EIPIN Windsor: Justin Hughes on China v. the United States in the WTO

The most interesting of last weekend's talk was that given by Prof. Justin Hughes, director of the intellectual property program at Cardozo School of Law, New York, on the ongoing China v. US case in the WTO.

Now, when an old China hand sees the words "China v. US" their mind is suddenly filled with the images of jet-fighters, submarines and missiles swooshing into battle seen on a thousand newspaper and magazine covers on a thousand Chinese newstands, but the real China v. USA is a somewhat more sedate affair. The first of the claims that the US is bringing against China is that there is insufficient protection for trademarks and copyright, this is substantiated by the claims that:

- is not as a matter of course removing seized counterfeit goods from the channels of commerce

- that the fact that copyright is not awarded to works until they have been passed by the censor leaves counterfeiters free to copy those which have not yet been passed

- that the monetary value of counterfeit goods that must be passed before criminal action may be taken are excessively high

The second claim is that China places unecessary restrictions on market access for US companies trying to market products protected by copyright or trademarks, thus encouraging counterfeiters to fill the gap left by the US firms.

As Prof. Hughes pointed out, the Chinese are likely to argue that TRIPS only requires them to make the same effort in enforcing IP laws as they make in other areas of law enforcement - and law enforcement in China is bad generally. Prof. Hughes also noted that it is unlikely that either side will 'win' this case, as WTO cases almost never result in a clear-cut decision in favour of one party, but it is very difficult to see what the result of this case will be as there is little in the way of case law.

I have two observations to make from this. The first is that in future countries should not be afraid of bringing cases soon after the creation of an agreement to test its provisions, in this way when countries whose involvement in the structure o f the agreement is likely to be problematic join it there will be more clarity as to what exactly it is that they are signing up to. The second is that it was unwise of China to sign up to TRIPS as a developed country, and future third-world signatories should also avoid this as they will simply be leaving themselves open to this kind of action.