WORLD TRADE  
ORGANIZATION  IP/C/W/461 
14 November 2005 
 (05-5313) 
Council for Trade-Related Aspects 
of Intellectual Property Rights Original:   English 
 
 
 
REQUEST FOR INFORMATION PURSUANT TO ARTICLE 63.3 
OF THE TRIPS AGREEMENT 
 
Communication from the United States  
 
 
 The following communication addressed to the Delegation of China, dated 25 October 2005, 
is being circulated at the request of the Delegati on of the United States.  It was circulated as an 
advance copy for the Council's October 2005 meeting. 
 
_______________ 
 
  The United States welcomes and appreciates China's ongoing efforts to inform WTO 
Members about its enforcement of intellectual property rights ("IPR").  In the interest of facilitating 
further transparency, my authorities have instructed  me to request clarifications regarding specific 
cases of IPR enforcement that China has identified for the years 2001 through 2004, and other 
relevant cases.  We make this request pursu ant to Article 63.3 of the WTO Agreement on 
Trade-Related Aspects of Intellectual Property Rights ("TRIPS Agreement").  
We recognize China's progress toward greater transp arency in this area.  In particular, China 
has identified numbers of specific judicial decisions  and administrative rulings ("cases") reflecting the 
application of criminal, administrative, and civ il remedies for IPR infringement in various public 
statements (such as the April 2005 State Council paper on China's IPR protection).  We consider that 
these cases identified by China and other specifi c IPR enforcement cases affect rights of the 
United States and other Members under the TRIPS Agreement. 
 
The goal of this request is to further enhan ce our understanding of IPR enforcement in China 
by clarifying and building upon information that China provided in the April 2005 paper and in other contexts, including TRIPS Council reviews.  While th is information has been helpful, it has come 
largely in the form of aggregate numbers that do not disclose the disposition of cases by legal basis, 
region, industry sector, or right holder nationality.  Through this request, we hope to encourage the 
sharing of such information and thus gain a bette r understanding of such key features of IPR cases in 
China as the legal basis on which they have been  decided and the remedies actually imposed on 
infringers.  
With that goal in mind, I am attaching to this le tter a list of six clarifications requested by my 
government concerning the specific cases identifie d by China for the years 2001 through 2004, as 
well as any comparable cases that China may have identified for that period or during 2005.   
 
We understand that there may be a need for flex ibility in connection with a request of this 
nature, given the scope of the issue and variations  in the ways that governments and agencies collect 
information.  In the event that any of the request ed information does not exist or cannot be provided, 
we would welcome the opportunity to discuss those difficulties and work together to examine IP/C/W/461 
Page 2  
 
 alternatives.  In addition, for greater convenience, we  invite China to consider providing clarifications 
in the form of supplemental statistical data coveri ng each of the areas listed in the attachment, rather 
than on a case-by-case basis. 
 The United States requests that China provide its written response on or before 23 January 
2006.  If additional time is needed to provide any requested information, I invite you to contact me so 
that we may reach some understanding.  We look forward to receiving your reply.    
_______________ 
 
  IP/C/W/461 
 Page 3 
 
 
 Clarifications requested by the United States  
concerning IPR Enforcement in specific cases in China  
  We would appreciate clarification of the following details with respect to the identified cases:
1 
 
1. Legal Basis :  To enhance our understanding of the various cases that China has identified as 
reflecting the application of remedies for IP R infringement, please identify the precise legal 
basis for any finding of IPR infringe ment(s) in the identified cases.2  Please clarify how many 
of the identified matters were resolved on a b asis other than IPR infringement (e.g., violation 
of a licensing measure, illegal business operati ons, fake and shoddy goods, pornography, or 
other basis). 
 2. Remedies, Provisional Measures, and Repeat Infringers
:  To our knowledge, China has not 
previously provided comprehensive information about remedies (e.g., criminal penalties, civil 
damages, injunctions ordering parties to desi st from infringements) and provisional measures 
(e.g., to prevent an infringement or preserve relevant evidence) that its authorities have 
imposed in judicial and administrative IPR in fringement cases.  Please clarify the precise 
nature and amount of all the remedies and pr ovisional measures imposed, if any, in the 
identified cases.3  In addition, please provide any inform ation that would assist in identifying 
matters that involved one or  more repeat infringers. 
                                                      
1 By "the identified cases," we mean the specific cases that China itself has previously identified 
through statistics as reflecting its application of cr iminal, administrative, and civil remedies for IPR 
infringement in China for the years 2001 through 2004.  See, e.g.,  State Council Information Office, New 
Progress in China's Protection of Intellectual Property Rights, 25 April, 2005, available at http://www.china-
un.ch/eng/bjzl/t193102.htm  (referring to, among others, (a) administrative cases of copyright infringement; (b) 
administrative cases of trademark infringement and counte rfeiting; (c) IPR-related civil cases of first instance 
and criminal cases of first instance involving IPR infrin gement; and (d) cases of IPR infringement in import and 
export handled by Chinese customs); Transitional Review under Section 18 of the Protocol on the Accession of 
the People's Republic of China, IP/C /34, paras. 6, 52-55, 62, and 75-76 (9 December, 2004) (also identifying 
cases); Transitional Review under Section 18 of the Protocol on the Accession of the People's Republic of 
China, IP/C/31, paras. 49, 54, 56 ( 10 December, 2003) (same); Review of Legislation, IP/Q/CHN/1, section I.C 
(10 December, 2002) (same). 
To the extent that China has also identified comparable cases in 2005, or any additional concluded or 
pending IPR cases that reflect the application of criminal, administrative, and civil remedies during 2001-2004, 
we would also appreciate clarif ication of the details of those cases.  For purposes of this request, please treat any 
such cases as part of "the identified cases." 
2 For criminal cases, please clarify the specific artic le(s) of the Criminal Law that the defendant was 
charged with violating, and whether the defendant was convicted of that charge.  For civil or administrative 
matters, please clarify the infringement( s) found according to the relevant specific provisions of law.  (For 
example, in copyright matters, please refer if possibl e to the specific sub-paragraph(s) of Article 46 the 
Copyright Law, Article 47 the Copyright Law, or both.)   The goal of this request is to understand the 
correspondence, if any, betw een the categories of cases that China has previously identified (for example, the 
category of cases "involving" trademark or copyright infringement) and the relevant provisions of China's law. 
3 Please refer to the following categories as relevant: (a) the amount and value of infringing product 
confiscated and the disposition of  confiscated products (e.g. , amounts destroyed, resold, turned over to the right 
holder, given to charitable organizations etc.); (b) the amount of materials and implements confiscated (e.g. , 
because of their use in the creation of infringing goods) and th e disposition of those materials and implements 
(e.g., amounts destroyed, resold, given to charitable organizations, etc.); (c) the amount of monetary fine, 
restitution, and/or damages imposed; (d) the term of imprisonment imposed; (e) any other remedy imposed (e.g. , 
closure of business, including length of closure; public apologies); (f) the amount of any enhancement of 
remedies imposed on repeat infringers; and (g) any injunction ordering the infringer or others to desist from an 
infringement or related activity, whether imposed under Article 49 of the Copyright Law, Article 57 of the 
Trademark Law, or any other relevant provision of law.   Please also clarify whether the remedy was actually 
imposed or was suspended, reversed, modified, or for other reasons not fully executed. IP/C/W/461 
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 3. Location, Year, and Competent Authority
:  China has sometimes provided information on 
IPR enforcement matters broken down by location,  year, and competent authority.  (Examples 
include the 2004 statistics published by the Na tional Copyright Administration and the annual 
report on China's trademarks by the State Admi nistration for Industry and Commerce.)  We 
find this helpful, and request similar clarif ication for each of the identified cases.  In 
particular, we request the name of the author ities responsible for handling and resolving the 
matter;4 the year in which the matter was comme nced and resolved; and the province, 
municipality, region, or other subdivision in which the matter was handled.5 
 4. Transfer of Cases to Criminal Authorities
:  China has previously informed the TRIPS Council 
of the aggregate numbers of trademark and copy right cases transferred to criminal authorities 
for certain years.  Please provide the deta ils of these and any other identified cases that 
involved transfers to criminal authorities.  In particular, please identify the transferring authority (e.g., Copyright Administration, Ministry of Culture, Administration for Industry and Commerce, customs), the amount of ille gal business volume and illegal gains, and 
whether criminal authorities in fact investigated and prosecuted.
6 
 5. Nationals of Other Members/Countries
:  We note that China has provided some statistics that 
separately identify cases involving foreigners.7  For all of the identified cases where such 
information exists, please clarify whether th e right holders are nationals of other WTO 
Members or other countries, and if possible identify the Member/country.8 
 
6. Product :  We would appreciate clarification of the specific type(s) of product(s) and 
operations (retail/manufacturing/distribution) involved in all of the identified cases where 
such information exists.9 
 
 
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4 Wherever possible, please refer to the specific authority involved (e.g. , the Beijing Municipal People's 
Procuratorate).  For matters resolved by co urts, please refer to the court and division. 
5 If such information exists, please provide, or explain how one can obtain from public records, a list of 
the identified cases for each authority and jurisdiction. 
6 By "details", we also mean to include the various information requested in items 1-3 and 5-6.  In 
particular, please provide information on the offence ch arged and convicted; the scope of operations (retail/ 
manufacturing/distribution); involvement of foreign right ho lders (and if so whose); whether right holders were 
informed of these criminal cases, and penalties imposed (including any civil compensation). 
7 For example, this was true of recently published statistics on administrative copyright infringement 
cases and civil IPR infringement cases. 
8 In matters involving multiple right holders, please clarify the numbers of US, other foreign, and 
domestic right holders, and if possible the amount of infringing product attributable to each. 
9 If copyright and/or related rights are involved, please clarify as far as possible whether the products 
involved were sound recordings, motion pictures, business software, entertainment software, books, journals, 
databases or other types of products, and the number of copies of each involved.  If possible, please identify 
these by nationality of the right holder.  In other matters, please clarify as far as possible the specific type(s) of goods involved in the infringement (e.g. , items of apparel, pharmaceuticals, toys, sporting goods, consumer 
electronic devices, cigarettes).