WORLD TRADE  
ORGANIZATION  IP/C/W/462 
11 November 2005 
 
 (05-5308) 
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 Switzerland  
 
  The following communication addressed to the Delegation of China, dated 25 October 2005, 
is being circulated at the request of the Delegati on of Switzerland.  It was circulated as an advance 
copy for the Council's October 2005 meeting. 
 
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  Switzerland welcomes the strong efforts made by  the government of the People's Republic of 
China to bring its legislation on intellectual prope rty rights and in particular its legislation on 
enforcement of these rights in line with the WTO Ag reement on Trade-Related Aspects of Intellectual 
Property Rights ("TRIPS Agreement").  Switzerla nd took note of the different reports and other 
documents produced and disseminated during the Transitional Review under Section 18 of the 
Protocol on the Accession of the People's Republic of China to the WTO so far and appreciates China's ongoing efforts to inform WTO Members abou t its enforcement of intellectual property rights 
("IPR"). 
  In order to further enhance understanding of  IPR enforcement in the People's Republic of 
China, by clarifying and building upon informa tion that has been provided to WTO Members at 
earlier instances, Switzerland herewith would like to request from the Chinese authorities specific 
additional information regarding Chinese IPR enforcem ent.  This request is based on Articles 63.3 of 
the TRIPS Agreement. 
  Switzerland would like in particular to better understand how th e legal provisions on 
enforcement have been implemented in practice a nd what remedies are usually imposed on infringers 
in such cases.  In addition, clarification of some institutional aspects of the Chinese enforcement 
system is sought.  A list of clarifications requ ested by Switzerland is attached to this letter. 
  Switzerland expects that China would provide its  written responses by end of January 2006.  
If additional time is needed to prov ide the requested information, we i nvite you to contact us so that 
we may reach some understanding.  We look forward to receiving your reply. 
 
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 IP/C/W/462 
Page 2  
 
 Clarifications requested by Switzerland
 
concerning enforcement of intellectual propert y rights in the People's Republic of China  
 
 The Swiss authorities welcome and support the efforts made by the Government of the People's Republic of China in order to adapt the Chinese intellectual property system to international 
standards, particularly to bring it in consistenc y with the WTO Agreement on Trade-Related Aspects 
of Intellectual Property Rights (hereinafter "TRIPS Agreement").  In addition, Switzerland would like 
to thank the Chinese authorities for their efforts to  respond to the issues raised in the Transitional 
Review pursuant to Section 18 of the Protocol on the Accession of the People's Republic of China to the WTO. 
 
 Based on the provision as contained in Article  63.3 of the TRIPS Agreement, we would like 
to ask the Chinese Government for further clarification of the following issues: 
 
Implementation of Legal Provisions 
 How have the Chinese legal provisions of enfo rcement been applied in practice?  Please 
elaborate on the following questions by referring  to examples of the cases reported during the 
Transitional Review pursuant to Section 18 of the Protocol on the Accession of the People's Republic 
of China to the WTO
1 (hereinafter "reported cases"): 
- Indicate the legal basis for findings of intellectual property right infringements.  Which 
provisions have been infringed the most? 
- Explain in which kind of cases administrative law is applied.  What is the role of 
administrative procedures as compared to civil and criminal law procedures? 
- Indicate the average duration of the enforcement procedure. 
- Explain the different procedural steps and how  long they approximately take until a final 
decision is issued. 
- Identify, as far as possible, typical reasons w hy right holders lost their cases (substantive 
and/or procedural reasons). 
Remedies and Provisional Measures 
 It seems that the Chinese authorities have not previously provided comprehensive information 
about remedies (e.g., criminal penalties, civil damag es, injunctions ordering parties to desist from 
infringements) and provisional measures (e.g., to prevent an infringement or preserve relevant 
evidence) that its authorities have imposed in j udicial and administrative cases of  intellectual 
property rights infringement.  Please clarify the precise nature of all remedies and provisional 
measures available to right holders when wanting to  enforce their intellectual property rights against 
infringement as well as the minimal and maximal amount of fines and im prisonment imposed under 
Chinese enforcement practice and refer to examples of the reported cases. 
                                                      
1 WTO Documents: IP/C/34, paras. 6, 52-55, 62 and 75-76 (9 December 2004);  IP/C/31, paras. 49, 54, 
56 (10 December 2003);  IP/Q/CHN/1, section I.C (10 December 2002).  IP/C/W/462 
 Page 3 
 
 
 Institutional aspects 
 Please respond to the following questions in general, while illustrating responses with 
practical examples from the reported cases: 
- What are the stages of appeal in the civil, cr iminal and administrative procedures?  How are 
they organized and structured? 
- Please provide an organizational chart of the Ch inese enforcement authorities (civil, criminal 
and administrative). 
- What is the relationship of the civil, criminal and administrative procedures in the 
enforcement of intellectual property rights?  Can they be initiated by right holders in parallel 
or alternatively only?  Is it possible to initiate  a procedure on another legal basis if a first 
petition or action has been dismissed (e.g., ci vil procedure after criminal procedure was 
without success)? 
- How do the civil, criminal and administrative enforcement bodies on different levels and/or 
competent for different geographic areas collaborate?  Please explain by referring to examples from the reported cases. 
- How do the civil, criminal and administrative enforcement bodies interact/collaborate?  Please 
explain by referring to examples from the reported cases. 
- What is the standing of right holders in the diffe rent stages of appeal in administrative, civil 
and criminal procedures?  Do they have to tr igger the different steps of enforcement on their 
own, or is ex officio action foreseen after the procedure has been initiated? 
- Please explain by what means transparency is  ensured in Chinese enforcement procedures. 
 
 
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