WORLD TRADE  
ORGANIZATION  IP/C/W/463 
14 November 2005 
 
 (05-5318) 
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 Japan
 
   The following communication addressed to the Delegation of China, dated 25 October 2005, 
is being circulated at the request of the Delegation of  Japan.  It was circulated  as an advance copy for 
the Council's October 2005 meeting. 
 
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The Government of Japan recognizes and a ppreciates China’s progress and ongoing efforts 
toward stronger enforcement and great er transparency in the area of the protection of the intellectual 
property right ("IPR") in China.  In the interest  of facilitating further transparency, my authorities 
have instructed me to request clarifications in th e attached list, regarding specific judicial decisions 
and administrative rulings ("cases") of IPR enforcem ent that China has iden tified for the years 2001 
through the first half of 2005 in various public statements, pursuant to Article 63.3 of the WTO 
Agreement on Trade-Related Aspects of Intellect ual Property Rights ("TRIPS Agreement").   
We consider that these cases affect rights of Jap an and other Members under the TRIPS Agreement. 
 The purpose of this request is to further e nhance our understanding of IPR enforcement in 
China.  The requested information in the attached list is consistent with what we asked China to 
provide several times based upon "Field Survey fo r Infringement of Intellectual Property Right in 
China (Final Report)" released by the Ministry of Economy, Trade and Industry in June, 2005.  In the 
event that any of the requested information does not  exist or cannot be provided, we would welcome 
the opportunity to discuss those difficulties and work together to examine alternatives.  In addition, 
for greater convenience, we invite China to cons ider providing clarifications in the form of 
supplemental statistical data covering the requested  information, rather than on a case-by-case basis. 
 
The Government of Japan would like to ha ve China’s written response on or before  
23 January 2006. If additional time is needed, pl ease contact us so that we may reach some 
understanding. We would like to express our wish fo r the continuation of our dialogue for better 
cooperation in this field. We look forward to receiving your reply. 
 
 
_______________ 
 IP/C/W/463 
Page 2  
 
 Clarifications requested by Japan
 
concerning IPR enforcement in specific cases in China  
 We would appreciate clarification of the follo wing 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 Pr operty Rights, 25 Apri l 2005, available at 
http://www.chinaun.ch/eng/bjzl/t193102.htm  (referring to, among others, (a) administrative cases of copyright 
infringement;  (b) administrative cases of trademark infri ngement and counterfeiting;  (c) IPR-related civil cases 
of first instance and criminal cases of first inst ance involving IPR infringem ent; 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 Sec tion 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 the first half of 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 cl arification of the details of those cas es.  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 trademark matters, pleas e refer if possible to the specific sub-paragraph(s) of Article 52 the 
Trademark  Law.)  The goal of this request is to understand the correspondence, if any, between the categories 
of cases that China has previously identified (for exampl e, the category of cases involving trademark, copyright, 
patent or design 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 dispositio n of confiscated products (e.g., amounts de stroyed, resold, turn ed 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 the 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 lengt h 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/463 
 Page 3 
 
 
 3. Location, Year, and Competent Authority :  China has sometimes provided information on 
IPR enforcement matters broken down by location,  year, and competent authority.  (The 2004 
statistics published by the National Copyright  Administration and the 2004 annual report on 
China’s trademarks by the Stat e Administration of Industry and Commerce are one example.)  
We find this helpful, and request similar clar ification 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 administrative authority (e.g., copyright administration, Ministry of Culture, Administration of Industry and Commerce, customs), the amount  of illegal 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 courts, 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 mean the various information requ ested in items 1-3 and 5-6.  In particular, please 
provide information on the offence charged and convicted; the scope of operations (retail/manufacturing/ 
distribution);  the amount of illegal business volume, illegal gains or othe r indicators used for prosecutions; 
involvement of foreign right holders (and if so whose);  whether rights holders were informed of these criminal 
cases, and penalties imposed, including any civil compensation afforded to rights holders. 
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 Japan, 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 the specific type(s) of 
goods involved in the infringement (e.g., sound record ings, motion pictures, business software, entertainment 
software, books, journals, databases or other types of products) and the number of copies of each involved.  In 
other matters, please clarify as far as possible the speci fic type(s) of goods involved in the infringement  
(e.g.,  items of consumer electronic devices, cars, motorcycles, industrial equipment, apparel, sporting goods, 
toys, pharmaceuticals,  cigarettes). If possible, pleas e identify these by nationality of the right holder.