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Guangzhou IPR Update for Special 301 Review

     
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Reference ID: 08GUANGZHOU132
Created: 2008-03-02 23:40
Released: 2011-08-30 01:44
Classification: UNCLASSIFIED//FOR OFFICIAL USE ONLY
Origin: Consulate Guangzhou

VZCZCXYZ3855
RR RUEHWEB

DE RUEHGZ #0132/01 0622340
ZNR UUUUU ZZH
R 022340Z MAR 08
FM AMCONSUL GUANGZHOU
TO RUEHC/SECSTATE WASHDC 6942
INFO RUEHOO/CHINA POSTS COLLECTIVE
RUEHIN/AIT TAIPEI 9466
RUEAUSA/DEPT OF HHS WASHDC
RHMFIUU/DEPT OF HOMELAND SECURITY WASHINGTON DC
RUCPDOC/DEPT OF COMMERCE WASHDC
RUEATRS/DEPT OF TREASURY WASHDC
RUEAWJL/DEPTJUSTICE WASHDC
RHMCSUU/FBI WASHINGTON DC
RUEAIIA/CIA WASHDC
RUEKJCS/DIA WASHDC

UNCLAS GUANGZHOU 000132

SIPDIS

SENSITIVE
SIPDIS

State for EAP/CM - JYamomoto; EEB - AColeman, JBoger
State for INL - JVigil
USTR for China Office - AWinter; IPR Office - RBae; and OCG -
SMcCoy
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 - GMacray, PPizzeck
ITC for LLevine, LSchlitt

E.O. 12958: N/A
TAGS: ETRD KIPR ECON WTRO PGOV CH
SUBJECT: Guangzhou IPR Update for Special 301 Review

REF: A) STATE 9475, B) 2007 GUANGZHOU 1241

(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: Despite a few successes in intellectual property rights (IPR) enforcement efforts over the last year, the overall climate for U.S. owners of intellectual property (IP) has not significantly improved. Moreover, law enforcement cooperation has noticeably deteriorated since the last Special 301 review. Local governments have not fully reengaged with U.S. officials or IPR stakeholders since China imposed a virtual freeze on all cooperation in summer 2007 after the United States filed a WTO case for chronic IP problems in China. High-volume counterfeit production of consumer goods has not abated. A few enforcement successes in combating optical-media infringement have not dented this kind of activity. In addition, enforcement efforts by south China's local and provincial governments are inconsistent and often not sustained. End summary.

Government Cooperation
----------------------

2. (SBU) Government cooperation with China's administrative and law enforcement agencies has become a greater challenge in south China since the last Special 301 review. Requests to meet with a few administrative agencies, such as the Intellectual Property Office (IPO), were frequently approved. However, meetings with other influential agencies, such as the Market Order Rectification Office (MORO) and most law-enforcement agencies responsible for IP matters were categorically denied. Most recently, there was a last-minute cancellation of a joint IPR seminar, set for March 4, after the Chinese insisted that almost all of the costs be born by the USG and the U.S. Chamber. Another noteworthy refusal was the denial of meeting requests by Fujian Provincial officials as part of our efforts to update the Provincial Review.

Counterfeiting
--------------

3. (SBU) South China's high-volume counterfeit production of consumer products has not abated and some companies report dramatic losses. Procter and Gamble (strictly protect) described losses from counterfeiting activities that exceeded one quarter of total revenue for the company's China market in 2007. P&G executives told us that the provincial and national governments virtually ignore requests for IPR enforcement support. They estimated that the firm's total annual losses exceeded USD 100 million in China alone, with concerns that global losses resulting from counterfeit items exported from China could be significantly higher. (Note: it would seem to be in the government's interest to crack down on pirating of P&G products given the amount of tax revenue provided by P&G sales.)

4. (SBU) U.S. manufacturers' brand-protection efforts have been stymied in certain municipalities of south China, most notably the Shantou area of eastern Guangdong Province. More than one firm told us that threats of violence and a dearth of police support in that city have made it impossible for company employees or investigators to conduct simple inquiries at local markets and major manufacturing districts. One company identified Foshan in the western Pearl River

Delta area of Guangdong province as another area of concern. Local authorities in other areas, most notably in a major district of Guangzhou, did respond positively to firms' anti-counterfeiting efforts, including assigning a special IPR investigations police unit and other resources to help improve enforcement.

5. (SBU) Mattel (strictly protect) complained of extensive trademark-infringement activities by unscrupulous manufacturers throughout toy-manufacturing centers in Shantou and the Pearl River Delta (PRD). They described many low-end toy makers labeling their own products with Mattel brand names and logos, especially for sales in third-world countries where actual Mattel products are often too expensive for most consumers. In addition, the firm's executives said transshipment of infringing products is another significant problem, especially in ports where Customs authority is less stringent. Shippers circumvent Shenzhen and Xiamen ports when exporting their counterfeit products because Customs authorities at those ports have a stronger track record of cooperating with IP owners and detecting counterfeit products.

6. (SBU) U.S. high-tech manufacturers also reported substantial damage from Chinese counterfeiters. Two Fortune 500 high-tech companies that outsource manufacturing in south China reported both counterfeit and trademark-infringement problems on a scale previously unseen. Cisco (strictly protect) received important law-enforcement support when U.S. and Chinese authorities realized the possible threat to the safety and security of major telecommunications networks posed by the purchase and installation of counterfeit equipment on both sides of the Pacific. Chinese law enforcement agencies broke up a major counterfeiting ring, seizing high-quality fake equipment. The arrests revealed for the first time how sophisticated counterfeiters have become. However, Cisco also reported that Chinese law enforcement support slowed significantly after this initial success with no new investigative breakthroughs for months despite multiple leads and follow-up inquiries from the company and U.S. law-enforcement agencies.

7. (SBU) Motorola (strictly protect) has had difficulty getting local and provincial law enforcement agencies to address trademark infringement of their cell-phone headsets and mobile phones. The company conducted thorough multi-month investigations before approaching Public Security Bureau (PSB) authorities with complete case files and prosecution-ready evidence to request arrests and seizure of counterfeit items. However, the PSB has been unresponsive in many jurisdictions. Motorola executives said the firm had more success in attracting PSB attention when it teamed up with other major multinationals, such as Sony Ericsson and LG Electronics, in targeting large counterfeiting operations.

8. (SBU) Nike executives told us that internet-based vendors of counterfeit shoes and other products are increasing at an alarming rate. Employing express mail services for delivery, some counterfeit vendors now completely circumvent traditional sales channels, which are often easier to interdict.

Optical Media
-------------

9. (SBU) Despite continuing large-scale optical-media infringement in south China, Microsoft had an important enforcement success in July 2007. Twenty-five suspects were arrested and millions of dollars in fake Microsoft software products were seized. The case was the largest of its kind and was conducted jointly by U.S. and Chinese law enforcement authorities. With raids conducted at multiple sites in China, they broke up an illegal software distribution ring valued at over USD 500 million and distribution reaching 27 countries worldwide. The case is currently awaiting referral for prosecution in Shenzhen's PSB.

10. (SBU) Separately, U.S. software companies and International Federation of Phonographic Industries (IFPI) representatives in south China continue to report that enforcement successes hardly dent south China's optical-media infringement activity. They note that the problem is exacerbated by increasing use of online distribution channels and stores with on site facilities for burning optical-media products at the time of purchase. Consulate visits to electronics markets and optical-media vendors revealed widespread sales of pirated software and entertainment media in south China. In addition, IFPI representatives complained of unchecked online distribution of copyrighted material via major Chinese websites such as Baidu.com.

Enforcement
-----------

11. (SBU) IPR enforcement efforts by south China's local and provincial governments are often inconsistent and not sustained. Case transfers, convictions and sentences are applied unevenly. Nearly every U.S. IP owner reports coordination problems between local and provincial authorities. IPR enforcement responsibilities remain divided among more than seven different government entities, with U.S. companies such as Microsoft (strictly protect) continuing to routinely "shop around" for action-oriented officials and jurisdictions when initiating new cases (ref B).

12. (SBU) Several major U.S. manufacturers told us they had been successful in working with China Customs to provide product-identification training for Customs officers at major ports. However, the cooperation was not region-wide. Offers to provide training were rejected at other important ports like Shantou.

13. (SBU) Other companies, including Motorola, DTS and Merit Entertainment (strictly protect) have been frustrated in efforts to convince administrative agencies like the Administration of Industry and Commerce (AIC) or Intellectual Property Office (IPO) to refer open cases to the PSB for criminal investigation and prosecution. According to U.S. companies, the administrative agencies have relatively little power to arrest or seize property, and instead rely on administrative penalties such as fines and revocation of business licenses as deterrents. Firms believe these administrative penalties have been accepted by counterfeiters as a cost of doing business, with counterfeiters simply factoring the costs into their business plans.

14. (SBU) Motorola (strictly protect) also complained that key suspects were released shortly after being arrested without official explanation, thereby damaging efforts to prosecute IPR violators. Long delays in bringing cases to trial also left Motorola executives skeptical about whether the released suspects would face any penalty at all for their infringement activities.

15. (U) Another enforcement problem reported by nearly all U.S. IP stakeholders in south China focused on bureaucratic behavior by Chinese IP enforcement agencies. Several companies commented that the PSB would almost never accept an IPR case directly, instead referring IP owners to administrative agencies like the AIC and IPO, who could later transfer the cases to PSB if they met criminal thresholds. Although Chinese law defines the threshold, actual implementation of criminal prosecution is far from certain. Many companies also said the AIC, IPO and other agencies would sometimes attempt to stall cases, often claiming that certain types of IP disputes could only be handled by particular agencies. In other cases, administrative agencies would forward cases to the PSB, only to be rejected or "delayed to death" because of differing enforcement priorities, standards of evidence and investigative procedures. In addition, U.S. companies generally agreed that sentencing in IP cases had failed to yield a deterrent effect due in large part to an increasing percentage of suspended sentences in the last year.

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