement by India at 25th Session of the WIPO Standing Committee on the Law of Trademarks, Industrial Designs and Geographical Indications (SCT) on agenda item 8: Work of SCT, 28 March- 1 April, 2011

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 Mr. Chairman,

 India is happy to see this agenda item inscribed for discussion in this Committee, so as to enable the SCT to comply with the General Assembly’s directive to report on how it is mainstreaming the recommendations of the Development Agenda in its work.  Indeed, the Development Agenda of WIPO is not a set of recommendations that stand in splendid isolation and meant to be discussed only in the CDIP.  The Agenda was adopted by all WIPO Member States in recognition of the fact that developmental considerations ought to form an integral part of WIPO’s work in every Committee and in all areas of its work.  It also recognizes that all processes, decisions and outcomes that result from our work here in WIPO have inherent developmental implications and these ought to be factored into our consideration.

The consideration of how the SCT is integrating this aspect in its work is especially significant, considering the substantive discussions in this Committee on Industrial Designs and Trademarks and the specific proposal for norm-setting in the area of Industrial Design Law and Practice.  With regard to whether the discussions so far in this Committee, especially the draft text on Industrial Design procedures, have been aligned with the Development Agenda, we fully endorse the statement made by Brazil, on behalf of the Development Agenda Group.  Prior to making provisions for convening a Diplomatic Conference, which is the very last step in a treaty-making process, there should have been focused discussions to see whether there is agreement among all WIPO Member States about the need for new norm setting in this area. This is especially important in an area such as Industrial Design, where there is a great diversity in Member States’ systems of protection and where developing countries are not the key beneficiaries of existing international agreements on Industrial Design protection.  The facts speak for themselves – out of the 58 Member States of the Hague System, nearly 88% of the international registrations made under the Hague System belong to only 3 developed countries and the European Community. 29 countries that are developing countries and LDCs, do not have a single registration under the Hague system.  Given this reality that developing countries and LDCs that are party to the Hague System have not been able to benefit from the unified procedures under the Hague System, the question as to how they would benefit from the proposed new treaty seeking to harmonize the maximum criteria that national offices can request from applicants, is unclear.  While it is evident that foreign applicants, particularly those interested in filing in multiple jurisdictions would benefit from the harmonized application requirements, the issue as to whether this would result in significant benefits to national applicants from developing countries, needs to be closely examined. Given the existing diversity among national systems in the area of Industrial Designs, the fact that countries would be required to make substantial changes to their national laws to harmonize procedures, makes it all the more necessary to have a clear understanding of its developmental implications before proceeding further with norm setting.

As mandated by the Development Agenda recommendation 22, we propose that the Secretariat should prepare a Working document for the next SCT session outlining the “costs and benefits” and “taking into account the different levels of development” as contained in Recommendation 15.  As stipulated by Development Agenda recommendation 22, the paper should also address whether the proposed norm-setting is “supportive of the development goals agreed within the United Nations system, including those contained in the Millennium Declaration” and explore the “possibility of additional special provisions for developing countries and LDcs”.  Any discussion on future programme of work in the area of Industrial Design, including consideration of the need for norm setting and the kind of norm setting required, should be a better informed discussion that takes into account the above-mentioned important considerations of the Development Agenda. Further, Member-driven and open consultations should be convened, wherever appropriate, as stated in Recommendation 21 and I quote: “WIPO shall conduct informal, open and balanced consultations, as appropriate, prior to any new norm-setting activities, through a member-driven process, promoting the participation of experts from Member States, particularly developing countries and LDCs”. 

Mr. Chairman,

We must recall that the recommendations of the Development Agenda were not merely symbolic; they were adopted in the wake of a series of unsuccessful initiatives at norm-setting in other WIPO Committees.  They were adopted with a view to better guiding future norm-setting processes and steering them towards successful outcomes. Therefore, we firmly believe that adopting the transparent, inclusive and participatory approach outlined by the Development Agenda will facilitate consensus building and smooth and efficient progress in the work of this Committee, by making sure that the time and energy of the Committee is well-spent in terms of progressing work in an incremental fashion while taking all Members on board, towards a clear and commonly agreed goal.

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