Espinel on China IP Violations

Failing to exercise its right before the WTO would "leave the US hostage to China's desires," said Professor Victoria Espinel, addressing criticism the US has received after filing cases against China over alleged trademark and copyright abuses.

Espinel's remarks came at the Fordham Intellectual Property Law Institute's 16th Annual Conference on Intellectual Property Law and Policy, held March 27 and 28 in New York, where she was speaker for a discussion entitled United States v. China in the WTO.

Industry Losing Faith in WIPO; Debates US WTO Cases Against China, Intellectual Property Watch, March 28, 2008. By Liza Porteus Viana.

"Conference speakers also debated whether the piracy complaints lodged against China at the World Trade Organization are going to be effective in compelling Beijing to enforce anti-counterfeiting and anti-piracy measures. WTO panels have been formed to deal with two IP rights-related complaints. Twelve members have signed on to the United States’ arguments, including Brazil, Argentina, Thailand, Turkey and the European Union.

"The United States filed a case against China, WT/DS362/7, for which a panel was formed on 25 September. In it, the United States alleges China has failed to provide 'criminal procedures and penalties to be applied in cases of wilful trademark counterfeiting or copyright piracy on a commercial scale that fail to meet certain thresholds' (IPW, WTO/TRIPS, 27 September 2007).

"In a second case brought by the United States, WT/DS363/5, the WTO in November launched an investigation into allegations that China is unfairly limiting the flow of copyrighted material from the United States into the country (IPW, WTO/TRIPS, 28 November 2007).

"Victoria Espinel, who served as the first assistant US Trade Representative for intellectual property and innovation, said litigation in the China matter was not preferable but 'it was deemed necessary by the US government.' The alleged violations of intellectual property rights enforcement and market access provisions of the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) have a 'tremendous impact' on the industry, she added.

"There has been much discussion surrounding whether the United States should have lodged a complaint in the first place. Espinel outlined some of the criticisms, which include: the US could lose (which could be interpreted to mean the TRIPS agreement does not include effective enforcement); the case is not big enough; China could retaliate against US companies and stop cooperating with the US on intellectual property matters; and that it is unfair to China since it has made some progress in this area.

"'None of them, to me, are compelling reasons for the US to not exercise its right before the WTO,' Espinel continued. Doing nothing, she said, will 'leave the US hostage to China’s desires.'"

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