Background

The Office of the U.S. Trade Representative’s annual Special 301 report on trading partners’ intellectual property rights protection and enforcement efforts “seeks to be a positive catalyst for change” but again makes no mention of possible enforcement measures against countries that fail to address U.S. concerns. The report examines concerns with respect to border, criminal, and online enforcement against counterfeiting; trade secrets; trademark protection; copyright administration; forced technology transfer and indigenous innovation; geographical indications; pharmaceutical and medical device innovation and market access; and other issues.

China

USTR said that in 2021 China enacted amendments to its patent law, copyright law, and criminal law as well as other measures aimed at addressing IPR protection and enforcement. However, rights holders continue to raise concerns about the adequacy of these measures and their effective implementation as well as longstanding issues such as bad faith trademarks, counterfeiting, and online piracy. Statements by Chinese officials that tie IPR to Chinese market dominance also continue to raise concerns.

Priority Watch List

Trading partners on the PWL present the most significant concerns regarding insufficient IPR protection or enforcement or actions that otherwise limit market access for persons relying on IPR protection. Argentina, Chile, China, India, Indonesia, Russia, and Venezuela remain on the PWL this year. USTR said it will develop an action plan with benchmarks for each of these countries to encourage progress on high-priority IPR concerns.

Saudi Arabia was removed from the PWL due to steps it took regarding publication of IPR enforcement procedures, increased enforcement of counterfeit and pirated goods, and training of specialists to increase government compliance with IPR laws.

USTR’s review of Ukraine was suspended in light of Russia’s invasion. Ukraine appeared on the PWL in 2021 but USTR noted that over the past year it has engaged meaningfully with the U.S. on longstanding areas of concern with its IPR regime.

Watch List

The following trading partners remain on the WL and merit bilateral attention to address underlying IPR problems: Algeria, Barbados, Bolivia, Brazil, Canada, Colombia, Dominican Republic, Ecuador, Egypt, Guatemala, Mexico, Pakistan, Paraguay, Peru, Thailand, Trinidad & Tobago, Turkey, Turkmenistan, Uzbekistan, and Vietnam. 

Kuwait was removed from the WL for making continued and significant progress on IPR enforcement and transparency, Lebanon was removed because no significant concerns about its IPR protection or enforcement were raised, and Romania was removed for taking significant actions to improve IPR protection and enforcement.

Out-of-Cycle Reviews

OCRs focus on identified challenges in specific markets. Successful resolu­tion of these issues can lead to a positive change in a trading partner’s Special 301 status outside of the typical timeframe for the annual review, while failure to address these concerns or further deterioration within the specified timeframe can lead to an adverse change in status. USTR plans to conduct an OCR of Bulgaria to assess whether it has made material progress on addressing deficiencies in its investigation and prosecution of online piracy cases.

For more information on pursuing or mitigating IPR-related import restrictions, please contact attorney Lee Sandler via email or at (305) 894-1000.

Copyright © 2022 Sandler, Travis & Rosenberg, P.A.; WorldTrade Interactive, Inc. All rights reserved.

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