WORLD TRADE
ORGANIZATIONIP/C/W/374
10 September 2002
(02-4736)
Council for Trade-Related Aspects
of Intellectual Property RightsOriginal:   English
REVIEW OF LEGISLATION
Responses from China to the questions posed by Australia, the European Communities and their
member States, Japan and the United States
By means of a communication from the Permanent Mission of the People's Republic of
China, dated 23 August 2002, the Secretariat has received the following responses to questions posed
by Australia, the European Communities and their member States, Japan and the United States, as
circulated in documents IP/C/W/364, 361, 362, and 365 respectively.
_______________
AUSTRALIA
A. TRADEMARKS AND GEOGRAPHICAL INDICATIONS
1. What legislation does China have in place to implement protection of geographical
indications as required by Articles 22 and 23 of the TRIPS Agreement?
The legislation in China implementing the protection of geographical indications as required
by Articles 22 and 23 of the TRIPS Agreement is the Trademark Law of the People's Republic of
China.  In addition, Anti-Unfair Competition Law of the People's Republic of China also contains
provisions protecting geographical indications.
2. How are geographical indications defined under the relevant legislation?
There is a definition of geographical indications in Article 16 of the Trademark Law.  It reads:
geographical indications mentioned in the preceding paragraph are indications which identify a good
as originating in a region, where a given quality, reputation or other characteristic of the goods isessentially attributable to its natural or human factors.
3. Does China provide protection for geographical indications from other countries?
Yes, China does provide protection for geographical indications from other countries.
4. How many geographical indications are cu rrently recognised by China, and how many
proposed geographical indications are curren tly being considered for recognition by China?
There are 57 geographical indications currently recognized in the form of geographical origin
certification marks under the Trademark Law and its Implementing Regulations.  Another 43
applications are under examination.  Since whether a geographical indication shall be protected or notis determined only after examination, it can not be determined in advance how many should be
protected.IP/C/W/374
Page 2
5. Does China's legislation provide a mechanis m to adjudicate between competing claims
for recognition of a particular geographical indication?
The trademark opposition, cancellation, review and adjudication procedure and judicial
procedure can be used to adjudicate between competing claims for recognition of a particulargeographical indication.
6. How does China's trademark legislation de fine a trademark?  Are letters, numbers,
shapes and colors eligible for registration as tr ademarks, as required by Article 15 of the TRIPS
Agreement?
Article 8 of the Trademark Law defines a trademark as follows:  any visual sign capable of
distinguishing the goods or services of one natural person, legal person or any other organization fromthose of others, including words, devices, letters,  numeral, three-dimensional symbols, combinations
of colors or the combination of the said elements may be applied for the registration of a trademark.
Therefore, letters, numbers, shapes and colors, as required by Article 15 of the TRIPS Agreement, are
eligible for registration as trademarks in China.
7. How does China meet the obligations of Article 21 of the TRIPS agreement concerning
the licensing and assignment of trademarks?
Article 39 and 40 of the Trademark Law provide the licensing and assignment of trademarks.
These Articles are in full compliance with Article 21 of the TRIPS Agreement.
B. C
OPYRIGHT
8. How does China meet the obligations of Ar ticle 14 of the TRIPS Agreement concerning
the protection of performers, producers of phonograms and broadcasting organizations?
China meets the obligations of Article 14 of the TRIPS Agreement concerning related rights
through Articles 10.1(11), 37.1, 41.1 and 44.1 of its Copyright Law.
9. What procedures are available to a person seeking to enforce his or her copyright?
(a) What remedies are available to a person whose copyright has been infringed?
(b) If awards of damages are available, how are the amounts of damages assessed?
(c) If monetary fines are imposed on copyrigh t infringers, how is the amount of the
fine assessed?
In China, civil, administrative and criminal procedures are all available to any person seeking
to enforce his or her copyright.
(a) A person whose copyright is infringed may institute proceedings in a people's court to
require the infringer to cease the infringing act, eliminate the effects of the act, make
an apology and pay compensation for damages.  He or she may also request the
copyright administration department to se ttle the dispute by mediation.  Where an
infringing act also prejudices the public interests, the copyright administration
department may, at the request of the copyright owner or in the light of its authority,order the infringing act to be ceased, confiscate unlawful income, confiscate or
destroy the infringing copies, and impose a fine.  In case of serious circumstance, the
copyright administration department may also confiscate the material, tools andIP/C/W/374
Page 3
instrument mainly used to produce infringing copies.  If the infringing act constitutes
a crime as provided for in Article 217 or 218 of the Criminal Law of the People's
Republic of China, criminal liability will be imposed on the infringer either through
private prosecution or public prosecution by the prosecutor.  In addition, when
infringing copies are imported or exported, the copyright owner may, according to theRegulations on the Customs Protection of Intellectual Property, request the Customs
to prevent the infringing copies from being imported or exported.
(b) According to Article 48 of the Copyright Law of the People's Republic of China, an
infringer has to pay compensation for damage s pursuant to the actual loss of the right
owner or to the unlawful income of the in fringer.  The compensation is supposed to
include the reasonable expenses that the right owner has paid for preventing the
infringement.  Where the actual loss of the right owner or the unlawful income of theinfringer can not be determined, the people's court may decide a compensation not
more than 500,000 yuan in RMB.
(c) Article 36 of the revised Implementing Regulations of the Copyright Law provides:
"[w]here anyone commits any infringing act as mentioned in Article 47 of the
Copyright Law and the act constitutes a prejudice of the public interests, thecopyright administration authorities may impose a fine of three times as much as the
amount of illegal business value.  In case of difficulty in calculating the amount of
illegal business value, the copyright administration department may impose a fine not
more than 100,000 yuan in RMB." Copyright administration authorities will
determine the amount of a fine depending on the infringement circumstances, such asthe fault of the infringer, length of infringing duration, extent of infringing act, etc.
C. B
IOTECHNOLOGY
10. What intellectual property protection is available for biotechnology inventions?  Does
the People's Republic of China exclude from patent ability any of the items listed in Article 27(3)
of the TRIPS Agreement?
According to the Patent Law of the People's Republic of China, except for subject matters
which are referred to in Article 25 of the Patent Law of the People's Republic of China (for example,
animal and plant varieties, but not including processes used in producing animal and plant varieties,
and the methods for the diagnosis or for the treatment of diseases etc.), other inventions, including
biotechnology invention of all kinds, are all eligible for applying for patents, so long as they possess
novelty, inventiveness and practical applicability, and meet other requirements prescribed by the
Patent Law of the People's Republic of China.
It should also be noted that, new plant varieties can be protected under Regulations on the
Protection of New Varieties of Plants, which entered into force on 1 October 1997.IP/C/W/374
Page 4
EUROPEAN COMMUNITIES AND THEIR MEMBER STATES
A. GENERAL PROVISIONS
1. Please state precisely when the relevant laws , regulations and measures relating to the
implementation of the TRIPS Agreement would be notified to the WTO and thus be made
available to all Members.  The present analysis is  based on unofficial translations of laws and
regulations, or in some cases mere draft versions of them.
To implement the TRIPS Agreement, we ha ve already completed the enactment and
amendment of IPR-related laws and regulations.  Relevant laws, regulations and measures in China
relating to the implementation of the TRIPS Agreement have been notified to WTO in July, with
which China's obligation on notification under Article 63.2 of the TRIPS Agreement is fulfilled.
2. Please confirm that Chinese IPR laws trea t all foreigners in accordance with the
principle of national treatment as set forth in Article 3 of the TRIPS Agreement.  More
precisely, please confirm that copyright en forcement actions by local copyright bureaux
involving foreign right-holders no longer re quire clearance by the National Copyright
Administration in Beijing.
The revised Implementing Regulations of the Copyright Law of the People's Republic of
China has deleted the provision which designated the copyright administration department under the
State Council (the National Copyright Administration of China) to investigate and deal with
infringing acts involving foreign right owners taking place in the territory of China.  After the revised
Implementing Regulations enters into force, all local copyright administration departments may
investigate and deal with all infringing acts (including those involving foreign right owners) taking
place in its own administrative area, without the n ecessity of requiring clearance by the copyright
administration department under the State Council.
3. Please state whether your IP legislation includes measures to protect public health and
nutrition, and to promote the public interest in sectors of vital importance to your socio-
economic and technological development as mentioned under Article 8 of the TRIPS
Agreement.  If yes, please describe these measures and explain how such measures are
consistent with the provisions of the TRIPS Agreement.
The Patent Law, the Trademark Law, the Copyright Law and their Implementing Rules (or
Implementing Regulations) contain relevant provisions to protect public health and nutrition, and topromote the public interest in sectors of vital importance to socio-economic and technological
development.  All these provisions are in compliance with the TRIPS Agreement.
Article 5 of the Patent Law stipulates that "No patent right shall be granted for any invention-
creation that is contrary to the laws of the State or social morality or that is detrimental to publicinterests." Article 49 of the Patent Law clarified a compulsory licence where the public interest so
requires.  Article 9 of the Implementing Rules of the Patent Law gave a definition to the meaning of
"the invention-creation that is contrary to the laws of the state." Article 72 of the Implementing Rules
of the Patent Law defined the conditions for granting a compulsory licence.  These provisions are all
in compliance with Article 27 and Article 31 of the TRIPS Agreement.
Article 6 of the Trademark Law provided for the mandatory registration of a trademark.
Article 4 of the Implementing Regulations of the Tr ademark Law defined "the goods that must bear a
registered trademark" as "the goods that must bear a registered trademark according to the State laws
and regulations."  These provisions meet the requirements of the TRIPS Agreement.IP/C/W/374
Page 5
Items (3), (4), (5), (6), (7), (8 ), (9), (11) and (12) of paragraph 1 of Article 22 of the Copyright
Law stipulated fair use of a work for the public interests.  Article 23, paragraph 2 of Article 42 and
Article 43 stipulated statutory licence to use works or phonogram.  These provisions meet the
requirement of Article 13 of the TRIPS Agreement.
4. China is a signatory to many internationa l intellectual property agreements.  Please
state whether the Chinese Government also intends to join the WIPO Copyright Treaty (WCT)
and the WIPO Performances and Phonograms Treaty (WPPT).
Relevant Chinese authorities are presently studying the content of the above-mentioned two
treaties.
B. COPYRIGHT AND RELATED RIGHTS
5. Please state how your legislation grants the retroactive protection provided pursuant to
Article 18 of the Berne Convention (the obligation of which derives from Article 9 of the TRIPS
Agreement) and Article 14.6 of the TRIPS Agreement.
Article 59 of the revised Copyright Law of the People's Republic of China provides that "The
rights of copyright owners, publishers, performers, producers of sound recordings and videorecordings, radio stations and television stations as provided for in this Law, of which the term of
protection specified in this law has not yet expired on the date of this Law's entry into force, shall be
protected in accordance with this Law."  This provision is consistent with Article 18 of the Berne
Convention and with Article 14.6 of the TRIPS Agreement.
6. Please state where your legislation provides exceptions and limitations to copyright and
related rights, how these exceptions and limita tions comply with the "three-step" test in
Article 9.2 of the Berne Convention and with Article 13 of the TRIPS Agreement.
Articles 22, 23, 32.2, 39.3, 42.2 and 43 of the revised Copyright Law provide for exceptions
and limitations to copyright and related rights respectively.  Article 21 of the revised ImplementingRegulations of the Copyright Law also provides that "The use in accordance with the Copyright Law
of a published work without permission from copyright owners shall not conflict with a normal
exploitation of the work and shall not unreasonably prejudice the legitimate interests of the copyright
owner."
All of the above-mentioned provisions concerning exceptions and limitations are consistent
with Article 9.2 of the Berne Convention and with Article 13 of the TRIPS Agreement.
7. Article 47 of the revised Chinese Copyri ght Law (which came into effect as of
27 October 2001, hereafter "new Copyright Law") states that if an infringement constitutes a
criminal offence, criminal liability shall be pursu ed according to the Crim inal Law.  Does this
mean that infringement will be prosecuted at the initiative of the public prosecutor, or does thecopyright holder have to file an application?
Where an infringing act constitutes a crime provided for in Article 217 or 218 of the Criminal
Law of the People's Republic of China, the prosecutor may institute a public prosecution pursuant to
law, without the necessity of application by the copyright owner.
8. Since the Criminal Law of China only contains two Articles that relate to criminal
penalties for copyright offenders, these Articles cannot cover all kinds of criminal copyright
offences listed in Article 47 of the new Copy right Law.  Under which circumstances will an
infringement be considered a criminal offen ce?  Does the Government of China intend to
modify its Criminal Law in order to define more specifically criminal copyright offences?IP/C/W/374
Page 6
The provisions "Where the act constitutes a crime, the person who commits the act shall be
imposed upon criminal liability in accordance with the law" of Article 47 of the Copyright Law mean
that the criminal liability shall be investigated ac cording to the Criminal Law instead of the Copyright
Law.  Anyone who commits an infringing act provided for in Article 47 of the Copyright Law is
subject to civil liabilities.  He or she may also be investigated and punished by the copyrightadministration department if the infringing act also prejudices the public interests.  Moreover, he or
she will be invoked criminal liabilities if the act constitutes a crime.  As to the circumstances under
which an infringement will be considered a criminal offence, please refer to the answer to question 2
of Enforcement from Japan.
According to the Constitution of the People's Republic of China, the Criminal Law can only
be enacted or amended by the National People's Cong ress (NPC).  Consequently, it is a matter of the
NPC to determine whether the Criminal Law should be amended pursuant to concrete conditions of
the social life.
9. Under the new Copyright Law, copyright owners may apply to the People's Court for
preliminary injunctions and property preservatio n.  The procedure foresees that the right
holder should prove his ownership.  How should proof of such ownership be provided? How is
Article 15.1 of the Berne Co nvention complied with?
Article 49 of the Copyright Law provides that "[a] copyright owner or an owner of right
related to copyright who can present evidence to prove that another is committing, or is about to
commit, an infringement which, if not being prevented promptly, is likely to cause irreparable harm tohim, may, before instituting proceedings, apply to a people's court for an order of desisting the
relevant act and for measures of property preservation."
A people's court which deals with the application provided for in the preceding paragraph
shall apply the provisions in Articles 93 to 96 and Article 99 of the Civil Procedure Law of thePeople's Republic of China.
Article 11.4 of the Copyright Law also provides that "[t]he citizen, legal entity or other body
whose name is mentioned in connection with a work shall, in the absence of proof to the contrary, be
deemed to be the author of the work."
According to the above-mentioned provisions, if there is no proof to the contrary, the name of
a right owner that is mentioned in connection with a work may prove his ownership in applying to the
people's court for preliminary injunctions and property preservation.
The above-mentioned provisions are in compliance with Article 15.1 of the Berne Convention
and the TRIPS Agreement.
10. In conformity with Article 45.2 of the TRIPS Agreement, Article 48 of the new
Copyright Law provides for the possibility of applying "Statutory damages".  The upper limit
set in the new Copyright Law is 500,000 RMB.  Which are the criteria that are applied to
determine the amount of the compensation (i.e. whether it is 500,000 RMB or less)?  Pleasespecify whether the ceiling set for statutory damage s is per lawsuit or per piece of the infringed
copyright work.
In accordance with Article 48 of the Copyright Law, an infringer has to pay compensation for
damages pursuant to the actual loss of the right owner or to the unlawful income of the infringer.  The
compensation is supposed to include the reasonable expenses that the right owner has paid forpreventing the infringement.  Where the actual loss of the right owner or the unlawful income of the
infringer can not be determined, the people's court may decide on a compensation not more than
500,000 yuan in RMB.  As for the specific amount of the compensation in respect of each case, theIP/C/W/374
Page 7
people's court will decide within the limit provided for in the Law (not more than 500,000 yuan in
RMB), depending on the infringement circumstances, such as fault of the infringer, length of
infringing duration, extent of infringing act, etc.
Generally speaking, the maximum of 500,000 yuan in RMB is in respect of per lawsuit.
11. Please explain how your legislation deals with copyright piracy and, in particular, with
material made available, without authorizat ion of the right owner, over the Internet.
Chapter V of the Copyright Law specifically provides for "legal liability and enforcement
measures", which contains Articles 46 to 52 concerning legal liability and enforcement measures on
copyright infringement.  In case of infringing copies being imported or exported, the copyright owner
may request the customs to prevent the infringing copies from importing or exporting according to the
Regulations on the Customs Protection of Intellectual Property Rights.  In case where the infringing
act constitutes a crime as provided for in Article 217 or 218 of the Criminal Law of the People's
Republic of China, the private prosecution by the copyright owner or the public prosecution by theprosecutor may lead to imposition of criminal liability on the infringer.
In accordance with the provisions of Article 10.1(12) of the Copyright Law, a work may not
be communicated to the public over the Internet without the permission of the copyright owner.
Article 47 of the Copyright Law is also applicable to the communication of works to the publicthrough information network without the permission of the copyright owners.  Furthermore, the State
Council will consider to establishing regulations on the protection of the right of communication
through information network in respect to specific copyright matters.
C. T
RADEMARKS
12. Please explain whether or not your tradem ark registration authority will refuse a
trademark application if it contains a geographical indication.  Please explain how the new
Trademark Law of the People's Republic of China (hereafter "new Trademark Law"), which
took effect on 1 December 2001, implements Article 23.2 of the TRIPS Agreement.
Under the new Trademark Law, Article 16 and 28 provide that the Trademark Office, i.e.  the
trademark registration authority in China, shall, ex officio, refuse a trademark application if it contains
a geographical indication.  The requirement in paragraph 2 of Article 23 of the TRIPS Agreement has
been fully met in Chinese trademark legislation in that the Law permits both the Trademark Office to
act ex officio and the interested parties to request the Trademark Office to act under Article 30 or 41.
13. Article 13 of the new Trademark Law provides protection to a well-known mark even if
it is not registered in China.  Please explain wh ether, in order to benefit from protection under
the Law, a well-known mark has to be used in the People's Republic of China or simply known
in that territory.  Article 14 of the new Tradem ark Law mentions that, in order to determine a
well-known mark, duration of use should be taken into consideration.  Does this refer to use
outside the Chinese borders as well?
The protection of a well-known trademark in China does not necessarily require the mark be
actually used in China.  A mark may enjoy the protection of a well-known mark under the Law only if
it is well known by the public in the territory of China.  Article 14 of the new Trademark Law
provides that when determining a well-known trademark, the duration of the use of the mark shall be
taken into consideration, which includes use outside of the Chinese territory.
14. The new Trademark Law does not seem to accommodate Article 6 bis(1) of the Paris
Convention, which extends protection of well-known trademarks to cases in which only "anIP/C/W/374
Page 8
essential part of the mark constitutes a repro duction of any such well-known mark or an
imitation liable to create confusion therewith".  Please clarify.
No, the provision in Article 14 of the new Trademark Law is not, in terms of verbal
expression, exactly identical with Article 6 bis of the Paris Convention.  But this doesn't prevent the
completely identical degree of protections of the two articles.
15. The new Trademark Law gives the parties an opportunity for judicial review of final
administrative decisions.  What kind of chamber will handle such cases? China has created
specific IPR courts with specialized judges.  Sin ce the issues involved in decisions taken by the
Trademark Review and Adjudication Board are very technical, even if they are administrative
decisions, such decisions should be reviewed by  a judicial body specialized in Intellectual
Property matters.
Please refer to question 38 and the answer to question 24 from the US.
16. The new Law does not appear to cover "offer for sale".  The expression "in the course
of trade" (Article 16 of the TRIPS Agreement) is generally agreed to cover "offer for sale".
Please clarify.  Contrary to the Trademark Law, the Chinese Patent Law does incorporate in its
Article 11 "offers for sale".
No, there is no provision on "offer for sale" in the Trademark Law as in the Patent Law.  This
is because the act of "offer for sale" can be curbed under relevant provisions of the Trademark Law
and its Implementing Rules.  To "offer for sale", a party must have illegally used other party's
trademark in the process of trade, (even if he does not use the mark directly on the goods), which willconstitute an infringement as provided for in Article 52 of the Trademark Law and shall be punished
accordingly.
17. Please explain whether the new Trademark Law provides protection for sound marks
and for olfactory (smell) marks as Article 15.1 of the TRIPS Agreement appears to permit.  Canthe applicant, in rela tion to a sign which is not inherently distinctive, invoke acquired
distinctiveness through use (second to last recital Article 15.1 of the TRIPS Agreement)?
The new Trademark Law doesn't protect sound marks or smell marks, which is consistent
with paragraph 1 of Article 15 of the TRIPS Agreement.  If a sign is not inherently distinctive but has
acquired distinctiveness through use, it can also be registered under Article 11 of the Trademark Law.
18. Please explain how Article 22.1 of the new Trademark Law is compatible with
Article 19.2 of the TRIPS Agreement.  Will use of a trademark by a person other than the
owner of the trademark only be recognized as "use" in the sense of Article 19.2 of the TRIPS
Agreement when the latter gave a right of exploitation under a licensing contract?
It is impossible to explain how Article 22.1 of the new Trademark Law is compatible with
Article 19.2 of the TRIPS Agreement, simply because the two Articles don't match with each other,dealing with different issues.  Regarding the second part of the question, the use of a mark by another
party authorized by the registrant of the mark shall be deemed as the use of the mark by the registrant.
19. Article 41 of the new Trademark Law provides that, on request, the registration may be
cancelled after an uninterrupted period of at least five years of non-use.  Please explain whetherresumption of use after a period of more then five years of non-use, may lead to a revival of the
exclusive rights.
This question is not accurate.  The provision on cancellation of the registration of a mark due
to its non-use for 3 (not 5) consecutive years lies in Article 44, while Article 41 provides theIP/C/W/374
Page 9
adjudication on disputes.  If the owner of a registered trademark has begun to resume the use of the
mark the day before another party files an application for cancellation of 3-year non-use, the
registration shall be maintained.
20. Article 30 of the new Trademark Law provides for a term of 3 months to file an
opposition.  Article 17 of the implementing regula tions ("IR") specifies that the time to file a
reply to an opposition is only 30 days from recei pt of the notification of opposition.  Experience
shows that such a period is extremely short, es pecially when the applicant is a foreign company
and even more when the application was filed through WIPO (International Registrations).
Would the Chinese Government, at least in ca ses where the applicant is a foreign company,
consider prolonging this term to a minimum of two months?
The new Implementing Regulations still provides that the time to file a reply to an opposition
is 30 days.  However, it further specifies that after filing an opposition or a reply to an opposition with
the Trademark Office, where any interested party needs to supplement any relevant evidence, he or
she shall file the documents within 3 months from the date of filing the opposition or the reply.
21. Article 31 of the IR provides that once th e trade mark is registered the use of the
symbol ® or its Chinese equivalent on the goods or  packaging.  This is somewhat unusual as it is
normally up to the owner to decide whether to use the registration symbol or not.
The provision on the use of registration symbols in the new Implementing Regulations is not
compulsory but rather optional.  The term used is "may" instead of "shall".
D. GEOGRAPHICAL INDICATIONS
22. While there is a Chinese law establishing a specific system of GI protection, it appears
that GIs in China can also be indirectly pr otected via registration as a Collective or
Certification mark.  China, however, needs to  provide adequate protection to geographical
indications in conformity with Section 3 of the TRIPS Agreement.  It is important that China
defines the scope of protection for GIs and that it provides proper protection through a uniform
registration procedure.
In China, at the level of law adopted by the People's Congress and the regulations
promulgated by the State Council, geographical indications (GIs) are protected mainly under the
Trade Mark Law and the Anti-Unfair Competition Law.  There are explicit provisions in the
Trademark Law that GIs will be protected as collective marks and certification marks.  In addition,
GIs can also seek protection under Anti-unfair Competition Law.  With the provisions in these lawsand regulations, China is able to provide adequate protection to GIs in conformity with Section 3 of
the TRIPS Agreement.
23. Please give the definition of a geographical indication in Chinese legislation.
The definition under Article 16 of the Tradem ark Law reads "[t]he geographical indication
mentioned in the preceding paragraph means indications which identify a good as originating in a
region, where a given quality, reputation or other characteristic of the goods is essentially attributable
to its natural or human factors".
24. Please describe and explain the provisions in Chinese legislation establishing a link, if
any, between the characteristics of an indication and its geographical origin.
It can be seen from the above mentioned definition of a geographical indication under
Article 16 of the Trademark Law that there must be some close relationship between a geographicalIP/C/W/374
Page 10
indication and the geographical origin it indicates on the good, including natural or human factors.
Otherwise, the sign shall not be regarded as a geographical indication.
25. Please describe how additional protection is granted by Chinese legislation to wines and
spirits.  Please mention other types of products, if any, which might be covered by suchadditional protection.
Articles 3, 28 and 52 of the Trademark Law can provide protection for wines and spirits as
required in Article 23 of the TRIPS Agreement.
26. Please explain what use has been made in China of the exceptions under Article 24 of
the TRIPS Agreement?  Please provide examples of the use of the exceptions by courts, or lists
of names considered as generic in your jurisdiction.
Paragraph 2 of Article 10 and Article 16 of the Trademark Law are related to the exceptions
provided in Article 24 of the TRIPS Agreement.
27. Please explain how foreign geographical indications enjoy the protection prescribed by
Articles 22 and 23 of the TRIPS Agreement.  We understand that the State Administration forQuality Supervision and Inspection and Quarantine (AQSIQ) is responsible for the registration
and protection of geographical indications in China.  Can you please provide us with an
overview of all the geographical indications that are currently protected in China?
Regulations on the Registration and Administration of Collective and Certification Marks was
issued in 1994 by the State Administration for Industry and Commerce and geographical indicationshave been protected under the system of certification marks thereafter.  The principle that
geographical indications are protected in China under the system of collective and certification marks
is further stated in the new Trademark Law, revised on 1 December 2001, and its Implementing
Regulations.  Therefore, owners of foreign geographical indications may enjoy the protection
provided in Article 22 and 23 of the TRIPS Agreement under the Trademark Law and itsImplementing Regulations.  To date, there are 57 registered geographical indications as certification
marks, including 3 foreign ones.
E. I
NDUSTRIAL DESIGNS
28. Has the protection of textile designs been incorporated in the industrial design
provisions of China's Patent Law?  Apparently, textile designs could only be protected, under
China's provisions on the implementation of th e WIPO Copyright Treaty, as works of applied
article.
It is mentioned in this question that textile designs could only be protected, under China's
provisions on the implementation of the WIPO Copyright Treaty, as works of applied article
However, China hasn't acceded to the WIPO Copyright Treaty.  Therefore there is not yet a legislation
on the implementation of the WIPO Copyright Treaty in China with which textile designs can beprotected as works of applied article
According to the definitions prescribed in th e Patent Law of the People's Republic of China
and its Implementing Regulations, textile designs can be protected under the patent system.  In fact,
there are already a lot of textile designs being granted patent right in China.
F. P
ATENTS
29. Please explain how Article 5 of China's Patent Law complies with Article 27.2 of the
TRIPS Agreement.  Article 5 of China's Patent Law stipulates that inventions that violate lawsIP/C/W/374
Page 11
of China or social morality or prejudice public interest would not be entitled to patent
protection.  How does this match with the wording used in Article 27.2 of the TRIPS
Agreement, which specifies that Members may exclude from patentability inventions, the
prevention within their territory of the commerci al exploitation of which is necessary to protect
order public or morality, including to protect human, animal or plant life or health or to avoidserious prejudice to the environment, provided th at such exclusion is not made merely because
the exploitation is prohibited by  their law? Please also explain how the scope of Article 9 of the
Implementing Regulation matches with the terms used under Article 27.2 of the TRIPS
Agreement.
Please refer to the answer to question 6 of patent from Japan.
30. Article 49 of China's Patent Law stipulates that compulsory licences may be granted
exceptionally without the requirement that efforts were made to obtain authorization from the
right holder.  Please explain how this is comp atible with Article 31(b) of the TRIPS Agreement
where the obligation that efforts must be made to obtain authorization from the right holder
prior to the granting of a compulsory licence can only be waived by a Member in the case of a
national emergency or other circumstances of extreme urgency or in cases of public non-commercial use.
Article 31(b) of the TRIPS Agreement prescribes that efforts should be made to obtain
authorization from the right holder prior to the gr anting of a compulsory licence.  The same paragraph
of the Article also clearly prescribes that these requirements may be waived by a Member in case of a
national emergency or other circumstances of extreme urgency or in cases of public non-commercialuse.  Article 48 of the Patent Law provides exactly the same.
According to Article 49 of the Patent Law of the People's Republic of China, where national
emergency or any extraordinary state of affairs occurs, or where public interest so requires, the patent
administration department under the State Council may grant a compulsory licence.  These are the so-called exceptional cases, provided by Article 31(b) of the TRIPS Agreement, in which the obligation
to obtain authorization from the right holder prior to the grant of a compulsory licence can be waived.
In other cases, under Article 48 and Article 52 of the Patent Law, efforts have to be made to obtain
authorization from the right holder before granting a compulsory licence.  We believe that the
provisions of Article 49 of the Patent Law are in full conformity with Article 31(b) of the TRIPS
Agreement.
31. Article 31(f) of the TRIPS Agreement stipulates that "use under a compulsory licence
shall be authorized predominantly for the supply of the domestic market ".  Please describe how the
Chinese Patent Law complies with this Article.
According to Paragraph 4 of Rule 72 of the Implementing Regulations of the Patent Law of
the People's Republic of China, the decision of the patent administration department under the StateCouncil granting a compulsory licence for exploitation shall limit the exploitation of the compulsory
licence to be predominately for the supply of the domestic market.  This provision of the Patent Law
fully complies with Article 31(f) of the TRIPS Agreement.
32. Please describe how the Chinese Patent Law complies with Article 4(d) of the Paris
Convention which states that wh en legalized documents need to be submitted, a reasonable term
should be granted.  Chinese Patent Law requires that when Paris Convention Priority is
claimed the applicant has to submit the legaliz ed documents at the moment the Priority is
claimed (Article 34 Implementing Regulation).
It seems that there is some misunderstanding on this issue.  According to the question put to
us, the Patent Law (Rule 34 of the Implementing Regulations) requires that when priority right underIP/C/W/374
Page 12
the Paris Convention is claimed, the applicant has to submit the legalized documents at the moment
when the priority is claimed.  However, the fact is that it is clearly provided in Article 30 of the Patent
Law that any applicant who claims the right of priority shall make a written declaration when the
application is filed, and submit, within three months, a copy of the patent application document which
was first filed.  Therefore, Rule 34 of the Implementing Regulations does not mean that legalizeddocuments should be submitted at the moment when the priority is claimed.  It prescribes that where
an application is filed or the right of foreign priority is claimed by an applicant having no domicile or
business office in China, the patent administration department under the State Council may, when it
deems necessary, require the applicant to submit the documents such as a certificate concerning the
nationality of the applicant.
Here, we would also like to quote the relevant provisions in the Paris Convention.
Article 4(d)(1) of the Paris Convention provides that each country shall determine the latest date on
which declaration of priority must be made.  Article 4(d)(3) of the Paris Convention prescribes that
the countries of the Union may require any person making a declaration of priority to produce a copy
of the application at any time within three months of the filing of the subsequent application.
Article 4(d)(5) of the Paris Convention prescribes that countries may require further proof after thedeclaration of priority.
Therefore it is obvious that the provisions in the Patent Law of the People's Republic of China
and its Implementing Regulations on matters relating to right of priority complies fully with the Paris
Convention.
G. P
LANT VARIETY PROTECTION
33. In March 1997, the Chinese Government promulgated the Regulation on the Protection
of New Plant Varieties ( sui generis  system as provided for by Article 27.3 of the TRIPS
Agreement).  Please describe how the protection of plant varieties is regulated by thisRegulation.  Please provide an English version of the text of the Regulation.
According to the Regulations on Protection of New Varieties of Plants, plant varieties are
protected through granting of variety rights.  The Regulations contain clear provisions regarding
content of the variety right, conditions for granting such right, the examination and approval
procedures thereof, transference and termination of variety right, and penalties.
English version of the Regulations has been notified to the TRIPS Council.
H. L
AYOUT -DESIGNS OF INTEGRATED CIRCUITS
34. Please describe how Chinese legislation complies with Articles 36-38 of the TRIPS
Agreement.  Please provide an English version of the text of the Regulati on on the Protection of
Layout-Designs of Integrated Circuits which became effective in October 2001.
"The Regulations on the Protection of Layout-Designs of Integrated Circuits" was
promulgated on 2 April 2001, and came into effect on 1 October 2001.  The provisions in the
Regulations are in full conformity with Articles  36-38 of the TRIPS Agreement.  Text of the
Regulations, together with the English translation, has been notified to the TRIPS Council.
I. PROTECTION OF UNDISCLOSED INFORMATION
35. Please explain how Chinese legislation defines undisclosed information.  Please explain
how Article 39.3 of the TRIPS Agreement has been implemented in the legislation.IP/C/W/374
Page 13
Currently, the concept of "undisclosed information" is difficult to define not only in China.  In
general, protection of undisclosed data of Article 39.3 of the TRIPS Agreement may include two
steps.  First, before the approval of marketing authorization, all undisclosed data submitted to the drug
administration authorities in China shall not be disclosed.  Second, after the approval of marketing
authorization of a pharmaceutical product utilizing ne w chemical entities, all undisclosed data shall
not be disclosed, except for the product specifications for quality control and the insert sheet for
patients and doctors.  For more details, please refer to Article 35 of the Implementation Provisions of
the Drug Administration Law of the People's Republic of China.
36. Please explain whether or not Chinese legislat ion grants a defined period of time for the
protection of undisclosed information.  If so, please specify it.
Please refer to the reply to question 37.
37. Please explain how China intends to protect undisclosed test data and other data
submitted to Chinese authorities to obtain marketing approval for pharmaceuticals against
unfair commercial use and disclosure.
According to Article 35 of the Implementation Provisions of the Drug Administration Law of
the People's Republic of China, the government shall provide protection to the undisclosed test and
other data, which was gathered and submitted by the manufacturer or distributor as required in
support of applications for marketing approval of pharmaceutical products which utilized new
chemical entities, against unfair commercial use.  Within 6 years from the date on which a
manufacturer or distributor was granted marketing approval of a pharmaceutical product utilized new
chemical entities, if any second applicant applies for market authorization using the said undisclosed
data without the permission of the prior applicant, the competent authority for drug administration
shall not grant the market authorization, except for that the second applicant submits his own data.
The competent authority for drug administration shall not disclose the said data, except where (a) the
disclosure of such data was necessary to protect the public, or (b) steps were taken to ensure that thedata are protected against unfair commercial use.
J. E
NFORCEMENT
38. The new Trademark Law gives the parties an opportunity for judicial review of final
administrative decisions.  This is in confor mity with Article 41.4 of the TRIPS Agreement.
Please indicate whether decisions taken by the Trademark Review and Adjudication Board will
also be open for judicial review by the specialized IPR courts.
Please refer to the answer to question 24 from the US.
39. Please describe how your legislation authorizes judges to order production of evidence
by the opposing party.  Please give precise information on what measures are taken to ensure
the protection of confidential information.
Relevant laws in China have following stipulations regarding obtaining evidence from
defendant:
1. Defendant is clearly required to submit evidence, i.e., reversed burden of proof on
defendant.  For example, in a patent infringement case, if the subject patent claims amethod, the alleged infringer has the burden of proof to provide evidence of the
method it used.  Under the circumstance of reversed burden of proof, if the obliged
party does not fulfill its obligation, he or she will bear the consequences, such as
losing the lawsuit.IP/C/W/374
Page 14
2. It is stipulated in relevant laws in China that any party of a lawsuit may request
preservation of evidence during litigation.  The people's courts may also impose the
preservation of evidence on its discretion.  The Patent Law, the Trademark Law, the
Copyright Law and relevant judicial interpretations also established provisional
measures of preservation of evidence before filing a lawsuit.  This is one of themeasures to obtain evidence that are under the control of the defendant.  (Please also
refer to the reply to questions 6 and 7 from Switzerland).
3. Article 65 of the Civil Procedure Law of the People's Republic of China stipulates
that the people's courts have the authority  to investigate and collect evidence from the
relevant organizations or individuals.  In the judicial interpretation of "Provisions
Regarding Evidences in Civil Litigation," the Supreme People's Court has orderedthat the involved party may request the people's court to obtain evidence if the
litigation involving national secrecy, trade secrets, or personal privacy.  The people's
courts have the discretion to order the involved parties to surrender the evidence, or
initiate an investigation on and obtain evidence from the involved parties.
As to the confidential information, according to Article 120 of the Civil Procedure Law, cases
involving business secrets shall not be tried publicly if the party involved so requires.  Article 48 of
the "Provisions Regarding Evidences in Civil Litigatio n" stipulated that for the evidence that involves
national secrecy, trade secret, personal privacy, or other information that shall be kept confidential
under relevant laws, these evidences shall not be examined in public trial.  If some part of the contentof the evidence is irrelevant to the subject lawsuit, the involved party may request the people's court
conducting evidence examination only on the relevant part of the content of the evidence and not the
irrelevant part thereof.
40. Please quote provisions of your legislation that authorize judges to order a defendant to
desist from an infringement.
Please refer to the answer to questions 6 and 7 from Switzerland.
41. Please quote what provisions of your legislation authorize judges to order the payment
of the right holder's expenses by the infringer.
Please refer to the answer to question 9 from Switzerland.
42. Please explain if and how judges have the au thority to order that infringing goods are
placed outside channels of commerce or destroyed.
Please refer to the answer to question 7 from Switzerland.
43. Please quote what provisions of your legislation authorize judges to indemnify a
defendant in the event of abuse by the plaintiff.
According to the Civil Procedure Law, the Patent Law, the Trademark Law, the Copyright
Law and relevant judicial interpretations of the Supreme People's Court, to the alleged infringement,
people's courts may take measures of property preservation, interlocutory injunction before or during
the litigation (advance execution), etc.  To prevent damages to the alleged party that might be causedby abuse of the right in the above-mentioned measures, the relevant laws have the following
stipulations.
For property preservation, Article 96 and Article 254 of the Civil Procedure Law stipulate that
if an application for property preservation is wrongfully made, the applicant shall compensate theparty against whom the application is made for any loss incurred from the property preservation.IP/C/W/374
Page 15
For interlocutory injunction, Article 61 of the Patent Law, Article 57 of the Trademark Law,
Article 49 of the Copyright Law and Rule 32 of th e Regulations on Protection of Layout-Designs of
Integrated Circuits clearly provide that the measure shall be adopted according to the above-
mentioned Article 96 of the Civil Procedure Law.
For advance execution, Article 98 of the Civil Procedure Law stipulates that if the party
applying for the advance execution loses the lawsu it, it shall compensate the person against whom the
application is made for any losses incurred from the advance execution.
In addition, the relevant laws have adopted certain restrictive conditions for applying the
above-mentioned measures, such as that the people's court may require the applicant to provide
security.  Also, about applying for property preservation before filing a lawsuit, it is stipulated that theapplicant must provide security for such an application (Article 93 of the Civil Procedure Law).
44. Please identify the competent authorities in  your jurisdiction who receive requests from
right holders for an application to suspend the release of counterfeit goods by the customs
authorities.
Article 6 of the Regulations on Customs Protec tion of Intellectual Property Rights provides
that the holders of the intellectual property rights who pursue the protection from the Customs for
their rights related to import or export shall r ecord their rights with the Customs and file an
application to the Customs for taking protective actions when they deem necessary.  So, the Customs
is the competent authority in China that receives th e application to suspend the release of counterfeit
goods.
45. Please describe how Articles 42 and 43 of the TRIPS Agreement have been implemented
in the judicial rules of civil procedures.  Do the fees for filing an infringement action still depend
on the damages that are being requested?  A foreign company must comply with variousadministrative requirements before a procedure can be lodged (for example the obligation to
legalize powers of attorney and the obligation to provide "securities").  Please explain whether
Chinese civil procedures grant equal protection to foreigners and Chinese nationals.
Relevant laws in China are fully in compliance with Articles 42 and 43 of the TRIPS
Agreement and there are no contradictions.  Court fees are still calculated on the basis of the total
amount of the requested compensation.  When a foreign company is going to initiate a lawsuit in a
people's court in China, it must appoint Chinese lawyers if it needs lawyers as its agent ad litem.  Thisis in conformity with international practices.  In  considering of the inconvenience in the aspects of
documents delivery and communication in a lawsuit concerning foreign interests, in order to protect
the legitimate right of the foreign party, the Civil Procedure Law does not impose a strict deadline for
completing a lawsuit involving foreign interests.  Even if the plaintiff of a lawsuit concerning foreign
interests is a Chinese organization or individual, this principle also applies in order to protect thelegitimate right of the foreign party.  Therefore, the procedures of the Chinese civil litigation provide
equal protection of the legitimate right of both Chinese and foreign parties.  In comparison with
Chinese party, a foreign party does not suffer any unequal limitation on rights.
46. Article 45 of the TRIPS Agreement stipulates that "the judicial authority shall have the
authority to order the infringer to pay the right holder damages adequate to compensate for the
injury suffered ".  Please indicate how the Chinese civil ju dicial remedies comply with this TRIPS
obligation.  What shall be taken into consideration to calculate the amount of damages?  Shall
the infringer's profits, inventory and past activity be considered?
Please refer to the answer to question 9 from Switzerland.IP/C/W/374
Page 16
47. China, when amending the Patent Law for the second time in 2000, introduced
Article 61 which regulates provisional measures (in line with Article 46 of the TRIPS
Agreement).  Please clarify whether holders of intellectual property rights other then patents
can also rely on a similar procedure.  Are additional judicial interpretations that specify the
procedure for the handling of such preliminary injunctions in IP-related litigation available?
Article 61 of the Patent Law of the People's Republic of China stipulated both measures of
interlocutory injunction and property preservation before lawsuit.  As a matter of fact, the measure of
property preservation before law suit has already b een adopted in the Civil Procedure Law and applies
to all kinds of civil litigation, including intellectual property litigation.  As for the interlocutory
injunction, it has also been stipulated in the Trademark Law, the Copyright Law, and the Regulations
on Protection of Layout-Design of Integrated Circuit.  The Supreme People's Court has recently
issued corresponding judicial interpretations concerning the Patent Law and the Trademark Law,which include detailed rules on this matter.  The judicial interpretation concerning the Copyright Law
is under drafting.
48. Most IPR enforcement in China is carrie d out by administrative actions.  Do
administrative authorities have the authority to impose sufficient penalties to prevent or deterfurther infringement?  Are cases involving repeat offenders and wilful piracy and counterfeiting
referred to the appropriate auth orities for initiation of criminal proceedings?  Can China
provide some relevant statistics of cases that have led to prosecution under the criminal law
provisions?
Administrative authorities have the authority to impose sufficient penalties to prevent or deter
further infringement.  In accordance with Article 47 of the Copyright Law, copyright administration
department may impose administrative penalties on an infringer who also prejudices the public
interests.  Such penalties include (i) ordering the infringing act to be ceased;  (ii) confiscating the
unlawful income;  (iii) confiscating or destroying th e infringing copies;  (iv) imposing a fine;  and (v)
confiscating the material, tools and instrument mainly used to produce infringing copies.  Theprovisions on these penalties together with civil and criminal liabilities may provide sufficient legal
basis for preventing or deterring further infringement.
In accordance with the Administrative Penalties Law, the Copyright Law, and the Provisions
on the Transfer of Susceptible Criminal Cases by Administrative Law Enforcement Bodies, a
copyright administration department, in investigat ing and dealing with an infringement pursuant to
law, should, if finding that the infringing act constitutes an crime, transfer the case to the judicialauthorities for investigating crimin al liabilities of the infringer.
Administrative authorities have the authority to impose sufficient penalties to prevent or deter
further infringement.  Paragraph 4 of Article 55 of the Trademark Law provides that the
administrative authorities may check up such articles as related to the infringing act and may seal ortake into custody articles which are proven to have infringed upon another party's exclusive right to
use a registered trademark.
Article 54 provides that where a crime is suspected to have been committed, the case shall be
promptly transferred to the judicial authoritie s to be dealt with in accordance with the law.
Cases involving repeated offenders and willfu l piracy and counterfeiting referred to the
appropriate authorities will be transferred to the relevant public procurator for the initiation of
criminal proceedings if it constitutes a crime.  (Please also refer to the answer to question 49)
As for the statistics of the cases, please re fer to the answer to question 27 of the US.IP/C/W/374
Page 17
49. As currently applied, the monetary thresholds  for bringing a criminal case are very high
and seldom met.  Has the judicial authority made the necessary adjustment to lower those
thresholds so as to permit effective action that would deter future piracy and counterfeiting?
Regarding the prosecution standard, on 9 July 2001, the State Council issued the Provisions
on the Transfer of Susceptible Criminal Cases by Administrative Law Enforcement Bodies on18 April 2001, the Supreme People's Procuratorate together with the Ministry of Public Security
issued the "Standard for Criminal Prosecution in Economic Offenses".  These are the two important
regulations in perfecting the linkage between the administrative punishments and the criminal
penalties.  These two Regulations warrant in both substantive and procedural aspects that criminal
offense on intellectual property rights will enter judicial procedure and receive criminal penalties.  For
the criminal offense on intellectual property right prosecuted by the People's Procuratorate according
to the standard for prosecution mentioned above, the alleged infringer shall be punished if the allegedinfringement constitutes criminal offense as judged by the people's court through public trial with
solid and sufficient evidence.
As for cases that has not reached the criteria set in the above two regulations, the infringed
party can have the right of private prosecution ( i.e. to initiate a criminal case by the infringed party ina people's court) or if pubic interest has been damaged, administrative penalties will be imposed on
the infringing party.
In China, infringement of intellectual property rights on a minor scale is sanctioned as
violation of administrative law, rather than criminal offense.  The legal consequences of these minorscale violations are similar to that of police offence in the United States of America or misdemeanor
in France.
50. The new Regulation of the People's Republic of China Governing Customs Protection of
Intellectual Property Rights came into effect in October 1995.  Concern as to the compatibility
of this regulation with obligations under Article 51 to 60 of the TRIPS Agreement were
expressed in the past.  The Chinese Government has committed itself to revise the Regulation to
make it fully compliant with the relevant provisions of the TRIPS Agreement.  When may we
expect the Regulation to be revised?
The provisions of the Regulations Governing Customs Protection of Intellectual Property
Rights have no contradictions with Article 51 to 60 of the TRIPS Agreement.  Chinese government
has fully fulfilled the obligation in providing holders of intellectual property rights with proceduresrelated to border measures, in consistence with the relevant provisions of the TRIPS Agreement
(Articles 51 to 60).
51. Would the right holder and the consignee, in  accordance with Article 57 of the TRIPS
Agreement, have the right to inspect the good s that were seized (retained) by Customs?
Yes, the right holder and the consignee are pe rmitted to inspect the suspected infringing
goods according to the Customs Law and enforcement practice.
52. Article 14 of the Regulation of the People's Republic of China Governing Customs
Protection of Intellectual Property Rights provid es that the IP owner is to pay a security equal
to the value of the goods concerned.  Article 53  of the TRIPS Agreement stipulates however that
"such security or equivalent assurance shall no t unreasonably deter recourse to these procedures ".
Please explain how Article 14 of China's Custom Regulation complies with Article 53 of the
TRIPS Agreement.
The requirement of deposit by right holders with a security which is equal to CIF value of the
import goods or FOB value of the export goods  is out of the following considerations:IP/C/W/374
Page 18
Since the Customs authorities takes the obligation to protect various intellectual property
rights (trademarks, copyrights and neighboring  rights, patents and Olympic signs) and such
enforcement might be rather risky, sufficient secu rity value is necessary to protect the appropriate
rights and interests of the defendants and the Cu stoms authorities to prevent the applicant from
abusing its rights, which is the requirement of Article 53 and Article 56 of the TRIPS Agreement.
In order to reduce the applicants' burden to deposit the security, Article 68 of the Customs
Law of the People's Republic of China provides that the security and equivalent assurance might be
deposited in RMB, convertible foreign currencies, draft, cashier's check, check, bond, certificate of
deposit and banking assurance and other financial instruments.  Therefore, the Customs' requirements
of security will not unreasonably deter the right holders' recourse to these procedures of bordermeasures.
53. Article 56 of the TRIPS Agreement provides that the applicant may be ordered to pay
appropriate compensation because of wrongful de tention of goods.  Please explain how Chinese
legislation complies with this Article of the TRIPS Agreement.
The Regulations Governing Customs Protection of Intellectual Property Rights provides that
the Customs shall refund, upon effectiveness of the decisions made by the Customs authorities or
competent authorities of the intellectual property rights or of the judgment or ruling made by the
people's court, the securities which have been deposited by the parties concerned after deducting the
expenses and the sum for compensating the possible losses suffered by the parties concerned due tothe improper application lodged by the right holder.
In practice, the compensation should be made according to the judgment or ruling of the
people's court and the Customs has obligation to provide assistance upon requirement.
54. Will the amended version of the Regulation of the People's Republic of China Governing
Customs Protection of Intellectual Property Ri ghts include ex officio actions as allowed by
Article 58 of the TRIPS Agreement?
Article 18 of the present version of the Regulations Governing Customs Protection of
Intellectual Property Rights provides that the Customs shall be entitled to seizing the goods, without
application for such seizures from the right holders beforehand, suspected of infringing the rights
recorded with the General Administration of Customs.  So "ex-officio actions" are allowed and are acommon practice in China.IP/C/W/374
Page 19
JAPAN
A. COPYRIGHT
1. Please explain exceptions or exemptions of  the National Treatment and Most-Favoured-
Nation Treatment under the Copyright and Neighbouring Rights Law of your country, if any,
as permitted in Articles 3 and 4 of the TRIPS Agreement.
There are no exceptions or exemptions of the National Treatment and MFN Treatment in the
Copyright Law of China.
2. Please indicate whether the forms of works under Article 3, (1) to (9) of the Copyright
Law would be a non-exclusive list.   Please explain (i) the relevant laws or administrative
regulations and (ii) specific form(s) of works about "other works as provided for in laws and
administrative regulations" under Article 3 (9) of the Copyright Law.
In regard of protected works, the Copyright Law of China gives a non-exhaustive list as the
Berne Convention does.  Article 3 of the said Law enumerates common categories of creations to
illustrate literary, artistic and scientific works, and the expression "other works as provided for in laws
and administrative regulations" in (9) of this Article shows that the enumeration of the above-
mentioned works is purely one of examples and not limitative.
The expression "other works as provided for in laws and administrative regulations" mainly
refers to the new categories of works which are not known at present but possibly will emerge in the
future with the development of science and technology.
3. Please explain exhaustively (i) the relevant law(s) and (ii) specific form(s) of works
stipulated in the first sentence of Article 4 of the Copyright Law, which provides "Works the
publication or distribution of which is prohibited by the law shall not be protected by this
Law".
The first sentence of Article 4 of the Copyright Law refers to the works of which the
publication or distribution is prohibited by such laws and regulations as the Criminal Law, the
Regulations on the Administration of Publishing Industry, the Regulations on the Administration of
Broadcasting, the Regulations on the Administration of Audiovisual Products, the Regulations on the
Administration of films, and the Regulations on the Administration of Telecommunication.
4. Please provide the relevant regulation(s) and/or provisions for the protection of
"expressions of folklore" for implementing Article 6 of the Copyright Law.
The regulation for protection of "expressions of folklore" is under study and drafting at
present.
5. Please explain whether the right of distributi on, stipulated in the Article 10.1(6) of the
Copyright Law, would be exercised to the copy or reproductions of a work which have been put
in circulation in foreign country.
The right of distribution provided for in Article 10.1(6) of the Copyright Law is subject to
international exhaustion in respect of legal copies of a work once they have put into circulation (i.e.
with the consent of the copyright owner).IP/C/W/374
Page 20
6. Please indicate the detail of "other rights which shall be enjoyed by copyright owners"
stipulated in the Article 10.1(17) of the Copyright Law.
"Other rights which shall be enjoyed by copyright owners" mainly refer to the rights which
may be recognized to control new exploiting manner or form of works emerging with the
development of new technology.
7. Please provide the relevant separate regulation(s) and/or provisions for the protection of
"the right of communication through information network" for implementing Article 58 of the
Copyright Law.
The regulations for the protection of "the right of communication through information
network" are in course of study and drafting at present.
8. Please explain whether any kind of different procedures for between domestic cases and
cases involving foreign companies would apply in the case of public copyright infringement.
In respect of administrative penalties, the revised Implementing Regulations of the Copyright
Law of the People's Republic of China has deleted the provision which designated the copyright
administration department under the State Council (t he National Copyright Administration of China)
to investigate and deal with infringing acts involving foreign right owners taking place in the territory
of China.  After the revised Implementing Regulations enters into force, each local copyright
administration department may investigate and deal with all infringing acts (including those involving
foreign right owners) taking place in its own admini strative area, without the necessity of requiring
clearance by the copyright administration department under the State Council.  Accordingly, there isno different procedure applicable to domestic cases and cases involving foreign companies as regards
administrative penalties.
B. T
RADEMARKS
9. According to Article 19 of the TRIPS Agreement, a trademark registration may be
cancelled "after an uninterrupted period of at least three years of non-use…  At the same time,
however, this article stipulates that "unless valid reasons based on the existence of obstacles to
such use are shown by the trademark owner" and thus it provides a safeguard.
Article 44(4) of the Trademark Law of your country, however, stipulates that a
trademark is to be cancelled after an uninterrupted period of three years of non-use and no
provision of safeguard is contained in this article.  Please explain how the safeguard in the
TRIPS Agreement can be secured under the Trademark Law.
As for the safeguard for the cancellation of a registration, the Implementing Regulations of
the Trademark Law stipulates:  "The trademark Office shall notify the trademark registrant and
require the latter to furnish, within two months fro m receipt of the said notification, proof of use of
the said trademark or otherwise fair reasons for non-use thereof...".  "The fair reasons for non-use"here has exactly the effect of safeguard.
10. Please explain whether Article 18 of the Trademark Law are consistent with National
Treatment in Article 3.1 of the TRIPS Agreement.
Please refer to the answer to question 8 of the US.
11. Regarding the provisions on "well-known trademark" in Article 13 and 14 of the
Trademark Law, please explain, if any, complementary criteria for the judgment of those
provisions.   Does your country have a plan to make a list of well-known trademark owned byIP/C/W/374
Page 21
foreign companies?  (The current list includes only Chinese companies' trademarks.)  And we
would like to confirm whether the requirements st ipulated in Article 14 of the Trademark Law
are limited only to the situation in your country or are applied to the situation in the countries
other than China, too.
Please refer to the answer to question 9 of the US.
12. Article 6 of the Trademark Law can be interpre ted that the trademark to be used on the
goods predetermined by the law should be sure ly applied for the trademark registration and
that such trademark may not be used on such  goods prior to its registration.  Does this
Article have the problem in relation to the Article 20 of TRIPS Agreement which stipulates thatthe commercial use of trademark should no t be unjustifiably encumbered by special
requirements?
Provisions of Article 6 of Trademark Law does not belong to the situations stipulated in
Article 20 of TRIPS Agreement, in which "the use" means the use of a mark in the course of trade
after its registration and its main purpose is to prevent unreasonable use in a special form or manner,such as use with another trademark, use in a sp ecial form or use in a manner detrimental to its
capability to distinguish the goods or services of one undertaking from those of other undertakings.
Article 6 of our Trademark Law requires registered trademarks be used on certain particular goods,
having nothing to do with the form or manner of their use after the marks are registered.  Therefore,
this kind of requirement is irrelevant to the st ipulations in Article 20 of the TRIPS Agreement.
C. G
EOGRAPHICAL INDICATIONS
13. Please explain how legislation of your country implements Article 22.2 of the TRIPS
Agreement, regarding Geographical Indications.
In China, geographical indications are protected mainly under the system of trademark law
and its implementing regulations.  Articles 3, 16, 52 and 53 of the Trademark Law and the relevant
provisions of the revised Implementing Regulations provide adequate protection for geographical
indications required in paragraph 2 of Article 22 of the TRIPS Agreement.  In addition, Anti-Unfair
Competition Law also provides protection for geographical indications.
14. Please explain how legislation of your country implements Article 23.1 of the TRIPS
Agreement, regarding Geographical Indications.  In particular, please provide the specificproducts other than wine and spirits, if any, wh ich are subject of similar protection as provided
under the Article 23.1.
The relevant provisions in Trademark Law, such as Article 3, 16, 28, 30, 41, 52, 53 provide
protection for geographical indications, including protection for wines and spirits as required by
Article 23 of the TRIPS Agreement.  These protections also apply to other products.
D. P
ATENT
15. Under Article 19 of the Chinese Patent Law, foreign applicants are required to carry out
procedures to obtain a patent right in the People's Republic of China through a patent attorney
designated by the Chinese government.  Please explain how this condition can be considered asbeing consistent with Article 3.1 of the TRIPS Agreement on National Treatment.
While Article 3.1 of the TRIPS Agreement provides for the principle of National Treatment,
the said Article also provides that the principle of  National Treatment is subject to the exceptions as
already provided for in the Paris Convention, the Berne Convention, the Convention of Rome or the
Treaty on Intellectual Property in Respect of Integrated Circuits.  Article 2.3 of the Paris ConventionIP/C/W/374
Page 22
reads:  "the provisions of the laws of each of the countries of the Union relating to judicial and
administrative procedure and to jurisdiction, and to the designation of an address for service or the
appointment of an agent, which may be required by the laws on industrial property are expressly
reserved".  Secondly, it is international practice to require a foreign applicant, who has neither
domicile nor real and effective industrial or commercial establishments in the territory of a country inwhich the patent application is filed, to appoint a representative to proceed before the patent office of
the countries concerned.  For instance, Article 8.1 of Japanese Patent law provides that a resident
abroad shall appoint a "patent administrator" who has his domicile or residence in Japan to proceed
before the Japanese Office with respect to his patent.  Therefore, it is our understanding that
Article 19 of the Chinese Patent Law relating to th e appointment of an agent is in full consistency
with the provisions in the TRIPS Agreement.
16. Article 62.2 of the TRIPS Agreement stipulat es that "Members shall ensure that the
procedures for grant or registration" "permit the granting or registration of the right within a
reasonable period of time…" How long does th e procedure for grant or registration usually
take in your country?  Please discuss if the period of time is considered as a reasonable period of
time.  As regards legal actions, Article 41.2 of the TRIPS Agreement stipulates that "Procedures
concerning the enforcement of inte llectual property rights ... shall not ... entail ... unwarranted
delays."  The Civil Code of the People's Republic of China provides for certain time limits forlawsuit procedures.  Please explain if such time limits are also applicable where interested
parties are foreign nationals.
There are actually two issues in this question.  One relates to whether there are time limits for
the grant or registration of a patent in China.  Th e other relates to whether time limits as provided for
in the Civil Procedure Law of the People's Republic of China apply to parties in the lawsuit even if
they are foreigners.
For question one, we believe that TRIPS Agreement has made no specific time limits
requirements for the grant or registration of patent right.  So far as we know, few countries have made
such time limits in their laws or regulations.  The Chinese government has always attached great
importance to the grant or issuance of patent right within a reasonable period of time.  In Article  21 of
the Chinese Patent Law, it is provided that "The patent administration department under the StateCouncil and its Patent Reexamination Board shall handle any patent application and patent-related
request according to law and in conformity with the requirements for being objective, fair, correct and
timely."  We are confident that the time period of ours for the grant of patent right in China is
reasonable.
For question two, Article  5 of the Civil Procedure Law of the People's Republic of China
stipulated that "The Aliens, stateless persons, foreign enterprises and organizations that bring suits or
enter appearance in the people's courts shall have the same litigation rights and obligations as citizens,
legal persons and other organizations of the People's Republic of China".  Therefore, most of the time
limits for civil procedures provided for in the Civil Procedure Law (not General Principles of the CivilLaw) of the People's Republic of China generally apply to suits where parties concerned are foreign
nationals.  However, it should be noted that some time limits for lawsuits where all parties are
residents in China do not apply to law suits whic h involve foreigners who live abroad as parties
concerned.  For instance, as an exception to Article  147 of the Civil Procedure Law of the People's
Republic of China in which the time limits for appeal is 15 days for judgement and 10 days for order,Article  249 of the Civil Procedure Law provides clearly that the time limits for appeal is 30 days if an
party of the suit has no domicile within the territory of China.
17. Article  57 of the Chinese Patent Law obliges that, where a conflict arises over a patent
right, interested parties should discuss the matter with each other before seeking a remedy at
the court or the governmental agency concerned.  On the other hand, Article  41.2 of the TRIPSIP/C/W/374
Page 23
Agreement stipulates that "Procedures concerning the enforcement of intellectual property
rights ... shall not be unnecessarily complicated ... or entail … unwarranted delays."  Please give
us an explanation about the consistency between the said obligation in the Chinese Patent Law
and the above provision of the TRIPS Agreement.
According to Article  57 of the Patent Law of the People's Republic of China, "Where a
dispute arises as a result of the exploitation of a patent without the authorization of the patentee, that
is, the infringement of the patent right of the patentee, it shall be settled through consultation by the
parties".  However, the Article continues to provide that "Where the parties are not willing to consult
with each other or the consultation fails, the patentee or any interested party may institute legal
proceeding in the people's court".  Therefore, the consultation process provided for in Article  57 of the
Patent Law of the People's Republic of China is optional.  It is neither mandatory nor a prerequisite
for instituting legal proceedings in the court.  It is our understanding that consultation before takinglegal actions or going for dispute settlement outside of court is a regular practice to settle legal
disputes in most countries.
18. The Chinese Trademark Law and the Copyright Law stipulate provisions on procedures
to preserve relevant evidences in the case of  an infringement.  Please explain how such
procedures are ensured under the Patent Law in your country.
Although the procedure to preserve relevant evidences before legal proceedings is not
explicitly provided for in the Patent Law of the People's Republic of China, Article  74 of the Civil
Procedure Law of the People Republic of China provides that "Under circumstances where there is a
likelihood that evidence may be destroyed or lost, or difficult to obtain later, the participants in the
proceedings may apply to the people's court for preservation of the evidence.  The people's court may
also on its own initiative take measures to preserve such evidence".  Furthermore, Article 16 of the"Provisions Concerning the Application of Laws Regarding the Suspension of the Infringement of
Patent Rights Before Legal Proceeding are Instituted" issued by the Supreme People's Court provides
that the people's court, upon the request of parties concerned, at the time of taking measures to
suspend the infringement of patent rights, may adopt the preservation of evidences according to
Article 74 of the Civil Procedure Law of the People's Republic of China.  Therefore, the interested
parties in a patent infringement suit may request the people's courts to adopt preservation of evidences
according to the provisions of the Civil Procedure Law of the People's Republic of China.
19. Please explain "new" (Article 27.1 of the TRIPS Agreement) in the Chinese Patent Law.
According to Article 22.2 of the Patent Law of the People's Republic of China, "Novelty
means that, before the date of filing, no identical invention or utility model has been publicly
disclosed in publications in the country or abroad or has been publicly used or made known to the
public by any other means in the country, nor has any other person filed previously with the Patent
Administration Department Under the State Council an application which described the identical
invention or utility mode1 and was published after the said date of filing".  These provisions are in
conformity with Article 27.1 of the TRIPS Agreement.
20. Article 5 of your Patent Law prescribes that no patent right shall be granted for any
invention-creation that is contra ry to the laws of the State.  Please explain what kind of law
comes under such "laws of the State" concretely.  (Article 4.4 of Paris Convention, which shall
be applied mutatis mutandis  by 2.1 of TRIPS Agreement, prescribes that a patent is neither
rejected nor invalidated by reason that the sale et c. of goods which is the subject of patent are
restricted by the domestic laws and regulations.)
According to Article 5 of the Patent Law of th e People's Republic of China, "No patent right
shall be granted for any invention-creation that is contrary to the laws of the State or social moralityIP/C/W/374
Page 24
or that is detrimental to public interest".  In order to clarify what is meant by "invention-creation that
is contrary to the laws of the State", it is stipul ated in Rule 9 of the Implementing Regulations of the
Patent Law of the People's Republic of China that "Any invention-creation that is contrary to the laws
of the State referred to in Article 5 of the Patent Law shall not include the invention-creation merely
because the exploitation of which is prohibited by the laws of the State".  Therefore, with theexplanation of Rule 9 of the Implementing Regulations , the provision of Article 5 of the Patent law of
the People's Republic of China is in consistency with Article 27.2 of the TRIPS Agreement.
For instance, the Law on the Administration of Guns of the People's Republic of China
prohibits the making or sale of guns without the permission of competent authorities.  However,
inventions relating to guns are eligible for applying and for being granted patent right.
21. Article 10 of Chinese Patent Law prescribes that "any assignment, by a Chinese entity
or individual, of the right to apply for a patent, or of the patent right, to a foreigner must be
approved by the competent department concerned of the State Council."  Please explain
whether applying this Article to the case fore igner is concerned doesn't conflict with the
principle of the National Treatment in Article 3 of the TRIPS Agreement.
According to Article 10 of the Patent Law of the People's Republic of China, where Chinese
entities or individuals intend to assign their right to apply for patent or patent right to foreigners, they
must obtain the approval of the competent depa rtment concerned of the State Council.  This
restriction does not and is not able to apply to foreigners assigning their right to apply for a patent or
patent right to Chinese entity or individuals, or to other foreigners.  Therefore, we don't see thatArticle 10 of the Patent Law of the People's Republic of China conflicts with the principle of National
Treatment as provided for in Article 3 of the TRIPS Agreement.
Besides, this provision is also in full conformity with Article 8 of the TRIPS Agreement
which reads:  "Members may, in formulating or amending their laws and regulations, adopt measuresnecessary to protect public health and nutrition, and to promote the public interest in sectors of vital
importance to their socio-economic and technological development, provided that such measures are
consistent with the provisions of this Agreement".  And "Appropriate measures, provided that they are
consistent with the provisions of this Agreement, may be needed to prevent the abuse of intellectual
property rights by right holders or the resort to practices which unreasonably restrain trade or
adversely affect the international transfer of technology".
E. U
NDISCLOSED INFORMATION
22. Please explain how legislation of your coun try implements Article 39.1 and 39.2 of the
TRIPS Agreement.  In particular, please indicate (i ) titles of law and/or legislation and (ii) their
provisions for the protection of undisclosed information under Article 39.2.
The laws and regulations implementing Article 39.2 of the TRIPS Agreement are Anti-unfair
Competition Law of the People's Republic of China and Regulations against Infringement of Business
Secrets.  Relevant provisions are Article 10 of  Anti-unfair Competition Law of the People's Republic
of China and Article 2 and 3 of Regulations against Infringement of Business Secrets.
23. Please indicate the relevant legislation and/or provisions for implementing Article 39.3
of the TRIPS Agreement, regarding the test or other data submitted to the government for
approving the marketing of pharmaceutical or of agricultural chemical products.
Please refer to the answer to question 22 of the US.IP/C/W/374
Page 25
F. ENFORCEMENT
24. Regarding disposal of counterfeit trademark goods in Article 46 and 49 of the TRIPS
Agreement, please cite the relevant provisions of your country's law and explain the operations.
According to Article 53 of the Trademark Law of the People's Republic of China, State
Administration of Industry and Commerce of the Peop le's Republic of China ("AIC") is in charge of
investigation and dealing with the infringement of the exclusive right of trademark, including such
infringement as counterfeiting trademark.  In the event that AIC finds the existence of infringement, it
is empowered to order the infringer to immediately stop the infringing act, to confiscate, destroy the
infringing products and the facilities for producing the infringing products and forging the trademark.
According to Article 134 of General Principles of the Civil Law of the People's Republic of China, the
people's courts may also confiscate the products with counterfeit trademark.  The AIC and the
people's court may take the above measures at its own initiative.
25. Regarding Article 61 of the TRIPS Agreement, please explain the elements of criminal
penalties on acts of infringement of intellectual property rights.  Please explain whether
penalties are consistent with Article 61 of the TRIPS Agreement, which requires remedies
available shall include imprisonment and/or mone tary fines sufficient to provide a deterrent,
consistently with the level of penalties applied for crimes of a corresponding gravity.
With regard to the elements of criminal penalties on acts of infringement of intellectual
property rights, there are no general provisions in Criminal Law of the People's Republic of China.
Criminal Law of the People's Republic of China now stipulates seven specific types of criminal acts
regarding the infringement of intellectual property rights after its amendment in 1997.
(i) Crimes of counterfeiting registered trademark (Article 213)
Manifestation of the acts:  Using a trademark identical with another person's registered
trademark on the same kind of goods without permission from the owner of the registered
trademark.
Conviction standards:  "Serious infringement" which usually refers to one of the following:
considerable sum of production and distribution, considerable sum of illegal earning,
considerable loss to the right owner, considerable amount of production, comparatively
frequent counterfeiting, and long infringing history.  Competent court has discretion based on
the relevant facts of the case.
Punishment:  If the infringement is grievous, the culprit shall be sentenced to a set term of
imprisonment of not more than three years or criminal detention, and concurrently or
independently be sentenced to a fine.  If the infringement is outrageous, the culprit shall be
sentenced to a set term of imprisonment of not less than three years and not more than seven
years, and concurrently be sentenced to a fine.
(ii) Crimes of selling goods bearing counterfeited registered trademarks (Article 214)
Manifestation of the acts:  Knowingly sell ing goods bearing counterfeited registered
trademarks.  "Knowingly" mean s knowing or ought to know.
Conviction standards:  Considerable big sum of sale.  The court normally refers to the
conviction standards as provided in Article 140 of Criminal Law of the People's Republic ofChina for the crime of producing and selling fake products, that is, the sum obtained through
sale amounts to not less than RMB50,000.IP/C/W/374
Page 26
Punishment:  In case the sum from sale is relatively high, the culprit shall be sentenced to a
set term of imprisonment of not more than three years or criminal detention, and concurrently
or independently be sentenced to a fine.  If the sum from sale is high, the culprit shall be
sentenced to a set term of imprisonment of not less than three years and not more than seven
years, and concurrently be sentenced to a fine.
(iii) Crime of producing and selling representations of registered trademarks without
authorization from trademark owner (Article 215)
Manifestation of the acts:  Forging or making without authorization representations of
registered trademarks of another person or selling representations of registered trademarks
which are forged or made without authorization.  "Forging" hereof, means counterfeitinganother person's registered trademark without permission from the owner of the registered
trademark through copy, protracting, reprography, shooting, scan and the combination of the
above methods.  "Making without authorization"  means printing the registered trademark
without permission from the owner of the registered trademark.  For example, keep on
processing after the expiry of the consignation processing contract signed with the owner of
the registered trademark.
Conviction standards:  Serious circumstances.  If the sum of the distribution is large, the
amount of illegal gains is relatively huge, the loss caused by the offence of another person
who enjoys the rights is heavy, the counterfeiting is comparatively frequent, and the time of
the infringement act is long, the circumstance is serious.  Competent court has discretion
based on the relevant facts of the case.
Punishment:  If the circumstances are grievous, the culprit shall be sentenced to fixed-term
imprisonment of not more than three years, criminal detention or public surveillance, and
concurrently or independently be sentenced to a fine.  If the circumstances are especially
serious, the offender shall be sentenced to fixed-term imprisonment of not less than threeyears and not more than seven years, and concurrently be sentenced to a fine.
(iv) Crime of forging another person's patent (Article 216)
Manifestation of the acts:  Forging another person's patent.  According to Article 84 of the
Implementing Regulations of the Patent Law of the People's Republic of China, any of the
following categories of statuses shall be regarded as "forging another person's patent":
(1) Labelling another person's patent number on the product and the package of the
product which is made or distributed by himself without the permission;
(2) Using anther person's patent number in his own advertisement or the other public
materials without permission and make other person mistake the concerned
technology for another person's patent technology;
(3) Using anther person's patent number in the contract and make other person mistake
the concerned technology for another person's patent technology;
(4) Counterfeiting or fabricating another person's patent certificate, patent document of
patent application document.
Conviction standards:  Serious circumstances.  If the sum of the distribution is large, the
amount of illegal gains is relatively huge, the loss caused by the offence of another person
who enjoys the rights is heavy, the counterfeiting is comparatively frequent, and the time of
the infringement act is long, the circumstance is serious.  Competent court has discretionbased on the relevant facts of the case.IP/C/W/374
Page 27
Punishment:  If the circumstances are serious, the culprit shall be sentenced to fixed-term
imprisonment of not more than three years or criminal detention, and concurrently or
independently be sentenced to a fine.
(v) Crime of infringing upon copyright (Article 217)
Manifestation of the acts:  Any of the follow ing actions who infringes upon copyright for the
purpose of reaping profits:
(1) Reproducing and distributing, without th e permission of the copyright owner, his
written works, musical works, cinematic works, television works, video works,
computer software and other works;
(2) Publishing a book of which another person has the exclusive publishing right;
(3) Reproducing and distributing, without th e permission of the phonogram or videogram
producer, the phonogram or videogram produced by him;
(4) Producing and selling a work of art bearing the forged signature of another person.
Conviction standards:  The amount of illegal gains is relatively huge or there are other serious
circumstances.  Pursuant to the provisions in Article 2 of Interpretation of the SupremePeople's Court Regarding the Detailed Application of Laws for Hearing Illegal Publication
Criminal Cases, "the illegal gains is relatively huge" means the amount of illegal gains of an
individual is more than RMB 50,000, or the am ount of illegal gains of a unit is more than
RMB 200,000.  Serious circumstances means (a) committing the copyright infringement acts
listed in Article 217 of Criminal Law of the Peopl e's Republic of China within a period of two
years from being held administrative liability or civil liability more than twice for
infringement of copyright, or (b) the amount of illegal gains of an individual is more than
RMB 200,000, or the amount of illegal gains of a unit is more than RMB 1,000,000, or (c)
other acts which cause especially serious results.
Punishment:  If the amount of illegal gains is relatively huge or other serious circumstances
exist, the culprit shall be sentenced to fixed- term imprisonment of not more than three years
or criminal detention, and concurrently or independently be sentenced to a fine.  If the amount
of illegal gains is huge or other especially serious circumstances exist, the culprit shall be
sentenced to a fixed-term imprisonment of not less than three years and not more than seven
years, and concurrently be sentenced to a fine.  Pursuant to the provisions in Article 2 of
Interpretation of the Supreme People's Court Regarding the Detailed Application of Laws forHearing Illegal Publication Criminal Cases, if the amount of illegal gains of an individual is
more than RMB 200,000, and the amount of illegal gains of a unit is more than RMB
1,000,000, then "the illegal gains is huge".   Othe r especially serious circumstances include
(a) the amount of illegal gains of an individual is more than RMB 1,000,000, or the amount of
illegal gains of a unit is more than RMB 5,000,000, or (b)other especially serious results exist.
(vi) Crime of selling infringing reproductions (Article 218)
Manifestation of the acts:  Selling for the purpose of reaping profits reproductions which he
well knows are infringing reproductions specified in Article 217 of Criminal Law of the
People's Republic of China.  "Well knows" hereby means knowing or ought to know.
Conviction standards:  The amount of illegal gains is huge.  Pursuant to the provisions in
Article 4 of Interpretation of the Supreme People's Court Regarding the Detailed ApplicationIP/C/W/374
Page 28
of Laws for Hearing Illegal Publication Criminal Cases, if the amount of illegal gains of an
individual is more than RMB 100,000, and the amount of illegal gains of a unit is more than
RMB 500,000, then "the illegal gains is huge".
Punishment:  The culprit shall be sentenced to a fixed-term imprisonment of not more than
three years or criminal detention, and a fine concurrently or independently.
(vii) Crime of infringing upon commercial secrets (Article 219)
Manifestation of the acts:  Acquiring commercial secrets of another person who enjoys the
rights by stealing, lure, force or other improper means;  revealing, using or permitting other
persons to use the commercial secrets of another person who enjoys the rights of the secrets
by means specified in the preceding paragraph;  or revealing, using or permitting other
persons to use another person's commercial secrets which are held by him contrary to his
promise or to the demands by the person who enjoys the rights involving protection of thecommercial secrets.  "Commercial secrets" men tioned in this Article refers to the practical
technical information and management information which is unknown by the public and can
bring economic profits to the person who enjoys the rights, and the person who enjoys the
rights has taken measures to keep it secret.  "The person who enjoys the rights" mentioned in
this Article refers to the owner of a commercial secret or user of a commercial secret who ispermitted by the owner of the commercial secret.
Conviction standards:  Causes heavy losses to another person who enjoys the rights of the
commercial secrets.
Punishment:  If the offence causes another person who enjoys the rights of the commercial
secrets to suffer heavy losses, the culprit shall be sentenced to fixed-term imprisonment of not
more than three years or criminal detention, and concurrently or independently be sentenced
to a fine.  If the offence causes especially serious consequences, the offender shall be
sentenced to fixed-term imprisonment of not less than three years and not more than seven
years, and concurrently be sentenced to a fine.
According to the provisions of Chinese laws and judicial interpretations, if any intellectual
infringement crime mentioned above has violated other accusation, which requires more
serious punishment in manners, methods or results, the culprit should be punished under more
serious accusation.  Therefore, some of the intellectual infringement crimes are not punished
in accordance with the conviction standards for "intellectual infringement crimes" set from
Article 213 to Article 220 of the Criminal Law of the People's Republic of China, but are
punished pursuant to the conviction standards for "producing, distributing forge commodity"
set from Article 140 to Article 150 of the Criminal Law of the People's Republic of China or
the conviction standards for "carrying out illegal business activities" in Article 225 of the
same law.
For example, in case a person produces and sells fake medicine with counterfeit trademark of
another person's registered trademark on it, and this kind of fake medicine incurs a patient's
death and the defendant does not have licence for medicine management, the act of the person
hereinbefore has constructed the crime of counterfeiting registered trademark, the crime ofproducing, distributing fake medicine, and the crime of carrying out illegal business activities.
Competent court usually handles this kind of crime pursuant to the principle of punishment
under more serious accusation.  According to provisions set in Article 141 of Criminal Law of
the People's Republic of China, if the offence causes death of person or any other especially
serious harm to human health, the offender shall be sentenced to fixed-term imprisonment of
not less than ten years, life imprisonment or death, and concurrently be sentenced to a fine of
not less than half of the sum obtained through sale and not more than twice of that orIP/C/W/374
Page 29
confiscation of property.  Pursuant to the provisions in Article 213 of Criminal Law of the
People's Republic of China, whoever uses a trademark identical with another person's
registered trademark on the same kind of goods without permission from the owner of the
registered trademark shall, if the circumstances are especially serious, be sentenced to fixed-
term imprisonment of not less than three years and not more than seven years, andconcurrently be sentenced to a fine.  According to the provisions set in Article 225 of
Criminal Law of the People's Republic of China,  any of the following categories of persons
who, in violation of the state's stipulations, engages in illegal business activities and disturbs
the market order shall, if the circumstances are especially serious, be sentenced to fixed-term
imprisonment of not less than five years, and concurrently be sentenced to a fine of not less
than the amount of illegal gains and not more than five times of the sum or confiscation of
property.  Obviously, since the punishment for the crime of producing and distributing fakemedicine is more serious, the court convicts the defendant of the crime hereinbefore in order
to follow the principle of suiting punishment to crime.
In addition, to the repeated intellectual property infringement acts that have not been dealt
with, the amount of the sale of or the value of the goods of each infringing act should be accumulated.
In conclusion, with regard to China's protection of intellectual property, it is fully in
compliance with the requirements set forth in Article 61 of the TRIPS Agreement in respect of
criminal law and criminal punishment.  According to our knowledge, the degree of China's criminal
punishment is one of the most serious in the world.
26. Please cite administrative organizations re lated enforcement and explain the function of
each organization.  (Please discuss if such syst em is unnecessarily complicated in Article 41.2 of
the TRIPS Agreement.)
At present, different government bodies are in charge of enforcement of different IPR-related
laws and administrative regulations.  The State Intellectual Property Office is in charge of the
protection of patent right and exclusive right to layout-designs of integrated circuits.  The State
Administration for Industry and Commerce and its Tr ademark Office are in charge of the protection
of exclusive right to use registered trademark.  The National Copyright Administration is in charge of
copyright protection.  The State Drug Administration is in charge of the administrative protection of
medicines (pharmacy).  The State Economic and Trade Commission is in charge of the administrative
protection of agriculture-related chemicals.  The Ministry of Agriculture and the State ForestryAdministration are in charge of the protection of ne w varieties of plants.  The General Administration
of Customs is in charge of the border protection of intellectual property rights.  The State
Administration for Industry and Commerce is in charge of the enforcement of the laws against unfair
competition, including the protection of trade secret.  The General Administration for Quality
Supervision, Inspection and Quarantine and the St ate Administration for Industry and Commerce are
in charge of striking counterfeit.  Other government bodies, such as the State Press and Publication
Administration and the Ministry of Public Security, also participate in the administrative protection of
intellectual property rights.  Specific duties of these government bodies have been stipulated by
relevant IPR-related legislation.  Such arrangements of the functions of different bodies are in line
with the social and economic development level of China.  The functions of each relevant body aredefinite and clear, and have met the requirements of the TRIPS Agreement.
27. Please explain how legislation and rele vant provisions of your country implements
border measures in Article 51 to 60 of the TRIPS Agreement.
The following legislations in China are related to the implementation of Article 51 to 60 of
the TRIPS Agreement:
(1) Customs Law of the People's Republic of China ( Article 44 and Article 91);IP/C/W/374
Page 30
(2) Regulations Governing Customs Protec tion of Intellectual Property Rights;
(3) Copyright Law of the People's Republic of China;
(4) Patent Law of the People's Republic of China;
(5) Trademark Law of the People's Republic of China;(6) Regulations of Prot ection of Olympic Signs.
28. (i) Against the act of intellectual property  infringement, Article 41.1 of the TRIPS
Agreement provides for effective remedies incl uding those "constitute a deterrent to further
infringements."  Also, Article 61 of the same Agreement stipulates that "Remedies available
shall include imprisonment and/or monetary fines sufficient to provide a deterrent…".   The
amounts of monetary fines and compensation for the damage caused by the infringement set up
in Articles 58 and 60 of the Chinese Patent Law, Article 56 of the Chinese Trademark Law, andArticle 48 of the Chinese Copyright Law of you r country cannot be considered as very high.
Can these amounts serve as an effectiv e remedy to deter further infringements?
Article 58 of the Patent Law of the People's Republic of China set up the amount of monetary
fine for counterfeiting a patent.  Article 59 of the same Law set up the amount of monetary fine for
passing any non-patented product (process) off as patented product (process).  Article 60 of the sameLaw stipulated how to calculate the compensation amount for the damage caused by patent
infringement.  Article 56 of the Trademark Law of the People's Republic of China stipulates how to
calculate the compensation amount for the damage caused by trademark infringement.  Rule 42 of the
Implementing Regulations of the Trademark Law of the People's Republic of China specifically
stipulated the amount of monetary fine that woul d be imposed according to Articles 45, 47 and 48 of
the Trademark Law of the People's Republic of China.  Rule 52 of the same Implementing
Regulations stipulated the monetary fine for infringing the exclusive use rights of registered
trademarks.  Article 48 of the Copyright Law of the People's Republic of China stipulated how to
calculate the compensation amount for infringing copyright and other relevant rights.  Rule 36 of the
Implementing Regulations of the Copyright Law of the People's Republic of China stipulated the
monetary fine for infringing copyrights and relevant rights.  In addition, the Criminal Law of the
People's Republic of China also stipulated the crim inal penalties for infringement of intellectual
property rights.
The above-listed monetary fine and other punishment against the infringement of intellectual
property rights as stipulated in the IPR-related legislations of China are sufficient to deter further
infringement.
(ii) Please explain the criteria and the way of calculation to decide the amount of the
damages which judicial authorities order to th e infringer to pay the right holder, regarding
Article 45 of the TRIPS Agreement.  And please explain the reason why relevant provisions of
patent law (Article 60), of copyright law (Article 48) and trademark law (Article 56) aredifferent.
Regarding the criteria and the way of calculation to decide the amount of the damages,
Article 60 of the Patent Law of the People's Republic of China, Article 56 of the Trademark Law of
the People's Republic of China, and Article 48 of the Copyright Law of the People's Republic ofChina have already laid down principles.
The differences among the compensation amount in Article 60 of the Patent Law, Article 56
of the Trademark Law and Article 48 of the Copyright Law are determined by the social andIP/C/W/374
Page 31
economic development level of China.  Such differences also exist in legislations of other Members
(including Japan).
29. In accordance with Article 41.1 of TR IPS Agreement, Members shall ensure that
enforcement procedures as specified in this Pa rt are available under their law so as to permit
"effective action" against any act of infringement of intellectual property right.  But we heard
there are a lot of people who recommit offences which infringe intellectual property rights.
Please give us an explanation about what measures are incorporated in your countries' law to
tackle these situations.
To deter acts of infringement of intellectual property rights, including repeated infringement,
the IPR-related legislations in China have provided procedures of filing lawsuit and applying for
provisional measures with the people's court, relief proceeding of reporting various infringements toadministrations, and liability of compensation, confiscation, monetary fine, and fixed-term
imprisonment, etc.  According to the IPR-related legislations in China and also the relevant provisions
of the Criminal Law of the People's Republic of China, repeating infringement would be deemed as
serious conditions and would be imposed a heavier punishment within the scope stipulated by these
legislations.
30. (i) Localism can be listed as one of the factors that impede quick and accurate
intellectual property right enfo rcement in your country.  In other words, it seems that some
local governmental agencies have a recognition that production of counterfeit goods and other
intellectual property right infringement acts woul d help develop local economy.  As a result, this
attitude of the agencies has lead to the curren t flood of counterfeit goods.  Please explain
whether the activities of local enforcement admini strative and judicial authorities as above are
consistent with Article 41.1 and 41.3 of the TRIPS Agreement.
Localism is not in compliance with Article 41.1 and 41.3 of the TRIPS Agreement and the
Chinese government has persistently opposed to localism.  In order to prevent localism, the StateCouncil published the Provisions on Prohibiting Local Blockade in Market Economy Activities,
which strictly prohibits local protection in various forms.
(ii) Where attitude towards infringements allows discriminatory treatment against
foreigners/foreign legal entities, such treatmen t can also be considered as being inconsistent
with Article 3.1 of the TRIPS Agreement, which stipulates that "Each Member shall accord to
the nationals of other Members treatment no le ss favourable than that it accords to its own
nationals with regard to the protection of intell ectual property..."  Please explain consistency of
current situation with Article 3.1 of the TRIPS Agreement.
National treatment is a main principle of th e TRIPS Agreement and is also an important
content of China's amendments to IPR-related le gislations for implementing the TRIPS Agreement.
In this aspect, China's IPR-related legislations have met the requirements of the TRIPS Agreement.
31. Regarding Article 43, 46 etc. of the TRIPS Agreement and Chapter 7 of your patent law,
please explain the followings;
(1) Is there any right like the claim for the infringement goods destroyed?
(2) Production order to the party in law suit against alleged infringement on patent
right and what kind of measures are taken in case that undisclosed information is
contained in the document?
This question involves two issues, one relates to whether, at the request of the parties
concerned, the infringing goods could be destroyed.  The other is whether the judicial authorities haveIP/C/W/374
Page 32
the authority to order the defendant of the patent infringement to provide the relevant evidence, and
what kind of protection are available for the confidential information involved in the evidence.
As for the first issue, the Patent Law of the People's Republic of China does not explicitly
empower the people's courts to order the infringing goods to be destroyed.
As for the second issue, there are various laws and regulations which guarantee that evidences
are collected and confidential information are properly protected.  For example, Article 64 of the Civil
Procedure Law of the People's Republic of China stipulated that "If, for objective reasons, a party and
his agent are unable to collect the evidence by themselves or if the people's court considers the
evidence necessary for the trial of the case, the peopl e's court shall investigate and collect it".  And
Article 66 of the same Law provided that evidence relating to State secrets, trade secrets and personalprivacy shall be kept confidential, and if it needs to be presented before a court, such evidence shall
not be presented in an open court session.
Question 32 to 56  are same as listed in the Enforc ement Checklist.  Because answers for
the Enforcement Checklist is not available so  far, Japan would like to ask the following
questions.
32. Specify the courts which have jurisdiction over IPR infringement cases.
33. Which persons have standing to assert IPRs?  How may they be represented?  Are there
requirements for mandatory personal appearances before the court by the right holder?
34. What authority do the judicial authorities h ave to order, at the request of an opposing
party, a party to a proceeding to produc e evidence that lies within its control?
35. What means exist to identify and protect confidential information brought forward as
evidence?
36. Describe the remedies that may be ordered by the judicial authorities and criteria,
legislative or jurisprudential, for their use;
- injunctions;
- damages, including recovery of profits, and expenses, including attorney's fees;
- destruction or other disposal of infringing goods and materials/implements for
their production;
- any other remedies.
37. In what circumstances, if any, do judicial authorities have the authority to order the
infringer to inform the right holder of the identity of third persons involved in the production
and distribution of the goods of services found to be infringing and of their channels ofdistribution?
38. Describe provisions relating to the indemnification of defendants wrongfully enjoined.
To what extent are public authorities and/or officials liable in such a situation and what
"remedial measures" are applicable to them?
39. Describe provisions governing the length and cost of proceedings.  Provide any available
data on the actual duration of proceedings and their cost.IP/C/W/374
Page 33
40. Reply to the above questions in relation to any administrative procedures on the merits
and remedies that may result from these procedures.
41. Describe the types of provisional measures that judicial authorities may order, and the
legal basis for such authority.
42. In what circumstances may such measures be ordered inaudita altera parte?
43. Describe the main procedures for the init iation, ordering and maintenance in force of
provisional measures, in particular relevant time -limits and safeguards to protect the legitimate
interests of the defendant.
44. Describe provisions governing the length and cost of proceedings.  Provide any available
data on the actual duration of proceedings and their cost.
45. Reply to the above questions in relation to any administrative provisional measures.
46. Indicate for which goods it is possible to  apply for the suspension by the customs
authorities of the release into free circulation,  in particular whether these procedures are
available also in respect of goods which involve infringements of intellectual property rights
other than counterfeit trademark or pirate d copyright goods as defined in the TRIPS
Agreement (footnote to Article 51).  Specify, together with relevant criteria, any imports
excluded from the application of such procedures (such as goods from another member of acustoms union, goods in transit or de minimis  imports).  Do the procedures apply to imports of
goods put on the market in another country by or with the consent of the right holder and to
goods destined for exportation?
47. Provide a description of the main elements of the procedures relating to the suspension
of the release of goods by customs authoritie s, in particular the competent authorities
(Article 51), the requirements for an application (Article 52) and various requirements related
to the duration of suspension (Article 55).  How have Articles 53 (security or equivalent
assurance), 56 (indemnification of the importer and of the owner of the goods) and 57 (right of
inspection and information) been implemented?
48. Describe provisions governing the length and cost of proceedings.  Provide any available
data on the actual duration of proceedings and their cost.  How long is the validity of decisions
by the competent authorities for the suspension of the release of goods into free circulation?
49. Are competent authorities required to act upon  their own initiative and, if so, in what
circumstances?  Are there any special provisions applicable to ex officio action?
50. Describe the remedies that the competent au thorities have the authority to order and
any criteria regulating their use.
51. Specify the courts which have jurisdiction over criminal acts of infringement of IPRs.
52. In respect of which infringements of which intellectual property rights are criminal
procedures and penalties available?
53. Which public authorities are responsible for initiating criminal proceedings?  Are they
required to do this on their own initiative and/or in response to complaints?
54. Do private persons have standing to initiate criminal proceedings and, if so, who?IP/C/W/374
Page 34
55. Specify, by category of IPR and type of infringement where necessary, the penalties and
other remedies that may be imposed:
- imprisonment;
- monetary fines;
- seizure, forfeiture and destruction of infringing goods and materials and
implements for their production;
- other.
56. Describe provisions governing the length a nd any cost of proceedings.  Provide any
available data on the actual duration of proceedings and their cost, if any.
China submitted to the TRIPS Council responses to the enforcement checklist in mid-July.
Please refer to China's submission for answers to questions 32-56.
G. PROTECTION OF NEW VARIETIES OF PLANTS
57. Article 9 of Regulations of your country on Protection of New Varieties of Plants
stipulated that "If a Chinese unit or individual is to assign to a foreigner the application right or
the variety rights with respect to a new variety of  plant bred by it or him in China, it shall be
approved by the examining and approving organ s."  Please explain whether applying this
Article to the case foreigner is concerned does n't conflict with the principle of the National
Treatment in Article 3 of the TRIPS Agreement.
According to Article 3 and footnote 3 of the TRIPS Agreement, national treatment applies
with regard to the "protection of intellectual proper ty", and "protection" include matters affecting the
"availability, acquisition, scope, maintenance and enforcement of intellectual property rights as well
as those matters affecting the use of intellectual property rights specifically addressed in this
Agreement".  Therefore to our understanding, national treatment stipulated in the TRIPS Agreement
does not apply to Article 9 of China's Regulations on Protection of New Varieties of Plants, which is
relating to technique transference.  Furthermore, according to paragraph 3 of Article 9 of China'sRegulations on Protection of New Varieties of Pl ants, examination and approval are also required
with regard to Chinese units.  So Article 9 of Regulations on Protection of New Varieties of Plants
does not contradict with national treatment requirement of the TRIPS Agreement.
H. O
THERS
58. (i) Relaxation of licensing regulations:  Please explain whether Articles 24.3, 25, 28
and 29 of Technology Import/Export Control Regulations of your country are consistent with
Article 3 of the TRIPS Agreement.
(ii) Where a licensee used a technology licensed by a licensor based on a technology
import contract between the two parties and where a legitimate interest of a third party wasinfringed as a result of use of that technology by the licensee, the licensor is to be held
responsible under Technology Import/Export Control Regulations.  Thus, these licensors are
required to go under a condition much stricter than that set up in Article 353 of the Contract
Law.  This can be considered as being inconsistent with Article 3.1 of the TRIPS Agreement,
which stipulates provisions concerning National  Treatment provided th at such Regulations
solely apply to the licensors who are foreigners or foreign entities.  Please give us an explanation
regarding this matter.IP/C/W/374
Page 35
The articles of Technology Import/Export Control Regulations mentioned by Japan
(Articles 24.3, 25, 28 and 29) do not discriminate foreigners and are necessary to balance the interests
of licensor and licensee.  Moreover, Article 24.3 of the said Regulations imposes liability on the
licensor on the condition that third party infringement happens when the licensee uses the licensed
technology in accordance with the licensing agreement.  Furthermore, Article 24.3, 25, 28 and 29 ofthe Regulations are relating to liabilities of the parties of a technology import/export contract, which
are not covered by the TRIPS Agreement.  Therefore China does not have any obligation under the
TRIPS Agreement in that regard.
59. Generally, the burden of proof of infringement  rests with the right holder.  In the most
cases of infringements of intellectual property, however, it is often more difficult to prove that
an act of infringement took place as compared with other tort claims.  Under Article 64 of Code
of Civil Procedures of your country, a right ho lder is required to submit evidence for a claim
he/she made and there are no provisions to redu ce the burden of proof on right holders.  Thus,
this might place an inordinate burden on right ho lders if they are required to prove that an act
of intellectual property right infringement occurred.  Article 41 of the TRIPS Agreement
stipulates that "Procedures concerning the enfo rcement of intellectual property rights" "shall
not be unnecessarily complicated or costly…" Such possible inordinate burden as mentioned
above can be considered as falling under the conditions mentioned in this Article.  Please give us
an explanation about what measures your country has taken to secure consistency with
Article 41 of the TRIPS Agreement.
"Those who claim bear the burden of proof" is a general principle in civil procedure, which
we believe is also the case in Japan.  In order to protect the interests of intellectual property right
holders, China has endorsed measures regarding investigation and preservation of evidence and
reversed burden of proof in its legislation.  (Please also refer to the answer to question 39 of EU).IP/C/W/374
Page 36
UNITED STATES
A. GENERAL COMMENTS AND QUESTIONS
1. The United States recognizes and appreciates the hard work done by China's legislators,
administrative officials, judicial officials, and others in reviewing, enacting and drafting new
intellectual property laws and regulations as part of implementing China's WTO commitments
and in strengthening China's legal regime for th e protection and enforcement of intellectual
property.  We recognize that in addition to revi sion to key laws, such as the patent, trademark
and copyright law, conducted over the past two years, China has had to enact, revise or annul
many central government laws, regulations and other measures as well as sub-central measures
dealing with intellectual property.
2. In addition to the obligations contained in the Agreement on Trade-Related Aspects of
Intellectual Property Rights (the TRIPS Agreem ent), these comments and questions are based
on the Report of the Working Party on the Ac cession of China (WT/MIN(01)/3) (the "WPR").
In paragraph 305 of the WPR, China agreed to fully apply the provisions of the TRIPS
Agreement upon its accession to the WTO.   China became a member of the WTO on
11 December 2001.
3. The United States considers transparency in  making laws, regulations, rules and other
measures including the opportunity to provid e comments on such provisions as set forth
Section 2, paragraph 2(C) of China's protocol of accession and in paragraphs 324 through 336
of the WPR to be a key aspect of China's WTO commitments.  In particular, China hascommitted to publish its laws, regulations and other measures in an official journal and provide
a reasonable period for comment to the appropriate authorities before such measures are
implemented.  Moreover, China has agreed that  to make these laws, regulations and other
measures available to WTO Members upon request  before they are implemented or enforced.
The Law on Legislation authorizes officials to provide the opportunity to receive comments and
requires publication of laws, regulations and other measures.  We strongly urge China to
provide this opportunity in all cases.
4. The United States looks forward to cooperating with China on revisions to its trademark
and copyright implementing regulations as well as  assisting China in its efforts to harmonize its
laws with new treaties to which it may wish accede, such as the WIPO Copyright Treaty and
WIPO Performance and Phonograms Treaty.
China takes note of the comments and will provide opportunities for receiving comments in
the legislative process.
5. Please provide a report on the laws that have been nullified or repealed, amended, or
enacted to bring China's IPR regime into confor mity with TRIPS consistency, as well as plans
for any further nullifications, repeals or amendm ents that are currently scheduled or that are
planned to be scheduled by China's various law, regulation, and rule making bodies on either a
national or local level, as well as efforts to receive comments from foreign and other IPR owners
in drafting and issuing these measures and facilitating technical assistance.
The Regulations on Protection of Layout-Design of Integrated Circuit have been drafted and
published.
The Patent Law, the Implementing Rules of the Patent Law, the Trademark Law, the
Implementing Regulations of the Trademark Law, the Copyright Law, the Implementing RegulationsIP/C/W/374
Page 37
of the Copyright Law, and the Regulations on the Protection of Computer Software have been
amended.
With regard to other IPR-related administrative regulations, the Regulations on
Administration of Pesticide, the Regulations on Administration of Veterinary Medicine, theRegulations on Administration of Feed and Feed Additive, the Implementing Regulations of the
Medicine Administration Law have also been amended.
Thus, together with the existing Anti-Unfair Competition Law, the Regulations on Protection
of New Varieties of Plants, the Regulations Governing Customs Protection of Intellectual Property
Rights, China has completed the IPR-related legislation to implement the TRIPS Agreement.
B. N
ATIONAL TREATMENT
6. China's WPR set forth certain commitments regarding national treatment (para. 255).
In Particular, the following matters were identi fied as raising national treatment concerns:
(a) the Rules on Banning the Infringement of Business Secrets (23 November 1995),
which only protected business secrets of citizens or enterprises of China.
(b) Enforcement action in copyright matt ers which required clearance by the
National Copyright Administration in China when a foreign rights holder was
involved;  and
(c) Protection of well known trademarks and requirements for use of certain
trademark agents.
We would appreciate an update on efforts to provide national treatment with respect to
these issues.
(a) In practice, the mentioned Rules applies equally to Chinese and foreign citizens and
enterprises.
(b) The revised Implementing Regulations of the Copyright Law of the People's Republic
of China has deleted the provision which designated the copyright administration
department under the State Council (the National Copyright Administration of China)
to investigate and deal with infringing acts involving foreign right owners taking
place in the territory of China.  After the revised Implementing Regulations enters
into force, each local copyright administration department may investigate and deal
with all infringing acts (including those involving foreign right owners) taking placein its own administrative area, without the necessity of requiring clearance by the
copyright administration department under the State Council.
(c) Please refer to answers to questions 8 and 9.
C. C
OPYRIGHT
7. We have a number of questions regarding specific provisions of China's amended
Copyright Law, its implementation, and its consistency with relevant TRIPS provisions.  In
particular:
(a) Does the compulsory licence for textbooks in Article 23 of China's Copyright
Law apply to works of foreign authors?  If so, please explain the scope of this
provision and its application.  Does it apply to higher education, e.g., digitalIP/C/W/374
Page 38
forms and multimedia?  Please explain how this provision is consistent with the
standards in TRIPS Article 13.
(b) What are the limitations on the sc ope of the recompilation exception in
Article 17 of the Computer Software Regulations?  Please explain how thisprovision is consistent with the standards in TRIPS Article 13.
(c) Does the right of reproduction in Article 10 of China's Copyright Law include
temporary copies, such as those made in  the random access memory (RAM) of a
computer, as required by Berne Article 9, as incorporated into TRIPS Article 9?
Is there any statement in your law, regulati ons or other measures that indicates
that such temporary copies involve the repr oduction right?  If so, please provide
the citation.
(a) The statutory license system for textbooks provided for in Article 23 of the Copyright
Law is also applicable to works of foreign authors.  The prerequisite of applying this
Article is that the author has not declared in advance that such use is not permitted.The scope of the said provisions is confined to compiling and publishing textbooks
for the nine-year compulsory education or for the national educational planning.  This
Article is only applicable to passages from a work, a short written work or musical
work, or a single work of art or photographi c work that have been published, without
excluding such works as multimedia ones or expressed in digital forms.  Theseprovisions are consistent with the standard of "three steps test" provided for in
Article 9 and Article 13 of the TRIPS Agreement.
(b) The recompilation exception is not provided for in Article 17 of the Regulations on
the Protection of Computer Software.  Article 17 is consistent with Article 13 of the
TRIPS Agreement.
(c) According to our understanding, there is not such a term as "temporary reproduction"
in Article 9 of the Berne Convention and in Article 9 of the TRIPS Agreement.
D. T
RADEMARKS
8. As noted in paragraph 6, we have continuing concerns about receipt of national
treatment under China's trademark law.  We note the requirement to use a designated
trademark agent, as set forth in the original  implementing rules of the Trademark Law,
Article 3, which provides that:
when a foreigner or foreign enterprise is  to apply for trademark registration in
China or to deal with other trademark matters in China, the application or
other matters shall be handled by an agency designated by the State
Administration for Industry and Commerce.
Not only may a Chinese enterprise file fo r a registration directly without an agent,
foreign enterprises have been restricted to use of only certain agents.  While Article 3 of the
TRIPS Agreement provides a limited exception wi th regarding to national treatment for "the
appointment of an agent within the jurisdiction of a Member", th is exception applies only where
"it is necessary to secure comp liance with laws and regulations which are not inconsistent with
the provisions of this Agreement and where su ch practices are not applied in a manner which
would constitute a disguised restriction on trade".
We note the following discriminatory aspects of China's requirement:IP/C/W/374
Page 39
(a) The restrictions only apply to foreig ners applying for trademarks in China,
irrespective of whether they have a place of business in China.
(b) Only some trademark agents can be used by foreign enterprises.
(c) This rule only applies to trademarks.  No similar rule applies to patents.  China's
patent law has a less restrictive provision:  "where any foreigner, foreign
enterprise or other foreign organization having no habitual residence or
business office in China applies for a patent, or has other patent matters to
attend to, in China, he or it shall appoint a patent agency designated by the
patent administrative organ under the State Council to act as his or its agent".
(d) Foreigners making applications pursuant to the Madrid Protocol do not require
use of Chinese agent.  Implementing Rules for Madrid International
Registrations (Sec.  2).
(e) Points (c) and (d) indicate that use of a trademark agent is not necessary to
secure enforcement of China's trademark laws and is a unjustified restriction on
trade.
As regard to the requirement for foreigners to use a designated trademark agency, firstly, this
practice is an exception of national treatment specified in paragraph 3 of Article 2 of the ParisConvention and Article 3 of the TRIPS Agreement.  The requirement for foreigners to use a
designated trademark agency is an international prac tice rather than something that is unique in China,
and such practice is in full compliance with the requirement of the international treaties.  Secondly, in
the newly revised Trademark Law and its Implementing Regulations, China has taken into
consideration of the national treatment in trademark field and its compliance with that in patentapplication.  In the new Implementing Regulations, a "foreigner or foreign enterprise" is further
defined as "those who are not domiciled or who do not have real and effective industrial or
commercial establishments in the People's Republic of China".  Thirdly, the problem of "only some
trademark agents can be used by foreign enterprise" no longer exists.  From 1 January 2001, all
trademark agencies legally established are allowed to deal with foreign business on trademarks.
9. The WPR noted that while China had provided protection to "well-known trademarks"
owned by nationals, such protection had, as yet, not been extended to the well-known
trademarks of foreigners? (Para. 262).  This issue has become especially acute, as lower
thresholds are available for initia ting criminal investigations and penalties for counterfeiting
well- known marks, i.e., enhanced enforcement may exist for marks owned by Chinese entities
when compared to foreign marks.
Since China became a WTO member, China's Trademark Office has established a
website listing well-known marks.  Approximately 150 marks are listed, none of which is a
foreign mark.  Another website run by a provincial organization lists 196 well-known marks,
but none of these marks are foreign marks: ttp://www.zmsb.com/info.asp?page=0&count=196).
Please inform us as to the steps that China' s government is undertaking to ensure protection of
well-known marks on the basis of national trea tment and the need for effective enforcement of
all marks.  We are concerned that the failure to include foreign well known marks on such lists
could unfairly prejudice foreign rights holders seeking administrative, civil or criminal
enforcement, i.e., deny national treatment.
According to the Trademark Law and its Implementing Regulations, China has established
the legal protection to well-known marks, which applies equally to the domestic and foreign right
holders.  Article 13 and 14 of the Trademark Law and Article 5, 45 and 53 of its newly revised
Implementing Regulations are relevant provisions for the protection of well-known marks.IP/C/W/374
Page 40
It should be noted that in the practice of our administrative enforcement in the past years,
China has provided a very high level of protection for foreign well-known trademarks, such as IBM,
ADIDAS, NIKE, etc.  After the revision of the Trademark Law and its Implementing Regulations, the
Interim Rules on the Determination and Administration of Well-known Marks made in 1998 is alsounder revision now.  This will further improve the procedures of protection of well-known
trademarks.
The information of the list of well-known trademarks and the website mentioned in the
question are not accurate.  Currently, Trademark Office does not have an official website.
10. We recognize that China's courts have reco gnized the well-known status of certain
marks, e.g., in Beijing Cinet In formation Co.Ltd v. E.I. Dupont De Nemous and Company, Case
Number 2002, Beijing Higher People's Court, Intellectual Property Tribunal, Final Decision,
No. 47 (Nov. 2001).  Judicial recognition also raises risks of inconsistencies.  The 1998
regulations noted above, for example, imposes fi nes on companies that state their mark is well
known which have not been approved by the China Trademark Office (Article 12).  Thus, evencompanies with marks that courts recognize as  well-known could face penalties.  Again, we
emphasize the need for national treatment and effective enforcement.
As said in answer to question 9, after the revision of Trademark Law and its Implementing
Regulations, this problem has been solved.  Besides, the Interim Rules on the Determination and
Administration of Well-known Marks made in 1998 are under revision now.
E. G
EOGRAPHICAL INDICATIONS
11. Does China's law relating to the protection of geographical indications include any of
the exceptions to protection contained in Article 24 of the TRIPS Agreement?  If so, please
describe the way in which the exception is app lied, indicating the relevant provisions of law.
In China, at the level of law adopted by the People's Congress and the regulations
promulgated by the State Council, geographical indications are mainly protected under the Trademark
Law and Anti-unfair Competition Law.  Relevant pr ovisions under the Trademark Law cover, to some
extent, the exceptions to protection contained in Article 24 of the TRIPS Agreement.  For example,
Article 16 of the Trademark Law provides for exception in a situation where the registration shall
remain valid when it is obtained in goodwill.
12. Please explain the procedure(s) by which nationals of WTO Members may obtain
protection for their geographical indications.
According to the Trademark Law and its Implementing Regulation, nationals of WTO
Members may apply for the registration of certification or collective marks to seek protection of their
geographical indications in China, and they can also enjoy protection under Anti-Unfair CompetitionLaw.
13. Please explain how owners of trademarks might object to protection of third-party
geographical indications.
Owner of a trademark may make use of the trademark opposition procedure, cancellation,
review and adjudication procedure, judicial procedur e and etc. to object to protection of third-party
geographical indications registered as certificate trademark.IP/C/W/374
Page 41
14. Are any geographical indications currently prot ected in China?  If so, please identify
some domestic and foreign geographical indications that are protected in China.  How did these
geographic indications become protected?  What is the scope/nature of their protection?
Currently, there are some geographical indications being protected under the system of
geographical origin certification marks, such as China's "Kuerle Xiang Li", "Shaoxing Huang Jiu";
American "A Product of the Florida Sunshine Tree", etc.  All of them obtained protection in China by
their owners' application filing with the Trademark Office for the registration of geographical origin
certification marks.  Provisions and measures concerning the protection of registered trademarks or
geographical indications specified in the Trademark Law and other relevant laws can be used to
protect these geographical indications.  If a geographical indication is protected under the Trademark
Law, the scope of its protection is limited to the mark that has been approved for registration and to
the goods in respect of which the use of the trademark has been approved.  This kind of protection forgeographical indications is identical with that for registered trademarks.
15. Are the procedures for obtaining protection  for a foreign geographic indication the
same as those that are used to obtain protection of a domestic geographic indication or when the
applicant is a national of China?
According to provisions under the Trademark Law and its Implementing Regulations, the
procedure through which owners of foreign geographical indications apply for the registration of
collective and certification marks in China is the same as a Chinese national does, except that a
foreigner or a foreign enterprise shall entrust any one of such trademark agencies legally established
to handle matters concerning the registration of a mark.
F. P
ATENTS
16. China indicated in the WPR that it would provide in the Implementing Rules of the
Patent Law a provision ensuring that Article 5 of the Patent Law complies with Article 27.2 of
the TRIPS Agreement.  Has this been done and, if so, please describe and explain the provision.
Please refer to the answer to questions 6 of Patent from Japan.
17. Please indicate the provisions in the Im plementing Rules of the Patent Law that
implement TRIPS Articles 31(b), 31(c), 31(h) a nd 31(f) relating to the grant of compulsory
licenses.
(1) The following provisions in the Patent Law of the People's Republic of China and its
Implementing Regulations are relevant to the compliance with Article 31(b) of theTRIPS Agreement:
Article 48 of the Patent Law stipulates that "Where any entity which is qualified to exploit the
invention or utility model has made requests for authorization from the patentee of an invention or
utility model to exploit its or his patent on reasonable terms and conditions and such efforts have notbeen successful within a reasonable period of time, the patent administration department under the
State Council may, upon the request of that entity, gr ant a compulsory license to exploit the patent for
invention or utility model".
Article 49 of the Patent Law provides that "Where a national emergency or any extraordinary
state of affairs occurs, or where the public interest so requires, the patent administration department
under the State Council may grant a compulsory licen ce to exploit the patent for invention or utility
model".IP/C/W/374
Page 42
Paragraph 2 of Rule 72 of the Implementing Re gulations of the Patent Law prescribes that
"Any entity requesting a compulsory licence shall submit to the patent administration department
under the State Council a request for compulsory licence, state the reasons therefore, and attach
relevant certifying documents each in two copies".
Paragraph 3 of Rule 72 of the Implementing Re gulations of the Patent Law prescribes that
"The patent administration department under the State Council shall send a copy of the request for
compulsory licence to the patentee, who shall make his or its observations within the time limit
specified by the patent administration department under the State Council.  Where no response is
made within the time limit, the patent administration department under the State Council will not be
affected in making a decision concerning a compulsory licence".
Paragraph 1 of Article 52 of the Patent Law provides that "The decision made by the patent
administration department under the State Counc il granting a compulsory licence for exploitation
shall be notified promptly to the patentee concerned, and shall be registered and announced".
(2) The following provisions in the Patent Law and its Implementing Regulations are
relevant to the compliance with Article 31(c) and (f) of the TRIPS Agreement:
Paragraph 4 of Rule 72 of the Implementing Regu lations of the Patent Law provides that "The
decision of the patent administration department under the State Council granting a compulsory
licence for exploitation shall limit the exploitation of  the compulsory licence to be predominately for
the supply of the domestic market.  Where the inve ntion-creation involved in the compulsory licence
relates to the semi-conductor technology, the exploita tion of the compulsory licence shall be limited
only for public non-commercial use or to remedy a practice determined after judicial or administrative
process to be anti-competitive".
(3) The following provisions in the Patent Law and its Implementing Regulations are
relevant to the compliance with Article 31(h) of the TRIPS Agreement:
Article 54 of the Patent Law provides that "The entity or individual that is granted a
compulsory licence for exploitation shall pay to the patentee a reasonable exploitation fee, the amount
of which shall be fixed by both parties in consultations.  Where the parties fail to reach an agreement,
the patent administration department under the State Council shall adjudicate".
18. Please indicate the term of protection for patents granted prior to 1992.  Where is this
term stated in your laws, regulations or implementing rules?
According to Notice No. 80 of the State Intellectual Property Office of China issued on
11 December 2001, for patents for inventions whose dates of filing fall before 31 December 1992(including 31 December 1992) and that are still in force by 11 December 2001, the term of protection
shall be extended to 20 years counted from the filing date.  With the extension of the patent term,
China has fulfilled its obligation under the commitment made in its accession to the WTO.
19. Please inform us as to whether or not process inventions that facilitate the conduct of
business are eligible to be patented if they are otherwise novel, involve an inventive step and are
industrially applicable.
According to the Patent Law, subject matters that fall within the provisions of Article 5 and
Article 25 of the Patent Law shall not be patentable.  Since business methods are not clearly included
in the provisions, any invention relating to business method that falls within the definition ofinvention as provided for in Rule 2 of the Implementing Regulations of the Patent Law, possesses of
novelty, inventiveness and practical applicability as prescribed in Article 22 of the Patent Law andIP/C/W/374
Page 43
meets other requirements for the granting of patent right, is eligible for being granted patent right in
China.
G. LAYOUT -DESIGNS OF INTEGRATED CIRCUITS
20. With respect to the protection of layout de signs of integrated circuits (WPR Para. 280),
we would appreciate being advised what protections are afforded to discrete as part of
semiconductor layout design protection.
First of all, the provisions of the Regulations on the Protection of Layout Designs of
Integrated Circuits are fully in conformity with the provisions in Section 6 Part II of the TRIPS
Agreement.
With respect to discrete mentioned in the ques tion in particular, if it complies with provisions
of Article 2 and Article 4 of the Regulations on the Protection of Layout Designs of Integrated
Circuits, it can be protected through applying for registration of layout-design.  Where the discrete
does not meet the requirements of the Regulations, and thus can not be protected by registration of
layout-design, it is still possible to be protected as trade secrets under the Anti-Unfair Competition
Law.  In addition, if the technology involved in th e discrete meets the requirements for applying for
patent as provided for in the Patent Law, it may seek patent protection through applying for a patent.
H. UNDISCLOSED INFORMATION
21. In the WPR, China identified its Anti-Unfair Competition Law as the principal basis for
the civil protection of trade secrets, and Arti cle 219 of the Criminal Law providing criminal
remedies (WPR Para. 283).  In addition to th e laws identified in the Working Party Report
regarding the protection of trade secrets, the following laws and regulations have existed in
China:
(a) Notice of Ministry of Labor on Severa l Issues Involved in Enterprise Worker
Mobility (No. 355, 1996) (Article 2).
(b) Law for Promotion of Science of the P.R.C. (1 October 1993) (Article 60).
(c) Rules on Banning the Infringement of Business Secrets (23 November 1995)
(d) Guangdong Provincial Regulations
(e) Regulations of the Protection of Tech nical Secrets of Enterprises in the
Shenzhen Special Economic Zone (Jan.  1, 1996)
(f) Zhuhai Municipal Regulations
(g) Company Law  ___
(h) Software Protection Measures
We would appreciate being advised:
(a) whether these laws continue to be in full force and effect,
(b) the scope of "reasonable compensation" that is required of an employee in order
for a binding confidentiality agreement to exist between the employer and the
employee, in light of inconsistent provisions in d, e and f, above,IP/C/W/374
Page 44
(c) whether the definition of Trade Secret as set forth in WPR Para. 283 is the same
as those in the above items, and
(d) whether those regulations th at remain in effect equally apply to foreign and
domestic enterprises and individuals.
(e) will the protection accorded under any of these laws apply to protection of test
and other data submitted to obtain marketing approval for a pharmaceutical or
agricultural chemical?  If so, please explain which provisions would apply and
how.
Our following reply does not involve (d) Guangdong Provincial Regulations and (h) Software
Protection Measures listed in the questions, because we are not sure what these two regulations are.
(a) Except for the Guangdong Provincial Regulations and the Software Protection
Measures, relevant provisions in other above-listed laws, regulations and local
legislations are specific implementing measures which are in line with the Anti-
Unfair Competition Law and the Criminal Law.  These laws, regulations and local
legislations are legitimate and still effective.  However, their legal effects and
applicability are different.
(b) The Regulations of the Protection of Technical Secrets of Enterprises in the Shenzhen
Special Economic Zone, which was adopted by the Standing Committee of the
Shenzhen People's Congress on 3 November 1995, and the Regulations of the
Protection of Technical Secrets of Enterprises in Zhuhai, which was adopted by the
Standing Committee of the Zhuhai People's Congress on 10 July 1997, stipulated theprotection system of technical secrets of enterprises, which are respectively
applicable to the legitimate owner of trade secrets within the administration area that
the two regulations defined.
(c) The concept of trade secret, which was mentioned in the laws, regulations and local
legislations listed in the questions (except for the unknown Guangdong ProvincialRegulations and Software Protection Measures), is identical with the definition of
trade secret as set forth in WPR Para. 283.
(d) These laws, regulations and local legislations listed in the questions are equally
applicable to domestic and foreign enterprises and individuals.
(e) As long as it falls in the protection range of any of the above-listed laws or
regulations, the test and other data submitted to obtain marketing approval for a
pharmaceutical or agricultural chemical would be protected under the correspondinglaws or regulations.  In addition, the amended Regulations on Administration of
Pesticide, Regulations on Administration of Veterinary Medicine, Regulations on
Administration of Feed and Feed Additive, and Implementing Regulations of Drug
Administration Law all stipulated the protection of undisclosed information.
22. In the WPR, China confirmed that it would "in compliance with Article 39.3 of the
TRIPS Agreement, provide effective protection against unfair commercial use of undisclosed
test or other data submitted to authorities in China as required in support of application for
marketing approval of pharmaceutical or of agricultural chemical products which utilized new
chemical entities". (Para. 284).  The United States understands that such regulations have been
issued with respect to agricultural chemicals and that work is proceeding on pharmaceutical
regulations.IP/C/W/374
Page 45
We understand that for imported pharmaceuticals that are new to China's market the
owner must submit non-disclosed data to obtain a certificate that permits both importation and
marketing (an import permit).  Please confirm that undisclosed data submitted to obtain an
import permit will also receive protection against unfair commercial use.
According to Article 35 of the Implementing Regulations of Drug Administration Law of the
People's Republic of China (4 August 2002, Stat e Council Promulgation No. 360), the government
shall provide protection to the undisclosed test and other data, which was gathered and submitted by
the manufacturer or distributor as required in support of applications for marketing approval of
pharmaceutical products which utilized new chemical entities, against unfair commercial use.  Within
6 years from the date on which a manufacturer or distributor was granted marketing approval of a
pharmaceutical product utilized new chemical entities, if any second applicant apply for marketauthorization using the said undisclosed data without the permission of the prior applicant, the
competent authority for drug administration shall not grant the market authorization, except for that
the second applicant submits his own data.  The competent authority for drug administration shall not
disclose the said data, except where (a) the disclosure of such data was necessary to protect the public,
or (b) steps were taken to ensure that the data are protected against unfair commercial use.
23. Articles 13 and 14 of the Regulations for Protection of Chinese Pharmaceuticals
(14 October 1992, State Council Promulgation No. 106) provides for protection of the
composition and methods of manufacturing of traditional Chinese medicines, including
restrictions against disclosure by Chinese government officials, and establishment ofconfidentiality procedures according to national  regulations The level of protection extended to
these products lasts from 10 to 30 years.  The United States would appreciate being advised of
the following with respect  to these regulations:
(a) Are these regulations still in effect?
(b) What are the State Council regulations that protect against such disclosure?
(c) Do these regulations also relate to protec tion of clinical and other data submitted
to obtain marketing approval?  If so, to what extent?
(d) What protections, if any, also exist against improper use of proprietary
information disclosed to China's government with respect to a domestically
produced pharmaceutical
(e) Are any of these foregoing regulations being applied to foreign or Western
pharmaceutical clinical data as well?
The protection to the Traditional Chinese Medicine (TCM) products is based on the
Provisions for Protection of Traditional Chinese Medicine Products, which is still in force.  The main
aim of the Provisions is to protect TCM and regulate the TCM market.  The Provisions is generally
not related to the TRIPS Agreement.
According to the current Provisions for Protection of Traditional Chinese Medicine Products,
the confidentiality status is given only to Class I TCM for its composition and manufacturing process.
Organizations and persons concerned are responsible for protecting clinical data and other data from
disclosure for the purpose of anti- unfair commercial use.
I. R
IGHT OF APPEAL
24. Within the framework of the rights to appeal decisions regarding patent and trademark
rights, we would appreciate being advised whet her (a) final decisions of the patent andIP/C/W/374
Page 46
trademark offices are appealed to an administrative tribunal or a specialized intellectual
property tribunal within China's judicial system;  (b) if China's intellectual property courts can
entertain both validity and infringement issues in  the course of an infringement action;  (c) if
the criminal panels of China's courts are authoriz ed to hear criminal intellectual property cases
or if such matters are heard by the civil intellectual property panels.
We suggest that China consider providing its specialized intellectual property courts
with jurisdiction over trials and appeals of these cases, because the judges have developed
greater expertise on the relevant issues.
Regarding question (a):  For cases where any party in a civil dispute which has been filed to
China Patent Office or China Trademark Office for deciding the effectiveness of the involved right is
not satisfied with the decision of the Patent Office or the Trademark Office, the intellectual propertytribunal of a people's court will take charge of the judicial review of these cases raised.  For other
cases where the party concerned is not satisfied with the decision of the Patent Office or the
Trademark Office, the administrative tribunal of a people's court will take charge of the judicial
review.
Regarding question (b):  An intellectual property tribunal of a people's court does not directly
deal with the effectiveness of a right during infringement litigation.
Regarding question (c):  Intellectual property related criminal cases are mainly taken charge
of by the criminal tribunal of a people's court.  However, few local people's courts assign allintellectual property related cases, including criminal, civil and administrative, to the intellectual
property tribunal.
J. E
NFORCEMENT
25. Civil Actions:  TRIPS Article 41 requires that enforcement procedures permit effective
action against any act of infringement.
(a) Taking note of recent amendments to the patent, trademark and copyright law
that provide for provisional relief in those matters, as well as interpretations of
the Supreme People's Court to provide provisional relief in trademark and
patent matters, we would appreciate being advised of the status of implementing
rules providing detailed guidance related to provisional relief for copyright
infringements.
(b) In the light of Berne Conventions proh ibition on formalities, we would also
appreciate being advised how China intends to permit plaintiffs to prove
subsistence of copyright.  In particular, we would appreciate an explanation of
how the requirements suggested in a National Copyright Administration of
China letter (25 December 2001) requesting notarized and certified registrationcertificates complies with Berne and TRIPS Agreement obligations.
(a) The Supreme People's Court now is drafting a judicial interpretation concerning
implementation of provisional measures under the Copyright Law.  In the current
practice, the judicial interpretation about the provisional measures in patent and
trademark cases would be referred when implementing the provisional measures incopyright cases.
(b) Article 11.4 of the Copyright Law provides that "The citizen, legal entity or other
body whose name is mentioned in connection with a work shall, in the absence of
proof to the contrary, be deemed to be the author of the work."IP/C/W/374
Page 47
According to this provision, if there is no proo f to the contrary, the name of a right owner that
is mentioned in connection with a work may prove his ownership in instituting proceedings in a
people's court.  In case of inconsistency between the Copyright Law and relevant regulations or
measures, the provisions of the Copyright Law will prevail.
The above-mentioned provisions are consistent with Article 15.1 of the Berne Convention and
the TRIPS Agreement.
26. Administrative Enforcement:  Enforcement Actions at the Border:  Please advise us of
the status of proposed revisions to the 5 July  1995 State Council regulations on border measures
for the protection of intellectual property rights.
The 5 July 1995 State Council regulations is now under revision, and the General
Administration of Customs is receiving comments in this regard.  The process is not finalized yet.
27. Criminal Enforcement:  TRIPS Article 61 requires the application of criminal fines and
imprisonment at levels sufficient to provide a deterrent in cases of willful piracy or
counterfeiting on a commercial scale.  In its Working Party Report, China agreed that repeatoffenders and willful piracy and counterfeiting cases would be referred to relevant authorities
for prosecution?  (Para. 298) and agreed to recommend to the judicial authorities that they
lower the thresholds for initiating crim inal investigations.  (WPR Para. 304).
(a) Please provide a copy of the recommendation to China's judicial authorities that
they lower the thresholds for initiati ng and prosecuting criminal cases against
those who infringe intellectual property  rights.  In addition, please provide
copies of references to any recommenda tions from the judicial authorities to
make necessary adjustments to lower th e criminal thresholds for piracy and
counterfeiting, as well as any actions by these authorities to lower the thresholds.
(b) We would appreciate statistical or oth er information on the following issues:
(i) the number of cases involving copyright piracy and trademark
counterfeiting that were prosecuted through administrative penalties in
China;
(ii) the number of such cases transferred from administrative proceedings to
criminal prosecutions;
(iii) the number of criminal investigations initiated for copyright
infringement and trademark piracy;
(iv) the number of criminal convictions have been obtained this year;
(v) the level of criminal fines assessed this year;
(vi) the number and length of jails terms imposed this year;  and
(vii) the final disposition of seized goods, materials, and implements in
criminal prosecutions.
(c) With regard to copyright cases in particular, the Untied States would appreciate
knowing of criminal copyright prosecutions and convictions by China under
other provisions of Chinese law, such as illegal business operations (feifa
jingying).IP/C/W/374
Page 48
(a) Recommendations have been made by relevant administrative authorities to the
judicial authorities to lower the thresholds for initiating criminal investigations.
(b) Relevant statistics in enforcement of IPR laws and regulations in year 2001 are as
following:
Regarding copyright, the number of claims accepted by the administrative authorities of
copyright is 4416, the number of cases finalized is 4302, among which 3607 cases resulted in
administrative penalties, and the number of cases transferred to criminal procedures is 66.
Regarding trademark, in year 2001, totally 41,163 trademark cases were dealt with by the
administrative authorities, amount which 22,813 cases involved infringement and
counterfeiter, and 18,350 cases involved other offences.  250,000,000 pieces of marks and
14,004 pieces of instruments used for infringing purpose were confiscated, and the totalamount of fines is 210,000,000 yuan in RMB.  The total amount of compensation ordered by
the administrative authorities is 3,343,400 yuan in RMB, and 86 cases were transferred to
criminal procedures.  As to criminal procedures, from January to November 2001 the number
of cases heard by the courts is 299, and 265 cases were finalized.  From January to May 2002,
the number of cases heard by the courts is 186, among which 136 were finalized.
(c) There is no specific calculation of statistics in such a way as mentioned in the
question.  Please also refer to the answer to question 2 of Enforcement from Japan.
28. We note that prior to WTO accession, China's authorities enacted certain regulations or
rules, including the Provisions on the Transfer of Susceptible Criminal Cases by AdministrativeOrgans for Law Enforcement (9 July 2001) and Regulation of the Supreme People's Court and
Ministry of Public Security Concerning Standards for Initiating Cases In Economic Crimes
(18 April 2001), and that revisions to the tradem ark and copyright laws change various aspects
of the administrative enforcement systems, and in particular cases mandate referral to criminal
prosecution in appropriate cases.
We would appreciate being advised of legislative and enforcement efforts to coordinate
administrative, civil and criminal enforcement, including new regulations or initiatives have
been undertaken to (a) preserve evidence from administrative investigations for use in criminal
investigations and prosecutions;  (b) insuri ng that appropriate copyright and trademark
matters are referred to criminal investigation;  (c) ability of a rights holder to participate in
administrative or criminal proceedings;  (d) pr oviding for coordination or cooperation among
various enforcement authorities on complex cases;   (e) providing for expeditious transfer from
administrative enforcement to criminal prosecution ;  and (f) treatment of recidivist violators of
administrative regulations, e.g.,  have th ey been subject to criminal prosecution.
The legal bases for transfer of cases by administrative agencies include the Criminal
Procedure Law, Provisions on the Transfer of Susceptible Criminal Cases by Administrative LawEnforcement Bodies, and relevant provisions of the Trademark Law and the Copyright Law and the
Implementing Regulations thereof.  The Provisions on the Transfer of Susceptible Criminal Cases by
Administrative Law Enforcement Bodies provides comprehensively the obligations of administrative
organs and the public security authorities on transference of susceptible criminal cases and the
procedure requirement thereof.  Article 4 of the Provisions provides that the administrative organsshall preserve appropriately the evidence collected in  the course of investigation of actions violating
administrative regulations.  According to Article 15, 16 and 17 of the Provisions, administrative or
public security authorities violating the Provisions will be punished.
__________