IPR: Enforcement Numbers Decline in Guangdong 2008 Annual

UNCLAS SECTION 01 OF 04 GUANGZHOU 000320 SENSITIVE SIPDIS State for EAP/CM; EEB/IPE; EEB/TPP; EEB/CIP State for INL - JVigil USTR for China Office; IPR Office; and OCG Commerce for National Coordinator for IPR Enforcement Commerce for MAS - RLAYTON, SMATHEWS Commerce for MAC - ESzymanski, SWilson Commerce for MAC -NMelcher, JWu LOC/Copyright Office - STepp USPTO for Int'l Affairs - LBoland, EWu DOJ for CCIPS - MDuBose, SChembtob FTC for Blumenthal FBI for LBryant DHS/ICE for IPR Center - THipelius, TRandazzo DHS/CBP for IPR Rights Branch - GMcCray, PPizzeck ITC for LLevine, LSchlitt State Pass White House OTP Ambassador Richard Russell NSC for JBader, JLoi E.O. 12958: N/A TAGS: ETRD KIPR KIND ECON PGOV CH SUBJECT: IPR: Enforcement Numbers Decline in Guangdong 2008 Annual Report REF: A) BEIJING 1014, B) GUANGZHOU 218, C) BEIJING 570, D) GUANGZHOU 43, E) 2008 GUANGZHOU 267 (U) This document is sensitive but unclassified. Please protect accordingly. Not for release outside U.S. government channels. Not for internet publication. ¶1. (SBU) Summary and Comment: Intellectual Property Rights (IPR) enforcement action in Guangdong Province appeared to decline overall in 2008 as shown by case statistics in the province's annual white paper. Despite official pronouncements by Guangdong authorities that IPR enforcement continued to improve, enforcement numbers were up only for trademark investigations and cases handled by the courts. When questioned about the declining enforcement statistics in all other categories at an April 24 press conference, the province's senior IPR official said that enforcement was only one part of the government's IPR work. Her comments suggest that enforcement has been marginalized by other government priorities such as encouragement of local IP development -- where the annual white paper showed more success with new records in trademark and patent filings. ¶2. (SBU) Comment Continued: U.S. rights holders still face major enforcement problems in Guangdong, with some firms calling it "ground zero" for counterfeiting and infringing activities. The business community has expressed appreciation for new progress on IPR education and awareness programs and joint Guangdong-Hong Kong cooperation, but every discussion of IPR in south China still begins and ends with the need for sustained, broad-based progress on enforcement issues in Guangdong Province. Without a strong commitment from local authorities to tackle the problem, the "workshop of the world" will continue to be a global center for the manufacture of counterfeit goods. End summary and comment. Guangdong's IPR Focus Not Only Enforcement -------------- ¶3. (U) In the face of disappointing case statistics on IPR enforcement, Guangdong's senior IPR official emphasized that the work of the province's IPR agencies was not only enforcement but also overall management of IPR at an April 24 press conference in Guangzhou that announced the province's 2008 IPR White Paper. In her prepared remarks and in response to pointed questions from Japanese consulate officials and journalists, Guangdong Intellectual Property Office Director General Tao Kaiyuan emphasized that the four main themes of China's IP Strategy were innovation, utilization, protection and administration, of which protection is only one part of the government's mandate. Tao also pointed out that this approach was consistent with Premier Wen Jiabao's remarks on China's support for intellectual property rights as delivered during his annual work report in March. Disappointing Enforcement Results -------------- ¶4. (SBU) The numbers of enforcement actions in 2008 in most major GUANGZHOU 00000320 002 OF 004 IPR categories were down from the previous year, according to the annual white paper. At the press conference, Tao revealed that administrative patent disputes numbered 199 (compared to 256 cases in 2007),with 198 cases resolved by IPO officials. The Administration for Industry and Commerce (AIC) investigated 4,414 trademark-related cases (one of the few increases, up from 3,056 in 2007). Of these cases, 2,455 involved foreign rights owners. Twenty-two cases were transferred from administrative to judicial authorities for handling by civil or criminal courts (another disappointing drop from 31 case transfers in 2007, and 38 in 2006). ¶5. (U) The Guangdong Provincial IPR White Paper said that the Administrations of Quality and Technical Supervision (QTS) integrated their enforcement resources in 2008, a move highlighted as a positive step in IPR enforcement. However, the white paper's published statistics showed another decline in the number of cases investigated by the newly combined agency with 1,504 cases of counterfeiting in 2008 (down from 1,801 in 2007 and 2,205 in 2006). The white paper also said QTS closed 519 counterfeit plants (down from 860 in 2007) with counterfeit goods seized worth approximately RMB 54 million (USD 7.9 million - also down from 2007). ¶6. (SBU) Criminal investigation numbers showed discouraging declines as well. Provincial and local branches of the Public Security Bureau (PSB) investigated 387 cases (a decline from 503 cases in 2007 and 396 in 2006) and cracked 250 criminal cases of IPR infringement and product counterfeiting (also down from 345 cases in 2007 and 288 in 2006). It arrested 482 criminal suspects (a decline of almost 50 per cent from 894 arrests in 2007 and 806 in 2006). Notable cases included a crackdown on counterfeit drug production and sales that disrupted a network worth RMB 40 million (USD 5.9 million) and led to 15 arrests. Also noted in the 2008 white paper were continued successes by Guangdong authorities in disrupting the manufacturing, sale and distribution of counterfeit cigarettes and other tobacco products. ¶7. (U) IPR enforcement at trade fairs continued to be a focus in 2008, according to the white paper. At last year's two sessions of the Canton Fair, 1,592 enterprises were involved in IPR complaints (compared with 1,621 in 2007 and 1,045 in 2006),with 968 enterprises identified as infringing other firms' rights. Guangdong IPO cited 1,083 cases of patent-related disputes across the province for trade fairs and trade associations in 2008, similar results to ¶2007. Increased Guangdong Judicial Action in 2008 -------------- ¶8. (SBU) Judicial action was one of the few areas where case statistics suggested an increase in enforcement activities. Guangdong courts received 4,427 civil cases of first instance (up from 3,122 in 2007) and 690 cases of second instance (appeals), concluding more than 99 percent of IPR cases received. The courts received 381 criminal IPR cases of first instance (a dramatic increase over the previous two years, from 86 cases in 2007, and 116 GUANGZHOU 00000320 003 OF 004 in 2006),involving 804 criminal suspects, with all but one criminal case concluded before the end of the year. ¶9. (SBU) The white paper also said Guangdong courts continued their efforts to resolve civil cases through mediation rather than trial in 2008. The courts have steadily increased the number of settled cases in recent years, reaching a record 2,611 mediated cases in ¶2008. These cases represented a 52.4 percent increase from 1,627 mediated cases in 2007 and included cases where plaintiffs withdrew their complaints after court-sponsored mediation was initiated. Guangdong courts also continued to lead the country by posting a total of 4,025 effective IPR verdicts on the internet (increasing from 3,155 verdicts in 2007) at http://ipr.chinacourt.org. 14 Years as China's Patent and Trademark Leader -------------- -- ¶10. (U) Reflecting the emphasis placed on local IP development, the Guangdong IPO reported another banner year for patent and trademark filings in 2008. New patent filings in the province totaled 103,883 with 62,081 patents granted, annual increases of 1.4 percent and 9.88 percent, respectively. Invention-patent applications totaled 28,099, with 7,604 granted, up 5.3 percent and 104.7 percent, respectively. Guangdong Province ranked first in China for patent filings and grants for the 14th straight year; it also was first among provinces for invention-patent applications for the third straight year. 2008 marked the first time the province ranked first in China for invention patents granted, which was highlighted as a major success by provincial IPR authorities. ¶11. (U) Director General Tao also announced continuing growth in Guangdong's trademark filings. The accumulated number of registered trademarks exceeded 480,000 in 2008, an increase of 100,000 trademarks, or 26.3 percent, from 2007. According to the white paper, the province maintained its top position for trademark applications and registrations for the 14th straight year. Guangdong continued to rank among the top provinces at promoting national and provincial well-known and famous trademarks. Neighborly Cooperation Continued -------------- ¶12. (U) IPR cooperation with Hong Kong, Macau, and other jurisdictions in the Pan-Pearl River Delta (Pan-PRD) has continued to expand, according to the white paper and official comments at the press conference. Guangdong Customs, in particular, actively cooperated with Hong Kong and Macau Customs officials to exchange intelligence and investigate smuggling rings and other cases related to IPR protection. The Seventh Guangdong-Hong Kong Expert Group on the Protection of IPR convened in mid-2008, and a joint IPR seminar was subsequently held in Shantou, a Guangdong area with historically weak IPR protection and high levels of infringing activities. New Efforts: Software Licensing, Education -------------- GUANGZHOU 00000320 004.2 OF 004 ¶13. (SBU) The white paper claimed that illegal use of software products by provincial-level, state-owned enterprises (SOEs) had been eliminated. Nevertheless, the Business Software Alliance and major U.S. rights holders still complain that south China government offices and SOEs continue using unlicensed software. Inclusion of the issue in this year's white paper may be a positive sign that IPR authorities are working to address the problem, but the problem has not been resolved as completely as characterized in the annual report. ¶14. (U) At the press conference, Tao highlighted the province's work to increase IPR awareness and education in 2008 and said the government would further expand education plans in 2009. In addition to working with enterprises and the public, the white paper said IPR-related primary- and middle-school curricula would be expanded beyond the 107 schools where they had been introduced by the end of 2008. However, Tao noted that efforts to introduce IPR-related curricula at universities would depend on further coordination with the Ministry of Education. GOLDBERG