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China—Measures Affecting the Protection and Enforcement of Intellectual Property Rights

  • Daniel Gervais (a1)

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1 Agreement on Trade-Related Aspects of Intellectual Property Rights, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1C [hereinafter TRIPS Agreement], Art. 27, in The Legal Texts: The Results of the Uruguay Round of Multilateral Trade Negotiations 365, reprinted in 33 ILM 1197 (1994).

2 Panel Report, China—Measures Affecting the Protection and Enforcement of Intellectual Property Rights, WT/DS362/R (Jan. 26, 2009) (adopted Mar. 20,2009) [hereinafter Panel Report]. Materials on specific WTO disputes are available online at http://www.wto.org/english/tratop_e/dispu_e/find_dispu_cases_e.htm.

3 Berne Convention for the Protection ofLiterary and Artistic Works, July 24,1971,828 UNTS 221 (originally signed at Berne, Sept. 9, 1886) [hereinafter Berne Convention],

4 Countries that have ratified or adhered to the Berne Convention form the Union for the Protection of Literary and Artistic Works. Id., Art. 22.

5 The phrase “shall have the authority” is used repeatedly in the Trips Agreement. See Trips Agreement, Arts. 31 (g), 31 (k), 34.1,43.1,44.1,45.1,45.2,46,47,48.1, 50.1, 50.2, 50.3, 50.7, 53.1, 56, 59. Arguably, its enforcement-related provisions are structured around this notion.

6 The nature of per se or “as such” disputes is discussed briefly in part II infra.

7 Numbers are approximate. Hence, totals do not add up to 100 percent. See Panel Report, supra note 2, para. 7.349.

8 Additionally, the higher percentage of destruction in the value column suggests that a majority of higher value goods, which may involve a higher degree of technological input, were destroyed and that lower value goods, such as everyday clothing, were more often given to charitable organizations. This outcome only reinforces the panel’s findings on the previous point (destruction vs. donation), not auctions.

9 As of July 2009, the value of 50,000 Yuan is approximately U.S.$7300.

10 The minimum number of copies was changed from 1,000 to 500 in 2007.

11 See European Communities—Customs Classification of Frozen Boneless Chicken Cuts, WT/DS269/AB/R, para. 175 (adopted Sept. 27, 2005).

12 World Trade Organization, Doha WTO Ministerial 2005: Ministerial Declaration, WT/MIN(05)/DEC/1, para. 45 (Dec. 18, 2005), available at http://www.wto.org/english/thewto_e/minist_e/min05_e/final_text_e.htm ; see Gervais, Daniel. The Trips Agreement: Drafting History and Analysis 509-10 (3d ed. 2008).

13 Gervais, supra note 12, at 115-22.

15 See India—Patent Protection for Pharmaceutical and Agricultural Chemical Products, WT/DS50/AB/R, paras. 62, 69, 97 (adopted Jan. 16, 1998) (indicating that India’s practice concerning mailbox patent applications did not comply with the Trips Agreement and that India needed to implement a formal mechanism).

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China—Measures Affecting the Protection and Enforcement of Intellectual Property Rights

  • Daniel Gervais (a1)

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