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Specialspecial K USA SPECIALSPECIAL IN SUMMARY – USTR considers Special 301 to be a 301301 critical policy tool for pinpointing countries that are providing weak KK protections for U.S. intellectual ChinaChina andand RussiaRussia toptop thethe property rights abroad annualannual U.S.U.S. listlist of of IPRIPR offendersoffenders – The threat of such sanctions is often enough to compel nations to improve By Lisa Peets, Partner and Head of European IP Policy, their intellectual property regimes Mark Young, Associate and Marney Cheek, Special Counsel, Covington & Burling LLP – USTR designated 36 countries in this n 30 April this year, the United process also provides a basis for constructive year’s Special 301 Report in the States’ trade ministry, the Office of engagement with U.S. trading partners in categories of Priority Watch List and Othe U.S. Trade Representative order to address those challenges2. Given the Watch List (USTR), released its “Special 301” report. political factors involved, however, a degree of “Special 301” is the name given to an annual controversy inevitably attaches to the process. process whereby the United States Not surprisingly, Special 301 has been AUTHORS Government identifies countries that, in its criticized by other countries because of its estimation, deny adequate and effective unilateral approach3. Trademark owners and Lisa Peets is a partner at Covington & Burling LLP. She leads the technology, protection of intellectual property rights other intellectual property right holders, in media, and communications group in (including trademark protection), or deny contrast, find the Special 301 process to be a the firm’s London office. Her practice fair and equitable market access to American highly effective way to get their issues before focuses on intellectual property and industries who rely on such protection. the U.S. Government and press for resolution. information technology, and embraces USTR is primarily responsible for both legislative advocacy and IP 1 enforcement. In this context, she has conducting the review , with assistance from Background: The “Special 301 list” worked closely with leading other U.S. Government agencies, such as the Countries that are singled out by the U.S. technology industry clients, including Department of State, and American Government through the Special 301 process many of the world’s best-known embassies overseas. It uses consultations are said to be “placed on the Special 301 list”. software and hardware companies. with affected industry groups and input from This list is broken down into three Marney Cheek is a special counsel in other private sector representatives, categories, based on the severity of the the firm's Washington office. She including those representing U.S. trademark intellectual property violations cited: advises US and foreign companies on interests, to help arrive at the designations • Countries that have the most onerous or a wide range of international trade matters, including issues related to and actions recommended in the report. egregious acts, policies, or practices and the World Trade Organization, US free One focus of this year’s report is the global whose acts, policies, or practices have the trade agreements, and international scope of counterfeiting and piracy, and its greatest adverse impact on relevant U.S. intellectual property policy. damaging effect on goods protected by products, are to be identified as “Priority Mark Young is an associate in the trademark laws and copyright. The worst Foreign Countries” (PFCs). A country that is technology, media, and offenders on USTR’s list, both in general and designated as a PFC can face the imposition communications group of the London because of widespread counterfeiting of trade sanctions (such as tariffs, quotas, or office. His practice focuses on intellectual property, information problems, include China and Russia. As part other measures) that could jeopardize its technology and data protection law, of its review, USTR voiced specific concerns ability to trade with the United States. Under and encompasses legislative advocacy, regarding the need for more effective law, USTR may not, however, identify a regulatory compliance and criminal and border enforcement in several country as a PFC if it is entering into good transactional work countries to stop the manufacture, import, faith negotiations, or making significant export, transit, and distribution of pirated progress in bilateral or multilateral and counterfeit goods. negotiations, to provide adequate and effective USTR considers Special 301 to be a critical protection of intellectual property rights. policy tool for pinpointing countries that are • Nations where problems are quite serious providing weak protections for U.S. but not to the level described above are intellectual property rights abroad. The placed on the “Priority Watch List”. If a Enter the Worldleaders International IP Awards 2007 by 20th July 30 | Trademark World #199 | July/August 2007 www.ipworld.com Building trademark expertise since 1986 USA K nation is placed on the Priority Watch List, 301 process, providing USTR with lengthy remain widely available in the city. The report the U.S. Government will carry out serious recommendations regarding weak IPR highlights the notorious Silk Street Market in bilateral discussions in an effort to resolve regimes that hurt their businesses. IP right Beijing, and the China Small Commodities the intellectual property problems identified. holders representatives such as the Market in Yiwu. The estimation that 80- Failure to resolve these problems could, in International Intellectual Property 100% of goods in certain categories sold in certain situations, lead to the country being Association (IIPA) and the International the Silk Street Market are counterfeit elevated to the PFC category. AntiCounterfeiting Coalition (IACC) illustrates the extent of the problem posed by • Nations where intellectual property coordinate the opinions of companies these outdoor markets. However, large-scale problems exist and are generally serious, but concerned with product counterfeiting and manufacturing and export of counterfeit again, not serious enough to label a country in either of the two categories cited above, are placed on the “Watch List”. As with the USTR designated 36 countries in this year’s Priority Watch List, placement on the Watch “ List indicates that particular problems exist in Special 301 Report in the categories of Priority that country with respect to IPR protection, Watch List and Watch List. enforcement, or market access for American ” industries that rely on intellectual property. piracy, an issue particularly relevant to products is perhaps of even greater concern. Failure to resolve these problems could, in trademark owners. In recent years, the The United States has called for additional certain situations, lead to the country being pharmaceutical companies also have been efforts to be made to close these operations elevated to the Priority Watch List. increasingly focused on counterfeiting issues. down, and to stop outbound infringing From mid-February until late April of each products at China’s borders. The U.S. also may elect to conduct an “Out- year, USTR examines these Other problems abound in China. For of-Cycle Review” of a particular country, recommendations and discusses them with example, USTR views the requirement of which involves ongoing bilateral engagement other U.S. Government agencies and U.S. proving identical trademarks in infringement to try to resolve specific concerns raised by embassies overseas. USTR also consults with cases, the absence of minimum (and industry that remain unresolved at the time the foreign governments themselves that deterrent) fines in administrative trademark the report issues. have been recommended for placement on enforcement cases and serious backlogs in In practice, the placing of a nation on the the Special 301 list. trademark opposition and cancellation Special 301 list rarely results in the proceedings, as weaknesses that prevent U.S. imposition of trade sanctions by the United Countries highlighted in this year’s report trademark holders from adequately and States against that country. Only in the most USTR designated 36 countries in this year’s effectively enforcing their rights. Trademark serious of circumstances, once prolonged Special 301 Report in the categories of owners have also raised growing concerns negotiations between the United States and Priority Watch List and Watch List. No about the use of the Internet, in connection the government in question have failed and countries were designated as PFCs this year. with express delivery services, for direct the country is named a Priority Foreign The Administration’s top priorities marketing of counterfeit products to foreign Country, is such action undertaken. continue to be addressing weak IPR consumers. On a more positive note, though Nonetheless, the threat of such sanctions is protection and enforcement, particularly in a vast improvement in the protection of IPR often enough to compel nations to improve China and Russia. These countries have is still required, there have been some small their intellectual property regimes.4 featured in many reports in the past5, given developments in the right direction, such as their notorious problems in the areas of the creation in Nanjing of a publicly available The process counterfeiting and piracy. Argentina, Chile, database of registered trademarks to increase
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