WORLD TRADE  
ORGANIZATION  IP/C/50 
18 November 2008 
 (08-5593) 
Council for Trade-Related Aspects 
of Intellectual Property Rights  
 
 
 
TRANSITIONAL REVIEW UNDER SECTION 18 OF THE PROTOCOL ON THE 
ACCESSION OF THE PEOPLE'S REPUBLIC OF CHINA 
 
Report to the General Council by the Chair  
 
 1. At its meeting of 28 October 2008, the Counc il undertook the seventh annual transitional 
review of the implementation by China of its WTO commitments pursuant to Section 18 of the Protocol on the Accession of the People's Republic of China (WT/L/432), and ag reed that the Chair, 
acting on his own responsibility, would prepare a brief, factual report on the review to the 
General Council. 
2. Written comments and questions in connection with  the review were submitted in advance of 
the meeting by Japan, the United States, the Eur opean Communities and Canada.  These submissions 
were circulated in documents IP/C/W/518,  IP/C/W/520, IP/C/W/521 and IP/C/W/524. 
3. In a communication dated 21 October 2008, China provided information as specified in 
Annex 1A to the Protocol.  This submis sion was circulated as document IP/C/W/525. 
4. The annex to this report contains the relevant  part of the minutes of the Council's October 
meeting
1 that reflects the statements made under the review. 
_______________ 
 
                                                      
1 To be circulated as IP/C/M/58. IP/C/50 
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  ANNEX 
 
Item D of the minutes of the Council's meeting of 27 October 2008
 
to be circulated as IP/C/M/581  
 
 
1. The Chairman  recalled that section 18 of China's Protocol on Accession required the TRIPS 
Council to review the implementation by China of  the TRIPS Agreement each year for eight years 
and report the results of such review promptly to  the General Council.  He further recalled that 
section 18 required China to provide relevant info rmation, including information specified in 
Annex 1A, to the TRIPS Council in advance of th e review.  He informed the Council that the 
information submitted by China pursuant to the requirement, dated 21 October 2008, had been 
circulated as document IP/C/W/525.  Questions a nd comments in connection with the transitional 
review had been submitted by Japan, the Unite d States, the European Communities and Canada 
(documents IP/C/W/518, 520, 521 and 524, respectively).  
2. The representative of the United States  said that his delegation believed that the transitional 
review mechanism continued to be a useful mech anism that helped to pr ovide needed additional 
transparency for China's trade regime and allo wed Members to better understand and assess China's 
progress in implementing and complying with its WTO obligations.  Turning to his delegation's 
submission before the Council, he noted that th e United States appreciated the importance China 
attached to the protection of intellectual property rights and the active steps that it had taken to 
improve IPR enforcement and protection.  It w as his understanding that China had developed and 
released a detailed national IPR strategy reflecting a commitment to address IPR related issues at the 
highest levels of China's Government. 
3. At the same time, the United States remained concerned about several aspects of China's 
regime for the protection and enforcement of intelle ctual property rights.  It was critically important 
that China and other WTO Members maintained regi mes that respected all intellectual property rights 
regardless of national origin.  While he underst ood the importance that China placed on promoting its 
domestic industries through indigen ous innovation polices, his delegation encouraged China to ensure 
that these polices did not undermine the rights of no n-Chinese owners of intelle ctual property rights or 
otherwise ran afoul of WTO rules.  The United St ates also continued to see evidence of unacceptable 
levels of IPR infringement, particularly in the num bers of Chinese goods seized at US borders.  Mid-
year statistics for 2008 showed that China remained  the source of the vast majority of infringing 
goods seized at US borders, accounting for 85% of seizures by value, and it was troubling that the seizure of Chinese goods had been increasing, not decr easing, each year since China had joined the 
WTO in 2001. 
4. Exports of counterfeit and pira ted goods, however, were only part of the problem.  United 
States industries continued to report high rates of in fringement within China.  More work was needed 
to address growing challenges involving internet co unterfeiting and piracy in China, such as offering 
infringing products for sale to businesses and consumer s or deep linking to infringing files.  At the 
same time, the problem of physical counterfeiting an d piracy in China continued and was widespread 
as illustrated by the continuing operation of larg e wholesale and retail markets for counterfeit and 
pirated goods in a number of jurisdictions in Chin a.  The range of industry sectors affected by 
infringement within China was quite broad, in cluding, among many others, pharmaceuticals, 
electronics, batteries, auto parts, industrial e quipment and toys.  The United States was further 
concerned because many of the counterfeit products made  in China continued to pose a direct threat to 
the health and safety of consumers not only in China, but in the United States and elsewhere around 
                                                     
 
1 The paragraph numbering of this excerpt will not co rrespond with that of the minutes of the TRIPS 
Council meeting but has been included for the convenience of users.  IP/C/50 
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  the world.  For reasons similar to those indicated  in its questions, the United States also remained 
concerned by Chinese rules that appeared to exem pt so-called Chinese famous brand products from 
quality inspection.  His delegation wished to learn more about the scope of this exemption and about 
the trademark-based criteria that made pr oducts eligible for this exemption.  
5. In conclusion, his delegation looked forward to  receiving China's responses to its questions, 
and to continuing to engage bilaterally with China on a wide range of IPR issues.  The United States 
appreciated the cooperative spirit in which the tw o countries had intensified IPR discussions under the 
Joint Commission on Commerce and Trade and other b ilateral mechanisms, and continued to believe 
that deeper multilateral and bilateral dialogue and cooperation would provide an important path to 
progress. 
6. The representative of the European Communities  said that his delegation took note with 
satisfaction of the progress that had been made  so far in China on IPRs and of positive ongoing 
initiatives such as the action plan for IPR protec tion for 2008, the National Intellectual Property 
Strategy, the ongoing revision of patent law, the ongoing revision of trademark law and the 
announced revision of copyright law.  However, de spite these developments and China's efforts to 
address problems in its IP system, his delegation remained concerned at the high level of 
counterfeiting and piracy in China.  Although the customs seizures of counterfeit products coming 
from China at the EU border had decreased in 2007, China remained the main  source of infringing 
goods with over 60% of all articles seized at the border coming from there.   
7. European companies continued to face serious IP R problems in China, in particular, the lack 
of proper access to the legal system and of effectiv e IPR enforcement.  Criminal prosecution remained 
ineffective, sanctions against IPR infringement we re insufficient to deter infringers, administrative 
enforcement procedures were still subject to discre tion in many areas, and administrative infringing 
activities remained difficult to obtain, expensive and in comparison to domestic cases, more time 
consuming. 
8. His delegation encouraged China to actively pursue its efforts towards an effective IPR 
enforcement system and was committed to continue  working bilaterally with Chinese authorities to 
improve the situation, in particular through the joint technical cooperation programme IPR 2.  The 
European Communities had also established a structured dialogue on intellectual property and had set up a joint EC/China IP Working Group in the frame work of this dialogue, in order to exchange 
information and address IPR issues.  The fifth sessi on of this IP Working Group had taken place in 
Beijing on 23 September 2008.  He expressed his hope  that this cooperative approach with China on 
IPR issues would be instrumental in improving the IP R situation in this country and lead to concrete 
and tangible results. 
9. He said that his delegation had submitted 43 questions coveri ng a wide range of issues 
including patents, technology transfer, protection of confidential data, trademarks, copyright, and 
plant variety protection.  With regard to enforcem ent, the questions included issues such as customs 
measures, civil enforcement, criminal prosecution and on-line piracy, and his delegation was looking 
forward to receiving responses from China. 
10. The representative of Canada
 said that his delegation was appreciative of China's continued 
engagement in a dialogue on IP issues at the WTO and in other international fora such as the 
Heiligendamm Process.  Canada also appreciated th e opportunities to share best practices and other 
experiences through the two countries' respective inte llectual property agencies and IP experts.  For 
example, the Commissioner of the Canadian Intell ectual Property Office would travel to China next 
month for an annual meeting with her counterpart and to speak at the 6th Shanghai International 
Intellectual Property Forum.   IP/C/50 
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  11. Canada had recently submitted document IP/C /W/524 in relation to the China TRM, 
containing questions related to Ch ina's action plan on IPR protecti on and recent revisions to China's 
Patent Law.  His delegation would understand if Ch ina required additional time to study the questions 
before providing responses, and would therefore be  happy to accept China's written responses in due 
course.   
12. Canada had also included a few specific inquiri es, including one question relating to China's 
Olympic experience.  Specifically, in view of the fact  that the 2010 Winter Olympics would be held in 
the Canadian province of British Columbia, Canada  would be grateful to learn about China's 
experiences with respect to the registration and use of the Beijing Olympic trademarks. 
13. The representative of Japan
 said that his delegation appreciated the recent Chinese efforts to 
strengthen the protection of intellectual property ri ghts.  It was his understanding that the Chinese 
Government had enhanced the civil as well as the criminal measures to protect intellectual property 
rights and Japan welcomed this improvement of IPR legislation in China.   
14. Having said that, his delegation wished to point out three issues:  First, Japan still had serious 
concerns about infringement in China.  The ty pes of infringement were getting more or more 
complicated, the number of infringements using th e Internet was increasing and serious problems 
remained with regard to enforcement of IPR i ssues in local Chinese government.  His delegation 
expected that the Chinese Government would take appr opriate measures with regard to these issues in 
due course. 
15. Second, his delegation wished to raise a new issue regarding compulsory certification in 
China, which was also mentioned in paragraph 10 of the EC document.  Private enterprises were 
requested to provide highly confidential informat ion to get technical regulatory approval in the 
Chinese territory.  It was his understanding that from May 2009, 13 types of information security 
products would be required to pass a certification.  His delegation had serious concerns on this matter 
from the point of view of IT protection.  His delegation expected the Chinese Government to review these measures which were exceptional in the international community. 
16. Third, his delegation welcomed the Chin ese action plan on IPR 2008, which had been 
announced in June 2008.  In this action plan, the Chinese Government had committed to protect IPRs 
at a higher standard by 2020, reducing IPR infringeme nt.  His delegation expected further efforts by 
the Chinese government based on such action plans. 
17. Lastly, his delegation was looking forward to China's responses and hoped for further 
dialogue and cooperation with the Chinese Governme nt in the TRIPS Council, as well as in bilateral 
cooperation. 
18. The representative of China
 said that his delegation wished to pursue a dialogue in a 
constructive and transparent way with all Memb ers.  China had received over 80 questions from 
several Members and, while he did not agree with  all of these questions, his delegation appreciated 
the continued interest in the Chinese IPR mechanis ms and listened very carefully to the comments 
made by these Members.   
19. With regard to the questions received he sai d that his delegation had had enough time to 
prepare responses to the questions from the Eu ropean Communities and Japan as they had been 
received by e-mail at the same time that they had been transmitted to the WTO Secretariat.  The 
questions from the United States, however, had only been received by China one week before the 
meeting.  Although, after reporting back, this had left his delegation only three days to prepare 
responses, it had done its best to respond to as ma ny of these questions as possible.  Nevertheless, 
there was one question that could not be answered at  this stage and his delegation remained available  IP/C/50 
 Page 5 
 
 
  to follow up with the United States through bilatera l channels.  With respect to the questions from 
Canada, he regretted that his de legation had only been informed about them at the present meeting. 
For future transitional reviews, he encouraged Me mbers to follow past practice and transmit their 
questions or communications to China at the same time that they send them to the Secretariat. 
20. Briefing the Council on China's implementati on of the TRIPS Agreement and relevant 
commitments since the last review, another repr esentative of China said that China had always 
attached great importance to the protection of intell ectual property rights, and fulfilled its international 
commitments in a serious and positive manner.  In  recent years, China had further intensified the 
protection of IPRs.  Since 2004, a nationwide camp aign for IPR protection had been carried out each 
year to end trademark, patent and copyright in fringements, particularly in imports and exports, 
wholesale markets, trade fairs, original-equipmen t manufacturers, printing and reproduction.  Very 
recently, China had unveiled the Outline of National Intellectual Property Rights, a new strategy to 
tackle the many issues surrounding IPRs in a broade r, deeper and more forceful manner which would 
further improve IPR protection in China.  
21. Turning to questions from Members, she sai d that, including the Canadian submission 
received on that day, China had received over 90 questions.  Her delegation thanked Members for 
their appreciation of China's achievements in IPR protection, such as Japan's comment in its 
communication that the implementation of China's IP commitments had evolved to a cruising phase. 
This was quite objective.  However, other Member s' communications contained comments that were 
not based on facts and statistics that were not credible.  She hoped Members would adopt a more 
serious, practical and realistic attitude towards the TRM.  
22. With respect to the questions from Canada, she said that most of the information regarding 
China's action plans regarding IPR protection could be found online on the State Intellectual Property 
Offices's (SIPO) website (www.sipo.gov.cn) and on th e website of the central government.  The rest 
of the Canadian questions were very similar to questions raised by the United States, the European 
Communities and Japan.  
23. She said that some of the questions, including those on internet piracy (EC questions 40-43, 
US questions 21-23), on  customs enforcement in re lation to the outbound flow of goods (EC question 
31, US question 19) and some other questions including those from Japan regarding general 
government policies and research went beyond the scope of the TRM.  As this was not the appropriate 
forum for these questions, her delegation suggested  to discuss them on other appropriate occasions 
such as in World Intellectual Property Organi zation (WIPO), the World Customs Organization 
(WCO) or through bilateral channels.  She said that  some questions were closely related to the 
ongoing US-China WTO dispute (DS362) in which th e United States was the complainant, and the 
European Communities and Japan were both joined as third parties.  Such questions included Japan's 
questions 12 and 19(d);  EC questi ons 18, 20, 23-25, 36 and 37;  and US questions 13-18, 20, and 24-
26.  The parties involved could discuss the relevant i ssues in the context of this case.  Furthermore, 
regarding the laws and revisions mentioned in Japan's  questions 1, 2 and 18(a) ;  EC questions 5-9 and 
17;  and US question 27, she said that the laws including the Trademark Law , the Copyright Law, the 
Law Against Unfair Competition, the Ru les for Implementation of Patent Law and the Rules for 
Implementation of the Regulations on Customs IPR Protection , were currently under revision or 
review, and no specific schedules were available at this time.  Members should refer to Annex 1A for 
progress.  
24. For convenience, her delegation had grouped th e responses to questions from Members into 
five major subjects.  The first subject related to copyright, and specifically the royalty distribution 
issue which included responses to Japan's question 3, and EC question 26.  In this regard, the 
Regulation on Royalty Distribution fo r Broadcasting and Television Organizations  was one of the key 
legislative programmes of the State Council this y ear.  The Legislative Affairs Office had submitted a IP/C/50 
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  draft to the State Council for review.  According to Article 43 of the Copyright Law , the Regulation 
(Draft) provided on radio and TV stations' royalt y distribution for right holders for broadcasting 
published audio recordings without the latter's consent.  
25. The second subject related to trademarks and geographical indications issues, including 
responses to Japan's questions 4-5, and EC questions  21-22.  The current duration of the examination 
period for trademarks was about 28 months.  In r ecent years, China had witnessed an annual increase 
in trademark registration applicati ons and had ranked first in the world for six years until this year in 
terms of application volume.  In 2007, the fi gure had risen to 708,000 which constituted a big 
challenge for China.  The competent authorities worked hard and attached great importance to 
achieving an expedited examinati on of trademarks.  A series of measures had been implemented, 
including setting up additional divisions, increasing staff, strengthening operation security for the 
automatic system, stepping up manage ment and enhancing efficiency at every stage of the trademark 
registration process.  These measures had yielded in itial results.  In 2007, 40 5,000 applications had 
been examined, which constituted a year-on-year in crease of 29.3%.  An examiner's average workload 
per year was much more than in other countries.  The Trademark Review and Adjudication Board had 
ruled on 12,799 cases, a year-on-year increase of  200%.  In 2008, the Chinese Trademark Office 
(CTMO) had recruited 300 trademark examinati on auxiliary staff and 100 trademark adjudication 
auxiliary staff who had begun work on 1 September.  With the joint forces of new staff and the comprehensive implementation of th e above measures, the registration duration was expected to be 
further shortened in the coming years. 
26. With regard to the examination guidelines of tr ademarks mentioned in Japan's questions 6 and 
7, according to Article 10(2) of the Trademark Law , if a trademark consisted of or contained foreign 
geographical names known to the public, it would be  regarded as identical to foreign geographical 
names and the CTMO would reject the application.   However, this did not apply to trademarks 
composed of foreign geographical names and other words, if the combination acquired a new meaning 
and did not lead to confusion of the public wh en applied to designate d commodities.  "LONDON 
FOG" (for briefcases) was one example in this regard.   
27. According to Article 9 of the Trademark Law , a trademark should have distinctive 
characteristics easy to identify, and may not conflict with legal rights acquired by others in priority. 
The prior rights included the names designa ted to new varieties of plants by the Regulations on the 
Protection of New Varieties of Plants .  Accordingly, trademark applications using the names of plants 
should be rejected.  The parties involved could also assert their legitimate rights and interests through 
trademark oppositions and dispute procedures.  Regard ing Japan's question 8, if the trademark's word 
formation was different from a foreign geographi cal name known by the public but its look and 
pronunciation were nevertheless likely to cause confus ion with regard to that geographical name and 
the origin of the product, that trademark would be rejected according to Article 10(1) of the 
Trademark Law .  If such a trademark was registered, an application for cancellation could be filed to 
the CTMO.  
28. Japan's question 9 related to a complicated t echnical issue.  For detailed information, 
Members should refer to the Trademark Examination and Adjudication Standard  (2005) and the 
Regulations on the Protection of New Varieties of Plants.  According to Article 11(2) of the 
Trademark Law , the following aspects should be consider ed with regard to marks obtaining 
distinctive characteristics through usage:  firs t, public recognition of the mark;  second, the 
application of the mark to designated commodities and services in terms of duration, the method and 
the industry.  With regard to the Guidelines for the Fair Use Thereof by Another Person raised in 
Japan's question 10, references could be found in Article 26 and Article 27 of the Answers of the High 
People's Court of Beijing on Some Issues Concern ing the Handling of Trademark Dispute Cases  
issued by the High People's Courts of Beijing in March 2006.  IP/C/50 
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  29. With regard to EC question 19, she said that  Chinese authorities had always been working 
hard to protect the exclusive right to use regist ered trademarks and had cracked down on fake goods, 
both during the Olympic Games and on average working days.  At the same time, it should also be recognized that strengthening the protection of exclusive trademark rights and clamping down on 
trademark right violations was a difficult long-te rm task that could not be achieved overnight.  
30. With regard to GIs, she said  that the Chinese Government a ttached great importance to GI 
protection and firmly believed that  GI protection would effectivel y promote economic development, 
especially the development of agriculture and th e rural areas.  The TRIPS Agreement established 
specific rules in this area and Members had set up their respective GI protection regimes under this framework.  China had also established its own GI protection system based on its national conditions 
and was constantly improving its effectiveness.  Competent authorities were actively advancing the 
work in this area within their respective co mpetences.  Her delegation was willing to share 
experiences and actively cooperate w ith members in this regard.  
31. With regard to the trademark related issues ra ised in US questions 1-4, she said that the  
2005-2006 List of Leading Export Brands Nurtured  and Developed by the Ministry of Commerce had 
expired and such a list no longer existed.  Also, th e General Administration of Quality Supervision, 
Inspection and Quarantine (AQSIQ) had abolished the Measures for Administration of Exempting 
Products from Quality Su pervision and Examination on 18 September 2008.  Therefore, famous brand 
products were no longer exempted.  With regard  to well-known trademarks, the CTMO and the 
Trademark Review and Adjudication Board identif ied and protected well-known trademarks in the 
procedures of trademark oppositions, administ ration and disputes according to the Trademark Law , 
the Rules for the Implementa tion of Trademark Law , the Provisions for Identification and Protection 
of Well-Known Trademarks .  In the identification procedure of  well-known tradem arks, domestic and 
overseas trademark holders were treated equally without discrimination.   
32. With regard to well-known trademarks at sub- national levels, provisions  should be developed 
by provincial government according to local conditions.  Provincial industry and commerce 
authorities were responsible for identifying well-kn own trademarks according to local regulations, 
rules and normative documents.  Provincial local regulations, rules and normative documents should 
be referred to when deciding whether "foreign" trad emarks of foreign companies or users could be 
identified as "well-known trademarks".  Regarding US  question 5, China's Table of Classification of 
Similar Commodities and Services had been formul ated on the basis of WIPO's International 
Classification of Goods and Services for the Purposes of the Registration of Marks and according to 
China's practical experience over the years in classi fying similar commodities and services.  It was 
referred to by the CTMO and the Trademark Review  and Adjudication Board in their reviews and 
examination of trademarks.  However, due to c onstant upgrading and developing of commodities and 
services and fluctuation in market trading, the assessment of similar commodities and services could 
change in certain cases, and it was therefore still necessary to make judgments in terms of similar 
commodities and services when examining such cases.  
33. The third subject related to 
patents, technology transfer and confidential information 
protection and responded to EC questions 10-11 and 12-14,  and US question 12.  In this regard, 
Chinese laws strictly prohibited the infringement of trade secrets and the information required for that 
purpose in the applications was necessary and within the scope of reasonable disclosure.  With regard 
to the trial data protection, the Drug Registration Regulation  provided for this issue, including 
provisions that literary and data shall not be used  without the owner's cons ent and that on-the-spot 
verification must be carried out for the authentic ity of each document.  These measures ensured that 
all the application documents were authentic, relia ble and had been independently acquired by the 
applicant himself/herself, so that applications c ould not be based on information submitted in earlier 
applications.  She said that data used without th e owner's consent was considered invalid and the 
corresponding application would be rejected.  IP/C/50 
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  34. The State Food and Drug Administration, when deciding whether to give marketing approval 
or not, could only rely on clinical trial data indepe ndently acquired by the applicant.  Published data 
could only serve as a reference.  According to Article 35 of the Implementing Regulation for the Drug 
Administration Law , the Drug Registration Regulation provided that within six years from the date a 
drug manufacturer or seller had obtained approval to produce or market a drug containing new 
chemical entities, if any other applicant used the aforementioned data to apply for approval for 
production or marketing of the drug in question with out permission by the original applicant who had 
obtained the approval, no approva l may be given to any other applicant by the drug regulatory 
department.  In this regard, domestic and ove rseas companies were given equal treatment.  
35. The fourth subject related to IPR enforcement.   By virtue of his exclusive right to use a 
trademark the right holder could demand a hearing in trademark administrative enforcement 
procedures according to the Administrative Punishment Law .  With regard to rulings on trademark 
violations, the relevant right holde r could inquire with industry an d commerce administrative agencies 
at all levels and follow the development and result of  the case.  China was s till studying how the right 
holder could take part in the trademark administ rative enforcement procedure and what rights he 
should enjoy in the process. 
36. Under the Copyright Law, copyright infringeme nt was divided into two categories.  One 
category included 11 torts described in Article 46 of the Copyright Law, which could only be resolved 
by civil litigation procedures.  With regard to these to rts the victim could file civil lawsuits directly 
with the People's Courts after collecting relevant ev idence.  The other category consisted of eight torts 
described in Article 47 of the Copyright Law, which could be addressed through civil litigation, 
administrative punishment and criminal litigation accord ing to different degrees of injury.  In other 
words, the victim could file lawsuits directly with the People's Courts after collecting relevant 
evidence, apply for administrative protection from copy right authorities or trigger criminal procedures 
in case of a crime.  In brief, with regard to any to rt, the copyright holder could take part in launching 
civil, administrative or criminal procedures and attain sufficient information in the proceedings. 
37. In case of violations of copyright and exclus ive trademark rights, be it infringement via 
Internet or traditional means, the Copyright Law and the Trademark Law applied .  Apart from active 
investigations conducted by competent authorities acco rding to their duties, the right holder could also 
complain to local competent authorities or file laws uits with local courts.  China had cracked down on 
IPR violations, and relevant indivi duals and units were held crimina lly responsible according to law. 
Regarding detailed information on enforcement at di fferent levels requested by Japan and others she 
referred Members to Annex 1A s ubmitted prior to the meeting.  
38. The fifth subject related to Other Issues  that had been raised in Japan's questions 13 and 14 
and EC question 29.  In this regard, there were currently no criteria for intellectual property rights 
abuse under the framework of the Antimonopoly Law  and formulation of guidelines for that law was 
still underway.  With regard to the conflict betwee n trade names and trademarks raised in Japan's 
question 15, the Supreme People's Court had issued  a judicial interpretation in February 2008 
regarding the Regulations on the Trial of the conflict s between Registered Trademark Enterprise 
Name and the Prior Right , which provided fully for that issue.  
39. With regard to licensing regulations raised in Japan's questions 16 and 17, she said that the 
provision in Article 25 that "the licensor must ensure  that the technology provided is complete, correct 
and effective and may fulfil the agreed tec hnological goal" only referred to the technology per se .  In 
other words, under agreed implementation conditions , the technology provided by the licensor should 
meet the agreed technological objective.  However,  if the agreed technological objective was not 
achieved due to reasons on the licensee's part su ch as substandard enviro nmental and technical 
conditions, improper operation,  etc., the licensor should not be held responsible.  IP/C/50 
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  40. Regarding EC questions 27-28, since China's accession to the 1978 International Union for 
Protection of Varieties (UPOV) in 1999, a legal syst em for protecting new varieties of plants had been 
established.  It had played an active role in prot ecting the legitimate rights and interests of breeders, 
encouraging innovation in breeding technology, promoting reasonable allocation of breeding 
resources and establishing a fair competition order in the seed market that was in line with China's 
national conditions.  The Chinese Government ha d issued and implemented seven batches of 
catalogues for the protection of new plant varieties in agriculture and four batches of catalogues for 
the protection of new plant varieti es in forestry including 152 species and genera of plants, which far 
exceeded the minimum requirements of UPOV 1978.  At present, the Chinese Government was still 
actively expanding the catalogues to protect as many plants as possible.  Since 2004, China had been 
ranking fourth among UPOV Members.  By 30 September 2008, the Ministry of Agriculture had 
accepted 5192 applications for plant variety rights.  After examination and tes ting, 1844 applications 
had been approved.  
41. In conclusion, the representative reaffirmed that China continued to attach great importance to 
IPR protection which had already been elevated to a national strategy of China.  She also pointed out 
that IPR protection was not merely a means to fulfil China's accession commitments or to attract 
foreign investment and technology, but also res ponded to China's own intrinsic need to promote 
scientific and technical innovation, and to speed up its economic development.  China spared no effort 
to  establish a strong and effective IPR protection sy stem which was in the interest of both China and 
other Members.  However, as a developing Member, China had only started building its IPR protection system less than 30 years ago and would need continued efforts before its IPR protection 
system could be as sophisticated and mature as th at of some developed country Members which had 
been developed for over 100 years.  In order to  catch up, China needed time, understanding and 
support.  She hoped that Members, especially develo ped country Members, would be able to view the 
IPR situation of China from a historical and deve lopmental perspective, recognize the efforts China 
had made, and continue the support and cooperation in this area.  
42. The representative of the United States
 said that, with regard to China's comment about their 
late receipt of the US submission, his delegati on had submitted the document to the Secretariat on 
9 October and had transmitted it to the Chinese Mission via e-mail on the same day.  The Secretariat had then circulated the submission on 14 October which was still two weeks ahead of the meeting.  
43. He thanked the Chinese delegation for its res ponses and said that his delegation had a few 
follow-up questions and comments.  With regard to US question 3, China had indicated that the 
2005/2006 list of leading export brands nurtured an d developed by the Ministry of Commerce had 
expired.  His follow-up question, which was also c ontained in the US submission, was whether there 
had been any updates or subsequent lists issued for 2006/2007 and 2007/2008.  
44. With regard to US question 4 on more inform ation about sub-national measures relating to 
famous trademarks, China had simply indicated that sub-national measures were handled by sub-
national governments, but it had not provided any responses to the question.  Among other things, the 
United States was looking for a list of those sub-nati onal measures.  He noted that, as had been seen in 
the area of subsidies where sub-national government s were very active, measures issued by sub-
national governments were particularly important  under China's system and he expressed his hope 
that China would respond to that question. 
45. Turning to US questions 6-11 on geographical i ndications, China's response had simply been 
that China had established a geographical indications  system within its government.  This had been 
known to the United States and had been the premis e of the several detailed questions it had posed 
about various aspects of China's regime.  None of these questions had been answered and his 
delegation requested China to respond to those questions. IP/C/50 
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  46. With regard to several questions that had b een posed about enforcement, China had referred 
to the on-going WTO case, and concluded that it woul d not be appropriate to answer any of these 
questions.  He said that these questions dealt with th e role of private investigators in China, with 
legislative proposals that might enhance the power of Chinese judges to enforce judicial orders and 
with specific enforcement initiatives relating to health  and safety threats and other matters.  None of 
these issues were part of the WTO case and his de legation therefore requested China to respond to 
those questions.  
47. Finally, in response to the comment that Chin a was a developing country Member and needed 
more time to implement and adhere  to its TRIPS obligations, he said that China, in its protocol of 
accession, had committed to adhere to the TRI PS Agreement immediately upon accession.  There 
were no transition periods for adherence to those disciplines. 
48. The representative of the European Communities
 thanked China for its comprehensive 
statement on its efforts to improve the protection and enforcement of intellectual property rights and 
for its detailed answers to questions.  
49. While trying to follow the answers given by China, it was his impression that some of his 
delegations' questions had not been answered.  Fo r example, EC questions 32, 33 and 34 on the 
legalisation and notarization requirements for power of attorney and evidence from abroad covered a 
very important issue for his delegation, and he would be grateful if China could answer those 
questions.  He encouraged China to intensify its  efforts to combat counterfeiting and piracy and 
improve the enforcement system in China, whic h was a priority for the European Communities. 
50. The representative of Japan  thanked the Chinese delegation for its very informative 
explanation covering all 80 questi ons, considering that it was certainly difficult to give out good 
signals while cruising on the sea.  His delegation want ed to raise two points regarding its questions:  
First, regarding geographical names used as tradem arks mentioned in Japan's question 5, China's 
delegation had indicated that Chinese trademark law prohibited the use of well-known geographical 
names from foreign countries, such as Tokyo a nd Osaka.  However, it was his delegation's 
understanding that there were certain cases in which Chinese private en terprises used Japanese 
geographical names.  This was a question related to the enforcement of Chinese national law and his 
delegation would expect the Chinese Government  to make further efforts to strengthen the 
enforcement of their proper Chin ese trademark law in this regard. 
51. Second, in its explanation concerning the issue of protection of confidential information, the 
Chinese delegation had mentioned a medical law and ot her related laws.  Japan's specific concern was 
whether China was going to extend these compulsory  measures to oblige private companies to 
disclose or provide highly confidential information, as a lot of information security products would be 
included in such an extension.  His delegation re iterated its expectation that the Chinese Government 
review this exceptional system in due course.   
52. The representative of China  said that, with regard to the US comments, her delegation had 
explained that the 2005/2006 list by the Ministry of Commerce had expired and there was no longer 
such a list.  This meant that there was no such lis t for 2007/2008 or 2008/2009 and that this was the 
end of such a list.  
53. With regard to famous trademar ks at sub-national level, she i nvited the United States to check 
the website of each province as China had very tr ansparent websites in this respect, which would 
answer some of its concerns and questions.  While  she was not in a position to provide a full list of 
these measures at this point, she said that the meas ures at the sub-national level should comply with 
the basic principles at the national level.   IP/C/50 
 Page 11 
 
 
  54. Regarding EC questions 32-34, these were questions already received last year which implied  
a certain presumption by the European Communitie s.  While welcoming the suggestions, China did 
not agree with the presumptions raised by the Eu ropean Communities but was prepared to discuss any 
specific cases through other channels. 
55. As regards the comments from Japan, her delega tion would report these back to its capital if 
Japan could provide more detailed information. 
56. Another representative of China said that regard ing the US comment on the receipt of their 
submission, e-mails concerning this issue should be  addressed to the desk officer responsible for 
TRIPS issues.  This would give the delega tion more time to respond to such queries.  
57. Furthermore, in its intervention, the United States had misquoted the statement made by 
China by saying that "China need s more time to implement the TRIPS Agreement".  In fact, his 
delegation had said that "we need to catch up yet we need time, understanding and support".  With 
regard to the implementation of the TRIPS Agr eement, China had honoured its commitments from 
day one of its accession to the WTO.  China had re vised thousands of laws and regulations.  It had 
intensified its efforts to protect intellectual propert y rights.  The comment regarding the need for more 
time related to the fact that China needed more ti me to correct the imperfection of the enforcement 
measures.  It needed more time because China was a developing c ountry and because, as China had 
always believed, IP protection was an i ssue very much related to development. 
58. Before explaining why IP protection was developm ent-related, he wanted to share with the 
Council one story.  In recent days, a famous Chines e film star named LU Yi, which is pronounced like 
"Louis", had had a daughter and his fans had begu n to discuss how to name this pretty girl on a 
website.  Some suggested LU Tiantian or other pret ty Chinese names for girls.  One suggestion which 
attracted his attention was pronounced very much lik e the Chinese translation of "Louis Vuitton".  He 
said that he had immediately written on the website :  "Mr. LU, please refrain from considering this 
suggestion to name your girl 'Louis Vuitton' b ecause it could entail a misunderstanding by EU 
officials and cause potential trouble for you in Europe.  If you travel next time to Paris airport of 
Charles de Gaulle, you might face two options:  either to change the name of your girl immediately or 
to have her confiscated by French Customs."  
59. The purpose of sharing the above story was to  tell Members how sensitive personnel like him, 
dealing with IP-related affairs in China, were to any issue that could give rise to potential problems. 
However, he would be ready to admit that, although a lot had been done on education, some people in 
China, like some living in the countryside, might not be aware of such problems.  The reason was 
simple:  IP was not a concept in a vacuum.  It was a concept related to development.  It was a concept 
related to particular development stages.  It was a concept related to per capita GDP.  
60. Just on the previous day, the Chinese National Bu reau of Statistics had proudly declared that 
China's per capita GDP had now reached US$2,360.  That was a great achievement and he felt very 
much encouraged.  However, US$2,360 was less than  6% of the per capita GDP of the United States, 
less than 7% of Japan, less than 3% of Luxembour g, which enjoyed the highest level of per capita 
GDP among the EC Members, and less than 70% of Bulgaria, which had the lowest per capita GDP in the European Communities.  He therefore urged th e delegations who had take n the floor to compare 
the situation of IP protection in their countries wh en their per capita GDP had been US$2,360, with 
that in China now.  He urged them to compare what  they had been doing at that time on IP protection 
with what China was doing now, and more importantly, what China had done.  Then, he said, they 
would have a better understanding of  the situation China faced with regard to IP protection.  IP/C/50 
Page 12  
 
  61. Having said that IP protection was development-re lated, he pointed out that piracy was not a 
problem existing only in developing countries including China.  Piracy was a sin in human nature and common to all countries, both developed and developi ng.  He referred Members to the International 
Herald Tribune report of 3 June 2008, in which Sir Hugh Laddie, a leading lawyer and former High 
Court judge of the United Kingdom, had said that Chin a had become a "scapegoat" for the intellectual 
property problems in western countries.  What he had meant by using the word "scapegoat" was that 
China was not "the largest source of pirated goods",  as declared by some Members, but some other 
countries were, including some Members who had just  made their comments.  This involved some 
industries just mentioned by those Members, like co mputer software and films.  For that, he would 
also refer Members to the survey by the Motion Pi cture Association of America (MPAA) just a few 
years ago, which demonstrated that their films were  most seriously pirated not in countries of Asia, 
but in another country.  
62. He said that he did not like the word "scape goat" because his delegation knew better than 
anyone that China did have certain problems.  He knew that China needed to do more to improve the 
situation, although it had already done a lot.  So if Members asked whether China admitted that there 
were problems, yes it did.  If Members asked wh ether China had done something to resolve those 
problems, yes it had.  If Members asked whether Chin a needed to do more to improve the situation, 
yes it did.  However, if Members asked whether Ch ina could build Rome in one day, he would have 
to say "sorry we can't".  
63. The Chairman
 thanked China for all the information it had provided, as well as other 
Members for their contributions.  Turning to the Council's reporting obligation to the 
General Council, he suggested that the Council follow the same procedure as in the past years, namely 
that the Chairman, acting on his own responsibility, would again prepare a factual report.  The content 
of the cover page to the report would be similar to that of the report submitted by the Council in 2007 
and the part of the minutes reflecting the discussions  held under this agenda item would be attached. 
64. The Council took note  of the statements made and agreed  to proceed as suggested by the 
Chair. 
  
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