Reference ID: 08GUANGZHOU244
Created: 2008-04-25 08:54
Released: 2011-08-30 01:44
Classification: UNCLASSIFIED//FOR OFFICIAL USE ONLY
Origin: Consulate Guangzhou
RR RUEHCN RUEHGH RUEHVC
DE RUEHGZ #0244/01 1160854
ZNR UUUUU ZZH
R 250854Z APR 08
FM AMCONSUL GUANGZHOU
TO RUEHC/SECSTATE WASHDC 7074
INFO RUEHOO/CHINA POSTS COLLECTIVE
RUEHIN/AIT TAIPEI 9476
RUEAUSA/DEPT OF HHS WASHDC
RHMFIUU/DEPT OF HOMELAND SECURITY WASHINGTON DC
RUCPDOC/DEPT OF COMMERCE WASHDC
RUEATRS/DEPT OF TREASURY WASHDC
RUEAWJA/DOJ WASH DC
RHMCSUU/FBI WASHINGTON DC
UNCLAS SECTION 01 OF 05 GUANGZHOU 000244
State for EAP/CM - JYamamoto; EEB - AColeman, JBoger
State for INL - JVigil
USTR for China Office - AWinter; IPR Office - RBae; and OCG -
Commerce for National Coordinator for IPR Enforcement
Commerce for CIsrael
Commerce for MAC 3204/ESzymanski
Commerce for MAC 3043/McQueen
Commerce for MAC 3042/SWilson, JYoung
Commerce for NWinetke
LOC/Copyright Office - MPoor
USPTO for Int'l Affairs - LBoland, EWu
DOJ for CCIPS - MDubose
DOJ for SChembtob
FTC for Blumenthal
FBI for LBryant
DHS/ICE for IPR Center - DFaulconer, TRandazzo
DHS/CBP for IPR Rights Branch - GMcCray, PPizzeck
ITC for LLevine, LSchlitt
E.O. 12958: N/A
TAGS: ETRD KIPR ECON WTRO PGOV CH
SUBJECT: Guangdong Officials Express Willingness to Cooperate to USTR IPR Director
REF: A) GUANGZHOU 132, B) GUANGZHOU-USTR EMAIL, MARCH 25, 2008
1. (SBU) Summary: In cordial meetings with Jared Ragland, Director of the U.S. Trade Representative's Office of Intellectual Property and Innovation, Guangdong provincial and municipal officials described recent successes in enforcing intellectual property rights (IPR), as well steps they plan to take to further strengthen enforcement and their willingness to work with the U.S. Clearly problems remain and U.S. IPR owners detailed their frustrations with enforcement mechanisms and procedures. End summary.
Guangdong Officials Concerned about Section 301
2. (SBU) Guangdong Intellectual Property Office (GD IPO) officials described how Guangdong is building an innovation-based society and the role of its "IPR Strategic Plan," enacted in 2007. Wang Hu, Deputy Director of the Coordination and Administration Division pointed out that Guangdong ranked first again in the number of patent filings last year, as it had for the past thirteen years. He also highlighted four IPR-related initiatives under way:
--Promoting IPR public awareness through IPR Protection Week in China. IPR Protection Week starts on April 20, and culminates with World IPR Day on April 26. GD IPO released its "White Paper" on IPR protection progress over the past year on April 24.
--Educating students in primary and middle schools, and universities to respect IPR. In 2002, GD IPO began IPR education by including information on the concept and practice in local textbooks in Guangzhou. By 2006, the program was expanded to the entire province. Separately, three universities in the province have established IPR curricula: Jinan University, South China Institute of Technology, and Sun Yat-sen University.
--IPR enforcement through administrative means. GD IPO handles administrative patent enforcement, and penalizes those who attempt to pass themselves off as patent holders. GD IPO also governs the IPR complaint centers at the Canton Trade Fair in the spring and fall.
--Regional cooperation. Since 2003, GD IPO has worked closely with the Hong Kong Intellectual Property Department. In 2004, GD IPO established a pan-Pearl-River-Delta IPR cooperation regime, involving nine provinces, Hong Kong, and Macau.
3. (SBU) In a meeting with AIC officials, Director Ragland commended the agency's success in disrupting the storage and selling of counterfeit automotive parts. The Quality Brands Protection Committee (QBPC) deemed this case to be one of the twelve best IPR cases for 2007 and 2008. Guangdong AIC Deputy Director General Jiang Haiping pointed out that the AIC has strengthened protection of "famous trademarks," as well as well-known foreign brands. In 2006, the Guangdong AIC cracked down on several trademark counterfeiting rings concerning Nike footwear worth several million renminbi (RMB). The AIC also was active in protecting the trademarks of DuPont and General Motors. Jiang noted that, as of the end of 2007, 380,000 trademarks had been registered in Guangdong Province; the province has led all of China in trademark registrations for the past twelve years.
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4. (SBU) Jiang also emphasized AIC efforts to clean up wholesale and retail markets. Since March 2006, when the Guangdong AIC launched a campaign against trademark infringement in large local wholesale and retail markets, the AIC has opened 95 cases, of which 47 concerned American trademarks, leading to the seizure of 1.25 million counterfeit products. Five cases were transferred to the Public Security Bureau (PSB) for criminal prosecution. Affected American trademarks include Nike, Levis, Oil of Olay, Mickey Mouse, the National Basketball Association, and Procter & Gamble.
5. (SBU) Officials at both the Guangdong IPO and AIC asked about the coming Special 301 report for China. One AIC official commented that the 301 Report was not helpful in promoting dialogue on the issues. Director Ragland noted that U.S. law requires the submission of the Special 301 Report as well as the National Trade Estimate. He explained that the U.S. Congress plays an important role in U.S. trade policy, and the 301 Report assists the Congress in gaining a better understanding of our trading relationships. The Report is a useful tool for the U.S. to help frame our bilateral discussions on IPR issues and the preparation process is an open and transparent one, he said.
Shenzhen Officials Tout Progress
6. (SBU) During Director Ragland's visit to the Shenzhen IPO, Deputy Director Wang Youming pointed out that the Shenzhen Government had just released new initiatives aimed at strengthening IPR protection. They also allow punitive damages in addition to compensatory damages. Local rules have been amended to lower the criminal threshold for corporate and individual infringement. In addition, Deputy Director Wang said the Shenzhen IPO had provided IPR training to the general public, especially for small and medium-sized enterprises, as well for enforcement staff.
7. (SBU) Officials from the Economic Crimes Investigation Division (ECID) of the Shenzhen PSB told Director Ragland that since 2003 the ECID has worked on 466 cases, worth RMB 2.2 billion (about USD 300 million). They solved 239 cases and seized RMB 962 million of counterfeit and pirated product. Each year, the ECID handles 70 to 80 IPR cases, accounting for only 3% of its case volume. Most of the local cases concern trademark infringement followed by trade-secret cases. Patent disputes make up only a small fraction of the workload.
8. (SBU) ECID IPR Unit Director Wang described the division's work in Operation "Summer Solstice" a copyright case involving counterfeit Microsoft software originating from China. In a July 2007 joint action involving the FBI and the SZ ECID, raids were conducted simultaneously in Dongguan and Shenzhen; 18 suspects were arrested. Infringing copies of Microsoft products included Microsoft Office 2003 and 2007, Vista 2007, and Windows XP, as well as fake certificates of authenticity and packaging. Wang said the pirated products were of unusually high quality. He also briefed Director Ragland on the recent disruption of a sophisticated trademark counterfeiting operation. Finnish Customs notified the SZ ECID that counterfeit Nokia cell-phones were being traced to a manufacturing facility in Shenzhen. The SZ ECID solved the case with very limited information, apprehending the operation's leader, Yang Zongqing, and charging him with counterfeiting the Nokia trademark and selling fake Nokia cell-phones.
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9. (SBU) Wang said the ECID plans to maintain a high profile on IPR crimes. In 2006, it began a three-year training program for ECID officers to help improve their abilities to spot and intercept shipments of fake and counterfeit goods. ECID plans to promote greater IPR public awareness through on-line updates and advice on its web site. The agency also is working to improve the case transfer mechanism between administrative IPR offices and the police. The SZ ECID is establishing a dedicated IPR enforcement team now that the Shenzhen Municipal Government has agreed to fund 40 new ECID positions. Lastly, ECIDs from other areas of China have been exchanging information and best practices at seminars organized by the Ministry of Public Security.
AmCham Delivers Good News
10. (SBU) The American Chamber of Commerce in South China (AmCham) members continue to stress the positive business environment in south China. AmCham President Harley Seyedin told Director Ragland that despite some reports that Guangdong Province increasingly was averse to foreign business investment (this would be certain kinds of investment, of course, mainly in traditional manufacturing and high polluting enterprises), American investment has continued at a brisk pace; and the provincial government was working with domestic and foreign business interests to maintain Guangdong Province as an attractive investment area. AmCham's IPR Committee Chair, David Buxbaum, also identified some strengths in the IPR protection environment in south China. He told us that China had enacted some very good and comprehensive laws on IPR protection. The problem he saw was, at times, the lack of national as well as provincial will to implement fully these laws. He noted also that China needed to raise the salaries of judicial officials in order to insulate them from corruption and to raise the stature of their offices. Commenting that administrative IPR enforcement was relatively easy and quick to obtain, he argued that American rights holders should avail themselves of the civil remedies in China, and rely less on criminal prosecution.
U.S. Rights Holders Identify the Problems
11. (SBU) In a group meeting hosted by the Consul General, major U.S. IPR rights holders in the Pearl River Delta reviewed with Director Ragland first-hand the challenges and issues facing American firms in China. Representatives from Nike, Mattel, Colgate-Palmolive, Motorola, and Procter & Gamble (P&G) attended.
12. (SBU) P&G (strictly protect) complained that seizures of counterfeit product often are split into component parts, making it difficult to meet the minimum threshold of entire units for criminal prosecution. The company reiterated its view that the Shantou area in eastern Guangdong is particularly egregious for failing to protect IPR. The P&G executive commented that local government officials appear willing to help, but the business community is not especially interested in IPR protection, since counterfeiting is an important part of the economy. Elsewhere in Guangdong province, however, she noted that P&G has developed a good relationship with the Luogang District PSB branch in Guangzhou, resulting in substantial seizures of counterfeit P&G goods.
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13. (SBU) Nike (strictly protect) reported more failures than successes. In February, Nike had reported some improvement over the last year in Fujian Province (ref B). However, in March, the Fujian PSB initially refused to conduct raids when Nike presented evidence of infringement. When the raids finally occurred, no infringing goods were found at the site, leading Nike to suspect collusion between the police and counterfeiters. Company representatives have not been allowed to attend raids to observe the seizure of goods. Courts have failed to punish counterfeiters; the AIC has refused to do its job; and the PSB has not accepted any cases for criminal prosecution. In addition, the Nike representative said that no agency in the Chinese Government has expressed willingness to handle on-line sales of counterfeit goods. He emphasized corruption as the root of the problem in south China. In one instance, the Kaiping AIC refused to raid a location that Nike identified as a manufacturing facility of counterfeit product. Later, it was determined that a member of the National People's Congress owned the building that housed the infringing operation.
14. (SBU) Motorola (strictly protect) complained about the lenient sentences in the Guangzhou Kolvo trademark-infringement case, worth RMB 7 million (about USD 1 million). The company worked with the Guangzhou PSB's Economic Crimes Investigation Division. Nokia, Sony, and Ericsson also joined Motorola's effort to stop the counterfeiting of cell-phone handsets and it was likely this joining of forces that precipitated action. The PSB arrested ten suspects, releasing four of them before trial. Though the court found seven defendants guilty, it then suspended all of the sentences, resulting in no jail-time punishment.
15. (SBU) Mattel (strictly protect) representatives complained that Chinese copyright protection is so weak and ineffective that it is not worth pursuing any prosecution for this type of violation. Chinese manufacturers reverse-engineer many of Mattel's toys, but do not copy its trademarks, which would make enforcement easier. Chinese design patents are not helpful in providing protection -- toys have a short commercial life, but obtaining the design patents can take a full year. The executives also pointed out that monetary penalties in administrative trademark enforcement are not enough of a deterrent. Like P&G, Mattel singled out Shantou, especially the Chung Hui district, as an area where many of its products are copied illegally. In addition, the company complained that the quality of judges is very poor; in a patent case heard there, a judge pressured Mattel to settle after only one day of proceedings (judges generally prefer mediation and conciliation to trials). In addition, the judge concluded that Mattel seized only one toy during the raid from which the patent suit arose, so it was entitled to compensatory damages for one toy only. A Mattel representative noted that the Shantou courts and the PSB frequently refused to seize toy-making molds for infringing products, apparently because taking the molds would shut down the factory and put people out of work.
16. (SBU) Colgate-Palmolive (strictly protect) reported that it interdicts more and more counterfeit goods each year. The Colgate-Palmolive representative said China Customs had become more cooperative and was an increasingly important, but still not completely reliable, partner in IPR enforcement. The role of China Customs has expanded as more counterfeit Colgate-Palmolive products are being exported to other countries, rather than sold locally. Legitimate Colgate-Palmolive products are now widely sold in Chinese big-box stores and grocery chains, making it much more difficult for
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counterfeit products to breach supply-chain integrity.
17. (SBU) The group of rights owners generally agreed that it was difficult to bring a civil lawsuit in China because it was so time-consuming, with many administrative hurdles, difficult evidentiary thresholds, and onerous documentation requirements. By the time a plaintiff brings a case, the infringement may have ceased or the issue may be moot. If a case were to be tried to judgment, enforcing the verdict would be challenging. The group also agreed that infringers were getting smarter, knowing how to copy without tripping the criminal-liability threshold. One member of the group observed that China craves stability. Counterfeiting creates jobs, enhancing stability. If counterfeiting were to stop, many would be thrown out of work, risking social unrest that the Communist Party is unwilling to tolerate.
Lowu Market - Seeing the Problem on the Ground
18. (SBU) Director Ragland toured the Lowu Commercial Center across the street from the Shenzhen railway station, which has been the target of numerous complaints from rights holders. A cursory look at most merchants' displays found row upon row of stalls selling counterfeit apparel, handbags, sunglasses, watches, briefcases, computer games, and computer peripherals. Merchants also displayed catalogs for consumers to peruse and order specific merchandise bearing counterfeit trademarks not on display in the store. Lowu Center is one of several shopping complexes where rights holders have attempted to hold the market management responsible for store lessees selling infringing products through landlord-liability programs. As possible evidence of some success, several prominent storefronts were shuttered and dark, with all merchandise removed. On each of their doors was a sign that read in Chinese and English: "Fake and unqualified seller of goods. Closed." In addition, several large signs were displayed prominently in the main hall of the complex, pledging to stop the sale of counterfeit and infringing goods, and to pursue those who do.
Comment: South China Officials More Willing to Engage
19. (SBU) After recent frustrations in our efforts to work with local officials on IPR or even get appointments, Consulate Guangzhou was pleased that Guangdong Provincial and Shenzhen Municipal Government officials agreed to meet with Director Ragland. Officials at each of our meetings were cordial and courteous, though several expressed concerns with USTR's Special 301 Report and the analysis concerning Guangdong Province. Guangdong provincial and Shenzhen city officials expressed a desire for greater cooperation and interaction with USTR and the USG in general. Dr. Ragland emphasized the USG's continuing interest in promoting intellectual property protection in south China, and expressed hope that cooperation would continue.
20. USTR did not have an opportunity to clear this cable.