中美知识产权贸易争端解决诉状最新范文.docx

1、中美知识产权贸易争端解决诉状最新范文中美知识产权贸易争端解决诉状China measures affecting the protection and enforcement of intellectual property rights Request for Consultations by the United States The following communication, dated 10 April 2007, from the delegation of the United States to the delegation of China and to the Chai

2、rman of the Dispute Settlement Body, is circulated in accordance with Article 4.4 of the DSU. My authorities have instructed me to request consultations with the Government of the Peoples Republic of China （“China”） pursuant to Articles 1 and 4 of the Understanding on Rules and Procedures Governing

3、the Settlement of Disputes （“DSU”） and Article 64 of the Agreement on Trade-Related Aspects of Intellectual Property Rights （“TRIPS Agreement”） （to the extent that Article 64 corresponds to Article XXII of the General Agreement on Tariffs and Trade 1994） with respect to certain measures pertaining t

4、o the protection and enforcement of intellectual property rights in China. I. Thresholds for criminal procedures and penalties The first matter on which the United States requests consultations concerns the thresholds that must be met in order for certain acts of trademark counterfeiting and copyrig

5、ht piracy to be subject to criminal procedures and penalties. In this regard, the measures at issue include： （1） the Criminal Law of the Peoples Republic of China （adopted at the Second Session of the Fifth National Peoples Congress on 1 July 1979 and revised at the Fifth Session of the Eighth Natio

6、nal Peoples Congress on 14 March 1997） （“Criminal Law”）, in particular Articles 213, 214, 215, 217, 218, and 220; and （2） measures by the courts and procuratorate that apply throughout China, including the Interpretation by the Supreme Peoples Court and the Supreme Peoples Procuratorate on Several I

7、ssues of Concrete Application of Law in Handling Criminal Cases of Infringing Intellectual Property （adopted at the 1331st Session of the Judicial Committee of the Supreme Peoples Court on 2 November 2004 and the 28th Session of the Tenth Procuratorial Committee of the Supreme Peoples Procuratorate

8、on 11 November 2004 and to be effective as of 22 December 2004） （“the December 2004 Judicial Interpretation”）, and the Interpretation by the Supreme Peoples Court and the Supreme Peoples Procuratorate on Several Issues of Concrete Application of Law in Handling Criminal Cases of Infringing Intellect

9、ual Property （II） （adopted on 4 April 2007, at the 1422nd Session of the Judicial Committee of the Supreme Peoples Court and the 75th Session of the Tenth Procuratorial Committee of the Supreme Peoples Procuratorate, and to be effective on 5 April 2007） （“the April 2007 Judicial Interpretation”）; as

10、 well as any amendments, related measures,1 or implementing measures. Articles 213, 214, and 215 of the Criminal Law describe certain acts of trademark counterfeiting that may be subject to criminal procedures and penalties. However, under Article 213, criminal procedures and penalties are available

11、 only “if the circumstances are serious” or “if the circumstances are especially serious”。 Under Article 214, criminal procedures and penalties are available only “if the amount of sales of commodities bearing counterfeit registered trademarks is relatively large” or “if the amount of sales is huge”

12、。 Under Article 215, criminal procedures and penalties are available only “if the circumstances are serious” or “if the circumstances are especially serious”。 Articles 217 and 218 of the Criminal Law describe certain acts of copyright piracy that may be subject to criminal procedures and penalties.

13、However, under Article 217, criminal procedures and penalties are available only “if the amount of illegal gains is relatively large, or if there are other serious circumstances” or “if the amount of illegal gains is huge or if there are other especially serious circumstances”。 Under Article 218, cr

14、iminal procedures and penalties are available only “if the amount of illegal gains is huge”。 Article 220 of the Criminal Law provides for the availability of procedures and penalties when the crimes described in Articles 213 through 219 are committed by a “unit”, as opposed to by natural persons. Th

15、e Criminal Law itself does not define the terms “serious”, “especially serious”, “relatively large”, and “huge” as used in the above-referenced articles. Instead, these terms are defined in the December 2004 Judicial Interpretation and the April 2007 Judicial Interpretation by reference to “illegal

16、business volume” （stated in terms of the value of products produced, stored, transported and sold）, “illegal gains” （stated in terms of profit）, or number of “illegal copies”。 Additionally, where the thresholds are defined in terms of “illegal business volume”, Article 12 of the December 2004 Judici

17、al Interpretation provides that value ordinarily is calculated according to “the prices at which such products are actually sold” or “the labeled prices or the actual prices found to be sold at after investigation”。 In other words, it is the price of the infringing goods as opposed to the price of t

18、he corresponding legitimate goods that determines “illegal business volume”。 The lower the actual or labeled prices of infringing goods, the more of them an infringer can sell or offer for sale without reaching the thresholds in the Criminal Law that are defined by reference to “illegal business vol

19、ume”。 The United States understands that acts of trademark counterfeiting and copyright piracy occurring on a commercial scale in China that fail to meet the thresholds are not subject to criminal procedures and penalties in China. The lack of criminal procedures and penalties for commercial scale c

20、ounterfeiting and piracy in China as a result of the thresholds appears to be inconsistent with Chinas obligations under Articles 41.1 and 61 of the TRIPS Agreement. II. Disposal of goods confiscated by Customs authorities that infringe intellectual property rights The second matter on which the Uni

21、ted States requests consultations concerns goods that infringe intellectual property rights that are confiscated by Chinese customs authorities, in particular the disposal of such goods following removal of their infringing features. In this regard, the measures at issue include： （1） the Regulations

22、 of the Peoples Republic of China for Customs Protection of Intellectual Property Rights （adopted at the 30th Ordinary Meeting of the State Council on 26 November 2003, published by the State Council on 2 December 2003, and effective from 1 March 2004） （“Customs IPR Regulations”）, in particular Chap

23、ter 4 thereof; and （2） the Implementing Measures of Customs of the Peoples Republic of China for the Regulations of the Peoples Republic of China on Customs Protection of Intellectual Property Rights （adopted at an Administration Affairs Meeting of the General Administration of Customs on 22 April 2

24、004, issued by the General Administration of Customs with Order No. 114 on 25 May 2004, and effective from 1 July 2004） （“Customs IPR Implementing Measures”）, in particular Chapter 5 thereof; as well as any amendments, related measures,2 or implementing measures. Specifically, the United States unde

25、rstands that Article 27 of the Customs IPR Regulations and Article 30 of the Customs IPR Implementing Measures set forth a hierarchy of requirements for the disposal of goods that infringe intellectual property rights and that are confiscated by Chinese customs authorities. Under that hierarchy, the

26、 customs authorities often appear to be required to give priority to disposal options that would allow such goods to enter the channels of commerce （for instance, through auctioning the goods after removing their infringing features）。 Only if the infringing features cannot be removed must the goods

27、be destroyed. The requirement that infringing goods be released into the channels of commerce under the circumstances set forth in the measures at issue appears to be inconsistent with Chinas obligations under Articles 46 and 59 of the TRIPS Agreement. III. Denial of copyright and related rights pro

28、tection and enforcement to works that have not been authorized for publication or distribution within China The third matter on which the United States requests consultations concerns the denial of copyright and related rights protection and enforcement to creative works of authorship, sound recordi

29、ngs, and performances that have not been authorized for publication or distribution within China. For example, it appears that works that are required to undergo censorship review （or other forms of pre-publication or pre-distribution review） before entering the Chinese market are not protected by c

30、opyright before the review is complete and publication and distribution within China has been authorized. In this regard, the measures at issue include： （1） the Copyright Law,3 in particular Article 4; （2） the Criminal Law, the Regulations on the Administration of Publishing Industry, the Regulation

31、s 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 （3） the Administrative Regulations on Audiovisual Products5; （4） the Administrative

32、 Regulation on Publishing6; （5） the Administrative Regulations on Electronic Publications7; （6） the Measures for the Administration of Import of Audio and Video Products8; （7） the Procedures for Examination and Approval for Publishing Finished Electronic Publication Items Licensed by a Foreign Copyright Owner9; （8） the Procedures for Examination and Approval of Importation of Finished Electronic Publication Items by Electronic Publication Importation Entities10; （9） the Procedures for Recording of Imported Publications