Wt/tpr/M/313/Add. 1 31 July 2015

3.3.5.3 Trademarks
Question 20 (Page 90, Paragraph 3.233): With respect to protection of well-known trademarks, paragraph 3. 233 of the WTO Secretariat Report, could India provide us with data of the average time taken for the procedures against malicious trademark application or registration, that is, opposition to registration and appeal for cancelling registration? Speedy completion of these procedures can prevent a third party with a malicious application of the trademark from counterfeiting in a timely manner, if India has a plan to accelerate them, please provide us with information about it.
Reply: No average time for resolution of contested matters can be committed to because the time taken would depend on the delays if any on the part of the parties to the case and the fact that decisions can be appealed against in IPAB and the higher Courts.
However, the government has taken a number of measures to address backlogs in processing of applications and disposal of opposition matters. These include:

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  A complete automation in function of Trade Marks Registry
  
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  The Government has sanctioned 62 posts of regular Examiners and 100 posts of contract Examiners who could be engaged for examination of applications.
  
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  The office of the Trade Marks Registry has been instructed to take up contested matters which have been settled between the parties and to dispose such cases on basis of settlement. Many special drives for disposal of such cases are set up from time to time and such drives have yielded appreciable results.
  
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  Possibility of settlement of such cases through mediation is also being explored.
  

3.3.5.8 Trade secrets and test data protection
Question 21 (Page 96, Paragraph 3.261): The report clearly pointed out India's lack of legislation for the TRIPs obligation under 39.3. This was formerly stated by the Indian authority*. Could India explain how to satisfy the obligation set under TRIPs 39.3?

*Report on Steps to be taken by Government of India in the context of Data Protection Provisions of Article 39.3 of TRIPS Agreement by Mrs. Satwant Reddy
Reply: Article 39.3 relates to the specific case when data pertinent for seeking approval of the authority is shared with the marketing regulator. The text of this Article does not specifically state that member countries would need to comply with the requirement of data exclusivity. It only states that the regulator will need to protect it from unfair commercial use. Therefore, no additional obligations which are not present in text can be interpreted. The obligation on the authorities is to keep the test data secret and not allow it to be accessed by third parties through unfair means. India complies completely with its obligations under Article 39.3 of TRIPS.
3.3.5.9 Enforcement
Question 22 (Page 96, Paragraph 3.264): With respect to paragraph 3.264 of the WTO Secretariat Report, please provide us with details of the situation of criminal punishment, such as numbers, by each IP Right, of cases or persons punished.
Reply: India has federal set up with civil and criminal cases filed in various courts- at the district level in case of criminal enforcement and trade secret violations and in the high courts. The information on civil cases is not maintained centrally. Information on criminal enforcement is compiled by the National Crime Record Bureau and it is available on the web site (http://www.ncrb.gov.in)
4 TRADE POLICIES BY SECTOR

4.1 Agriculture

4.1.1 General policy framework

4.1.1.3 Internal measures
Question 23 (Page 102, Paragraph 4.19): The report claims the fact that the Government authorized the FCI to sell its stock for the export of wheat. If the price at which the FCI released is lower than the procurement price, this is regarded as giving the same effect of export subsidies and distorting the international trade. Please could India show the price and the buyers of released wheat?
Reply: Export of wheat by FCI has been done through competitive open tenders. The average export price has been 303.35 USD per MT in the case of export of wheat by FCI.

Question 24 (Page 104, Paragraph 4.23): The High Level Committee on reorienting the role and restructuring of the FCI issued a report.

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  That report criticizes that "no more than 6% of the total agricultural households directly benefitted from the procurement of wheat and rice under MSP." How does India analyze the reasons for this consequence? How will the Government reform the scheme to deal with this problem?
  

Reply: The Government/ FCI has taken following measures to improve outreach of procurement system to the small and marginal farmers:- (i)  Wide publicity of the specifications such as acceptable moisture content, foreign matter etc. are given so that farmers may bring their produce accordingly and may not face any difficulty after bringing their produce at purchase centres. Handbills / pamphlets are also distributed to farmers for their awareness. 

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  The report also points out that stocks have been hugely excessive with substantial leakage. How is the amount of procurement determined in light of ensuring food security? How are the excessive stocks managed and cleared? How much rotten grain in the stocks is disposed of each year?
  

Reply: At purchase centres/ markets necessary facility for cleaning and weighment are provided, arrangement of moisture meters and gunnies are made so that prompt acceptance of farmer's produce can be ensured. (iii) In States like MP, where the farmers and cooperative societies are registered, the information about date and time for bringing the produce at the centre are given through SMS. (iv) Besides regulated markets, temporary procurement centres are also opened to facilitate easy approach of farmers to MSP operations.
For food security programmes, Government requires nearly 60 million MT of foodgrains every year. The targets for procurement of wheat and rice are fixed on the basis of the estimations made by the State Governments in such a manner that this requirement could be smoothly met. Due to various factors, there was accumulation of stocks earlier, which are being liquidated now in a planned manner and procurement is also being optimized through various policy measures so that there is no accumulation of surplus stocks under Central Pool. Accrual of damaged foodgrains is minimal. The FCI has an accrual of nearly 18800 MT of damaged foodgrains during 2014-15 including major portion, which got damaged due to natural calamities like cyclones/ floods.
4.4 Services

4.4.1 Financial services

4.4.1.2 Insurance
Question 25 (Page 116, Paragraph 4.90):

Regarding paragraph 4.90 describing the Insurance Laws (Amendment) Ordinance 2014, issued on 26 December 2014, have the laws (Amendment) Ordinance 2014 already been put in force? If not, when shall they become effective?

Reply: The Parliament has already passed the Insurance Laws (Amendment) Act, 2015 and the same is effective from 26th December, 2014.
4.4.3 Transport

4.4.3.1 Maritime transport

4.4.3.1.1 Shipping
Question 26 (Page 125, Paragraph 4.121): With regard to Voluntary Discussion Agreements (VDA), it has not yet been exempted from the Indian Competition Act, but it has been exempted from competition laws by virtually all of India's primary competitors and trading partners – Japan, Singapore, China, US, Canada, Korea, and Taiwan. VDA allows members to discuss market and trade conditions and economic trends in the shipping sector, and it also has the authority to discuss rates and charges and agree on voluntary and non-binding guidelines. If exempted from Indian Competition Act, it will encourage carrier investment in shipping services to India, and it also provides rate stability and transparency to the Indian Shipping industry and trading partners. We would be grateful if you could share your thoughts on the future prospects on VDA exemption from the Indian Competition Act.
Reply: Presently, as a first step, the Vessel Sharing Agreements have been exempted from the Competition Act, 2002, for the first time in India in December, 2013 for a period of one year and again exempted for one more year w.e.f. the 5th February, 2015 up to the 4th February 2016, after a joint review of the said exemption conducted by the Competition Commission of India and the Directorate General of Shipping, Government of India. VDAs have the potential ability to impact competition in the market and are not usually favoured given their elements of discussion of freight and therefore the possibility of freight fixing. This may distort market dynamics and potentially jeopardise fair play and competition to bid. Thus, while recognizing the value of formation of consortia towards bringing in efficiencies in operations and the ability of VSAs to effect cost cuts without infringing on the pricing system for freight, the VDAs have generally been a cause of concern as they are perceived to restrict or eliminate competition. It appears that VDAs have been prohibited by other countries as well.
5 APPENDIX TABLES
Question 27: (Page 142, Table A2.1): The report says that the limit of foreign investment in the telecommunication sector is 74%. However, according to [Consolidated FDI Policy Circular of 2014], the limit of foreign investment in telecom services is already 100%, so that description seems to be incorrect.
Reply: It is clarified that 100% foreign investment is permitted (49% under automatic route and beyond 49% through Government approval) for telecom services.

Kenya

Question 1: We note from the Secretariat Report that the Government of India aim to achieve a sustained growth of GDP of 7%-8% or above within the coming 3-4 years. What strategy is the Government intends to adopt and implement in order to achieve the above projected growth rates of the GDP.
Reply: The Government of India has its reforms agenda to remove the structural bottlenecks that come in the way of attaining higher growth. Initiatives that have been taken by the government include using Direct Benefit Transfers for giving various subsidies; "Make in India" along with initiative attendant facilitatory measures to boost the manufacturing sector; "Skill India" initiative with an aim of providing training and skill development to millions of youth; efforts to amend the Land Acquisition, Rehabilitation and Resettlement (Amendment) Bill, 2015 in order to facilitate acquiring land ; numerous measures to improve infrastructure that inter alia include increased outlay on roads and rail in the budget 2015-16, focus on developing national waterways; revenue collected from hiked excise duty on petrol and diesel to be used directly for construction of highways ; "Deen Dayal Upadhaya Gram Jyoti Yojana" for feeder separation to be launched to augment power supply in rural areas; passing of Coal Mines (special provisions) bill, 2015 and Mines and Minerals (development and regulation) amendment bill, 2015 to ensure higher investments in the sectors and adequate supply of crucial inputs among many other initiatives.
Question 2: The Secretariat report indicates that the FDI remains prohibited in certain agricultural activities, gambling and lotteries, and real estate. What is the rational of prohibiting FDI in these sector and whether there are plans to open these sector to FDI?
Reply: Since all the above sectors are crucial with respect to national interest and security and are of sensitive nature with its social and economic impact of wide nature, FDI is prohibited in these sectors. Any plans to open these sectors for allowing FDI will be taken in consultation with stakeholders.

Republic of Korea

Questions Regarding the Secretariat Report
Page 26-27 (Para 2.13, Para 2.14)
The new FTP for 2015-2020 was released on 1 April 2015. Its goal is to make India a significant participant in international trade and to raise India's share of global exports from 2% to 3.5% by 2020. This is expected to be achieved by providing a sustainable and stable policy environment for foreign merchandise and services trade; linking rules, procedures and incentives for trade with other recent initiatives such as "make in India", "digital India" and "skills India"; promoting the diversification of India's exports by assisting key sectors to become more competitive; and creating an architecture for India's engagement with key regions of the world. The acceleration in exports is expected to be achieved through exemption and remission of indirect taxes on inputs for producing final export products, imports of capital goods at concessional rates of duty, and by stimulating services exports and focusing on specific products and markets.
Despite this focus on increasing exports, India continues to use trade policy as a means to regulate domestic supply and to address short-term objectives such as containing inflation and fluctuations in commodity prices. Thus export taxes, minimum export price, as well as adjustments to import duties, are used on an ad hoc basis through a notification by the DGFT. During the period under review for instance, exports of onions, sugar and potato were subject to changing minimum export prices to regulate domestic supply of these products. Export prohibitions on edible oils have been extended on an annual basis since March 2008 with some exceptions introduced on 8 June 2013. Onions are a particularly sensitive item and export prohibitions and minimum export prices are used liberally to control exports. For instance, exports of onions were banned on 29 June 2012. Exports of onions were then permitted but subject to a minimum export price of US$650 per metric tonne on 14 August 2013 which was increased to US$900 per metric tonne on 19 September 2013 and US$1,150 per metric tonne on 1 November 2013, before being reduced to US$800 per metric tonne on 16 December 2013, US$350 per metric tonne on 19 December 2013 and to US$150 per metric tonne on 26 December 2013, and then removed on 4 March 2014. Minimum export prices of US$500 per metric tonne were then reinstated on 2 July 2014, and reduced to US$300 per metric tonne on 21 August 2014. Similarly minimum export prices and/or export prohibitions are used periodically for other agricultural products such as potatoes, rice, sugar and pulses. During the period 3 July 2009 and 31 March 2013 export restrictions were placed on wheat flour and exports of cotton were subject to prior registration of contracts with DGFT. In February-March 2014 the Government decided to provide a subsidy of Rs 3,333 per metric tonne (US$55), raised to Rs 3,371 per tonne for August-September 2014, to sugar mills to export raw sugar of up to 4 million tonnes during the 2013/14 and 2014/15 marketing years.
Question 1: Korea welcomes India's announcement of the release of the new FTP for 2015 2020 which is intended to build India's standing and role within the context of international trade. In this regard, could India provide an update on its preparations for providing a sustainable and stable policy environment for foreign merchandise and services trade?
Reply: A key objective of India's foreign trade policy is to provide a stable and sustainable policy environment for trade in merchandise and services.
FTP 2015-2020 covers a 5 year time frame to ensure a sustainable and stable policy environment for merchandise and services trade. The policy aims at simplification schemes for Merchandise and Services exports, trade facilitation, promoting the ease of doing business, capacity building of new and potential exporters. There will be a mid-term review and assessment of the Policy.
The details are enumerated in the FTP documents available on the DGFT website (http://www.dgft.gov.in).
Question 2: According to the Secretariat Report, at present India's trade policy is used as a measure to regulate domestic supply and to address more short-term objectives. Taking this into account as well as the fact that trade policy should be favourable to market opening, does India have any plans to review and improve the goals of its trade policy system?
Reply: India's trade policy balances the need for trade liberalization, global economic integration and domestic growth objectives.
There has been a steady and autonomous liberalization of India's trade and over the years the Indian economy is becoming increasingly integrated with the global economy.
The goals and objectives of India's foreign trade policy and the details of India's Foreign Trade Policy for 2015-2020 may be seen in the documents available on the DGFT website (www.dgft.gov.in).
Page 29 (Para 2.22)
Out of 15 RTAs notified by India to the WTO, four include provisions on services as well as goods (with the Republic of Korea, Malaysia, Japan, and Singapore) although, as noted, the SAFTA Trade in services (SATIS) agreement is in force but not notified to the WTO while India and ASEAN have recently signed a Services and Investment Agreement. India's tariff liberalization in its RTAs tends to vary greatly depending on the negotiating partner. Among its notified RTAs that have been considered by either the Committee on Regional Trade Agreements or the Committee on Trade and Development, India's tariff liberalization commitments range from zero tariffs liberalized in the partial scope Agreement with Chile, to 23.6% in its FTA with Singapore, 75.3% with Malaysia and 86.6% with Japan. With ASEAN, India commits to liberalize 75% of its tariff lines for imports from ASEAN countries. According to the authorities partial scope agreements should not be a measure for computing the level of liberalization; liberalization should be looked at only in reference to full scope agreements.
Question 3: When India determines the level of tariff liberalization on various FTAs, what key factors do Indian authorities take into account and consider?
Reply: The level of tariff liberalization is contingent on inter alia many factors like the reciprocity by trading partner, export interests in the trading partner, domestic sensitivity for stakeholders, overall ambition in other areas of negotiations etc.
Page 30 (Para 2.24)
There have been concerns expressed in recent years regarding the potentially negative impact of RTAs, notably on Indian industry. The Department of Commerce recently conducted an internal analysis of various FTAs, and found that the utilization of several FTAs by India's FTA partners was not significant. Given the low impact of FTAs on Indian industry, it is not clear what the immediate benefits of existing FTAs are and what if any implications for India's policy there may be on its current RTA negotiations. According to the authorities each negotiation is driven by the overall balance of interests with the specific trading partner(s).
Question 4: It is understood that upgrading existing FTAs would represent effective measures to ensure greater benefits to industry. In what ways do you think India's conservative analysis will influence India's policy on upgrading existing FTAs, including the Korea-India CEPA?
Reply: Any review of an existing FTAs takes inter alia into account factors such as factors like the reciprocity by trading partner, export interests in the trading partner, domestic sensitivity for stakeholders, overall ambition in other areas of negotiations etc.
Page 53 (Para 3.59)
During the period under review, significant changes were made to India's anti-dumping legislation. These changes include: (i) adjustments to the rules governing mid-term and sunset reviews; (ii) changes to the definition of domestic industry to bring in flexibility; (iii) new rules defining situations that are considered to represent the circumvention of anti-dumping duties, and providing for anti-circumvention investigations to address such circumvention; and (iv) elaboration of a refund procedure applicable where an importer considers that the amount the duty paid is in excess of actual margin of dumping. The authorities state that these changes were adopted mainly to bring clarity and to align them with provisions of the WTO Agreement. These involved amendments to the Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on Dumped Articles and for Determination of Injury) Rules 1995 in March 2011 and in January 2012.
Question 5: India made significant changes to its anti-dumping legislation during the period under review. Could India explain these legislative changes in detail? Please elaborate on the changes, particularly with regard to the rules governing mid-term and sunset reviews.
Reply: Section 9A(5) of the Customs Tariff Act 1975, as well as Rule 23 of the Anti-dumping Rules made thereunder, lay down the provisions for conducting a sunset review. These are available in the public domain and can be seen at http://www.cbec.gov.in.
Amendments carried out in the Anti-dumping Rules during the review period are indicated below:
i.Vide Notification No.86/2011 - Customs (N.T.) dated 1^st December, 2011,Rule 2(b) of the Anti-dumping Rules was amended as follows:

2(b) "domestic industry" means the domestic producers as a whole engaged in the manufacture of the like article and any activity connected therewith or those whose collective output of the said article constitutes a major proportion of the total domestic production of that article except when such producers are related to the exporters or importers of the alleged dumped article or are themselves importers thereof in such case the term 'domestic industry' may be construed as referring to the rest of the producers.
The aforesaid amendment provides flexibility to the Designated Authority to decide based on the merits of the case to include or exclude a domestic producer as domestic industry.
ii.The rules concerning circumvention of anti-dumping duties were notified vide Notification No. 6/2012-Customs (N.T) dated 19^th January, 2012 by introducing Rule 25 to 28 in the Anti-dumping Rules. Under the said Rules, the following types of activities amount to circumvention of anti-dumping duty when goods are imported in to India:

1. 
   Import of goods in an unassembled, unfinished or incomplete form and assembled, finished or completed in India or in such country to avoid payment of anti-dumping duty.
   
2. 
   Imports of goods by altering the description, name or composition of an article.
   
3. 
   Imports of goods subject to anti-dumping duty through exporters or producers or countries not subject to anti-dumping duty.
   

iii.Rule 21 is for the refund of duty. Notification No. 6/2012-Customs (N.T) dated 19 January, 2012 introduced Rule 21 A, thereby introducing the procedure related to the Determination of amount paid in excess of actual margin of dumping. Details of the amendments can be seen at http://www.cbec.gov.in .

Malaysia

SECRETARIAT REPORT
Summary, para. 8, p. 8
India's trade policy objectives are stipulated in its Foreign Trade Policy (FTP), which is issued every five years, but revised periodically to take into account internal and external factors. The new 2015-20 FTP, released on 1 April 2015, aims to make India a significant participant in international trade and to raise its share of global exports to 3.5% in 2020. This is expected to be achieved by providing a sustainable and stable policy environment for foreign merchandise and services trade; linking rules, procedures and incentives for trade with other recent initiatives such as "make in India", "digital India" and "skills India"; promoting the diversification of India's exports by assisting key sectors to become more competitive; and creating an architecture for India's engagement with key regions of the world.