2022 Special 301 Report
Developments in Intellectual Property Rights Protection, Enforcement, and
The Office of the United States Trade Representative (USTR) plays a crucial role in safeguarding American jobs and advancing the economic interests of the nation By utilizing comprehensive U.S trade policy tools, including the annual Special 301 Report, USTR is dedicated to protecting American innovation and creativity in international markets.
Fostering innovation and creativity is crucial for U.S economic growth, supporting approximately 63 million jobs linked to intellectual property (IP)-intensive industries According to the U.S Patent and Trademark Office, these industries encompass a wide range, including manufacturing, technology, apparel, software, agriculture, and cultural production Collectively, they contribute 41% to the U.S gross domestic product (GDP) and provide higher wages, with 47.2 million workers in IP-intensive sectors earning, on average, 60% more than their counterparts in non-IP-intensive industries.
Intellectual property (IP) infringement, encompassing patent violations, trademark counterfeiting, copyright piracy, and trade secret theft, leads to substantial financial losses for rightful owners and legitimate businesses globally This infringement not only weakens the United States' competitive edge in innovation and creativity but also poses serious public health and safety risks through counterfeit goods, including semiconductors, auto parts, clothing, toys, and pharmaceuticals Furthermore, the trade in counterfeit and pirated products often supports cross-border organized crime, exposes workers to exploitative labor conditions, and obstructs sustainable economic growth in numerous countries.
This Section highlights developments in 2021 and early 2022 in IP protection, enforcement, and related market access in foreign markets, including: examples of initiatives to strengthen IP
3 USPTO, Intellectual Property and the U.S Economy: Third Edition at 4 (Mar 2022), https://www.uspto.gov/sites/ default/files/documents/uspto-ip-us-economy-third-edition.pdf
4 See id at 15 (table listing IP-intensive industries)
7 The terms “trademark counterfeiting” and “copyright piracy” may appear below also as “counterfeiting” and
The 2021 Review of Notorious Markets for Counterfeiting and Piracy highlights the significant negative effects of counterfeiting on workers in the counterfeit goods industry To effectively address labor violations in these operations, collaboration is essential among intellectual property (IP) right holders, labor organizations, workers' rights associations, and government enforcement agencies The review discusses best practices from the United States and its trading partners, along with U.S.-led initiatives in multilateral organizations and regional developments It also identifies key challenges and trends in the trade of counterfeit goods, including forced technology transfer, the protection of trade secrets, geographical indications, and issues related to online and broadcast piracy.
Innovation in the environmental sector is significantly influenced by intellectual property (IP) considerations, particularly at the intersection of IP and health This section emphasizes the critical need for the comprehensive implementation of the World Trade Organization (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) Additionally, it highlights recent developments regarding the United States' use of WTO dispute settlement procedures to address IP-related issues effectively.
A Initiatives to Strengthen Intellectual Property Protection and Enforcement in Foreign Markets
The Office of the United States Trade Representative (USTR) notes the following important developments in 2021 and early 2022:
Kuwait has been removed from the Watch List this year due to significant progress in addressing intellectual property (IP) enforcement and transparency concerns The Ministry of Commerce and Industry (MOCI) and the Copyright Office have established online portals to facilitate the reporting of trademark and copyright violations Additionally, Kuwait has enhanced engagement through the United States-Kuwait Trade and Investment Framework Agreement (TIFA) Intellectual Property Working Group Moving forward, Kuwait aims to further improve its IP enforcement by providing specialized training for investigators, prosecutors, and judges, conducting public awareness campaigns focused on IP, and enhancing information sharing between the MOCI Trademarks and Patents Department and the Kuwait General Administration for Customs Intellectual Property Rights Unit.
• Saudi Arabia is removed from the Priority Watch List this year due to steps the Saudi
The Saudi Authority for Intellectual Property (SAIP) has implemented new IP enforcement procedures aimed at combating counterfeit and pirated goods, including online content Key initiatives include the establishment of specialized IP enforcement courts with trained judges, enhanced IP awareness and training programs, and the formation of a centralized committee to coordinate enforcement across various authorities Additionally, the training of IP specialists across 76 different authorities aims to boost government compliance with IP laws However, stakeholders express concerns regarding the Saudi Food and Drug Authority (SFDA) granting marketing approvals for subsequent versions of registered products without requiring equivalent data from domestic companies, despite existing protection for initial applicants While the SFDA has not issued such approvals since October 2020, the United States remains vigilant in monitoring the SFDA's actions in this regard.
Romania has been removed from the Watch List in 2023 due to significant improvements in intellectual property (IP) protection and enforcement The country appointed its first national IP enforcement coordinator in January 2022 to develop a comprehensive national IP strategy and enhance interagency collaboration Additionally, Romania established a dedicated department within the economic police for online piracy cases and allocated more officers to IP investigations The General Prosecutor Office's Intellectual Property Coordination Department has also resumed its working group sessions, engaging various ministries and private sector representatives The United States will continue to monitor Romania's progress in finalizing and implementing its national IP strategy, emphasizing the importance of prioritizing IP protection and enforcement.
Lebanon has been removed from the Watch List this year, as stakeholders did not express significant concerns regarding intellectual property (IP) protection or enforcement during the Special 301 review The United States will maintain its oversight of Lebanon's IP protection and enforcement framework, focusing on the ratification and implementation of international IP treaties.
In May 2021, Japan amended its Trademark Act to tackle the rising issue of counterfeit goods being imported for personal use through postal and courier services The amendment clarifies that items imported from overseas vendors for personal use are now covered under the Trademark Act, allowing for the seizure of counterfeit products This important change is set to take effect by November 2022, enhancing the protection against the influx of counterfeit items in Japan.
In January 2022, Chile implemented significant amendments to its Industrial Property Law, which include the criminalization of trademark falsification, the recognition of non-traditional marks, the introduction of provisional applications for patents, a broader definition of trade secrets, and an extension of industrial design protection to 15 years.
Since its removal from the Watch List in 2021, the United Arab Emirates (UAE) has made significant strides in intellectual property (IP) protection and enforcement through major legal reforms in its Industrial Property, Trademark, Copyright, and Cyber Crime laws These reforms, along with enhanced judicial reviews and non-legal measures, have led to increased investigations into IP infringement activities in Abu Dhabi, Dubai, and Ajman, resulting in the seizure and destruction of counterfeit goods Additionally, the UAE has established its first collective management organization (CMO) for licensing the physical and digital copying of printed materials, although a CMO for music rights is still pending.
As of March 2022, the International Union for the Protection of New Varieties of Plants Convention (UPOV 1991) has 61 member countries, which are required to provide intellectual property protection to plant breeders through breeder’s rights This robust plant variety protection system fosters innovation in plant breeding, resulting in new varieties that offer enhanced traits such as higher yields, better resilience to environmental challenges, and improved food quality Furthermore, strong global enforcement of plant variety protection boosts industry competitiveness in international markets, facilitates the import of foreign varieties, and strengthens local breeding initiatives Notably, Ghana became a member of UPOV 1991 in 2021.
In December 2021, Bahrain implemented the Protection of New Plant Varieties Law, marking a significant advancement towards complying with UPOV 1991 and fulfilling its obligations under the United States-Bahrain Free Trade Agreement.
As of March 2022, the World Intellectual Property Organization (WIPO) Performances and Phonograms Treaty has 110 parties, while the WIPO Copyright Treaty has 112 parties, collectively known as the WIPO Internet Treaties Established in 1996 and enforced since 2002, these treaties have significantly enhanced global copyright protection, particularly for online content delivery They establish exclusive rights and mandate that member parties implement robust legal protections and remedies against the circumvention of technological protection measures (TPMs) and address issues related to rights management information (RMI).
Kiribati, Uganda, and Vietnam have acceded to the WIPO Internet Treaties
The United States will continue to work with its trading partners to further enhance IP protection and enforcement during the coming year
B Illustrative Best Intellectual Property Practices by Trading Partners
The Office of the United States Trade Representative (USTR) highlights the following illustrative best practices by trading partners in the area of intellectual property (IP) protection and enforcement:
Country Reports
Special 301 Statutory Basis
Under Section 182 of the Trade Act of 1974, amended by subsequent legislation, the Office of the United States Trade Representative (USTR) must identify foreign countries that fail to provide adequate protection for intellectual property rights or deny fair market access to U.S individuals and businesses relying on such protections.
The United States Trade Representative designates Priority Foreign Countries based on the severity of their trade practices
Estimate Report In addition, USTR may identify a trading partner as a Priority Foreign Country or re-designate the trading partner whenever the available facts indicate that such action is appropriate
The USTR established a Priority Watch List and Watch List under the Special 301 provisions to enhance the management of intellectual property (IP) rights Inclusion on these lists signifies significant issues related to IP protection, enforcement, or market access in the respective countries Countries on the Priority Watch List receive heightened bilateral scrutiny to address these specific challenges effectively.
The Trade Facilitation and Trade Enforcement Act of 2015 mandates the USTR to create action plans for foreign countries on the Priority Watch List that have been there for over a year These plans must establish benchmarks aimed at helping these countries improve their intellectual property (IP) protection and ensure fair market access for U.S entities relying on IP rights Additionally, the USTR is required to report to the Senate Finance Committee and the House Ways and Means Committee regarding the action plans and the compliance status of these countries If a country fails to meet the benchmarks outlined in its action plan, the President is authorized to take appropriate measures.
Section 306 of the Trade Act of 1974 mandates that the U.S Trade Representative (USTR) oversee a trading partner's adherence to measures established for resolving investigations under Section 301 If a country does not adequately implement these measures, the USTR is authorized to take appropriate trade action.
The Trade Policy Staff Committee, specifically the Special 301 Subcommittee, advises the USTR on Special 301 implementation by gathering insights through consultations with various stakeholders, including the private sector, civil society, academia, U.S embassies, foreign governments, and Congress.
U.S Government-Sponsored Technical Assistance and Capacity Building
This Report not only identifies intellectual property (IP) concerns but also emphasizes opportunities for the U.S Government to collaborate with trading partners to address these issues The U.S Government is actively engaged in IP-related training and capacity building globally, fostering stronger and more effective systems for IP protection and enforcement both domestically and internationally, through bilateral and regional partnerships.
The U.S Patent and Trademark Office's Office of Policy and International Affairs (OPIA) offers educational programs through its Global Intellectual Property Academy (GIPA) to enhance understanding of intellectual property (IP) protection, commercialization, and enforcement These initiatives target a diverse audience, including patent, trademark, and copyright officials, judges, prosecutors, law enforcement, customs officials, foreign policymakers, and U.S right holders OPIA's GIPA programs are often delivered in partnership with Intellectual Property Attaches and various U.S Government agencies, ensuring comprehensive capacity building for stakeholders both domestically and internationally.
U.S Government agencies host foreign government and private sector representatives on study tours to engage with intellectual property (IP) professionals and explore the institutions and businesses that develop, protect, and promote IP in the country A key initiative is the Department of State’s International Visitor Leadership Program, which invites global groups to various U.S cities to gain insights into IP and associated trade and business matters.
The U.S Government actively collaborates internationally to enhance intellectual property (IP) protection and enforcement through training, technical assistance, capacity building, and the exchange of best practices These collaborative efforts include various programs designed to improve IP systems worldwide.
In Fiscal Year 2021, the USPTO launched capacity-building programs focusing on various aspects of intellectual property (IP) protection and enforcement, such as border enforcement, online piracy, express mail shipments, trade secrets, copyright policy, and patent and trademark examination Despite limited face-to-face training, the USPTO successfully transitioned to live online training, utilizing advanced technologies, including virtual international programs with simultaneous interpretation Throughout FY 2021, the USPTO conducted 250 programs, benefiting over 17,800 participants, including more than 10,000 government officials from 131 countries and intergovernmental organizations For further details, visit www.uspto.gov/GIPA.
The USPTO’s Office of Policy and International Affairs (OPIA) enhances capacity building globally through partnerships with 31 national, regional, and international intellectual property (IP) organizations, including the Japan Patent Office, European Patent Office, and the World Intellectual Property Organization (WIPO) These collaborations facilitate the joint development of informational and educational IP content, promote technical cooperation, and support classification activities, thereby strengthening the global IP framework.
The International Trade Administration (ITA) of the Department of Commerce spearheads the STOPfakes program, which assists U.S companies in navigating intellectual property (IP) issues worldwide Through a series of day-long Roadshows in collaboration with 12 partner agencies, STOPfakes offers comprehensive seminars focused on IP protection both domestically and internationally Additionally, U.S businesses can access essential resources on the STOPfakes.gov website, which provides guidance on safeguarding patents, copyrights, trademarks, and trade secrets.
The ITA provides valuable resources on intellectual property (IP) across over 80 global markets, featuring industry-specific highlights and policy insights Consumers can access webinars that share best practices for protecting and enforcing IP, particularly in China Additionally, ITA offers tools tailored for small businesses to navigate IP and implement protective strategies Collaborating with the European Union’s Directorate-General for Trade under the Transatlantic Intellectual Property Rights Working Group, ITA aims to enhance IP protection in the U.S., EU, and third countries All resources developed by the ITA are readily available for public use.
The EU TransAtlantic Portal and additional program information can be found at www.STOPfakes.gov The International Trade Administration (ITA) oversees the STOPfakes Twitter account, @STOPfakesGov, which shares updates on new resources, live-tweets events like the STOPfakes Roadshows, and promotes intellectual property posts from various agencies.
In FY 2021, U.S Immigration and Customs Enforcement (ICE) Homeland Security Investigations (HSI) conducted a regional intellectual property (IP) enforcement training program in the Dominican Republic, featuring participation from representatives of the Dominican Republic, Haiti, and Jamaica.
St Kitts and Nevis, Guadeloupe, Aruba, Bahamas, Curacao, Trinidad and Tobago, Barbados, Turks and Caicos, Sint Maarten, the Cayman Islands, and the U.S Virgin Islands participated in a program supported by U.S Customs and Border Protection (CBP), USPTO, and the Department of Justice's International Computer Hacking and Intellectual Property Advisors (ICHIPs), among other U.S agencies Additionally, HSI sponsored a virtual Intellectual Property (IP) and Global Trade Enforcement program for Canada The National Intellectual Property Rights Coordination Center (IPR Center), with support from the Department of State, took part in 11 IP-related programs organized by the USPTO and ICHIPs for diverse audiences from countries including Botswana, Brunei, Cambodia, and many others Due to the COVID-19 pandemic, these programs were conducted online.
In FY 2021, despite challenges posed by the pandemic, CBP officials at the IPR Center actively engaged with various stakeholders, including a global toy company and two international delegations, through the support of 27 partner agencies These interactions not only showcased U.S leadership in customs but also highlighted current trends and issues in global intellectual property protection, while fostering the development of trade intelligence for future analysis.
In FY 2021, CBP actively participated in HSI training programs abroad, offering a course on Customs Enforcement of Intellectual Property Rights at the Border to foreign officials in the Dominican Republic This training attracted representatives from various Caribbean nations, including Aruba, Bahamas, Barbados, Cayman Islands, Curacao, Guadeloupe, Haiti, Jamaica, Sint Maarten, St Kitts and Nevis, Trinidad and Tobago, Turks and Caicos, and the U.S Virgin Islands.
The U.S Department of State allocates annual anti-crime funds for foreign assistance, supporting U.S agencies like DOJ, USPTO, CBP, and ICE in delivering cybercrime and intellectual property (IP) enforcement training to foreign governments Collaborating with the private sector and international organizations such as WIPO and Interpol, these programs leverage a global network of experienced DOJ attorneys to foster international cooperation The State Department also leads the U.S delegation to the OECD's Task Force on Countering Illicit Trade, focusing on best practices in free trade zones to combat illicit trade challenges Furthermore, the Department initiated the International Arts Envoy Program, integrating IP outreach to emphasize copyright's significance in creative industries, with its first launch in Bucharest, Romania, in 2018.
The Department of Commerce’s Commercial Law Development Program (CLDP) prioritizes intellectual property (IP) protection through government-to-government technical assistance CLDP addresses key areas such as legislative reform, enforcement, dispute resolution, and the economic impact of IP, while also promoting IP education in universities and law schools, public awareness campaigns, and ongoing legal education for attorneys By fostering capacity building and supporting the innovation ecosystem, CLDP aids in technology commercialization and the management of patents, trademarks, and copyrights globally Additionally, CLDP collaborates with judiciaries in various trading partners to enhance the adjudication of IP cases and implements interagency coordination programs to emphasize a comprehensive government approach to IP protection and enforcement.