WORLD TRADE  
ORGANIZATION  IP/C/W/520 
14 October 2008 
 
 (08-4887) 
Council for Trade-Related Aspects 
of Intellectual Property Rights Original:   English 
 
 
 
TRANSITIONAL REVIEW MECHANISM OF CHINA 
 
Communication from the United States  
 
 
 By means of a communication from the Delegation of the United States, dated 9 October 2008, the Secretariat has received th e following contribution in the context of the 
transitional review mechanism under Secti on 18 of China's Protocol on Accession. 
 
 
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QUESTIONS FROM THE UNITED STATES TO CHINA 
CONCERNING INTELLECTUAL PROPERTY RIGHTS 
 
 
I. TRADEMARKS AND GEOGRAPHICAL INDICATIONS 
1. Based on China's response to Question 24 of Document IP/C/W/502, the United States 
understands that "famous brands," "famous trad emarks," "renowned bra nds" and "export brands" 
reflect measures created to enhance the overall qua lity level of brand products and competitiveness in 
China.  However, it is still not clear what criteria must  be met to obtain the status of "famous brands," 
"famous trademarks," "renowned bran ds" or "export brands" or what leve l of protection is afforded to 
these brands in the area of intellectual property rights.   To gain better understanding, the United States 
began posing questions to China in this area in connection with the transitional review before this 
Council in 2005.  However, many questions  previously posed remain unanswered. 
2. The United States would ask that China respond to the following previously posed questions 
concerning the Measures for Administration of Chinese Famous-Brand Products , issued by the 
General Administration of Quality Supervision, Inspection and Quarantine (AQSIQ), which establish 
criteria for awarding the "Chinese Famous-Brand Produc t" quality mark displayed on a wide range of 
Chinese consumer products. 
(a) Article 10 states that products or enterprises "using foreign (overseas) trademark" 
may not apply to become Chinese Famous -Brand Products.  Please explain the scope 
and meaning of the terms "foreign (overseas) tr ademark" and "using" in Article 10.    
(b) What criteria are used to determine whet her a trademark is a "foreign (overseas) 
trademark" within the meaning of Article 10?  
(c) Does Article 10 prevent an enterprise that uses a "foreign (overseas)" mark on one of 
its products from obtaining "famous-brand product" designation for a different 
product that only bears a domestic Chinese trademark? IP/C/W/520 
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  (d) How is Article 10 applied to marks owned or used by foreign-invested enterprises in 
China?  How is Article 10 applied to ma rks owned or used by foreign companies 
selling to China? 
(e) Article 24 specially exempts Chinese Famous-Brand Products from quality 
supervision and examination by government al departments at all levels, including 
export inspection.  Please identify the pr ecise measures from wh ich Chinese Famous-
Brand Products are exempt. 
(f) Article 25 provides for special listing of Chinese Famous-Brand Products in the scope 
of activities for cracking down on fake goods.  Please identify and describe these activities, and describe the effect of being on this special listing with respect to these 
activities. 
(g) China appears to maintain a number of similar "famous-brand product" measures at 
the sub-national level (e.g., the Measures of Hunan Province for Supervision of 
Hunan Famous-Brand Products  (2002);  the Measures of Liaoning Province for 
Cognizance and Protection of Li aoning Famous-Brand Products  (2003)).  Please 
provide a list of all such sub-national measures, and indicate how WTO Members 
may obtain copies of these measures. 
3. The following questions, also previously posed, concern the Ministry of Commerce's 
Announcement No. 2005-3 , releasing the 2005-2006 List of Leading Export Brands Nurtured and 
Developed by the Ministry of Commerce , as well as the Instruction Opinion on Supporting Famous-
Brand Export Products , issued by the Ministry of Commerce and seven other agencies on 7 June 
2005. 
(a) Has China issued updates to the 2005-2006 List of Leading Export Brands Nurtured 
and Developed by the Ministry of Commerce  or new lists?  If so, please identify them 
and explain how WTO Members can obtain copies of them. 
(b) Please identify the criteria used for sel ecting brands for inclusion in the 2005-2006 
List of Leading Export Brands Nurtured and Developed by the Ministry of Commerce  
and any updated or new lists, and describe in particular criteria related to trademarks 
or other intellectual property rights associated with selected brands.  Are the criteria set out in a written measure or measures?  If so, how can WTO Members obtain copies of the measure or measures? 
(c) Would it be correct to state that the 2005-2006 List of Leading Export Brands 
Nurtured and Developed by the Ministry of Commerce  and any updated or new lists 
consist of only brands (with intellectual property rights) owned or used by Chinese 
companies?  If not, please explain. 
(d) Announcement 2005-3  states that listed brands and enterprises "may enjoy all 
supporting policies."  Please identify and d escribe all such supporting policies.  Are 
they the same as the policies described in the Instruction Opinion on Supporting 
Famous-Brand Export Products ? 
(e) Section VI of the Instruction Opinion  on Supporting Famous-Brand Export Products  
(titled "Strengthen publicity and protect in tellectual property rights to create a sound 
market environment for the development of famous-brand export products") appears 
to require intellectual property rights administrative departments, such as 
Administrations of Industry and Commerce and the Customs Administration, to list  IP/C/W/520 
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  intellectual property rights associated with famous-brand export products as 
"important content" and make them eligib le for "special activities of protecting the 
said rights."  Please describe these special enforcement activities. 
(f) Sections IV and V of the Instruction Opinion  on Supporting Famous-Brand Export 
Products  appear to require that Chinese agencies at all levels give certain 
"preferential policies" to famous-brand export products.  The Instruction Opinion  on 
Supporting Famous-Brand Export Products  mentions, among other things:  sale in 
demonstration shops free of fake goods; cu ltivation of domestic markets; preferential 
loans; export and overseas investment preferences; exemption from quality inspection;  convenient customs clearance;   and preferential banking and insurance 
practices.  Please describe these prefer ences and identify any measures setting them 
out in greater detail. 
4. In addition to recognizing well-known trademarks  at the national government level, China 
also maintains measures at sub-national (i.e., provi ncial, regional and munici pal) government levels 
for recognizing "famous trademarks."  The following questions, again previously posed, concern these 
sub-national measures: 
(a) Are foreign enterprises and/or users of "f oreign" trademarks eligible to become 
"famous trademarks" under all of  these sub-national measures? 
(b) Please describe any special protection affo rded by these measures, including any 
protection related to the characteristic pack aging and decoration of products bearing a 
designated "famous trademark," and prot ection against disparagement of such 
products. 
(c) Please describe how Administrations of Industry and Commerce give effect to 
provisions requiring them to provide strengthened enforcement for these "famous trademarks." 
(d) Please provide a list of all such sub-national measures, and indicate how WTO 
Members may obtain copies of these measures. 
5. With regard to the use of the Similar Goods and Services Differentiation Table , issued by the 
China Trademark Office (CTMO),  in making a determination as to likelihood of confusion, is this 
table merely a guide, or is the examiner bound by the table?  Also, would this table be considered determinative during an opposition or cancellation proceeding?  In other words, is the standard set by 
this table merely a presumption used in prelim inary examination which may be overcome through 
evidence during an opposition or cancellation proceeding?   
6. In the event that there is a conflict between a geographical indication (GI) registered with the 
AQSIQ and one registered to another party with the CTMO, is there a system in place at the AQSIQ for the owner of the trademark, certification mark or collective mark registered at the CTMO to 
oppose or seek cancellation of the GI at the AQSIQ?  W ith regard to priority rights, has the Chinese 
legislature or any judicial authority provided inte rpretations for conflicts involving GIs protected 
under the Trademark Law  and GIs registered with the AQSIQ? 
7. In February 2008, the Measures for the Administration of Geographical Indications of 
Agricultural Products  went into effect.  What are the differences between this registration system and 
the registration systems at the AQSIQ and CTMO?  How would conflicts betwee n registrations of GIs 
with the Ministry of Agriculture be resolved  with registrations at the AQSIQ or CTMO? IP/C/W/520 
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  8. With regard to the Measures for the Administration of Geographical Indications of 
Agricultural Products , Article 12 notes that there is an oppor tunity for an entity to object to the 
approval of the GI.  What are the possible grounds for objection? 
9. Article 13 of the Measures for the Administration of Ge ographical Indications of Agricultural 
Products  indicates that the registration certificate shall be valid permanently.  Can a third party seek 
cancellation of the GI on priority grounds once it is registered?  Are there a ny maintenance or renewal 
requirements for registered GIs?  
10. Is there a published database for GIs at the Minist ry of Agriculture, such as the one that exists 
for trademarks? 
11. Please explain whether national treatment is a pplied for foreign GIs at the Ministry of 
Agriculture.  Article 24 of the Measures for the Administration of  Geographical Indications of 
Agricultural Products  indicates that specific measures for registration of GIs of agricultural products 
from foreign countries shall be worked out in anothe r initiative.  Is this initiative in place and is it 
publicly available? 
II. UNDISCLOSED INFORMATION 
12. Please advise whether the State Food and Drug Administration has provided pharmaceutical 
companies with the six years data protection required under China's Drug Registration Regulation .  If 
so, please provide information as to how many foreign and how many domestic companies received data protection.  
III. ENFORCEMENT 
13. The United States posed several questions to Chin a with regard to enforcement in connection 
with last year's transitional review before this C ouncil.  However, some of those questions remain 
unanswered.  To gain better understanding, the Un ited States would appreciate China's responses to 
the following questions on enforcement dur ing this year's transitional review.  
14. With regard to case initiation standards for crim inal IP investigations, are there uniform 
guidelines/procedures applicable to Public Security Bureaus (PSB) throughout the whole country?  If 
so, please identify them. 
15. We understand that in certain jurisdictions th e PSB and the Procuratorates have adopted case 
initiation standards that allow for a certain latitude  in investigating potential crimes, such as by 
investigating on suspicion or on the basis of stat istical sampling.  One such example is Jiangsu 
province.  Is China considering making these pilot programmes more comprehensive?  If so, please explain. 
16. Has there been any further discussion of clarif ying the role of private investigators in 
obtaining evidence to be used in ci vil court proceedings?  We note that  there has been a trial effort in 
Shenzhen to compel exchange of evidentiary material in intellectual property cases and we are 
interested in knowing about any further efforts in that area. 
17. Are there any legislative proposals under discussi on that would enhance the power of Chinese 
judges to enforce judicial orders?  IP/C/W/520 
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  18. The United States appreciates that China has provi ded a summary of enforcement priorities in 
China's 2008 Action Strategy on IPR protection.  Could China provide further information on specific enforcement initiatives that are under way or under development regarding:  (a) counterfeit products 
that pose health and safety threats, such as fake pharmaceuticals, agricultural chemicals, electronics, 
etc.;  (b) piracy and counterfeiting on the Intern et;  (c) commercial production and sale of pirated 
optical disks;  and (d) acts of unfair competition involving the intentional registration of infringing 
company names and the misuse of such registrations in China? 
19. United States customs data shows that China is  by far the largest source of counterfeit goods 
seized at the United States borders.  The United Stat es is pleased to have reached a bilateral customs 
agreement with China to enhance cooperation in this  area.  Could China identify any new efforts that 
it is undertaking to reduce the outbound flow  of counterfeit goods across China's borders? 
IV. COPYRIGHT 
20. Have there been any court decisions, judicial in terpretations, judicial notices or guidance, law 
enforcement guidance, State Council regulations, ad ministrative rules, including local legislative 
enactments or regulations, or other legal documents interpreting Article 4 of the Copyright Law , 
adopted by the National People's Congress on 7 September 1990, and amended according to the 
Decision on the Revision of the Copyright Law , adopted by the National People's Congress on 
27 October 2001?  If so, please identify them, and i ndicate whether China has made translations of 
them available to WTO Members in accordance wi th China's commitment in paragraph 334 of the 
Working Party Report accompanying China's Protocol of Accession. 
21. With regard to copyright piracy on the In ternet, please provide a detailed description of: 
(a) the legal steps necessary to expeditiously ta ke down infringing content and/or links 
after receiving proper notice from recogni zed right holders' representatives;  
(b) all remedies available against Internet Serv ice Providers (ISPs) who do not engage in 
immediate takedowns under the Internet Regulations  and whether any such remedies 
have been imposed to date against ISPs who have failed to engage in immediate 
takedowns; 
(c) all remedies available to suspend or term inate the accounts of repeat infringers and 
the consequences of recidivism;  and  
(d) the legal steps necessary for right holde rs or their representatives to obtain 
information about direct infringers. 
22. Please provide examples of cases where copyright pi racy on the Internet has been addressed 
using the above-referenced legal procedures, includi ng specific efforts taken to protect foreign right 
holders and the results of those efforts. 
23. The Regulations for the Protection of the Right of Communication through Information 
Network  appear to limit implementation to the interactiv e "right of making available" which results in 
a lack of clarity as to whether other forms of tran smission in an online envi ronment such as real-time 
and P2P streaming, are covered.  Please clarify whether these other forms of transmission are intended 
to be covered within these regulations and whether in  the regulations will be amended to clarify that 
other forms of transmission in an online environment are covered by these regulations. IP/C/W/520 
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  24. With regard to Internet piracy, please clarify how, if at all, the criminal 
prosecution/conviction thresholds established in the j udicial interpretations i ssued in 2004 and 2007 
apply to copyright infringements committed or taking place in the Internet environment. 
25. For each provision of law under which criminal copyright infringement, including criminal 
copyright infringement on the Internet, may be pr osecuted, please provide information on the number 
of prosecutions that have been initiated in 2007 and th e first six months of 2008.  Please indicate:  (a) 
when the criminal complaint was filed;  (b) with which court;  (c) the identities of the defendant(s);  
(d) the provisions of law alleged to  have been violated;  (e) curren t disposition;  (f) if concluded, 
whether the case resulted in acquittal or conviction;  (g) if it resulted in conviction, the sentence, and 
whether the sentence was suspended;  and (h) whether the case involved a foreign work. 
26. Please clarify whether software end-user piracy is subject to criminal penalties and if so under 
what circumstances and pursuant to which laws. 
27. It is our understanding that China has or will be  undertaking revisions to its copyright law.  
What is the projected timeline for this work and what are the steps involved?  Will foreign 
governments and other stakeholders have the opport unity to provide input into and comment on the 
drafts and if so at what stages? 
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