IP Dragon’s Danny Friedmann asked foreign registered lawyer and IPR in China specialist Mr Joseph Simone of Baker & McKenzie in Hong Kong about which course of action the US could take after the decision, WTO DS 362 Report, by the dispute settlement panel on United States’ complaint against “China — Measures affecting the protection and enforcement of intellectual property rights.”
IP Dragon: Could you please give your opinion on the best recommendation the IACC can give to the USTR in regard to their Special 301 Review about China’s status: ‘Priority Watch List or Priority Foreign Country/Section 306 Monitoring?
Joseph Simone: “I think the issue of thresholds is one which continues to deserve priority attention–along with the other issues mentioned in the 2009 Special 301 report of IACC. So “Priority Foreign Country” seems preferable, but if USTR has no plans to file an appeal or a fresh case in the very near term, then I’d expect them to decide on Priority Watch List and Section 306 Monitoring.”
IP Dragon: Why should the US appeal the panel decision?
Joseph Simone: “It’s quicker/cheaper than refiling- any refiling would probably require fresh data from industry- USTR wouldn’t need more political support from Industry (really) to appeal – they arguably have a fiat already.”
IP Dragon: What would a refiling mean?
Joseph Simone: “A refiling would require a lot more preparation work- an appeal would not annoy China so much as a refiling- the WTO Appellate Body has in the past shifted the burden of proof to defendants (here, China) in analogous cases, the latest being the one involving gambling (DS 285).”
IP Dragon: Did the US have enough information to base their claim?
Joseph Simone: “The US should in any case ask China for narrower data under a new article 63 (3) TRIPs request. The last one in 2006 was way to broad. If China comes through with useful data, the US may not need to ask industry for case info.
IP Dragon: What are your hopes in respect to what China should do?
Joseph Simone: “I’m really hoping China will wake up and decide to start a serious governmental/academic and legislative research project to reform all aspects of IP enforcement–including the Criminal Code.
IP Dragon: What is the magnitude of the problem of counterfeits that originate from China in the developing and developed countries?
Joseph Simone: “For example in Tanzania, between 15 and 20 percent of ALL GOODS circulating were found to be fakes from China, according to the Confederation of Tanzania Industries and up to 30 percent of medicines are counterfeit, according to a 2006 report by the World Health Organization. And for example in Japan, as you have seen, almost 82 percent of all counterfeit products originate from China.”
More aricles about counterfeit goods in Africa originating from China:
– ‘Tanzania: Counterfeit Drugs Put Lives at Risk’, allAfrica.com, January 15, 2009, read here.
– Wadhams, Nick, ‘Rapid Rise In African Anti-Counterfeiting Efforts Led By Developed Nations’ IP-Watch, December 9, 2008, read here.
– Nakaweesi, Dorothy, ‘Traders battle counterfeit products from China’, Daily Monitor Uganda, October 14, 2008, read here
