33 Brook. J. Int'l L. 309 (2007-2008)
TRIPS Enforcement in China: A Case for Judicial Transparency

handle is hein.journals/bjil33 and id is 315 raw text is: TRIPS ENFORCEMENT IN CHINA: A CASE
FOR JUDICIAL TRANSPARENCY
INTRODUCTION
C omplaints of weak intellectual property right (IPR) enforcement
in China are legion. This widespread criticism is understandable in
light of the immense scale of the problem. For example, in 2005 the U.S.
Trade Representative (USTR) proclaimed that IPR infringement rates
in China had been estimated at over ninety percent for virtually every
form of intellectual property.' Over eighty percent of all IPR infringing
products seized at the U.S. border in 2006 came from China.2 These fig-
ures persist in spite of China's membership in the World Trade Organi-
zation (WTO) Agreement on Trade-Related Aspects of Intellectual
Property Rights (TRIPS).3 TRIPS members are expected to meet cer-
tain minimum standards of IPR protection.q If a member violates these
standards, other members may bring a case to the WTO Dispute Settle-
ment Body (DSB) to demand compliance of the offending member.5
After several years of threats and harsh rhetoric,6 on April 10, 2007, the
1. U.S. TRADE REPRESENTATIVE [USTR], 2005 SPECIAL 301 REPORT 16, available at
http://www.ustr.gov/assets/Document-Library/Reports-Publications/2005/2005-Special-
301/asset upload file 195_7636.pdf [hereinafter 2005 SPECIAL REPORT].
2. USTR, 2007 SPECIAL 301 REPORT 18, available at http://www.ustr.gov/assets/
Document Library/Reports Publications/2007/2007_Special 301 Review/asset upload_
file230 1 122.pdf [hereinafter 2007 SPECIAL REPORT].
3. See WTO Membership-In Brief, Dec. 11, 2005, available at http://www.wto.org
/english/thewto e/acc e/acc e.htm [hereinafter WTO Membership].
4. Agreement on Trade-Related Aspects of Intellectual Property Rights art. I(1),
Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex
IC, Legal Instruments-Results of the Uruguay Round, 33 I.L.M. 1125 (1994), available
at http://www.wto.org/english/docse/legal e/legal e.htm#TRIPs [hereinafter TRIPS]
(Members may, but shall not be obliged to, implement in their law more extensive pro-
tection than is required by this Agreement, provided that such protection does not contra-
vene the provisions of this Agreement.).
5. See infra Part I.C.
6. See, e.g., Rick Valliere, U.S. Continues to Press China for Stricter Enforcement of
Intellectual Property Rights, PAT., TRADEMARK & COPYRIGHT J., vol. 72 No. 1788, Oct.
6, 2006 (Christian Israel, deputy assistant secretary for technology policy at the Depart-
ment of Commerce, said that bringing a first intellectual property case against China
under the World Trade Organization is 'under serious consideration.'); Kathleen E.
McLaughlin, EU Trade Chief Warns China Failure to Meet IPR, WTO Commitments
May Spark Backlash, PAT., TRADEMARK & COPYRIGHT J., vol. 72 No. 1774, June 16,
2006 (Assistant U.S. Trade Representative Tim Stratford told a commission in Washing-
ton that a WTO case against China over IPR is 'very possible.' Stratford said the U.S.
government is laying the foundation for a formal complaint with the trade body.); Chris-
topher S. Rugaber, USTR Cites Russia, China for IPR Violations, but Avoids Punitive
Action, PAT., TRADEMARK & COPYRIGHT J., vol. 72 No. 1768, May 5, 2006 ([T]he USTR

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