2023 Special 301 Report.pdf

2023 Special 301 Report

Office of the United States Trade Representative

ACKNOWLEDGEMENTS

The Office of the United States Trade Representative (USTR) is responsible for the preparation of

this Report. United States Trade Representative Katherine Tai gratefully acknowledges the

contributions of staff to the writing and production of this Report and extends her thanks to partner

agencies, including the following Departments and agencies: State; Treasury; Justice; Agriculture;

Commerce, including the International Trade Administration and the Patent and Trademark

Office; Labor; Health and Human Services, including the Food and Drug Administration;

Homeland Security, including the United States Customs and Border Protection, Homeland

Security Investigations, and the National Intellectual Property Rights Coordination Center; and the

United States Agency for International Development. USTR also recognizes the contributions of

the Office of the Intellectual Property Enforcement Coordinator, as well as those of the United

States Copyright Office.

In preparing the Report, substantial information was solicited from U.S. embassies around the

world, from U.S. Government agencies, and from interested stakeholders. The draft of this Report

was developed through the Special 301 Subcommittee of the interagency Trade Policy Staff

Committee.

TABLE OF CONTENTS

EXECUTIVE SUMMARY .......................................................................................................... 4

SECTION I: Developments in Intellectual Property Rights Protection, Enforcement, and

Related Market Access .............................................................................................................. 9

SECTION II: Country Reports ................................................................................................. 40

UKRAINE – REVIEW SUSPENDED .............................................................................. 40

PRIORITY WATCH LIST .................................................................................................... 40

ARGENTINA ...................................................................................................................... 40

CHILE .................................................................................................................................. 43

CHINA ................................................................................................................................. 45

INDIA ................................................................................................................................... 56

INDONESIA ........................................................................................................................ 60

RUSSIA ................................................................................................................................ 62

VENEZUELA ...................................................................................................................... 65

WATCH LIST ......................................................................................................................... 66

ALGERIA ............................................................................................................................ 66

BARBADOS ........................................................................................................................ 67

BELARUS ............................................................................................................................ 68

BOLIVIA ............................................................................................................................. 69

BRAZIL ............................................................................................................................... 70

BULGARIA ......................................................................................................................... 72

CANADA ............................................................................................................................. 73

COLOMBIA ........................................................................................................................ 74

DOMINICAN REPUBLIC ................................................................................................ 75

ECUADOR .......................................................................................................................... 76

EGYPT ................................................................................................................................. 77

GUATEMALA .................................................................................................................... 78

MEXICO .............................................................................................................................. 79

PAKISTAN .......................................................................................................................... 81

PARAGUAY ........................................................................................................................ 82

PERU .................................................................................................................................... 83

THAILAND ......................................................................................................................... 84

TRINIDAD AND TOBAGO .............................................................................................. 85

TURKEY ............................................................................................................................. 86

TURKMENISTAN ............................................................................................................. 87

UZBEKISTAN .................................................................................................................... 88

VIETNAM ........................................................................................................................... 89

ANNEX 1: Special 301 Statutory Basis ..................................................................................... 90

ANNEX 2: U.S. Government-Sponsored Technical Assistance and Capacity Building ........ 92

EXECUTIVE SUMMARY

The Special 301 Report (Report) is the result of an annual review of the state of intellectual

property (IP) protection and enforcement in U.S. trading partners around the world, which the

Office of the United States Trade Representative (USTR) conducts pursuant to Section 182 of the

Trade Act of 1974, as amended (the Trade Act, 19 U.S.C. § 2242). Congress amended the Trade

Act in 1988 specifically “to provide for the development of an overall strategy to ensure adequate

and effective protection of intellectual property rights and fair and equitable market access for

United States persons that rely on protection of intellectual property rights.”

In particular,

Congress expressed its concern that “the absence of adequate and effective protection of United

States intellectual property rights, and the denial of equitable market access, seriously impede the

ability of the United States persons that rely on protection of intellectual property rights to export

and operate overseas, thereby harming the economic interests of the United States.”

This Report provides an opportunity to put a spotlight on foreign countries and the laws, policies,

and practices that fail to provide adequate and effective IP protection and enforcement for U.S.

inventors, creators, brands, manufacturers, and service providers, which, in turn, harm American

workers whose livelihoods are tied to America’s innovation- and creativity-driven sectors. The

Report identifies a wide range of concerns, including: (a) challenges with border and criminal

enforcement against counterfeits, including in the online environment; (b) high levels of online

and broadcast piracy, including through illicit streaming devices; (c) inadequacies in trade secret

protection and enforcement in China, Russia, and elsewhere; (d) troubling “indigenous innovation”

and forced or pressured technology transfer policies that may unfairly disadvantage U.S. right

holders in markets abroad; and (e) other ongoing, systemic issues regarding IP protection and

enforcement, as well as market access, in many trading partners around the world. Combating

such unfair trade policies can foster American innovation and creativity and increase economic

security for American workers and families.

A priority of this Administration is to craft trade policy in service of America’s workers, including

those in innovation- and creativity-driven export industries. The Report serves a critical function

by identifying opportunities and challenges facing U.S. innovative and creative industries in

foreign markets and by promoting job creation, economic development, and many other benefits

that effective IP protection and enforcement support. The Report informs the public and our

trading partners and seeks to be a positive catalyst for change. USTR looks forward to working

closely with the governments of the trading partners that are identified in this year’s Report to

address both emerging and continuing concerns and to build on the positive results that many of

these governments have achieved.

Omnibus Trade and Competitiveness Act of 1988, § 1303(a)(2), 102 Stat. 1179.

Id. § 1303(a)(1)(B); see also S. Rep. 100-71 at 75 (1987) (“Improved protection and market access for U.S.

intellectual property goes to the very essence of economic competitiveness for the United States. The problems of

piracy, counterfeiting, and market access for U.S. intellectual property affect the U.S. economy as a whole. Effective

action against these problems is important to sectors ranging from high technology to basic industries, and from

manufacturers of goods to U.S. service businesses.”).

THE 2023 SPECIAL 301 LIST

The Special 301 Subcommittee received stakeholder input on more than 100 trading partners but

focused its review on those submissions that responded to the request set forth in the notice

published in the Federal Register to identify whether a particular trading partner should be named

as a Priority Foreign Country, placed on the Priority Watch List or Watch List, or not listed in the

Report. Following extensive research and analysis, USTR has identified 29 trading partners as

follows:

Priority Watch List

Watch List

• Argentina

•

Chile

•

China

•

India

•

Indonesia

•

Russia

•

Venezuela

• Algeria

•

Barbados

•

Belarus

•

Bolivia

•

Brazil

•

Bulgaria

•

Canada

•

Colombia

•

Dominican Republic

•

Ecuador

• Egypt

• Guatemala

•

Mexico

•

Pakistan

•

Paraguay

•

Peru

•

Thailand

•

Trinidad and Tobago

•

Turkey

•

Turkmenistan

•

Uzbekistan

• Vietnam

The Special 301 review of Ukraine has been suspended due to Russia’s premeditated and

unprovoked further invasion of Ukraine in February 2022.

OUT-OF-CYCLE REVIEWS

An Out-of-Cycle Review is a tool that USTR uses to encourage progress on IP issues of concern.

Out-of-Cycle Reviews provide an opportunity to address and remedy such issues through

heightened engagement and cooperation with trading partners and other stakeholders. Out-of-

Cycle Reviews focus on identified IP challenges in specific trading partner markets. Successful

resolution of specific IP issues of concern can lead to a positive change in a trading partner’s

Special 301 status outside of the typical period for the annual review. Conversely, failure to

address identified IP concerns, or further deterioration as to an IP-related concern within the

specified Out-of-Cycle Review period, can lead to an adverse change in status.

In 2023, USTR will conduct an Out-of-Cycle Review of Bulgaria. This Out-of-Cycle review will

provide an opportunity for Bulgaria to demonstrate progress in the coming months with addressing

deficiencies in its investigation and prosecution of online piracy cases by allowing criminal

investigations, expert examinations, and prosecutions to proceed with just a subset of seized

infringing works, either by evidence sampling or some other method.

USTR may conduct additional Out-of-Cycle Reviews of other trading partners as circumstances

warrant or as requested by a trading partner.

REVIEW OF NOTORIOUS MARKETS FOR COUNTERFEITING AND PIRACY

In 2010, USTR began publishing annually the Review of Notorious Markets for Counterfeiting and

Piracy (Notorious Markets List) separately from the annual Special 301 Report. The Notorious

Markets List identifies illustrative examples of online and physical markets that reportedly engage

in, facilitate, turn a blind eye to, or benefit from substantial copyright piracy and trademark

counterfeiting, according to information submitted to USTR in response to a notice published in

the Federal Register requesting public comments. In 2022, USTR requested such comments on

August 26, 2022, and published the 2022 Notorious Markets List on January 31, 2023. USTR

plans to conduct its next Review of Notorious Markets for Counterfeiting and Piracy in the fall of

2023.

THE SPECIAL 301 PROCESS

The Congressionally mandated annual Special 301 Report is the result of an extensive multi-

stakeholder process. Pursuant to the statute mandating the Report, the United States Trade

Representative is charged with designating as Priority Foreign Countries those countries that have

the most onerous or egregious acts, policies, or practices and whose acts, policies, or practices

have the greatest adverse impact (actual or potential) on relevant U.S. products. (See ANNEX 1.)

To facilitate administration of the statute, USTR has created a Priority Watch List and a Watch

List within this Report. Placement of a trading partner on the Priority Watch List or Watch List

indicates that particular problems exist in that country with respect to IP protection, enforcement,

or market access for U.S. persons relying on IP. Provisions of the Special 301 statute, as amended,

direct the United States Trade Representative to develop action plans for each country identified

as a Priority Watch List country that has also been on the Priority Watch List for at least one year.

Public Engagement

USTR solicited broad public participation in the 2023 Special 301 review process to facilitate

sound, well-balanced assessments of trading partners’ IP protection and enforcement and related

market access issues affecting IP-intensive industries and to help ensure that the Special 301

review would be based on comprehensive information regarding IP issues in trading partner

markets.

USTR requested written submissions from the public through a notice published in the Federal

pandemic, USTR fostered public participation via written submissions rather than an in-person

hearing. The interagency Special 301 Subcommittee of the Trade Policy Staff Committee (TPSC)

sent written questions about issues relevant to the review to those that submitted written comments,

including to representatives of foreign governments, industry, and non-governmental

organizations. USTR posted the written questions and the written responses online at

www.regulations.gov, docket number USTR-2022-0016. The Federal Register notice drew

submissions from 71 non-government stakeholders and 17 foreign governments. The submissions

filed in response to the Federal Register notice are available to the public online at

www.regulations.gov, docket number USTR-2022-0016.

Country Placement

The Special 301 listings and actions announced in this Report are the result of intensive

deliberations among all relevant agencies within the U.S. Government, informed by extensive

consultations with participating stakeholders, foreign governments, the U.S. Congress, and other

interested parties.

USTR, together with the Special 301 Subcommittee, conducts a broad and balanced assessment of

U.S. trading partners’ IP protection and enforcement, as well as related market access issues

affecting IP-intensive industries, in accordance with the statutory criteria. (See ANNEX 1.) The

Special 301 Subcommittee, through the TPSC, provides advice on country placement to USTR

based on this assessment. This assessment is conducted on a case-by-case basis, taking into

account diverse factors such as a trading partner’s level of development, its international

obligations and commitments, the concerns of right holders and other interested parties, and the

trade and investment policies of the United States. It is informed by the various cross-cutting

issues and trends identified in Section I. Each assessment is based upon the specific facts and

circumstances that shape IP protection and enforcement in a particular trading partner.

In the year ahead, USTR will continue to engage trading partners on the issues discussed in this

Report. In preparation for, and in the course of, those interactions, USTR will:

• Engage with the U.S. Congress and U.S. Government agencies, as well as U.S.

stakeholders and other interested parties to ensure that USTR’s position is informed by the

full range of views on the pertinent issues;

• Conduct extensive discussions with individual trading partners regarding their respective

IP regimes;

• Encourage trading partners to engage fully, and with the greatest degree of transparency,

with the full range of stakeholders on IP matters;

• Develop an action plan with benchmarks for each country that has been on the Priority

Watch List for at least one year to encourage progress on high-priority IP concerns; and

• Identify, where possible, appropriate ways in which the U.S. Government can be of

assistance. (See ANNEX 2.)

USTR will conduct these discussions in a manner that both advances the policy goals of the United

States and respects the importance of meaningful policy dialogue with U.S. trading partners. In

addition, USTR will continue to work closely with other U.S. Government agencies to ensure

consistency of U.S. trade policy objectives.

STRUCTURE OF THE SPECIAL 301 REPORT

The 2023 Report contains the following Sections and Annexes:

SECTION I: Developments in Intellectual Property Rights Protection, Enforcement, and Related

Market Access discusses global trends and issues in IP protection and enforcement and related

market access that the U.S. Government works to address on a daily basis;

SECTION II: Country Reports includes descriptions of issues of concern with respect to particular

trading partners;

ANNEX 1: Special 301 Statutory Basis describes the statutory basis of the Special 301 Report;

and

ANNEX 2: U.S. Government-Sponsored Technical Assistance and Capacity Building highlights

U.S. Government-sponsored technical assistance and capacity-building efforts.

April 2023

SECTION I: Developments in Intellectual

Property Rights Protection, Enforcement, and

Related Market Access

An important part of the mission of the Office of the United States Trade Representative (USTR)

is to support and implement the Administration’s commitment to protect American jobs and

workers and to advance the economic interests of the United States. USTR works to protect

American innovation and creativity in foreign markets employing all the tools of U.S. trade policy,

including the annual Special 301 Report (Report).

Fostering innovation and creativity is essential to U.S. economic growth, competitiveness, and the

estimated 63 million American jobs that directly or indirectly rely on intellectual property (IP)-

intensive industries.

IP-intensive industries, defined by the U.S. Patent and Trademark Office

(USPTO) as industries that rely most heavily on IP protections, are a diverse group that include,

among others, manufacturers, technology developers, apparel makers, software publishers,

agricultural producers, and creators of creative and cultural works.

Together, these industries

generated 41% of the U.S. gross domestic product (GDP).

The 47.2 million workers that IP-

intensive industries employed directly also enjoyed pay that was, on average, 60% higher than

workers in non-IP-intensive industries.

IP infringement, including patent infringement, trademark counterfeiting, copyright piracy,

and

trade secret theft, causes significant financial losses for right holders and legitimate businesses

around the world. IP infringement undermines U.S. competitive advantages in innovation and

creativity, to the detriment of American businesses and workers.

In its most pernicious forms, IP

infringement endangers the public, including through exposure to health and safety risks from

counterfeit products, such as semiconductors, automobile parts, apparel, footwear, toys, and

medicines. In addition, trade in counterfeit and pirated products often fuels cross-border organized

criminal networks, increases the vulnerability of workers to exploitative labor practices, and

hinders sustainable economic development in many countries.

This Section highlights developments in 2022 and early 2023 in IP protection, enforcement, and

related market access in foreign markets, including: examples of initiatives to strengthen IP

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.

See id. at 15 (table listing IP-intensive industries).

Id. at 13.

Id. at 4 and 9.

The terms “trademark counterfeiting” and “copyright piracy” may appear below also as “counterfeiting” and

“piracy,” respectively.

The Issue Focus of the 2022 Review of Notorious Markets for Counterfeiting and Piracy examines the impact of

online piracy on U.S. workers. Workers, such as content creators and the creative professionals who support the

production of creative works, rely more than ever on adequate and effective copyright protection and enforcement to

secure their livelihoods in today’s digital era. Online piracy is not only highly detrimental to the U.S. economy as a

whole, but it also has a strong impact on the everyday lives of individual workers.

protection and enforcement; illustrative best practices demonstrated by the United States and our

trading partners; U.S.-led initiatives in multilateral organizations; and bilateral and regional

developments. This Section identifies outstanding challenges and trends, including as they relate

to enforcement against counterfeit goods, online and broadcast piracy, protection of trade secrets,

forced or pressured technology transfer and preferences for indigenous IP,

geographical

indications (GIs), innovative pharmaceutical products and medical devices, trademark protection

issues, copyright administration and royalty payment, and government use of unlicensed software.

This Section also highlights the importance of IP to innovation in the environmental sector and

considerations at the intersection of IP and health. Finally, this Section discusses the importance

of full implementation of the World Trade Organization (WTO) Agreement on Trade-Related

Aspects of Intellectual Property Rights (TRIPS) and developments on the use of WTO dispute

settlement procedures by the United States to resolve IP concerns.

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 2022 and early 2023:

• In October 2022, Japan’s Trademark Act amendments that address concerns over Japan’s

personal use exemption for imported goods, which was used increasingly to send

counterfeit items to individuals in Japan via postal and courier services, came into force.

Pursuant to the amendment, items imported from “overseas vendors” for personal use now

fall within the scope of the Trademark Act, such that counterfeits imported in this manner

are subject to seizure.

• In September 2022, the United States and Paraguay finalized an IP Work Plan in

conjunction with the first meeting under the United States-Paraguay Trade and Investment

Framework Agreement (TIFA). The Work Plan will serve as a roadmap to address issues

on the protection and enforcement of intellectual property rights in Paraguay. The two

countries, with the relevant agencies coordinating, will implement the Work Plan, and

review this implementation on an ongoing basis.

• After being removed from the Priority Watch List in 2022, Saudi Arabia’s Saudi

Authority for Intellectual Property (SAIP) continued to take steps to improve IP protection

and enforcement. New developments include the introduction of an IP Respect Council to

facilitate communication between government entities and private sector stakeholders and

the high-profile launch of a national IP strategy. Right holders highlight increased

enforcement, improved communications with Customs, and transparent processes for

developing regulations.

• Malaysia adopted the Copyright (Amendment) Act 2022, which contained new provisions

that create a new criminal offense of committing copyright infringement with streaming

In certain countries, preferences or policies on “indigenous IP” or “indigenous innovation” refer to a top-down, state-

directed approach to technology development, which can include explicit market share targets that are to be filled by

producers using domestically owned or developed IP.

technology and impose penalties. The amendments entered into force in March 2022.

Malaysia should take steps during the implementation and application of the new

provisions to clarify their scope with respect to technologies and devices employed for

non-infringing uses.

• Canada increased the term of copyright protection for all works measured by the life of

the author from life of the author plus 50 years to life of the author plus 70 years, which is

a United States-Mexico-Canada Agreement (USMCA) obligation.

• Thailand amended the Copyright Act, which included new provisions against

circumvention of technological protection measures and on secondary liability. The

amendments entered into force in August 2022.

• In Vietnam, amendments to the IP Code entered into force in January 2023, which include

categorizing the illegal uploading and streaming of a cinematographic work as a violation

of communication rights and clarifying that copying of part of a work will be considered

as a reproduction.

• In 2023, the National Intellectual Property Rights Coordination Center and Homeland

Security Investigations Jakarta co-hosted the Intellectual Property Rights Investigative

Methods Workshop in Indonesia for investigators, prosecutors, regulators, and customs

officials from the Directorate General for Intellectual Property (DGIP), Ministry of Law

and Human Rights, Indonesian National Police, Indonesia Customs and Excise, BPOM

(Indonesian FDA), Attorney General Office, Ministry of Health (Kemenkes), Ministry of

Communication and Informatics (Kominfo), Ministry of Trade, and the Ministry of

Research, Culture, Education & Technology (Kemendikbudristek). The training was

supported by the U.S. Department of State, Bureau of International Narcotics and Law

Enforcement Affairs; U.S. Department of Justice, Office of Overseas Prosecutorial

Development, Assistance, and Training; Federal Bureau of Investigation; U.S. Customs

and Border Protection; and the U.S. Patent and Trademark Office.

• In March 2023, Nigeria adopted the Copyright Act, 2022, with a view to implementing the

World Intellectual Property Office (WIPO) Performances and Phonograms Treaty (WPPT)

and the WIPO Copyright Treaty (WCT), collectively known as the WIPO Internet Treaties,

which Nigeria ratified in 2017. The law includes new provisions for enforcement in the

online environment and against circumvention of technological protection measures, as

well as introduces a making available right.

• As of March 2023, there are 61 members of the 1991 Act of the International Union for the

Protection of New Varieties of Plants Convention (UPOV 1991). The treaty requires

member countries to grant IP protection to breeders of new plant varieties, known as

breeder’s rights. An effective plant variety protection system incentivizes plant-breeding

activities, which leads to increased numbers of new plant varieties with improved

characteristics such as high-yield, tolerance to adverse environmental conditions, and

better food quality. In addition, promoting strong plant variety protection and enforcement

globally helps improve industry competitiveness in foreign markets, encourages the

importation of foreign plant varieties, and enhances domestic breeding programs.

• As of March 2023, there are 112 parties to the World Intellectual Property Organization

(WIPO) Performances and Phonograms Treaty and 114 parties to the WIPO Copyright

Treaty (WCT), collectively known as the WIPO Internet Treaties. These treaties, which

were completed in 1996 and entered into force in 2002, have raised the standard of

copyrighted content. The treaties, which provide for certain exclusive rights, require

parties to provide adequate legal protection and effective legal remedies against the

circumvention of technological protection measures (TPMs), as well as certain acts

affecting rights management information (RMI). Since the publication of the 2022 Special

301 Report, Thailand and Tunisia have acceded to the WIPO Copyright Treaty, and

Tunisia acceded to the WIPO Performances and Phonograms Treaty (WPPT).

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:

• Cooperation and coordination among national government agencies involved in IP issues

are examples of effective IP enforcement. Several countries, including the United States,

have introduced IP enforcement coordination mechanisms or agreements to enhance

interagency cooperation. In Thailand, the interagency National Committee on Intellectual

Property, led by the Prime Minister, approved a “Thailand 4.0” policy and “20-Year IP

Roadmap” for IP protection and enforcement. India’s Cell for Intellectual Property Rights

Promotion and Management (CIPAM) collaborated with the Federation of Indian

Chambers of Commerce (FICCI) to create IP enforcement toolkits used as guidance during

in-house training of police officers and in workshops at police academies. In Saudi

Arabia, the Saudi Authority for Intellectual Property (SAIP) created the permanent

National Committee for the Enforcement of Intellectual Property to coordinate IP

enforcement, issue reports and case studies, and develop IP legislation and regulations.

Brazil’s National Council on Combating Piracy and Intellectual Property Crimes is

composed of representatives from executive branch ministries and the private sector, and

works to discuss ongoing IP enforcement issues, propose public policy initiatives, and

organize public awareness workshops. Indonesia expanded the Intellectual Property

Enforcement Task Force to include coordination on IP enforcement with four additional

ministries, including the Ministry of Trade and Ministry of Health. Uzbekistan’s regional

Intellectual Property Centers (IPPCs) seek to foster interagency cooperation on

enforcement. In December 2022, the Dominican Republic created the National Inter-

Ministerial Council of Intellectual Property, led by the Ministry of Industry and Commerce,

which will coordinate the agencies involved in IP protection and enforcement and ensure

better cooperation and information sharing. Romania appointed its first national IP

enforcement coordinator last year who, along with the interagency IP working group, is

finalizing Romania’s first national strategy for IP protection. The United States encourages

other trading partners to consider adopting cooperative IP arrangements.

• Specialized IP enforcement units and specialized IP courts also have proven to be important

catalysts in the fight against counterfeiting and piracy. For example, the Special Internet

Forensics Unit in Malaysia’s Ministry of Domestic Trade and Consumer Affairs, which is

responsible for IP enforcement, monitors websites and coordinates with other government

entities to combat counterfeiting and piracy online.

• Many trading partners conducted IP awareness and educational campaigns, including

jointly with stakeholders, to develop support for domestic IP initiatives. In Spain, the

Ministry of Industry, Trade, and Tourism’s Patent and Trademark Office carried out

campaigns against IP theft. In Algeria, the Office of Copyright and Neighboring Rights

(ONDA) works with technology firms to raise awareness of the importance of using

licensed software. The United Arab Emirates (UAE) holds workshops to help customs

officials distinguish between counterfeit and genuine goods. In Thailand, the Department

of Intellectual Property continued to carry out various IP awareness activities, including

the release of animated videos to educate children on IP in cooperation with Japan and

Korea and the organization of IP awareness campaigns at physical markets. In the

Philippines, the Raise the Economy by Acquiring Protection of Your IP of Your

Community (REAP IP) program engaged over 160 local government units on IP

awareness. In Côte d’Ívoire, the Bureau Ivoirien du Droit d’Auteur (BURIDA) partnered

with town halls, national institutions, hotels, and health centers to conduct collective

management organization (CMO) education, resulting in an increase of music license

collections. In Nigeria, the Nigerian Copyright Commission (NCC) and the Nigeria

Educational Research and Development Council are partnering to introduce copyright into

school curriculums, and the NCC also to organizes writing competitions for secondary

students on the importance of copyright.

• Another best practice is the active participation of government officials in technical

assistance and capacity building. Romania’s law enforcement officers and prosecutors

participated in several IP workshops and trainings organized by the regional International

Computer Hacking and Intellectual Property (ICHIP) Advisor of the U.S. Department of

Justice (DOJ) to promote U.S. best practices for IP rights enforcement, including at the

border. Algeria and Tunisia’s judges participated in an IP Judicial exchange hosted by

the U.S. Patent and Trademark Office. The Intellectual Property Office of the Philippines

conducted an annual IP Colloquium for the Judiciary, which provided training for judges

of the Special Commercial Courts, and organized workshops for law enforcement agents

and prosecutors. In Thailand, the Department of Intellectual Property organized

workshops for law enforcement officers on enhancing IP enforcement, investigation of

online piracy, and investigation of counterfeit products. The Department of Intellectual

Property also co-organized, in cooperation with the Association of Southeast Asian Nation

(ASEAN) Secretariat and U.S. Patent and Trademark Office, a workshop on “Intellectual

Property, Consumer Protection, and Unfair Business Practices.” Turkmenistan’s State

Agency for Intellectual Property, under the Ministry of Finance and Economy, proactively

sought out capacity building programs for its officials.

• Micro, small, and medium-sized enterprises (MSMEs) play a positive role in the global

economy as they contribute widely to innovation, trade, growth, investment, and

competition. According to a study by the European Patent Office and the European Union

Intellectual Property Office in 2019, small and medium-sized enterprises that have at least

one IP right are 21% more likely to experience a growth period.

Many trading partners

provide capacity building, technical assistance, or other resources to help MSMEs better

understand IP and how to protect and enforce their IP. For example, Thailand launched

“Intellectual Property for Businesses” (IP4B) program to improve the ability of small

businesses to commercialize IP. Similarly, the United Kingdom provides IP audits to help

potential high growth, innovative MSMEs with a tailored assessment of the IP within their

business to help them develop IP management strategies.

C. Multilateral Initiatives

The United States works to promote adequate and effective intellectual property (IP) protection

and enforcement through various multilateral institutions, notably the World Trade Organization

(WTO). In the past year, the United States co-sponsored discussions in the WTO Council for

Trade-Related Aspects of Intellectual Property Rights (TRIPS Council) on the positive and

mutually reinforcing relationship between the protection of IP, innovation, and business

development.

In 2022, the United States advanced its Intellectual Property and Innovation agenda in the TRIPS

Council through a series of different initiatives that cover often unexplored areas connected to IP

and innovation. Over the course of three meetings, the United States and co-sponsors presented

on the relationship between IP, innovation, and microfinance; IP licensing opportunities; and the

role of IP to raise finance for start-ups. The discussions were wide-ranging and spurred Members

to consider the links between these areas.

Throughout 2022, the United States, together with other Members of the WTO, worked to orient

Members’ efforts towards a pandemic response and greater preparedness, and sought to identify

priority steps that could be taken, including in the area of trade facilitation and IP protections. As

part of the Biden Administration’s comprehensive effort to combat the COVID-19 pandemic, the

United States supported negotiations that resulted in the WTO issuing two Ministerial Decisions

in June 2022. One was on the WTO Response to the COVID-19 Pandemic and Preparedness for

Future Pandemics. The other was on the TRIPS Agreement. The United States supports continued

discussions at the WTO on this issue, and USTR has requested that the U.S. International Trade

Commission launch an investigation into COVID-19 diagnostics and therapeutics and provide

information on market dynamics to help inform the discussion around supply and demand, price

points, the relationship between testing and treating, and production and access.

See EPO/EUIPO, High-growth Firms and Intellectual Property Rights: IPR Profile of High-potential SMEs in

Europe (May 2019), http://documents.epo.org/projects/babylon/eponet.nsf/0/

F59459A1E64B62F3C12583FC002FBD93/$FILE/high_growth_firms_study_en.pdf.

D. Bilateral and Regional Initiatives

The United States works with many trading partners on IP protection and enforcement through the

provisions of bilateral instruments, including trade agreements and memoranda of cooperation,

and through regional initiatives.

The following are examples of bilateral coordination and cooperation:

• Trade and Investment Framework Agreements (TIFAs) between the United States and

more than 50 trading partners and regions around the world have facilitated discussions on

IP protection and enforcement. In May 2022, the United States and Taiwan held a TIFA

intersessional meeting under the auspices of the American Institute in Taiwan (AIT) and

the Taipei Economic and Cultural Representative Office in the United States (TECRO) and

discussed updates related to copyright legislation and digital piracy. The seventh round of

U.S.-Algeria TIFA talks held in June 2022 included discussion on customs enforcement,

piracy devices, and improvements needed in the patent system. In July 2022, the

Intellectual Property Working Group under the United States-Central Asia TIFA met to

discuss and share ideas about customs enforcement in each country. In September 2022,

the United States and Paraguay met for the first time under the U.S.-Paraguay TIFA. At

the TIFA meeting, Paraguay finalized an IP Work Plan with USTR. Also in September

2022, the United States and Thailand held a technical meeting to discuss issues raised under

the U.S.-Thailand TIFA. In December 2022, the United States-Argentina Innovation and

Creativity Forum for Economic Development held its seventh meeting to discuss IP issues

that are essential to the success of each country’s innovation economy. Also, Bangladesh

and the United States held the sixth meeting of the Trade and Investment Cooperation

Forum Agreement with a discussion focused on increasing expert-level IP engagement. In

addition, the United States and Egypt held a TIFA meeting in December 2022 and

discussed the new National IP Strategy, as well as efforts to combat unlicensed content on

satellite channels. The Intellectual Property Working Group under the India-United States

Trade Policy Forum (TPF) exchanged ideas and discussed developments on patent,

of the TPF held in January 2023, India clarified certain aspects of its patent and trademark

system reforms. A February 2023 United States-Pakistan TIFA Ministerial meeting

included engagement on updates to Pakistan’s IP laws and Pakistan’s progress on joining

IP treaties. An IP technical working group under the U.S.-Saudi Arabia TIFA met ahead

of the March 2023 TIFA meeting to discuss private-public engagement on IP issues,

enforcement best practices, and updates on Saudi Arabia’s planned accession to several

IP treaties.

Regional coordination and cooperation also increase the effectiveness of engagement on IP

protection and enforcement challenges that extend beyond individual jurisdictions:

• In 2023, the United States hosted the Asia-Pacific Economic Cooperation (APEC) with

a host year theme of “Creating a Resilient and Sustainable Future for All.” The United

States continued to use the Intellectual Property Experts Group and other APEC sub-fora

to build capacity and raise standards in the Asia-Pacific region. This included continued

discussions with APEC economies on effective practices for enforcement against illicit

streaming in a U.S.-led initiative on illicit streaming, which previously included the joint

publication of the Report on Results of Survey Questionnaire on Domestic Treatment of

Illicit Streaming Devices (ISDs) by APEC Economies and a virtual workshop. The United

States also organized workshops on the margins of the Intellectual Property Experts Group

Meeting. The “Roundtable on Copyright and Creativity in the Digital Economy” provided

diverse perspectives from independent creators, producers, and union workers on the

importance of copyright protection and enforcement for promoting inclusive growth for

individuals and small and medium-sized enterprises (SMEs) in the creative industries. The

“Workshop on Geographical Indications and Preservation of Common Names” fostered a

dialogue on inclusive trade by featuring SME producers and other stakeholders who spoke

about the economic benefits of preserving the use of common names and the problems they

encounter when common names are not preserved. The United States organized a

workshop “Leveraging Industrial Design Protections for Small-and-Medium Sized

Enterprises” as it continues to lead an initiative on industrial design protection, which

highlighted industrial design protection as a critical component of any IP portfolio for

competitive businesses in the modern innovation economy, particularly for small and

medium-sized businesses in the APEC region.

• Under its trade preference program reviews, the Office of the United States Trade

Representative (USTR), in coordination with other U.S. Government agencies, examines

IP practices in connection with the implementation of Congressionally authorized trade

preference programs, including the Generalized System of Preferences (GSP) program, the

African Growth and Opportunity Act, the Caribbean Basin Economic Recovery Act, and

the Caribbean Basin Trade Partnership Act. USTR has ongoing GSP reviews of IP

practices in Indonesia and South Africa but is not making any determinations about

ongoing reviews while duty-free benefits under GSP remain lapsed. USTR continues to

work with trading partners to address policies and practices that may adversely affect their

eligibility under the IP criteria of preference programs.

In addition to the work described above, the United States anticipates engaging with its trading

partners on IP-related initiatives in fora such as the Group of Seven (G7), WIPO, the

Organisation for Economic Co-operation and Development (OECD), and the World Customs

Organization. USTR, in coordination with other U.S. Government agencies, looks forward to

continuing engagement with trading partners to improve the global IP environment.

E. Intellectual Property Protection, Enforcement, and Related Market Access

Challenges

Border, Criminal, and Online Enforcement Against Counterfeiting

Trademark counterfeiting harms consumers, legitimate producers, and governments. Consumers

may be harmed by fraudulent and potentially dangerous counterfeit products,

particularly

See OECD/EUIPO, Dangerous Fakes: Trade in Counterfeit Goods that Pose Health, Safety and Environmental

Risks (March 2022), https://www.oecd.org/publications/dangerous-fakes-117e352b-en.htm (identifying types of

medicines, automotive and airplane parts, and food and beverages that may not be subject to the

rigorous good manufacturing practices used for legitimate products. Infringers often disregard

product quality and performance for higher profit margins. Legitimate producers and their

employees face diminished revenue and investment incentives, adverse employment impacts, and

reputational damage when consumers purchase fake products. Counterfeiting may also increase

costs for firms to enforce their intellectual property (IP) rights. Governments lose the tax revenues

generated by legitimate businesses and may find it more difficult to attract investment when illegal

competitors undermine the market.

The problem of trademark counterfeiting continues on a global scale and involves the production,

transshipment, and sale of a vast array of fake goods. Counterfeit goods, including semiconductors

and other electronics, chemicals, medicines, automotive and aircraft parts, food and beverages,

household consumer products, personal care products, apparel and footwear, toys, and sporting

goods, make their way from China

and other source countries, such as India and Turkey,

directly to purchasers around the world.

The counterfeits are shipped either directly to purchasers or indirectly through transit hubs,

including Hong Kong, Kazakhstan, Kyrgyzstan, Singapore, and Turkey, to third-country

markets such as Brazil, Kenya, Nigeria, Paraguay, and Russia that are reported to have

ineffective or inadequate IP enforcement systems.

According to an Organisation for Economic Co-operation and Development (OECD) and

European Union Intellectual Property Office (EUIPO) study released in June 2021, titled Global

Trade in Fakes: A Worrying Threat, the global trade in counterfeit and pirated goods reached

$464 billion in 2019, accounting for 2.5% of the global trade in goods for that year.

China

(together with Hong Kong) continues to be the largest origin economy for counterfeit and pirated

goods, accounting for more than 85% of global seizures of counterfeit goods from 2017 to 2019.

The report identified Bangladesh as one of the top five source economies for counterfeit clothing

globally, which stakeholders have also identified as a concern this year.

Stakeholders also

continue to report dissatisfaction with border enforcement in Singapore, including concerns about

the lack of coordination between Singapore’s Customs authorities and the Singapore Police

Force’s Intellectual Property Rights Branch.

The manufacture and distribution of pharmaceutical products and active pharmaceutical

ingredients bearing counterfeit trademarks is a growing problem that has important consequences

for consumer health and safety and is exacerbated by the rapid growth of illegitimate online sales.

Counterfeiting contributes to the proliferation of substandard, unsafe medicines that do not

potentially dangerous counterfeit products, associated health and safety risks, and global trade statistics from 2017 to

2019 for these products).

In fiscal year 2021, China and Hong Kong accounted for 75% of the value (measured by manufacturers’ suggested

retail sale price) of counterfeit and pirated goods seized by the U.S. Customs and Border Protection. U.S. Customs

and Border Protection Office of Trade, Intellectual Property Rights Seizure Statistics: Fiscal Year 2021 at 35 (Sep.

2022), https://www.cbp.gov/document/annual-report/fy-2021-ipr-seizure-statistics.

OECD/EUIPO, Global Trade in Fakes: A Worrying Threat at 9 (Jun. 2021), https://www.oecd-ilibrary.org/

governance/global-trade-in-fakes_74c81154-en.

Id. at 27.

Id. at 48.

conform to established quality standards. The United States is particularly concerned with the

proliferation of counterfeit pharmaceuticals that are manufactured, sold, and distributed by

numerous trading partners. The top countries of origin for counterfeit pharmaceuticals seized at

the U.S. border in Fiscal Year 2022 were China, India, and Turkey. A recent study by OECD

and EUIPO found that China, India, Indonesia, Pakistan, the Philippines, and Vietnam are the

leading sources of counterfeit medicines distributed globally.

In addition to counterfeit

medicines, this past year, United States Customs and Border Protection (CBP) continued to target

and seize illegal imports of counterfeit, unapproved, or otherwise substandard COVID-19 related

products that threatened the health and safety of American consumers. These seizures included

over 5.8 million counterfeit face masks in 142 incidents. U.S. brands are the most popular targets

for counterfeiters of medical products, and counterfeit U.S.-brand medicines account for 38% of

global counterfeit medicine seizures.

While it may not be possible to determine an exact figure,

the World Health Organization (WHO) estimated that substandard or falsified medical products

comprise 10% of total medical products in low- and middle-income countries.

Furthermore, the

increasing popularity of online pharmacies

has aided the distribution of counterfeit medicines.

A 2020 study by Pennsylvania State University found that illicit online pharmacies, which provide

access to prescription drugs, controlled substances, and substandard or counterfeit drugs, represent

between 67% to 75% of web-based drug merchants.

The U.S. Government, through the United

States Agency for International Development and other federal agencies, supports programs in

sub-Saharan Africa, Asia, and elsewhere that assist trading partners in protecting the public against

counterfeit and substandard medicines in their markets.

Counterfeiters increasingly use legitimate express mail, international courier, and postal services

to ship counterfeit goods in small consignments rather than ocean-going cargo to evade the efforts

of enforcement officials to interdict these goods. Approximately 90% of U.S. seizures at the border

are made in the express carrier and international mail environments. Counterfeiters also continue

to ship products separately from counterfeit labels and packaging to evade enforcement efforts that

are limited by laws or practices that require counterfeit items to be “completed,” which may

overlook the downstream application of counterfeit labels.

OECD/EUIPO, Trade in Counterfeit Pharmaceutical Products at 35 (Mar. 2020), http://www.oecd.org/gov/trade-

in-counterfeit-pharmaceutical-products-a7c7e054-en.htm.

Id. at 12.

WHO, Substandard and Falsified Medical Products (Jan. 2018), https://www.who.int/news-room/fact-sheets/

detail/substandard-and-falsified-medical-products.

See Alliance for Safe Online Pharmacies (ASOP Global) / Abacus Data, 2020 National Survey on American

Perceptions of Online Pharmacies (Oct. 2020), https://buysaferx.pharmacy/wp-content/uploads/2020/10/ASOP-

Global-Survey-Key-Findings_October-2020-FINAL.pdf (based on a July 2020 poll of 1500 American consumers,

“35% of Americans have now reported using an online pharmacy to buy medication for themselves or someone in

their care” with “31% [doing] so for the first time this year because of the pandemic”).

Journal of Medical Internet Research, Managing Illicit Online Pharmacies: Web Analytics and Predictive Models

Study (Aug. 2020), https://www.jmir.org/2020/8/e17239/; cf. ASOP Global / Abacus Data, infra (“At any given time,

there are 35,000 active online pharmacies operating worldwide, 96% of which are operating illegally in violation of

state and/or federal law and relevant pharmacy practice standards.”); FDA, Internet Pharmacy Warning Letters (Mar.

2021), https://www.fda.gov/drugs/drug-supply-chain-integrity/internet-pharmacy-warning-letters (listing illegally

operating online pharmacies that have been sent warning letters by the FDA).

For more information on these trends and CBP’s and United States Immigration and Customs Enforcement

Homeland Security Investigations’ IP enforcement efforts, see the Department of Homeland Security (DHS),

Intellectual Property Rights Annual Seizure Statistics at https://www.cbp.gov/trade/priority-issues/ipr/statistics.

Counterfeiters also increasingly sell counterfeit goods on online marketplaces, particularly through

platforms that permit consumer-to-consumer sales. The Office of the United States Trade

Representative (USTR) urges e-commerce platforms to take proactive and effective steps to reduce

piracy and counterfeiting, for example, by establishing and adhering to strong quality control

procedures in both direct-to-consumer and consumer-to-consumer sales, vetting third-party sellers,

engaging with right holders to quickly address complaints, and working with law enforcement to

identify IP violators.

The United States continues to urge trading partners to undertake more effective criminal and

border enforcement against the manufacture, import, export, transit, and distribution of counterfeit

goods. The United States engages with its trading partners through bilateral consultations, trade

agreements, and international organizations to help ensure that penalties, such as significant

monetary fines and meaningful sentences of imprisonment, are available and applied to deter

counterfeiting. In addition, trading partners should ensure that competent authorities seize and

destroy counterfeit goods, as well as the materials and implements used for their production,

thereby removing them from the channels of commerce. Permitting counterfeit goods, as well as

materials and implements, to re-enter the channels of commerce after an enforcement action wastes

resources and compromises the global enforcement effort.

In addition, trading partners should also provide enforcement officials with ex officio authority to

seize suspect goods and destroy counterfeit goods in-country as part of their criminal procedures

and at the border during import, export, or in-transit movement, without the need for a formal

complaint from a right holder. In Colombia, for example, the customs police reportedly do not

have authority to enter primary inspection zones and lack ex officio authority to inspect, seize, and

destroy counterfeit goods in those zones. Similarly, in Ecuador, stakeholders have reported

concerns with a lack of ex officio authority. Although Indonesia provides ex officio authority for

its customs authorities and has a recordation system, right holders can only benefit from the system

if they meet several stringent requirements, including local permanent establishment requirements

and large deposit requirements. Customs officials in Mexico only have ex officio authority to

initiate border actions, not to make a determination that suspected counterfeit or pirated goods

should be seized. An order from either another government agency is required before such goods

can be seized. Turkey provides its National Police with ex officio authority only in relation to

criminal enforcement authorities ex officio authority to take action against counterfeit goods.

Turkmenistan lacks ex officio authority for border enforcement.

The United States coordinates with and supports trading partners through technical assistance and

sharing of best practices on criminal and border enforcement, including with respect to the

destruction of seized goods (see ANNEX 2).

Supply chains offer many new opportunities for counterfeit goods to enter into the supply chain,

including in the production process. This practice can taint the supply chain for goods in all

countries, and countries must work together to detect and deter commerce in counterfeit goods.

To this end, the United States strongly supports continued work in the OECD and elsewhere on

For more examples, see DHS, Combating Trafficking in Counterfeit and Pirated Goods (January 2020),

https://www.dhs.gov/sites/default/files/publications/20_0124_plcy_counterfeit-pirated-goods-report_01.pdf.

countering illicit trade. For example, the OECD recently adopted recommendations for enhancing

transparency and reducing opportunities for illicit trade in free trade zones (also known as foreign-

trade zones).

The United States encourages the OECD and our trading partners to build off the

Governance Frameworks to Counter Illicit Trade OECD report

and the International Chamber

of Commerce (ICC) Know Your Customer initiative

aimed at tackling the problem of counterfeit

goods transported by international shipping companies. The United States commends these efforts

by the OECD and the ICC.

Online Piracy and Broadcast Piracy

The increased availability of broadband Internet connections around the world, combined with

increasingly accessible and sophisticated mobile technology, has been a boon to the U.S. economy

and trade. One key area of economic growth for the United States has been the development of

legitimate digital platforms for distribution of copyrighted content, so that consumers around the

world can enjoy the latest movies, television, music, books, and other copyrighted content from

the United States.

However, technological developments have also made the Internet an extremely efficient vehicle

for disseminating pirated content that competes unfairly with legitimate e-commerce and

distribution services that copyright holders and online platforms use to deliver licensed content.

While optical disc piracy continues in many countries, including China, India, Mexico, and

Pakistan, online piracy is the most challenging copyright enforcement issue in many foreign

markets. For example, during the review period, countries such as Argentina, Bulgaria, Canada,

Chile, China, Colombia, the Dominican Republic, India, Mexico, the Netherlands, Pakistan,

Romania, Russia, Switzerland, Thailand, Ukraine, and Vietnam had high levels of online

piracy and lacked effective enforcement. A June 2019 report, titled Impacts of Digital Video

Piracy on the U.S. Economy, estimated that global online video piracy costs the U.S. economy at

least $29.2 billion and as much as $71 billion in lost revenue each year.

Stream-ripping software can be used to create infringing copies of copyrighted works from

licensed streaming sites, and stream-ripping is now a dominant method of music piracy, causing

substantial economic harm to music creators and undermining legitimate online services. During

the review period, stream-ripping was reportedly popular in countries such as Canada, India,

Korea, Mexico, Russia, Switzerland, Ukraine, and the United Arab Emirates.

OECD, Recommendation of the Council on Countering Illicit Trade: Enhancing Transparency in Free Trade Zones

(Oct. 2019), https://legalinstruments.oecd.org/en/instruments/OECD-LEGAL-0454.

OECD, Governance Frameworks to Counter Illicit Trade (Mar. 2018), https://www.oecd-ilibrary.org/governance/

governance-frameworks-to-counter-illicit-trade_9789264291652-en.

International Chamber of Commerce, Know Your Customer (Mar. 2018), https://cdn.iccwbo.org/content/uploads/

sites/3/2018/09/icc-2018-kyc-and-supply-chain-paper.pdf.

Blackburn, David et al, Impacts of Digital Video Piracy on the U.S. Economy at Foreword, ii (Jun. 2019),

https://www.theglobalipcenter.com/wp-content/uploads/2019/06/Digital-Video-Piracy.pdf. See also Danaher, Brett

et al, Piracy Landscape Study: Analysis of Existing and Emerging Research Relevant to Intellectual Property Rights

(IPR) Enforcement of Commercial-Scale Piracy, USPTO Economic Working Paper No. 2020-2 (Apr. 2020)

(evaluating peer-reviewed studies addressing the scope and magnitude of economic harm from piracy, particularly via

digital channels, across music and books as well as movies and television), https://papers.ssrn.com/sol3/

papers.cfm?abstract_id=3577670.

Furthermore, as highlighted in the 2017 Notorious Markets List and called out in subsequent

Notorious Markets Lists, illicit streaming devices (ISDs), also referred to as piracy devices,

continue to pose a direct threat to content creators, sports leagues, and live performances, as well

as legitimate streaming, on-demand, and over-the-top media service providers. Similarly, illicit

Internet Protocol television (IPTV) services unlawfully retransmit telecommunications signals and

channels containing copyrighted content through dedicated web portals and third-party

applications. Today, there are many illegal IPTV services worldwide, many of which are

subscription-based, for-profit services with vast and complex technical infrastructures.

Stakeholders continue to report notable levels of piracy through ISDs and illicit IPTV apps,

including in Argentina, Brazil, Canada, Chile, China, Guatemala, Hong Kong, India,

Indonesia, Iraq, Jordan, Mexico, Morocco, Singapore, Switzerland, Taiwan, Thailand,

Tunisia, and Vietnam. China, in particular, is a manufacturing hub for these devices, and Iraq is

reportedly a source of satellite receivers pre-loaded with pirate IPTV apps.

Signal theft by cable operators continues to be a problem. In most cases, infringers circumvent

encryption systems or otherwise unlawfully access cable or satellite signals to access copyrighted

content. For example, in Brazil, signal theft is used as a source of premium live content.

Argentina’s law enforcement authorities do not prioritize theft of pay-tv signals. Honduras has

one of the highest rates of signal piracy in Latin America and the Caribbean, with lack of

enforcement being an ongoing problem. There are also concerns that a major cable provider in

the country offers unlicensed programming, is using that pirated content to expand its market

share, and is now moving to illegal streaming as well. Prior to January 2022, many Ukrainian

cable operators reportedly had continued to transmit audiovisual programming without licenses.

Unauthorized distributors may also steal “overspill” broadcast or satellite signals from neighboring

countries, access broadcast signals, or otherwise hack set-top boxes to allow consumers

unauthorized access to copyrighted content, including premium cable channels. Hotels remain

common sites of this type of infringement as they may use their own, on-site facilities to intercept

programing services and retransmit them throughout the hotel without paying right holders.

The proliferation of “camcords” continues to be a significant trade problem. Unauthorized

camcording is the primary source of infringing copies of newly released movies found online. The

recordings made in movie theaters today are very different from those by a single person sitting in

a theater with a bulky videotape recorder. The results are not shaky, inaudible recordings. It is

now easy for a surreptitious recording in a movie theater to result in a clean digital copy of a movie

with perfect audio that can be quickly distributed online. The pirated version of the newly released

movie may be available online while it is still showing in theaters. The economic damage is

magnified because movies may be released in different markets at different times. Thus, a camcord

of a movie released in one market can be made available unlawfully in another market before the

movie hits the theaters there. In addition to theater owners who lose revenue, legitimate digital

platforms, which often negotiate for a certain period of exclusivity after the theatrical run, cannot

fairly compete in the market due to unauthorized camcording.

Stakeholders continue to report serious concerns regarding unauthorized camcords. For example,

in Russia, the number of sourced camcords prior to the COVID-19 pandemic was reportedly 48

in 2018 and 45 in 2019. While COVID-19-related cinema closures suppressed this activity during

the pandemic, camcords have reportedly reappeared as theaters have started to reopen. Although

the closure of theaters and the small number of foreign films approved for distribution in 2022

continued to result in a decreased volume of unauthorized camcording, China remains a notable

source of unauthorized camcords, including live streams of theatrical broadcasts online. China

has taken some enforcement actions in recent years, but still lacks a specific criminal law to address

the issue. Additionally, the number of camcords originating from India continues to grow.

Countries also need to update legal frameworks to effectively deter unauthorized camcording and

keep up with changing practices. For example, the requirement in some countries that a law

enforcement officer must observe a person camcording and then prove that the person is circulating

the unlawfully recorded movie before intervening often precludes effective enforcement.

Countries like Argentina, Brazil, Ecuador, India, Peru, and Russia do not effectively

criminalize unauthorized camcording in theaters. The United States urges countries to adopt laws

and enforcement practices designed to prevent unauthorized camcording, such as laws that have

been adopted in Canada, Japan, the Philippines, and Ukraine. The Asia-Pacific Economic

Cooperation (APEC) has also issued a report titled Effective Practices for Addressing

Unauthorized Camcording.

As the practice of camcording evolves, so too must methods for

detecting and preventing camcording. One best practice to supplement, but not replace, such

effective legal measures is building public awareness. Another important practice is for the private

sector to work on capacity building to help theater managers and employees to detect camcording

and assist law enforcement.

In addition to the distribution of copies of newly released movies resulting from unauthorized

camcording, other examples of online piracy that damage legitimate trade are found in virtually

every country listed in the Report and include: the unauthorized retransmission of live sports

programming online; the unauthorized cloning of cloud-based entertainment software through

reverse engineering or hacking onto servers that allow users to play pirated content online,

including pirated online games; and the online distribution of software and devices that allow for

the circumvention of technological protection measures, including game copiers and mod chips

that allow users to play pirated games on physical consoles. Piracy facilitated by online services

presents unique enforcement challenges for right holders in countries where copyright laws have

not been able to adapt or keep pace with these innovations in piracy.

The availability of recourse to right holders, enforcement procedures, and remedies are critical

components of the online ecosystem. For all the above reasons, governments should avoid creating

a domestic environment that offers a safe haven for online and broadcast piracy.

Trade Secrets

This year’s Report continues to reflect the growing need for trading partners to provide effective

protection and enforcement of trade secrets. Companies in a wide variety of industry sectors,

including information and communications technology, services, environmental technologies, and

other manufacturing sectors, rely on the ability to protect and enforce their trade secrets and rights

in proprietary information. Trade secrets are particularly important to small businesses, which

often rely on trade secret protection to preserve the secrecy and value of their technology. Small

APEC, Effective Practices for Addressing Unauthorized Camcording (Nov. 11, 2011), https://www.apec.org/

docs/default-source/groups/ip/11_amm_014app05.doc.

businesses may not have the resources to obtain and enforce patents, which require disclosure of

the technology and risk infringement by others. Trade secrets, such as business plans, internal

market analyses, manufacturing methods, customer lists, and recipes, are often among a

company’s core business assets. A company’s competitiveness may depend on its capacity to

protect such assets. Trade secret theft threatens to diminish U.S. competitiveness around the globe

and puts U.S. jobs at risk. The reach of trade secret theft into critical commercial and defense

technologies poses threats to U.S. national security interests as well.

Various sources, including the National Counterintelligence and Security Center (NCSC), have

reported specific gaps in trade secret protection and enforcement, particularly in China and

Russia.

Theft may arise in a variety of circumstances, including those involving departing

employees taking portable storage devices containing trade secrets, failed joint ventures, cyber

intrusion and hacking, and misuse of information submitted by trade secret owners to government

entities for purposes of complying with regulatory obligations. In practice, effective remedies

appear to be difficult to obtain in a number of countries, including China, India, and Russia. Lack

of legal certainty regarding trade secrets also dissuades companies from entering into partnerships

or expanding their business activities in these and other countries. Many countries do not provide

criminal penalties for trade secret theft sufficient to deter such behavior. In some foreign countries,

certain practices and policies, including evidentiary requirements in trade secrets litigation and

mandatory technology transfer, put valuable trade secrets at risk of exposure. Certain data

governance regimes (whether proposed or implemented) also raise concerns for intellectual

property protection in general and trade secret protection of proprietary data in particular. The

United States continues to monitor this trend and its impact on incentivizing innovation and market

access.

The United States uses all trade tools available to ensure that its trading partners provide robust

protection for trade secrets and enforce trade secrets laws. Given the global nature of trade secret

theft, action by our trading partners is also essential. Several trading partners have recently

strengthened or have been working toward strengthening their trade secret regimes, including the

European Union (EU), Chile, and Taiwan. In the EU, however, the pending Data Act and other

legislation would mandate that companies, in some circumstances, disclose data considered as

trade secrets to users of the products, and certain drafts of the legislation do not provide the trade

secret owner the opportunity to object or appeal, and without requiring sufficient protection of the

trade secrets once disclosed.

The United States-Mexico-Canada Agreement (USMCA), which entered into force in July 2020,

has the most robust protection for trade secrets of any prior U.S. trade agreement. It includes a

number of commitments addressing the misappropriation of trade secrets, including by state-

owned enterprises: civil procedures and remedies, criminal procedures and penalties, prohibitions

against impeding licensing of trade secrets, judicial procedures to prevent disclosure of trade

secrets during the litigation process, and penalties for government officials for the unauthorized

disclosure of trade secrets. The United States-China Economic and Trade Agreement (Phase One

Agreement), signed in January 2020, also includes several trade secret commitments to address a

number of long-standing concerns in China, including on expanding the scope of civil liability,

NCSC, Foreign Economic Espionage in Cyberspace at 5-9 (2018), https://www.dni.gov/files/NCSC/documents/

news/20180724-economic-espionage-pub.pdf.

covering acts such as electronic intrusions as trade secret theft, shifting the burden of producing

evidence, making it easier to obtain preliminary injunctions to prevent use of stolen trade secrets,

allowing criminal investigations without need to show actual losses, ensuring criminal

enforcement for willful misappropriation, and prohibiting unauthorized disclosure of trade secrets

and confidential business information by government personnel or third-party experts.

Action in international organizations is also crucial. For instance, the United States strongly

supports continued work in the Organisation for Economic Co-operation and Development

(OECD) on trade secret protection, building off two studies released by the OECD in 2014. The

first study, titled Approaches to Protection of Undisclosed Information (Trade Secrets),

surveyed

legal protection for trade secrets available in a sample of countries. The second study, titled

Uncovering Trade Secrets - An Empirical Assessment of Economic Implications of Protection for

Undisclosed Data,

examined the protection of trade secrets for a sample of 37 countries, provided

historical data for the period since 1985, and considered the relationship between the stringency

of trade secret protection and relevant economic performance indicators. Also, in November 2016,

the Asia-Pacific Economic Cooperation endorsed a set of Best Practices in Trade Secret Protection

and Enforcement Against Misappropriation,

which includes best practices such as: broad

standing for claims for the protection of trade secrets and enforcement against trade secret theft;

civil and criminal liability, as well as remedies and penalties, for trade secret theft; robust

procedural measures in enforcement proceedings; and adoption of written measures that enhance

protection against further disclosure when governments require the submission of trade secrets.

Forced or Pressured Technology Transfer, Indigenous Innovation, and Preferences for

Indigenous Intellectual Property

Right holders operating in other countries report an increasing variety of government measures,

policies, and practices that require or pressure technology transfer from U.S. companies. While

these measures are sometimes styled as means to incentivize domestic “indigenous innovation,”

in practice they disadvantage U.S. companies, effectively requiring them to give up their

intellectual property (IP) as the price of market entry. These actions serve as market access barriers

and deny U.S. companies reciprocal opportunities to access foreign markets relative to market

access provided to foreign companies operating in the United States. Such government-imposed

conditions or incentives for technology transfer to domestically owned companies may also

introduce non-market distortions into licensing and other private business arrangements, resulting

in commercially suboptimal outcomes for the firms involved and for innovation in general.

Furthermore, these measures discourage foreign investment in national economies, hurt local

manufacturers, distributors, and retailers, and slow the pace of innovation and economic progress.

This kind of government intervention in the commercial decisions that enterprises make regarding

the ownership, development, registration, or licensing of IP is not consistent with international

practice and may raise concerns regarding consistency with international obligations as well.

Schultz, M. and D. Lippoldt, Approaches to Protection of Undisclosed Information (Trade Secrets): Background

Paper (Jan. 2014), https://doi.org/10.1787/5jz9z43w0jnw-en.

Lippoldt, D. and M. Schultz, Uncovering Trade Secrets - An Empirical Assessment of Economic Implications of

Protection for Undisclosed Data (Aug. 2014), https://doi.org/10.1787/5jxzl5w3j3s6-en.

Best Practices in Trade Secret Protection and Enforcement Against Misappropriation, https://ustr.gov/sites/default/

files/11202016-US-Best-Practices-Trade-Secrets.pdf.

These government measures often have the effect of distorting trade by forcing U.S. companies to

transfer their technology or other valuable commercial information to domestically owned entities.

Examples of these policies include:

• Requiring the transfer of technology as a condition for obtaining investment and regulatory

approvals or otherwise securing access to a market or as a condition for allowing a

company to continue to do business in the market;

• Directing state-owned enterprises in innovative sectors to seek non-commercial terms from

their foreign business partners, including with respect to the acquisition and use or

licensing of IP;

• Providing domestically owned firms with an unfair competitive advantage by failing to

effectively enforce, or discouraging the enforcement of, U.S.-owned IP, including patents,

trademarks, trade secrets, and copyright;

• Failing to take meaningful measures to prevent or to deter cyber intrusions and other

unauthorized activities;

• Requiring use of, or providing preferences to, products or services that contain

domestically developed or owned IP, including with respect to government procurement;

• Manipulating the standards development process to create unfair advantages for

domestically owned firms, including with respect to participation by foreign firms and the

terms on which IP is licensed; and

• Requiring the submission of unnecessary or excessive confidential business information

for regulatory approval purposes and failing to protect such information appropriately.

In China, investment and regulatory approvals, market access, government procurement, and the

receipt of certain preferences or benefits may be conditioned on a firm’s ability to demonstrate

that IP is developed in or transferred to China, or is owned by or licensed to a Chinese party. China

has made enforceable commitments to address forced or pressured technology transfer in the

United States-China Economic and Trade Agreement (Phase One Agreement).

In Indonesia, it is reported that foreign companies’ approvals to market pharmaceuticals are

conditioned upon the transfer of technology to Indonesian entities or upon partial manufacture in

Indonesia. Indonesia amended its 2016 Patent Law to remove localization provisions that require

the manufacture of patented products and use of patented processes in Indonesia. Indonesia

subsequently revoked the amendments due to a ruling by the Indonesian Constitutional Court but

issued a new regulation to replace them, which Parliament passed in March 2023.

Other country-specific examples of these measures are identified in Section II.

The United States urges that, in formulating policies to promote innovation, trading partners,

including China, refrain from coercive technology transfer and local preferences for indigenous

IP and take account of the importance of voluntary and mutually agreed commercial partnerships

or arrangements.

Geographical Indications

The United States is working intensively through bilateral and multilateral channels to advance

U.S. market access interests in foreign markets and to ensure that geographical indications (GI)-

related trade initiatives of the European Union (EU), its Member States, like-minded countries,

and international organizations do not undercut such market access. GIs typically include place

names (or words associated with a place) and identify products as having a particular quality,

reputation, or other characteristic essentially attributable to the geographic origin of the product.

The EU GI agenda remains highly concerning because it significantly undermines protection of

trademarks held by U.S. producers and imposes barriers on market access for U.S.-made goods

that rely on the use of common names, such as parmesan or feta.

First, the EU GI system raises concerns regarding the extent to which it impairs the scope of

trademark protection, including exclusive rights in registered trademarks that pre-date the

protection of a GI. Trademarks are among the most effective ways for producers and companies,

including micro, small, and medium-sized enterprises (MSMEs), to create value, to promote their

goods and services, and to protect their brands, even with respect to food and beverage products

covered by the EU GI system. Many such products are already protected by trademarks in the

United States, in the EU, and around the world. Trademark systems offer strong protections

through procedures that are easy to use, cost-effective, transparent, and provide due process

safeguards. Trademarks also deliver high levels of consumer awareness, significant contributions

to GDP and employment, and accepted international systems of protection. The EU GI system

undermines trademark protection and may result in consumer confusion to the extent that it permits

the registration and protection of GIs that are confusingly similar to prior trademarks.

Second, the EU GI system and strategy adversely impact access for U.S. and other producers in

the EU market and other markets by granting protection to terms that are considered in those

markets to be the common name for products. The EU has granted GI protection to thousands of

terms that now only certain EU producers can use in the EU market, and many of these producers

then block the use of any term that even “evokes” a GI. However, many EU Member States, such

as Denmark and France, still produce products that are claimed as GIs of other European countries,

such as feta, and export these products outside of the EU using the protected GIs as the common

name of the products. Furthermore, in 2017, the EU granted GI protection to the cheese name

danbo, a widely traded type of cheese that is covered by an international standard under the Codex

Alimentarius (Codex). Argentina, South Africa, Uruguay, and other countries produce danbo.

Similarly, in 2019, the EU granted GI protection to havarti, notwithstanding the long-standing and

widespread use of this term by producers around the world. Australia, New Zealand, the United

States, and other countries produce havarti. Like in the case of danbo, the Codex established an

international standard for havarti in 2007, premised on the fact that havarti is produced and

marketed in many countries throughout the world under that name. The EU’s approval of GIs for

havarti and danbo undermine the Codex standards for these products, and World Trade

Organization (WTO) Members have repeatedly challenged the EU to explain its disregard for

Codex cheese standards at the WTO, including in the Technical Barriers to Trade Committee.

Moreover, havarti is included in the EU’s most favored nation tariff rate quota, indicating that

havarti was expected to be produced outside of and imported into the EU. Several countries,

including the United States, opposed GI protection of these common names, both during the EU’s

opposition period and at the WTO, but the European Commission granted the protection over that

opposition and without sufficient explanation or notice to interested parties.

As part of its trade agreement negotiations, the EU pressures trading partners to prevent any

producer, except from those in certain EU regions, from using certain product names, such as

fontina, gorgonzola, parmesan, asiago, or feta. This is despite the fact that these terms are the

common names for products produced in countries around the world. In the EU and other markets

that have protected EU GIs within their own GI systems, U.S. producers and traders either are

effectively blocked from those markets or must adopt burdensome workarounds. They either

cannot use the descriptors at all, or anything even evoking them, in the market or at best may sell

their products only as “fontina-like,” “gorgonzola-kind,” “asiago-style,” or “imitation feta.” This

is costly, unnecessary, and can reduce consumer demand for the non-EU products, as well as

reduce consumer choice and cause consumer confusion.

The United States runs a significant deficit in food and agricultural trade with the EU. The EU GI

system contributes to this asymmetry, which is acute in trade in agricultural products subject to

the EU GI system. In the case of cheese, for example, where many EU products enjoy protection

under the EU GI system, the EU exported more than $1.1 billion of cheese to the United States

last year. Conversely, the United States exported only about $8.1 million of cheese to the EU last

year. Based on this evidence, EU agricultural producers exporting to the United States are doing

quite well, benefiting considerably from the effective U.S. system of trademark protection of GIs,

despite the absence of an EU-style GI system. Unfortunately, U.S. producers, as evidenced by the

deficit, are not afforded the same level of market access to the EU.

Despite these troubling aspects of its GI system, the EU continues to seek to expand its harmful

GI system within its territory and beyond. Within its borders, the EU is enlarging its system

beyond agricultural products and foodstuffs to encompass non-agricultural products, including

apparel, ceramics, glass, handicrafts, manufactured goods, minerals, salts, stones, and textiles. The

United States continues to remain concerned about certain changes to the EU’s Common

Agricultural Policy, adopted in November 2021 and entered into force on January 1, 2023, which

would transfer much of the GI application review process to interested EU Member States and

sharply reduce the period for filing a reasoned basis in support of an opposition to register a GI.

As noted above, the EU has also sought to advance its agenda through trade agreements, which

impose the negative impacts of the EU GI system on market access and trademark protection in

third countries, including through exchanges of lists of terms that receive automatic protection as

GIs without sufficient transparency or due process.

The EU has pursued its GI agenda in multilateral and plurilateral bodies as well. For example, in

2015, the EU, several EU Member States, and others expanded the World Intellectual Property

Organization (WIPO) Lisbon Agreement for the Protection of Appellations of Origin and their

International Registration to include GIs, thereby enshrining several detrimental aspects of EU law

in that Agreement. The Geneva Act of the Lisbon Agreement that emerged from these negotiations

was the product of a decision led by the EU and certain Member States to break with the long-

standing WIPO practice of consensus-based decision-making and to deny the United States and

160 other WIPO countries meaningful participation rights in the negotiations. In 2020, the EU

became party to the Geneva Act of the Lisbon Agreement. In other international organizations,

such as the United Nations Food and Agriculture Organization, the EU has attempted to pursue its

agenda by alleging a connection between GIs and unrelated issues, such as biodiversity,

sustainability, and food safety.

The proposed expansions of EU’s GI system also threaten to create a conflict with the Internet

Corporation for Assigned Names and Numbers (ICANN) policies for generic top-level domains

(gTLDs) by imposing a requirement for a dispute resolution mechanism for geographical

indications for any top-level domain registry operating in the EU. gTLDs are subject to ICANN’s

long-standing Uniform Domain Name Dispute Resolution Policy. Creating EU-specific dispute

resolution mechanisms for gTLDs that operate in the EU will contravene ICANN’s policy

development process, undermine ICANN’s multi-stakeholder model, and result in a patchwork of

dispute resolution policies.

In response to the EU’s aggressive promotion of its exclusionary GI policies, the United States

continues its intensive engagement in promoting and protecting access to foreign markets for U.S.

exporters of products that are identified by common names or otherwise marketed under previously

registered trademarks. The United States is advancing these objectives through its trade

agreements, as well as in international fora, including in the Asia-Pacific Economic Cooperation,

WIPO, and the WTO. In addition to these negotiations, the United States is engaging bilaterally

to address concerns resulting from the GI provisions in existing EU trade agreements, agreements

under negotiation, and other initiatives, including with Argentina, Australia, Brazil, Canada,

Chile, China, Ecuador, Indonesia, Japan, Kenya, Korea, Malaysia, Mexico, Moldova,

Morocco, New Zealand, Paraguay, the Philippines, Singapore, Tunisia, Uruguay, and

Vietnam, among others. U.S. goals in this regard include:

• Ensuring that the grant of GI protection does not violate prior rights (for example, in cases

in which a U.S. company has a trademark that includes a place name);

• Ensuring that the grant of GI protection does not deprive interested parties of the ability to

use common names, such as parmesan or feta;

• Ensuring that interested persons have notice of, and opportunity to oppose or to seek

cancellation of, any GI protection that is sought or granted;

• Ensuring that notices issued when granting a GI consisting of multiple terms identify its

common name components; and

• Opposing efforts to extend the protection given to GIs for wines and spirits to other

products.

Pharmaceutical and Medical Device Innovation and Market Access

The COVID-19 pandemic highlighted the importance of pharmaceutical, medical device, and other

health-related innovations, as well as a lack of widespread, timely, and equitable global

distribution of these innovations. At the same time, extraordinary circumstances such as

pandemics call for extraordinary measures. Thus, the Office of the United States Trade

Representative (USTR) continues to seek adequate and effective protection for pharmaceutical and

other health-related IP around the world to ensure robust American innovation in these critical

industries to fight not only the current, but also future pandemics. USTR also recognizes that

access to medicines in developing economies is important to development itself. USTR has also

sought to level the playing field abroad by reducing market access barriers, including those that

are discriminatory, are not adequately transparent, or do not offer sufficient opportunity for

meaningful stakeholder engagement. USTR continues to seek to address policies that harm

American innovators and workers in health-related industries through unfair competition.

Addressing these market access barriers will help to facilitate accessible health care today and

encourage innovation for improved health care tomorrow.

Tariffs, combined with domestic charges or measures, particularly those that lack transparency or

opportunities for meaningful stakeholder engagement or that appear to exempt domestically

developed and manufactured medicines, can hinder government efforts to promote increased

access to health care products. According to an October 2021 Geneva Network report titled How

Tariffs Impact Access to Medicines, low and middle-income countries maintain the highest tariffs

on medicines and pharmaceutical inputs among the World Trade Organization (WTO) Members

identified in the report, a trend that contributes to higher prices and decreased supply of medical

goods in those countries.

The report notes that, in particular, large developing countries such as

Brazil, India, and Indonesia have the highest tariffs for such products. Also, in Brazil, combined

federal and state taxes account for 31% of the cost of medicines.

Moreover, unreasonable regulatory approval delays and non-transparent reimbursement policies

can impede a company’s ability to enter the market. The criteria, rationale, and operation of such

measures are often non-transparent or not fully disclosed to patients or to pharmaceutical and

medical device companies seeking to market their products. By contrast, various countries have

implemented policies that significantly decrease regulatory timelines by “relying” on regulatory

approvals by stringent health regulatory authorities in other countries, or relevant assessments by

the World Health Organization. These policies are especially critical during health emergencies,

where expediency is of the essence. USTR encourages trading partners to provide appropriate

mechanisms for transparency, procedural and due process protections, and opportunities for public

engagement in the context of their relevant health care systems.

Among other examples, USTR engagement in the past year included:

• Monitored and enforced the implementation of Canada and Mexico’s IP commitments in

the United States-Mexico-Canada Agreement (USMCA), which are important to

Geneva Network, How Tariffs Impact Access to Medicines (Oct. 2021), https://geneva-network.com/research/how-

tariffs-impact-access-to-medicines/.

IQVIA, Market Prognosis Country Report: Brazil (2021).

incentivizing innovation, as well as the implementation of other provisions to ensure that

national-level government processes for the listing and reimbursement of pharmaceutical

products and medical devices are transparent, provide procedural fairness, are

nondiscriminatory, and provide full market access for U.S. products;

• Monitored and enforced China’s commitments with respect to: (1) a mechanism for the

early resolution of potential pharmaceutical patent disputes, including a cause of action to

allow a patent holder to seek expeditious remedies before the marketing of an allegedly

infringing product; and (2) patent term extensions to compensate for unreasonable patent

office and marketing approval delays that cut into the effective patent term;

• Engaged with Japan to ensure transparency and fairness, including by providing

meaningful opportunities for interested stakeholders to provide input regarding changes to

pricing and reimbursement policies;

• Engaged with India on the administration of its patent regime, including on disclosure

requirements, treatment of confidential information, and patent application oppositions.

The IP-intensive U.S. pharmaceutical and medical device industries have expressed concerns

regarding the policies of several trading partners, including Algeria, Australia, Brazil, Canada,

China, Colombia, Japan, Korea, New Zealand, Russia, Saudi Arabia, Tunisia, and Turkey,

on issues related to pharmaceutical innovation and market access. Examples of these concerns

include the following:

• Stakeholders have expressed concerns about delays by Australia in its implementation of

the notification process as required, for example, under Article 17.10.4(b) of the United

States-Australia Free Trade Agreement. In October 2020, the Ministry of Health

announced planned reforms, but they require legislative changes, which have yet to be

introduced in Parliament. The United States will continue to engage with Australia as it

introduces legislation to increase transparency and to promote the early resolution of

potential pharmaceutical patent disputes.

• Stakeholders have long expressed concerns about Japan’s shortcomings in terms of

transparency, especially including meaningful stakeholder input regarding pricing and

reimbursement policies for advanced medical devices and innovative pharmaceuticals.

Other concerns raised by stakeholders relate to a reported lack of meaningful stakeholder

input in the development of a health technology assessment system, as well as a lack of

transparency and predictability associated with Japan’s implementation in April 2021 of

annual repricing for drug reimbursement, which applies to a larger-than-expected range of

products.

• Stakeholders continue to report concerns regarding a lack of transparency in Korea’s

pricing and reimbursement policies for pharmaceuticals and medical devices.

• Stakeholders continue to raise concerns regarding Turkey’s pharmaceutical manufacturing

inspection process. The United States urges Turkey to build upon its recent accession to

the Pharmaceutical Inspection Convention and Co-operation Scheme (PIC/S) and to

recognize Good Manufacturing Practices certificates issued by any of the PIC/S members

to improve regulatory timelines.

The United States seeks to establish or continue dialogues with trading partners to address these

and other concerns and to encourage a common understanding on questions related to innovation

and pricing in the pharmaceutical and medical device sectors. The United States also looks

forward to continuing its engagement with our trading partners to promote fair and transparent

policies in these sectors.

Trademark Protection Issues

Trademarks help consumers distinguish providers of products and services from each other and

thereby serve a critical source identification role. The goodwill represented in a company’s

trademark is often one of a company’s most valuable business assets.

However, in numerous countries, legal and procedural obstacles exist to securing trademark rights,

and trademark registration procedures lack transparency and consistency. For example, while

some progress occurred in 2022, the trademark system in China still largely lacks effective tools

to combat widespread bad faith trademark applications, in part because it unnecessarily constrains

examiners from considering marks for related goods or services in different classes when

evaluating bad faith, likelihood of confusion, and other matters. The China National Intellectual

Property Administration’s Trademark Registration and Examination Department and the

Trademark Review and Adjudication Department proceedings give insufficient legal weight to

notarized and legalized witness declarations. Such proceedings also have unreasonably high

standards for establishing well-known mark status and do not give full consideration to consent

and coexistence agreements. Furthermore, China lacks transparency in all phases of trademark

prosecution. While China published draft amendments to its Trademark Law in 2022 that appear

to expand the definition of bad faith trademarks, which would allow for greater enforcement, it

remains to be seen whether the steps China has taken with respect to commitments in the United

States-China Economic and Trade Agreement (Phase One Agreement) will address these concerns.

Stakeholders also raised concerns about continued blatant bad faith trademarks being registered in

the EU and its Member States. Bad faith is not a ground to reject or oppose trademark applications

at the EU Intellectual Property Office (EUIPO), nor does the EU Trade Mark Regulation require

Member States to include bad faith in the grounds for rejection and opposition.

Trademark holders also continue to face challenges in protecting their trademarks against

unauthorized domain name registration and trademark uses in some country code top-level domain

names.

Robust protection for well-known marks, another internationally recognized means of protecting

marks outlined in the Paris Convention for Protection of Industrial Property, is also important for

many U.S. producers and traders who have built up the reputation of their brands. Stakeholders

report that some countries that do have well-known mark provisions, such as China, nevertheless

impose significant burdens on brand owners that attempt to establish that their marks are well

known.

Another concern includes mandatory requirements to record trademark licenses, such as in Brazil,

Ecuador, Egypt, Spain, Turkmenistan, and Uzbekistan, as they frequently impose unnecessary

administrative and financial burdens on trademark owners and create difficulty in the enforcement

and maintenance of trademark rights.

Certain formalities and documentation requirements, such as requirements for obtaining traditional

pen-and-ink signatures, notarized or legalized powers of attorney, and original documents, can

create trade barriers. Numerous countries including Algeria, China, Indonesia, Iraq, Jordan,

and the United Arab Emirates require formalities for filing documents, such as intellectual

property (IP) applications, registration maintenance, transfer of ownership submissions, and in

opposition and cancellation proceedings, even though such formalities do not appear to advance

any legitimate public policy goals.

The absence of default judgments in opposition and invalidation proceedings in certain countries,

such as China, incurs significant costs to U.S. companies. Companies are forced to submit

detailed arguments and evidence in proceedings when the owners of the applications and

registrations clearly have no interest in or intention of defending their claims to exclusive rights in

such marks, particularly in the case of bad faith trademark registrations and trademark squatters.

Owners of challenged trademarks should be required to submit a written statement that they have

an ongoing interest in their trademark in order to continue with a full proceeding before the relevant

authorities.

A number of countries do not provide the full range of internationally recognized trademark

protections. For example, many countries do not provide protection for certification marks that

are used to show consumers that particular goods or services, or their providers, come from a

specific geographic region; meet standards with respect to quality, materials, or manufacturing

methods such as with environmentally “green” products; or that labor was performed by a union

member or member of a specific organization. In other countries, the nature of the requirements

imposed for registration of certification marks creates burdens on certifying entities. As direct-to-

consumer global e-commerce has flourished during the COVID-19 pandemic, certified products

have been valued by an ever-growing marketplace of purchasers. Providing for registration of and

mechanisms to enforce rights in certification marks are essential to ensure safe, compliant, and

reputable products and services. In Mexico, reforms to the Law for the Protection of Industrial

Property in 2020 provide for registration of certification marks.

Companies use letters of consent to resolve potential disputes and overcome refusals based on a

likelihood of confusion when multiple trademark owners agree that their marks may coexist in the

marketplace without confusion as to the source of the identified goods or services. Some countries

refuse to recognize letters of consent. Some countries accept the letters yet view them as

informational only. Other countries allow submission of the letters with the caveat that they may

be ignored. When letters of consent are rejected, or given little or no effect, companies may be

forced to employ alternative measures requiring detailed arguments and evidence, including

litigation, that could be avoided. Some countries such as Turkey now accept letters of consent.

Strict use of the Nice Classification or a country’s own sub-classification system to determine

conflicts with prior marks does not reflect the realities of the relatedness of underlying goods or

services in the current marketplace and introduces uncertainty into the registration process. Goods

and services should be considered based on their commercial relationship and not solely in light

of classification systems developed for administrative convenience.

Many countries, including India, Malaysia, and the Philippines, reportedly have slow opposition

or cancellation proceedings, while Panama and Russia have no administrative opposition

proceedings.

Delays in obtaining registrations present a significant obstacle for protecting IP rights in foreign

markets, with stakeholders identifying Iraq, Pakistan, and South Africa as countries with

extreme delays in processing trademark applications.

A number of countries do not consider a likelihood of confusion with previously filed applications

and registrations during examination, otherwise known as “relative grounds” refusals. The failure

to make these rejections costs U.S. companies millions of dollars a year in unnecessary opposition

proceedings. Some countries that do consider relative grounds provide a pre-examination

opposition period to allow third parties to submit objections before the national office conducts its

own examination, thus resulting in unnecessary expenses to oppose marks the national office

would likely refuse during examination.

The absence of adequate means for searching trademark applications and registrations, such as by

online databases, makes obtaining trademark protection more complicated and unpredictable. The

lack of such online systems leads to additional costs, both in terms of initial filing and in relation

to docketing and maintenance of multiple registrations.

Collective management organizations (CMOs) for copyright can play an important role in ensuring

compensation for right holders when CMO practices are fair, efficient, transparent, and

accountable. Also, the collection and distribution of royalties to U.S. and other right holders

should be carried out on a national treatment basis. Unfortunately, CMO systems in several

countries are reportedly flawed or non-operational. In some countries, like Kenya and Nigeria,

changes in authorization to operate leave right holders in defunct CMOs and music users confused

over whom to pay. In the United Arab Emirates (UAE), the Ministry of Economy and the

International Federation of the Phonographic Industry (IFPI) signed an MOU to draft procedures

for the creation of a CMO in a first step to address an 18-year-plus challenge to introduce CMOs

for music rights that has prevented right holders from receiving compensation for their works.

In addition, it is important for right holders of a work or phonogram to be able to freely and

separately transfer their economic rights by contract and to fully enjoy the benefits derived from

those rights. Unclear limitations on the freedom to contract raise concerns because they reduce

the ability of right holders to choose the terms by which they exploit their works or phonograms

and reduce public access to the work or phonogram. For example, proposed provisions in two

pending bills in South Africa limiting certain assignments are vague, lack certainty for parties,

and provide for the government to set standard and compulsory contractual terms for certain

contracts governing the use of works, performances, and phonograms. In 2021, Japan amended

its Copyright Act to create a presumption that when a right holder enters into a license agreement

authorizing a broadcast or cablecast (linear broadcast rights) of a copyrighted work, the agreement

will be presumed to also grant so-called “simulcast” rights to the broadcaster (allowing

simultaneous transmissions of the broadcasted content for one week on other platforms, such as

online streaming) unless a contrary intention is clearly indicated. This represented a departure

from the previous practice in Japan and current practice of many other countries where express

permission from the copyright owner for the additional transmission is not presumed, but required,

and exceptions are confined to certain special cases.

Government Use of Unlicensed Software

According to a 2018 study, the commercial value of unlicensed software globally was at least $46

billion in 2018.

The United States continues to work with other governments to address

government use of unlicensed software, particularly in countries that are modernizing their

software systems or where there are infringement concerns. Considerable progress has been made

under this initiative, leading to numerous trading partners mandating that their government

agencies use only legitimate software. It is important for governments to legitimize their own

activities in order to set an example of respecting intellectual property for private enterprises.

Additionally, unlicensed software exposes governments and enterprises to higher risks of security

vulnerabilities. Further work on this issue remains with certain trading partners, including

Argentina, China, Guatemala, Indonesia, Moldova, Pakistan, Paraguay, Romania, Turkey,

Turkmenistan, Uzbekistan, and Vietnam. The United States urges trading partners to adopt and

implement effective and transparent procedures to ensure legitimate governmental use of software.

Other Issues

U.S. stakeholders have expressed views with respect to the European Union (EU) Directive on

in the EU and its Member States as implementation progresses. Stakeholders have expressed

concern with the inconsistencies in Member States’ approaches to implementation. The United

States urges the European Commission to engage closely with stakeholders as it develops guidance

on certain implementation issues. It is also critical that EU Member States ensure full transparency

in the implementation process with meaningful opportunities for stakeholders to provide input.

The United States will continue to engage with various EU and Member State entities to address

the equities of U.S. stakeholders.

The Digital Services Act (DSA) went into effect in November 2022 and is intended to regulate

certain online services, including through rules for how content is shared online. U.S. stakeholders

expressed concern that the DSA’s adoption of a framework for limitations of liability included

modifications to the eligibility threshold and conditions that had been set in the E-Commerce

Directive, which may adversely impact their IP rights, in particular for copyright and trademarks.

BSA, 2018 Global Software Survey at 12 (Jun. 2018), https://gss.bsa.org/wp-2content/uploads/2018/05/2018_BSA_

GSS_Report_en.pdf.

F. Intellectual Property and Sustainability

Strong intellectual property (IP) protection and enforcement are essential to promoting investment

in innovation for a sustainable future. Such innovation not only promotes sustainable economic

growth and supports jobs, but also is critical to responding to environmental challenges such as

climate change. IP provides incentives for research and development in this important sector,

including through university research.

G. Intellectual Property and Health

The 2023 Special 301 review period has taken place in the wake of the COVID-19 pandemic, the

largest global health crisis in more than a century. The United States has made significant efforts

toward ending the acute phase of the pandemic in the United States and around the world. To date,

the U.S. Government has worked to fight COVID-19 in more than 120 countries and is committed

to building back a better world, one that is prepared to prevent, detect, and respond to future

biological threats, and where all people can live safe, prosperous, and healthy lives. This includes

donating vaccine doses to countries in need, investing in delivery and administration of vaccines

globally, and engaging with our international partners and stakeholders to continue to increase

equitable global access to safe and effective vaccines, tests, treatments, and other critical products

to respond to COVID-19.

The United States also encourages voluntary licensing and technology transfer agreements on

mutually agreed terms to promote greater access to pandemic response products. For example,

right holders have entered into voluntary licensing agreements with the Medicines Patent Pool

(MPP) to enable sublicenses with generic manufacturers in order to help facilitate broad access to

COVID-19 therapeutics in all low-income countries, all or nearly all lower-middle-income

countries (depending on the license), and several upper-middle-income countries. In some cases,

right holders have entered into voluntary licensing agreements directly with generic manufacturers

for COVID-19 therapeutics, including agreements that do not require the generic manufacturers to

pay a royalty to the right holder. Additionally, in May 2022, the United States, through the

National Institutes of Health, licensed critical U.S.-owned COVID-19 technologies to the MPP

through the COVID-19 Technology Access Pool (C-TAP).

Numerous comments in the 2023 Special 301 review process highlighted concerns arising at the

intersection of intellectual property (IP) policy and health policy. IP protection plays an important

role in providing incentives for the development and marketing of new medicines. An effective,

transparent, and predictable IP system is important for both manufacturers of innovative medicines

and manufacturers of generic medicines.

The 2001 World Trade Organization (WTO) Declaration on the TRIPS Agreement and Public

Health (Doha Declaration) recognized the gravity of the public health problems afflicting many

developing and least-developed countries (LDCs), especially those resulting from HIV/AIDS,

tuberculosis, malaria, and other epidemics. As affirmed in the Doha Declaration, the United States

respects a trading partner’s right to protect public health and, in particular, to promote access to

medicines for all. The United States also recognizes the role of IP protection in the development

of new medicines while being mindful of the effect of IP protection on prices. The assessments

set forth in this Report are based on various critical factors, including, where relevant, the Doha

Declaration.

International obligations such as those in the WTO Agreement on Trade-Related Aspects of

Intellectual Property Rights (TRIPS Agreement) provide flexibility for trading partners to take

measures to address serious public health emergencies and circumstances of extreme urgency

within that trading partner’s territory. The COVID-19 pandemic certainly qualifies as such.

Consistent with this view, the United States respects its trading partners’ rights to grant compulsory

licenses in a manner consistent with the provisions of the TRIPS Agreement and the Doha

Declaration.

Article 31 of the TRIPS Agreement establishes requirements that must be met with respect to

compulsory licenses. Importantly, a Member choosing to issue a compulsory license may waive

some of these requirements in certain circumstances. For example, in cases of national emergency

or extreme urgency or in cases of public non-commercial use, Members may waive the

requirement to seek prior authorization from the patent holder before issuing a compulsory license.

In addition, under Article 31bis, the requirement that compulsory licenses must be authorized

predominantly for the supply of the Member’s domestic market may be waived in certain

circumstances. Recognizing that Members with insufficient pharmaceutical manufacturing

capacities could face difficulties in making effective use of compulsory licensing, Article 31bis

and its related Annex set forth a system whereby such Members can import from another Member

pharmaceutical products produced subject to a compulsory license. The United States respects the

right of its trading partners to exercise the full range of existing flexibilities in the TRIPS

Agreement, including Article 30, Article 31, and Article 31bis, and the Doha Declaration. The

United States further recognizes that these flexibilities are available in order to scale up the

production and distribution necessary to overcome the challenges of the ongoing COVID-19

pandemic.

The United States also strongly supports the WTO General Council Decision on the

Implementation of Paragraph 6 of the Doha Declaration, concluded in August 2003. Under this

decision, WTO Members are permitted, in accordance with specified procedures, to issue

compulsory licenses to export pharmaceutical products to countries that cannot produce drugs for

themselves. The WTO General Council adopted a Decision in December 2005 that incorporated

this solution into Article 31bis, as described above, to the TRIPS Agreement, and the United States

became the first WTO Member to formally accept this amendment. In January 2017, the necessary

two-thirds of WTO Member support was secured, resulting in the formal amendment to the TRIPS

Agreement. Additional notifications of WTO Member acceptances of the Agreement have

followed.

In May 2021, USTR announced support for a waiver of intellectual property protections for

COVID-19 vaccines as part of the U.S. Government’s comprehensive effort to end the pandemic,

which helped spur text-based negotiations that resulted in the June 2022 Ministerial Decision on

the TRIPS Agreement. This Ministerial Decision contains time-bound accommodations to certain

IP rules for COVID-19 vaccines that can facilitate a global health recovery. With respect to

ongoing discussions at the WTO regarding IP and public health, USTR will continue to consult

and engage with Congress, stakeholders from industry and civil society, multilateral institutions,

and WTO Members to inform our positions. In addition, in December 2022, USTR requested that

the United States International Trade Commission launch an investigation into COVID-19

diagnostics and therapeutics and provide information on market dynamics to help inform the

discussion around supply and demand, price points, the relationship between testing and treating,

and production and access.

The U.S. Government works to ensure that the provisions of its bilateral and regional trade

agreements, as well as U.S. engagement in international organizations, including the United

Nations and related institutions such as the World Intellectual Property Organization (WIPO) and

the World Health Organization (WHO), are consistent with U.S. policies concerning IP and health

and do not impede its trading partners from taking measures necessary to protect public health.

For example, in recent U.S. trade agreements, the U.S. Government has clarified that

notwithstanding provisions on the protection of undisclosed test or other data, a Party may take

measures to protect public health in accordance with the Doha Declaration, or any waiver or

amendment of the TRIPS Agreement to implement the Doha Declaration.

H. Implementation of the World Trade Organization Agreement on Trade-Related

Aspects of Intellectual Property Rights

The World Trade Organization (WTO) Agreement on Trade-Related Aspects of Intellectual

Property Rights (TRIPS Agreement) requires all WTO Members to provide certain minimum

standards of intellectual property (IP) protection and enforcement. The TRIPS Agreement is the

first broadly subscribed multilateral IP agreement that is subject to dispute settlement provisions.

Developed country WTO Members were required to implement the TRIPS Agreement fully as of

January 1, 1996. Developing country WTO Members were given a transition period for many

obligations until January 1, 2000, and in some cases until January 1, 2005. Nevertheless, certain

WTO Members are still in the process of finalizing implementing legislation, and many are still

engaged in establishing adequate and effective IP enforcement mechanisms.

Recognizing the particular issues faced by WTO Members that are least developed countries

(LDCs), the United States has worked closely with them and other WTO Members to extend the

implementation date for these countries. Most recently, on June 29, 2021, the WTO Council for

the Trade-Related Aspects of Intellectual Property Rights (TRIPS Council) reached consensus on

a decision to again extend the transition period under Article 66.1 of the TRIPS Agreement for

LDC WTO Members. Under this decision, LDC WTO Members are not required to apply the

provisions of the TRIPS Agreement, other than Articles 3, 4, and 5 (provisions related to national

treatment and most-favored nation treatment), until July 1, 2034, or until such a date on which they

cease to be an LDC WTO Member, whichever date is earlier. Likewise, on November 6, 2015,

the TRIPS Council reached consensus to extend the transition period for LDC WTO Members to

implement Sections 5 and 7 of Part II of the TRIPS Agreement with respect to pharmaceutical

products until January 1, 2033, and reached consensus to recommend waiving Articles 70.8 and

70.9 of the TRIPS Agreement with respect to pharmaceuticals for LDC Members also until January

1, 2033.

At the WTO Ministerial Conference in December 2017, WTO Members reached consensus to

extend the moratorium on non-violation and situation complaints under the TRIPS Agreement

until the next Ministerial in 2019. On December 10, 2019, the General Council reached consensus

to extend this moratorium until the 12th Ministerial Conference. The moratorium was originally

introduced in Article 64 of the TRIPS Agreement, for a period of five years following the entry

into force of the WTO Agreement (i.e., until December 31, 1999). The moratorium has been

extended in several WTO Ministerial Decisions. During 2021, the United States joined the

consensus in the TRIPS Council to extend the moratorium on the initiation of non-violation and

situation complaints under the TRIPS Agreement to the 13th Ministerial Conference.

The United States participates actively in the TRIPS Council’s scheduled reviews of WTO

Members’ implementation of the TRIPS Agreement and uses the WTO’s Trade Policy Review

mechanism to pose questions and seek constructive engagement on issues related to TRIPS

Agreement implementation.

I. Dispute Settlement and Enforcement

The United States continues to monitor the resolution of concerns and disputes announced in

previous Reports. The United States will use all available means to resolve concerns, including

bilateral dialogue and enforcement tools such as those provided under U.S. law, the World Trade

Organization (WTO), and other dispute settlement procedures, as appropriate.

Under Section 301 of the Trade Act of 1974, as amended (19 U.S.C. § 2411) (Section 301), the

Office of the United States Trade Representative (USTR) has been taking action to address a range

of unfair and harmful Chinese acts, policies, and practices related to technology transfer,

intellectual property (IP), and innovation. USTR has also successfully pursued dispute settlement

proceedings at the WTO to address discriminatory licensing practices. The United States and

China signed the United States-China Economic and Trade Agreement (Phase One Agreement) in

January 2020, which included commitments to address numerous long-standing concerns in the

areas of trade secrets, patents, pharmaceutical-related IP, trademarks, copyrights, geographical

indications, and technology transfer. The United States has been closely monitoring China’s

progress in implementing its commitments.

Following the 1999 Special 301 review process, the United States initiated dispute settlement

consultations concerning the European Union (EU) regulation on food-related geographical

indications (GIs), which appeared to discriminate against foreign products and persons, notably by

requiring that EU trading partners adopt an “EU-style” system of GI protection, and appeared to

provide insufficient protections to trademark owners. On April 20, 2005, the Dispute Settlement

Body (DSB) adopted a panel report finding in favor of the United States that the EU GI regulation

is inconsistent with the EU’s obligations under the WTO Agreement on Trade-Related Aspects of

Intellectual Property Rights and the General Agreement on Tariffs and Trade 1994. On March 31,

2006, the EU published a revised GI Regulation that is intended to comply with the DSB

recommendations and rulings. There remain some concerns, however, with respect to this revised

GI Regulation that the United States has asked the EU to address. The United States continues

monitoring this situation. The United States is also working bilaterally and in multilateral fora to

advance U.S. market access interests and to ensure that the trade initiatives of other countries,

including with respect to GIs, do not undercut market access for U.S. companies.

SECTION II: Country Reports

UKRAINE – REVIEW SUSPENDED

Ukraine was placed on the Priority Watch List in 2021. In 2021, prior to Russia’s full-scale

invasion, Ukraine engaged meaningfully with the United States on longstanding areas of concern

with Ukraine’s intellectual property regime, including: (1) the administration of the system for

collective management organizations that are responsible for collecting and distributing copyright

royalties to right holders; (2) the use of unlicensed software by government agencies; and (3) the

implementation of effective means to combat widespread online copyright infringement.

However, due to Russia’s ongoing premeditated and unprovoked further invasion of Ukraine, the

Special 301 review of Ukraine remains suspended.

PRIORITY WATCH LIST

ARGENTINA

Argentina remains on the Priority Watch List in 2023.

Ongoing Challenges and Concerns

Argentina continues to present long-standing and well-known challenges to intellectual property

(IP)-intensive industries, including those from the United States. Enforcement of IP rights in

Argentina remains a challenge, and stakeholders report widespread unfair competition from sellers

of counterfeit and pirated goods and services. The physical market of La Salada in Buenos Aires

has resumed operations after being closed due to the pandemic, and online orders of counterfeit

goods continue through social media applications. Counterfeit sales in other physical locations

remain high, with surges in the selling of counterfeit goods occurring in small markets, through

illegal street vendors, and in the Barrio Once and other markets in Buenos Aires. In addition,

Argentine police generally do not take ex officio actions, and prosecutions can stall and languish

in excessive formalities. Also, when a criminal case does reach final judgment, infringers rarely

receive deterrent-level sentences. Online piracy continues to grow due to nearly non-existent

criminal enforcement against such piracy. As a result, IP enforcement online in Argentina consists

mainly of right holders trying to convince Argentine Internet service providers to take down

specific infringing works, as well as attempting to seek injunctions in civil cases, both of which

can be time-consuming and ineffective.

In addition, a key deficiency in the legal framework for patents remains the unduly broad

limitations on patent-eligible subject matter, including patent examination guidelines that

automatically reject patent applications for categories of pharmaceutical inventions that are

eligible for patentability in other jurisdictions and requirements that processes for the manufacture

of active compounds disclosed in a specification be reproducible and applicable on an industrial

scale. Stakeholders remain concerned about the limits on patentability for biotechnological

innovations based on living matter and natural substances in Resolution 283/2015, which differ

from the standard in many other countries. Another ongoing challenge to the innovative

agricultural chemical and pharmaceutical sectors is inadequate protection against the unfair

commercial use, as well as unauthorized disclosure, of undisclosed test or other data generated to

obtain marketing approval for products in those sectors. The National Institute of Industrial

Property (INPI) continues to operate with a reduced number of patent examiners, with limited

resources posing challenges to recruitment and retention.

Developments, Including Progress and Actions Taken

Argentina made limited progress in IP protection and enforcement in 2022. During 2022, INPI

examined pharmaceutical patent applications more quickly, and the number of patents granted was

higher than the number of applications, clearing some of the backlog from prior years. Argentina

also reduced trademark application processing time to an average of three days. Argentina also

improved transparency by providing filers access to their files, payments, and requests online.

Argentina similarly modernized its copyright system, and the Copyright Office now accepts digital

copies instead of physical ones as of July 2022. The United States welcomes and continues to

monitor these enhancements. To further improve patent protection in Argentina, including for

small and medium-sized enterprises, the United States urges Argentina to ratify the Patent

Cooperation Treaty. The United States urges Argentina to ensure transparency and procedural

fairness in the protection of geographical indications (GIs) and to ensure that the grant of GI

protection does not deprive interested parties of the ability to use common names, particularly as

Argentina proceeds with the European Union-Mercosur Trade Agreement.

While Argentine customs officials carried out limited raids in 2022 targeting sale of counterfeit

products, including those related to the FIFA World Cup, illegal activity largely persists in

Argentina, in the absence of systemic measures. The United States encourages Argentina to create

a national IP enforcement strategy to enhance interagency coordination in enforcement efforts and

move to having a sustainable, long-lasting impact on IP infringements. During 2022, Argentina

did not file or approve any new legislation to update IP laws. The United States encourages

legislative proposals to provide for landlord liability and stronger enforcement on the sale of

infringing goods at outdoor marketplaces such as La Salada, and to amend the trademark law to

increase criminal penalties for counterfeiting carried out by criminal networks. In 2017, Argentina

formally created the Federal Committee to Fight Against Contraband, Falsification of Trademarks,

and Designations, formalizing the work on trademark counterfeiting under the National Anti-

Piracy Initiative. The Committee has not met since 2019, but the United States encourages

Argentina to continue this initiative and expand it to include online piracy. Revisions to the

criminal code that had been submitted to Argentina’s Congress, including certain criminal

sanctions for circumventing technological protection measures, have stalled. The creation of a

federal specialized IP prosecutor’s office and a well-trained enforcement unit could potentially

help combat online piracy as well as prevent lengthy legal cases with contradictory rulings.

In December 2022, Argentina and the United States met in Buenos Aires for a meeting under the

Innovation and Creativity Forum for Economic Development, which was established under the

United States-Argentina Trade and Investment Framework Agreement, to continue discussions

and collaboration in these areas. In April 2022, the Argentina Copyright Office collaborated with

the United States on outreach focused on youth and entrepreneurs to commemorate World IP Day.

INPI also collaborated with the United States in areas such as women and IP rights and renewed a

memorandum of understanding on collaboration with the United States Patent and Trademark

Office in March 2023. The United States intends to monitor all the outstanding issues for progress

and urges Argentina to continue its efforts to create a more attractive environment for investment

and innovation.

CHILE

Chile remains on the Priority Watch List in 2023.

Ongoing Challenges and Concerns

The United States continues to have serious concerns regarding long-standing implementation

issues with a number of intellectual property (IP) provisions of the United States-Chile Free Trade

Agreement (Chile FTA). Chile must establish protections against the unlawful circumvention of

technological protection measures (TPMs), including civil and criminal liability for the act of

circumvention as well as criminal and civil or administrative measures for trafficking

circumvention devices and providing circumvention services. The United States continues to urge

Chile to ratify and implement the 1991 Act of the International Union for the Protection of New

Varieties of Plants Convention (UPOV 1991) and improve protection for plant varieties. The

United States also urges Chile to improve its Internet service provider liability framework to permit

effective and expeditious action against online piracy. Chile passed legislation establishing

criminal penalties for the importation, commercialization, and distribution of decoding devices

used for the theft of encrypted program-carrying satellite signals, but the United States urges Chile

to clarify the full scope of activities criminalized in the implementation of the law. The United

States also urges Chile to provide remedies or penalties for willfully receiving or further

distributing illegally decoded encrypted program-carrying satellite signals, as well as the ability

for parties with an interest in stolen satellite signals to initiate a civil action. Concerns remain

regarding the availability of effective administrative and judicial procedures, as well as deterrent-

level remedies for right holders and satellite service providers.

Concerns also remain with the lack of copyright enforcement efforts by the Chilean authorities.

As a result, stakeholders note the high and increasing levels of online piracy and the availability

of circumvention devices in Chile, including through online marketplaces. In addition,

pharmaceutical stakeholders continue to raise concerns over the efficacy of Chile’s system for

resolving patent issues expeditiously in connection with applications to market pharmaceutical

products and over the provision of adequate protection against unfair commercial use, as well as

unauthorized disclosure, of undisclosed test or other data generated to obtain marketing approval

for pharmaceutical products.

Developments, Including Progress and Actions Taken

There was some progress by Chile in strengthening its legal framework for IP. In January 2022, a

new law modernizing many aspects of Chile’s IP regime entered into force, with changes that

include criminalizing trademark falsification, recognition of non-traditional marks, introducing

provisional applications for patents, incorporating a broader definition of trade secrets, and

extending the term of protection for industrial designs to 15 years. In February 2022, Chile enacted

a new law that seeks to identify and disrupt criminal organizations engaged in the sale of

counterfeit or pirated goods. Among other things, the laws permit the authorities to conduct

“controlled deliveries” of infringing items as part of investigations; authorizes police, municipal

inspectors, and tax officials to monitor the compliance of street sellers with various regulations

and ensure that they are not selling counterfeit or pirated goods; and raises penalties for trafficking

in infringing products and evading taxes. In April 2022, Chile acceded to the Protocol Relating to

the Madrid Agreement Concerning the International Registration of Marks. In May 2022, the

National Institute of Industrial Property (INAPI) brought online a new electronic platform for

submitting and tracking patent and trademark applications. The United States also encourages

Chile to provide transparency and procedural fairness to all interested parties in connection with

potential recognition or protection of geographical indications (GIs) and to ensure that the grant of

GI protection or recognition does not deprive interested parties of the ability to use common names,

particularly as Chile finalizes the modernization of the European Union-Chile Association

Agreement.

The United States appreciates Chile’s engagement with the United States and the steps Chile has

taken as an attempt to resolve ongoing issues pertaining to the Chile FTA, but it has been over

nineteen years since the Chile FTA entered into force. It remains important that Chile show

tangible progress in addressing the long-standing Chile FTA implementation issues and other IP

issues in 2023.

CHINA

China remains on the Priority Watch List in 2023 and is subject to continuing monitoring pursuant

to Section 306 of the Trade Act of 1974, as amended (19 U.S.C. § 2416).

Ongoing Challenges and Concerns

In 2022, China continued implementation of amendments to the Patent Law, Copyright Law, and

Criminal Law, as well as other previously issued measures, but the pace of reforms aimed at

addressing intellectual property (IP) protection and enforcement has slowed. While right holders

have welcomed some positive developments, their concerns remain about the adequacy and

effective implementation of IP measures, as well as about long-standing issues like technology

transfer, trade secrets, counterfeiting, online piracy, copyright law, and patent and related policies.

China needs to complete the full range of fundamental changes that are required to improve the IP

landscape in China.

Statements by Chinese officials that tie IP rights to Chinese market dominance continue to raise

strong concerns. For example, the Chinese Communist Party Central Committee and State Council

highlighted IP as a “strategic resource” for China’s international competitiveness in an outline of

IP goals for 2021-2035. The president of the Supreme People’s Court (SPC) wrote in a 2021 essay

that the courts should serve the Chinese Communist Party and industrial policy goals. In a June

2022 statement, President Xi stressed the need for China to intensify its efforts to possess core

technologies with indigenous IP and to allow no delays in breaking through the “chokehold” of

critical core technologies. Taken together, such statements recall longstanding concerns about

requiring or pressuring technology transfer from foreign individuals or companies to Chinese

companies, as well as about whether IP protection and enforcement will apply fairly to foreign

right holders in China. These concerns are particularly acute in an environment where, as some

right holders warn, IP violations can lead to potential “end-of-life” situations for U.S. companies,

particularly small businesses. China should provide a level playing field for IP protection and

enforcement, refrain from requiring or pressuring technology transfer to Chinese companies at all

levels of government, open China’s market to foreign investment, and embrace open, market-

oriented policies.

Under Section 301 of the Trade Act of 1974, as amended (19 U.S.C. § 2411) (Section 301), the

Office of the United States Trade Representative (USTR) has been taking action to address a range

of unfair and harmful Chinese acts, policies, and practices related to technology transfer, IP, and

innovation. USTR has also successfully pursued dispute settlement proceedings at the World

Trade Organization (WTO) to address discriminatory licensing practices. The United States and

China signed the United States-China Economic and Trade Agreement (Phase One Agreement) in

January 2020, which included commitments to address numerous long-standing concerns in the

areas of trade secrets, patents, pharmaceutical-related IP, trademarks, copyrights, geographical

indications (GIs), and technology transfer. The United States has been closely monitoring China’s

progress in implementing its commitments.

China’s Acts, Policies, and Practices Related to Technology Transfer, Intellectual

Property, and Innovation

In 2018, USTR reported that its investigation under Section 301 found that China pursues a range

of unfair and harmful acts, policies, and practices related to technology transfer, IP, and innovation.

These include investment and other regulatory requirements that require or pressure technology

transfer, substantial restrictions on technology licensing terms, direction or facilitation of the

acquisition of foreign companies and assets by domestic firms to obtain cutting-edge technologies,

and conducting and supporting unauthorized intrusions into and theft from computer networks of

U.S. companies to obtain unauthorized access to IP.

In March 2018, the United States initiated a WTO case challenging Chinese measures that deny

foreign patent holders the ability to enforce their patent rights against a Chinese joint-venture

partner after a technology transfer contract ends and that impose mandatory adverse contract terms

that discriminate against and are less favorable for imported foreign technology as compared to

Chinese technology. Consultations took place in July 2018, and a panel was established to hear

the case at the United States’ request in November 2018. In March 2019, China announced the

withdrawal of certain measures that the United States had challenged in its panel request, including

the Regulations on the Administration of Import and Export of Technologies. The United States

considered that China’s actions had sufficiently addressed U.S. concerns, and the authority of the

panel expired on June 9, 2021.

As part of the Phase One Agreement, China agreed to provide effective access to Chinese markets

without requiring or pressuring U.S. persons to transfer their technology to Chinese persons. China

also agreed that any transfer or licensing of technology by U.S. persons to Chinese persons must

be based on market terms that are voluntary and mutually agreed, and that China would not support

or direct the outbound foreign direct investment activities of its persons aimed at acquiring foreign

technology with respect to sectors and industries targeted by its industrial plans that create

distortion. In addition, China committed to ensuring that any enforcement of laws and regulations

with respect to U.S. persons is impartial, fair, transparent, and non-discriminatory. USTR

continues to work with stakeholders to evaluate whether these commitments have resulted in

changes in China’s ongoing conduct at the national, provincial, and local levels.

Trade Secrets

Stakeholders reported that, with implementation of the Criminal Law amendments and other

measures, China appears to be taking some steps toward stronger enforcement of trade secrets.

For example, stakeholders welcomed improvements under the amended Anti-Unfair Competition

Law, the expansion of specialized IP courts, and the granting of preliminary injunctions in a

handful of cases. However, further implementation of these measures is still needed, such as

finalization of an SPC and Supreme People’s Procuratorate’s (SPP) draft judicial interpretation

defining a key term in the Criminal Law and updating of a related standard issued by the SPC and

Ministry of Public Security, which together appear to implement the Criminal Law’s changes to

the thresholds for triggering criminal investigations. Moreover, stakeholders continue to identify

significant enforcement challenges, including high evidentiary burdens, limited discovery,

difficulties meeting stringent conditions to enforce agreements related to protection of trade secrets

and confidential business information against theft, and difficulties in obtaining deterrent-level

damages awards.

The risk of unauthorized disclosures of trade secrets and confidential business information by

government personnel, particularly through regulatory and judicial processes, continues to be a

serious concern for the United States and U.S. stakeholders in industries such as software,

manufacturing, and cosmetics. The draft Guiding Opinions on Strengthening the Protection of

Trade Secrets and Confidential Business Information in Administrative Licensing were published

for public comment in August 2020 by the Ministry of Justice but have not been finalized. Reforms

are needed to limit government requests for trade secrets and confidential business information

and prevent the unauthorized disclosure of such information submitted to government authorities,

including unauthorized disclosure by third-party experts and advisors.

U.S. stakeholders continued to raise concerns about administrative trade secret enforcement, for

which the State Administration of Market Regulation (SAMR) issued draft rules in 2020 that have

not been finalized. In particular, stakeholders express reservations about the potential for

discriminatory treatment and unauthorized disclosure of their information by local authorities

under the proposed expansion of the administrative enforcement system.

Manufacturing, Domestic Sale, and Export of Counterfeit Goods

China continues to be the world’s leading source of counterfeit and pirated goods. For example,

a 2022 report identified China and Hong Kong as the largest exporters of counterfeit foodstuffs

and cosmetics, accounting for approximately 60% of counterfeit foodstuffs customs seizures and

83% of counterfeit cosmetics customs seizures.

China and Hong Kong accounted for over 75%

of the value measured by manufacturers’ suggested retail sale price of counterfeit and pirated

goods seized by U.S. Customs and Border Protection.

The failure to curb the widespread

manufacture, domestic sale, and export of counterfeit goods affects not only right holders, but also

the health and safety of consumers. The production, distribution, and sale of counterfeit medicines,

fertilizers, pesticides, and under-regulated pharmaceutical ingredients remain widespread in

China.

Although China has taken some enforcement actions against counterfeit medicines and

implemented new criminal penalties under the amended Criminal Law, right holders expressed

concerns regarding reported de-prioritization of prosecution of IP-related crimes and the reduction

in use of criminal penalties. Furthermore, as the top manufacturer and a leading exporter of

pharmaceutical ingredients, China still lacks effective regulatory oversight. In particular, China

does not regulate manufacturers that do not declare an intent to manufacture active pharmaceutical

ingredients (APIs) for medicinal use. It also does not subject exports to regulatory review,

enabling many bulk chemical manufacturers to produce and export APIs outside of regulatory

controls. Furthermore, China lacks central coordination of enforcement against counterfeit

OECD/EUIPO, Dangerous Fakes: Trade in Counterfeit Goods that Pose Health, Safety, and Environmental Risks

at 68, 70 (Mar. 9, 2022), https://www.oecd.org/social/dangerous-fakes-117e352b-en.htm.

U.S. Customs and Border Protection Office of Trade, Intellectual Property Rights Seizure Statistics: Fiscal Year

2021 at 35 (Sep. 2022), https://www.cbp.gov/document/annual-report/fy-2021-ipr-seizure-statistics.

pharmaceutical products and ingredients, resulting in ineffective enforcement at the provincial

level and with respect to online sales.

Availability of Counterfeit Goods Online, Online Piracy, and Other Issues

China’s e-commerce markets, the largest in the world, remain a source of widespread counterfeits

as infringing sales have migrated from physical to online markets. Some sellers have shifted tactics

by maintaining less inventory on site and offering a larger range of counterfeit products online.

Counterfeiters exploit the use of small parcels and minimal warehouse inventories, the separation

of counterfeit labels and packaging from products prior to the final sale, and the high volume of

packages shipped to the United States to escape enforcement and to minimize the deterrent effect

of enforcement activities. Although some leading online sales platforms have streamlined

procedures and improved monitoring, concerns remain about ineffective, inefficient, and

duplicative takedown procedures, unresponsiveness to requests from small- and medium-sized

enterprises, insufficient measures to deter repeat infringers, and fraudulent counter-notifications

that require court action by rights holders to secure removal of counterfeit goods. Obstacles to

criminal enforcement include the method by which online platforms record sales, difficulties in

obtaining records to pursue investigations, and strict evidentiary requirements before the initiation

of investigations. Counterfeit products are increasingly offered for sale through non-traditional

online e-commerce conduits, including through e-commerce features related to social media

platforms with integrated e-commerce ecosystems, as well as through live-streaming features of

such platforms. Counterfeiters have also taken advantage of social media and messaging websites

and mobile apps to subvert detection controls and trick consumers on traditional e-commerce

platforms.

Widespread online piracy also remains a major concern, including in the form of “mini Video on

Demand (VOD)” physical locations and unauthorized copies of or access codes to scientific

journal articles and academic texts. As a leading source and exporter of systems that facilitate

containing or facilitating access to unlicensed content, illicit streaming devices (ISDs), and piracy

apps that facilitate access to such websites.

There was no progress in 2022 on finalizing amendments to the E-Commerce Law, which were

issued by SAMR for public comment in August 2021. The draft amendments to the E-Commerce

Law include changes that would extend the deadline for right holders to respond to a counter-

notification of non-infringement, and impose penalties for fraudulent counter-notifications and

penalties that restrict the business activities of platforms for serious circumstances of infringement.

Although noting improvements under the draft amendments, right holders have raised concerns

about the failure to codify the elimination of liability for erroneous notices submitted in good faith,

as well as proposed changes that would allow reinstatement of listings upon posting a guarantee.

The 2021 Foreign Investment Negative List, which remains in effect in 2022, continues to maintain

restrictions on foreign investment in online publishing, broadcasting, and distribution of creative

content. The List continues to allow foreign investment in online music services, which right

holders regard as a positive step. However, China still maintains requirements for state-owned

enterprises (SOEs) to hold an ownership stake in online platforms for film and television content.

Also, right holders report significant obstacles to releasing content in China, including limited

windows to submit content for review, a non-transparent content review system, and significantly

slowed processing and licensing of content for online streaming platforms. Another challenge has

been burdensome requirements for legalized documentation of chain of title and ownership

information. These barriers have severely limited the availability of foreign content, prevented the

simultaneous release of foreign content in China and other markets, and created conditions for

greater piracy. Right holders also report that a draft bill published in March 2021 could restrict

participation of foreign companies in radio and television, including online. Also, China’s

extension of its content review system to cover books intended for distribution in other markets

has imposed heavy burdens on foreign publishers.

Additionally, it is critical that China fully implement the terms of the 2012 United States-China

Memorandum of Understanding (MOU) regarding films and abide by its commitment to negotiate

additional meaningful compensation for U.S. content.

Right holders welcomed positive changes in the amended Copyright Law in 2021, such as new

rights of public performance and broadcasting for producers of sound recordings, protections

against circumvention of technological protection measures, and the destruction of materials or

tools mainly used to produce infringing copies. However, right holders continue to highlight the

need for effective implementation and clarification of criminal liability for the manufacture,

distribution, and exportation of circumvention devices, as well as new measures to address online

piracy. Right holders also report continuing uncertainty about whether recent amendments to the

Patent and Related Policies

Although right holders welcomed the implementation of amendments to the Patent Law and Patent

Examination Guidelines, some continue to raise concerns about individual patent examiners’

inconsistency in allowing the filing of supplemental data to support disclosure and patentability

requirements. Right holders continue to express strong concerns about obstacles to patent

enforcement, such as lengthy delays in courts, lack of preliminary injunctions, competition law

concepts in the Patent Law, and undue emphasis on administrative enforcement.

Right holders have generally welcomed the creation in 2021 of a mechanism for the early

resolution of potential pharmaceutical patent disputes but have raised concerns about the

cumbersome registration system and difficulties in obtaining preliminary injunctions. Right

holders have also continued to express concerns about the scope of patents and pharmaceuticals

covered by the mechanism, the length of the stay period, the availability of injunctive relief, the

lack of clarity about what could trigger a dispute under the mechanism, and uncertainties with

respect to parallel civil judicial and administrative proceedings. The lack of transparency and

technical expertise in administrative proceedings is also a concern, as well as the possibility of

bias in favor of Chinese companies. Right holders have also expressed concern about the

implementation of patent term extensions for unreasonable marketing approval delays, including

limits on the type of protection provided. Furthermore, existing obstacles to patent enforcement

include lengthy delays in the court system, the reported unwillingness of courts to issue

preliminary injunctions, and burdensome hurdles created by parallel administrative invalidity

proceedings.

China continues to impose unfair and discriminatory conditions on the effective protection against

unfair commercial use, as well as unauthorized disclosure, of test or other data generated to obtain

marketing approval for pharmaceutical products. The United States and China agreed to address

this issue in future negotiations.

Stakeholders continue to express concern regarding the 2019 Human Genetic Resources

Administrative Regulation and the 2020 Biosecurity Law, which mandate collaboration with a

Chinese partner and shared ownership of patent rights arising out of any research generated by

using human genetic resource materials in China. According to stakeholders, these measures

create uncertainty about the type of exploratory research that would trigger the sharing of IP rights,

whether the government would approve any IP arrangements, the risk of forced or pressured

technology transfer, and potential conflicts of interest with hospitals conducting clinical trials.

These measures also impose non-transparent requirements for government approval before any

transfer of data outside of China. Lack of transparency in government pricing and reimbursement

processes for pharmaceutical products also needs to be addressed by China.

In addition, China should address outstanding patent-related concerns, including regarding the

onerous evidentiary requirements for proving patent infringement, ambiguity regarding whether a

patentee’s right to exclude extends to manufacturing for export, and lack of harmonization between

China’s patent grace period and statute of limitations and international practices. With respect to

standards, China should establish standards-setting processes that are open to domestic and foreign

participants on a non-discriminatory basis, eliminate unreasonable public disclosure obligations in

standards-setting processes, and provide sufficient protections for standards-related copyrights and

patent rights.

Right holders have raised concerns about application of Anti-Monopoly Law (AML) to the

licensing of patents in certain instances. In 2021, a local intermediate court issued the first instance

of a decision declaring certain patents of a foreign company to be an “essential facility” and finding

the company’s failure to license its IP to Chinese plaintiffs, notwithstanding existing licenses to

other Chinese parties, to be an abuse of dominance. The case is currently awaiting decision on

appeal to the SPC. Right holders have raised concerns that this decision, if upheld, may lead

China’s courts and competition authorities to apply the AML to patent licensing practices in the

absence of harm to competition or the competitive process and, more generally, indicate that AML

enforcement can be misused for the purpose of depressing the value of foreign-owned IP in key

technologies.

It is critical that China’s AML enforcement be fair, transparent, and non-discriminatory; afford

due process to parties; focus on whether there is harm to competition or the competitive process,

consistent with the legitimate goals of competition law; and appropriately tailor competition

remedies to the competitive harms. Competition law should not be used when there is no harm to

competition or the competitive process to advance industrial policy or other non-competition goals.

Developments, Including Progress and Actions Taken

Bad Faith Trademarks and Other Trademark Examination Issues

In January 2023, China proposed further amendments to its Trademark Law regarding bad faith

trademarks to supplement amendments from 2021. The amendments include provisions on

identifying the types of activities that are considered bad faith acts, a requirement on use or to

explain non-use of a trademark, and rules for assessing a trademark’s well-known status. In

addition, the Beijing IP Court has issued several decisions favorable to right holders, including in

May 2022 when it refused to adjudicate trademark infringement disputes where the plaintiff

obtained the asserted trademark in bad faith, and in July 2022 when it upheld a district court ruling

that preemptive registration of trademarks in bad faith is a form of unfair competition. However,

bad faith trademarks remain one of the most significant challenges for U.S. brand owners in China,

and the United States continues to urge China to take further steps to address concerns, including

by adopting an intent-to-use requirement for trademark applications.

The limited success brand owners have had in challenging bad faith registrations is insufficient

when compared to the overwhelming number of bad faith trademark applications filed and

registrations granted. While some right holders welcomed the reported reduction in filing fees,

review times, and examination times, these changes have also made it easier for bad faith

trademarks to be registered and gain approval. Right holders also report some improvements in

the China National Intellectual Property Administration’s (CNIPA) rejection at the examination

stage of bad faith trademarks filed without an intention to use the marks in commerce, such as

marks filed in volume by “hoarders.” However, problems persist with the large number of

inconsistent decisions and low rate of success for oppositions. With the elimination of appeals for

opposition procedures in 2013, bad faith trademarks are immediately registered after a failed

opposition, and bad actors have longer windows in which to use their marks or extort from the

legitimate brand owner before a decision is made in a cancellation proceeding.

Authorities have not yet addressed the targeting of specific brands by bad faith actors, which

involves filing only a small quantity of marks to avoid the examiners’ focus on trademark

“hoarding” through a large number of contemporaneous filings from an applicant. This tactic

allows many knockoffs and “parasite brands” to avoid immediate scrutiny by CNIPA and to obtain

trademarks in China in bad faith, even when the U.S. trademark is famous or well known. Right

holders report that even if one bad faith trademark is successfully challenged, there is little

consistency with respect to other applications by the same or related entities. The resulting

registrations damage the goodwill and interests of U.S. right holders, especially for small

businesses, including by preventing them from marketing their legitimate products in China.

Right holders seek more active support from CNIPA to combat bad faith trademarks before the

marks are published for opposition, to address stylization of letters or numbers, to clarify ex officio

authority to address bad faith applications, to apply consistent examination standards, and to

impose deterrent penalties. CNIPA initiated campaigns and issued notices targeting bad faith

trademarks in 2022 and 2023, such as the “Blue Sky” Special Campaign and the Notice on

Continuously Severely Cracking-down on Bad Faith Trademark Registrations. However, U.S.

right holders continue to note that these efforts do not address the principal issue when registering

brands in China, namely the preemptive bad faith registration of U.S. brands’ legitimate

trademarks by bad actors.

Stakeholders also continue to express concerns relating to trademark examination, including

regarding unnecessary constraints on examiners’ ability to consider applications and marks across

classes of goods and services, as well as the lack of consideration of co-existence agreements and

letters of consent in the registration processes. They also noted that in 2022 CNIPA’s Trademark

Office increasingly and erroneously refused trademark applications on absolute grounds (such as

lacking distinctiveness, being deceptive as to product quality or source, and being offensive to

socialist morality), which are much more difficult to overcome on appeal and often lead to refusals

in future applications for the same trademark. In addition to denying right holders the ability to

business operations, because in such cases, the right holders must immediately cease use of the

mark even if the product is already launched or face significant potential penalties by

administrative enforcement officials. Right holders also reported in 2022 that CNIPA is

increasingly rejecting defensive filings allowed under the Guidelines for Trademark Examination

and Trial, denying brand owners a useful proactive tool to defend against bad faith filings.

Trademark applicants also continue to raise concerns about onerous documentation requirements,

the lack of transparency in opposition proceedings, and the unavailability of default judgments

against applicants who fail to appear in opposition, cancellation, and invalidation proceedings. In

addition, stakeholders continue to urge the adoption of reforms to address the difficulties faced by

legitimate right holders in obtaining well-known trademark status. The United States urges China

to address these concerns from right holders concerning the administration of trademarks.

Legislative, Administrative, and Judicial Developments

In 2022, the National People’s Congress (NPC) and its Standing Committee issued no new or

amended legislation directly addressing IP. China still has not addressed right holder concerns

with respect to preliminary injunctive relief, evidence production, authentication and other

evidentiary requirements, establishment of actual damages, insufficient damage awards,

burdensome thresholds for criminal enforcement, and lack of deterrent-level damages and

penalties. For example, right holders continue to raise concerns about their ability to meet

consularization and notarization requirements for documents submitted to the Beijing IP Court and

in other IP-related proceedings. As a positive step, in March 2023, China acceded to the

Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public

Documents (Apostille Convention), which will enter into force with respect to China in

November 2023. The United States will monitor China’s implementation of obligations under the

Apostille Convention and whether it addresses right holders’ concerns regarding foreign

government document legalization requirements.

In March 2023, the NPC announced that CNIPA, which is currently administered as a bureau under

SAMR, will be elevated to receive direct oversight from the State Council. The State Council

indicated that the reorganization will accelerate China’s development as a “strong IP nation.” The

practical impact of this reorganization is yet to be determined.

Transparency remains a key concern with Chinese courts, which publish only selected decisions

rather than all preliminary injunctions and final decisions. Likewise, right holders express

concerns about the increased emphasis on administrative enforcement, as authorities often fail to

provide right holders with information regarding the process or results of enforcement actions.

Additional concerns include interventions in judicial proceedings by local government officials,

party officials, and powerful local interests that undermine the authority of China’s judiciary and

rule of law. The recent emphasis placed by judges in public hearings or court reports on IP disputes

involving “chokehold technologies,” such as microelectronics and semiconductor technologies

owned by Chinese companies, as well as the establishment of a new “green channel” for quick

handling of such cases by the Beijing IP court, raise concerns about the potential bias against

foreign right holders in accessing expedited handling or in case outcomes. A judiciary truly

independent from the Communist Party of China is critical to promote rule of law in China and to

protect and enforce IP rights.

In 2022, China continued to develop and implement “social credit” systems for IP. CNIPA issued

Provisions on Intellectual Property Rights Credit Management in January 2022 to expand the

scope of conduct that will result in social credit penalties, such as addition to a blacklist and

potential joint punishment by a wide range of agencies. A March 2022 document issued by the

Central Committee of the Communist Party of China and the State Council emphasized the

expansion of the social credit system to IP. In July 2022, CNIPA identified the first confirmed use

of social credit penalties in IP, as punishment for an instance of willful patent infringement. These

measures lack critical procedural safeguards, such as sufficient notice to the entity targeted for

punishment, clear factors for determinations, and opportunities for appeal. The United States

continues to object to any use of the “social credit system” in the field of IP.

Patent and Related Developments

In 2021, CNIPA issued measures aimed at improving the quality of patents and fining unqualified

patent agents. However, large quantities of poor-quality patents continue to be granted. Although

CNIPA announced in January 2021 the elimination of patent subsidies by 2025, local

incentivization mechanisms continue to subsidize patent grants and trademark registrations. On

January 25, 2022, CNIPA issued the Notice on Continuing and Strictly Regulating Patent

Application Behavior, which required provincial and local IP offices to reduce patent subsidies by

25% per year, with total elimination by 2025. In April 2022, the CNIPA Commissioner noted in

a press conference that China has completely eliminated all subsidies and awards for patents and

trademarks at the application stage.

With respect to patent prosecution, reports indicate that patent applicants do not receive notice of

third-party submissions or the opportunity to respond, despite the reliance of examiners on

arguments from such submissions. Right holders express strong concerns about the lack of

transparency and fairness in patent prosecution.

The issuance of anti-suit injunctions by Chinese courts in standard essential patent (SEP) disputes

continues to raise due process and transparency concerns for right holders. Right holders are also

concerned about how such rulings may favor domestic companies over foreign patent holders.

Although some stakeholders have compared anti-suit injunctions in China to their use in other

jurisdictions, right holders have raised concerns that Chinese courts appear to use the issuance of

anti-suit injunctions in support of their attempts to assert jurisdiction over global SEP disputes.

High-level political and judicial authorities have called for extending the jurisdiction of China’s

courts over global IP litigation and have cited the issuance of an anti-suit injunction as an example

of the court “serving” the “overall work” of the Chinese Communist Party and the Chinese State.

In June 2022, the National People’s Congress passed amendments to the AML, which entered into

effect in August 2022. Right holders have raised concerns about the implementation of the

amended AML, particularly regarding draft implementing rules that define anti-competitive

behavior by collective management organizations and in the development of standards and the

implementation of SEPs.

Industrial Designs

In 2022, China acceded to the Hague Agreement Concerning the International Registration of

Industrial Designs. CNIPA issued interim measures in April 2022 to provide guidance on

procedural issues for design applications and indicated that it will issue revised Detailed Rules for

the Implementation of the Patent Law in the future.

China’s “Secure and Controllable” Policies

China continues to build on its policies for “secure and controllable” information and

communications technology (ICT) products under the Cybersecurity Law (CSL) and the

Cryptography Law. In 2022, the Cyberspace Administration of China issued final implementing

measures for conducting cybersecurity reviews under the CSL. Right holders continue to raise

concerns about the invocation of cybersecurity as a pretext to require disclosure of trade secrets

and other types of IP and to restrict market access. Furthermore, encryption laws, which impose

mandatory approval requirements with unclear exemptions, create an uncertain business

environment for foreign companies.

U.S. right holders should not be forced to choose between protecting their IP against unwarranted

disclosure and competing for sales in China. Going forward, China must not invoke security

concerns in order to erect market access barriers, require the disclosure of critical IP, or

discriminate against foreign-owned or -developed IP.

Geographical Indications

The agreement between China and the European Union on geographical indications (GIs) entered

into force in 2021. In December 2022, CNIPA published a list of 173 terms for which the European

Union (EU) has requested GI protection under the agreement. CNIPA provided an opportunity

for opposition by inviting entities or individuals who have any objections to the protection of these

terms as GIs in China to submit such objections in writing within two months. However, CNIPA

did not publicly identify the individual components of multi-component terms that are being

considered for protection when it published terms for opposition. Without this information,

interested parties may assume that all individual components of multi-component terms will also

be protected as GIs. In addition, right holders continue to raise concerns about certain trademark

examination cases that involve the use of common names (generic terms). It is critical that China

ensure full transparency and procedural fairness with respect to the protection of GIs, including

safeguards for common names, respect for prior trademark rights, clear procedures to allow for

opposition and cancellation, and fair market access for U.S. exports to China relying on trademarks

or the use of common names.

Other Concerns

Following amendments to the Seed Law in March 2022, the Ministry of Agriculture and Rural

Affairs (MARA) issued several implementing measures, including the Guiding Opinions on

Protecting IP in the Seed Industry, Combating Counterfeit as well as Plant Variety Name

Infringement, and Creating a Good Environment for the Revitalization of the Seed Industry. The

Guiding Opinions addresses areas such as legislative reform, judicial protection for seed and plant

IP, quality control in the granting of seed and plant IP, and administrative enforcement. In

November 2022, MARA issued a draft Revision of the Regulations on the Protection of New

Varieties of Plants for public comment. The United States is monitoring this development to

assess the potential impact of these measures on U.S.-based plant breeders and related parties.

Finally, right holders continue to raise concerns about gaps in plant protection with respect to

genera and species outside a limited number of categories, as well as concerns regarding local

administrative enforcement offices that are often susceptible to local favoritism.

The United States continues to urge all levels of the Chinese government, as well as SOEs, to use

only legitimate, licensed copies of software. The United States also urges the use of third-party

audits to ensure accountability, as China committed to provide under the Phase One Agreement.

INDIA

India remains on the Priority Watch List in 2023.

Ongoing Challenges and Concerns

Over the past year, India has remained inconsistent in its progress on intellectual property (IP)

protection and enforcement. Although India has worked to strengthen its IP regime, including

raising public awareness of the importance of IP, and engagement with the United States on IP

issues has increased, there continues to be a lack of progress on long-standing IP concerns raised

in prior Special 301 Reports. India remains one of the world’s most challenging major economies

with respect to protection and enforcement of IP.

Patent issues continue to be of particular concern in India. The potential threat of patent

revocations, lack of presumption of patent validity, and the narrow patentability criteria under the

Indian Patents Act impact companies across different sectors. Moreover, patent applicants

continue to confront costly and time-consuming pre- and post-grant oppositions, long waiting

periods to receive patent grants, and excessive reporting requirements. Stakeholders continue to

express concerns over vagueness in the interpretation of the Indian Patents Act.

Despite India’s justifications of limiting IP protections as a way to promote access to technologies,

India maintains high customs duties directed to IP-intensive products such as medical devices,

pharmaceuticals, information and communications technology products, solar energy equipment,

and capital goods. In the pharmaceutical sector, the United States continues to monitor the

restriction on patent-eligible subject matter in Section 3(d) of the Indian Patents Act and its

impacts. Pharmaceutical stakeholders also express concerns as to whether India has an effective

mechanism for the early resolution of potential pharmaceutical patent disputes, particularly

shortcomings in notifying interested parties of marketing approvals for follow-on pharmaceuticals,

and view the further restricting in 2019 of transparency of information about manufacturing

licenses issued by states as a step backward. Stakeholders also continue to raise concerns as to

whether India has an effective system for protecting against the unfair commercial use, and

unauthorized disclosure, of undisclosed test or other data generated to obtain marketing approval

for pharmaceutical and agricultural chemical products.

India’s overall IP enforcement remains inadequate. During the last year, India has continued to

take actions against websites with pirated content. Nonetheless, weak enforcement of IP by the

courts and police officers, a lack of familiarity with investigation techniques, and the continued

absence of coordination among India’s many national- and state-level IP enforcement agencies,

continue to hamper enforcement efforts. India remains home to several markets that facilitate

counterfeiting and piracy, as identified in the 2022 Review of Notorious Markets for

Counterfeiting and Piracy (Notorious Markets List). While some of India’s state authorities

continue to operate dedicated crime enforcement units, given the scale and nature of the problem,

the United States continues to encourage the adoption of a national-level enforcement task force

for IP crimes.

Overall, the levels of trademark counterfeiting continue to remain problematic. In addition, U.S.

brand owners continue to report excessive delays in trademark opposition proceedings and a lack

of quality in examination. Initiatives taken by the Department for Promotion of Industry and

Internal Trade (DPIIT) reduced trademark application examination to less than 30 days, but right

holders remain concerned with trademark examination quality and the increase in trademark

opposition proceedings backlog. Additionally, it remains unclear whether trademark owners can

apply directly for recognition of “well-known” trademark status without having to rely on previous

Indian court or trademark office decisions. The United States continues to urge India to join the

Singapore Treaty on the Law of Trademarks.

Companies also continue to face uncertainty due to insufficient legal means to protect trade secrets

in India. The Department Related Parliamentary Standing Committee on Commerce (DRPSCC),

in its July 2021 Report titled “Review of the Intellectual Property Rights Regime in India,”

recommended “to consider enacting a separate legislation or a framework” and “to examine the

relevant and best practices” for protection of trade secrets. However, as of 2023, no civil or

criminal laws in India specifically address the protection of trade secrets. Criminal penalties are

not expressly available for trade secret misappropriation in India, and civil remedies reportedly are

difficult to obtain and do not have a deterrent-level effect. U.S. and Indian companies have

identified trade secret protection as a growing concern and expressed interest in India eliminating

gaps in its trade secrets regime, such as through the adoption of trade secret legislation that

comprehensively addresses these concerns.

the DPIIT issued a notice requesting comments on the recommendation of a Parliamentary

committee to extend statutory licensing under Section 31D of the Indian Copyright Act, which

provides statutory licenses for broadcasting sound recordings and literary and musical works, to

“internet or digital broadcasters.” Amending Section 31D to permit statutory licensing of

interactive transmissions would have severe implications for right holders who make their content

available online, and the United States urges India to ensure consistency with its international

obligations. Moreover, the September 2016 Department of Industrial Policy and Promotion

(which is now DPIIT) memo interpreting Section 31D to cover “internet broadcasting” has not yet

been withdrawn or superseded, even though in 2019 the Bombay High Court found the memo

contrary to the legislation. The Bombay High Court Division Bench decision on the issue is

expected to be forthcoming. The lack of predictability around Section 31D and overly broad

exceptions for certain uses have raised concerns about the strength of copyright protection in India.

In June 2021, the Ministry of Information and Broadcasting proposed to introduce the

Cinematograph (Amendment) Bill, 2021, revising the 2019 Bill. The Cinematograph

(Amendment) Bill which would enhance criminal and financial penalties for unauthorized

camcording continues to await parliamentary approval. Despite India’s commitment at the United

States-India Trade Policy Forum (TPF) in November 2021 to comply with the World Intellectual

Property Organization (WIPO) Performances and Phonograms Treaty (WPPT) and WIPO

acceded in 2018, amendments to the Indian Copyright Act are still needed to fully implement the

WIPO Internet Treaties and bring India’s domestic legislation into alignment with international

best practices. Furthermore, stakeholders have reported continuing problems with unauthorized

file sharing of video games, signal theft by cable operators, commercial-scale photocopying and

unauthorized reprints of academic books, and circumvention of technological protection measures.

The 2015 passage of the Commercial Courts Act, highlighted in previous Special 301 Reports,

provided an opportunity to reduce delays and increase expertise in judicial IP matters. In 2021,

India made additional changes to try to improve IP adjudication by abolishing the slow and

inefficient Intellectual Property Appellate Board (IPAB) and transferring its functions to the state

High Courts and, for some copyright matters, to the Commercial Courts. The Delhi High Court

established an Intellectual Property Division to handle matters related to IP, and the “Delhi High

Court Intellectual Property Rights Division Rules” came into effect in April 2022. Despite these

efforts, the need for such dedicated IP divisions in other High Courts and additional staffing and

training continues. The United States continues to monitor these developments and to encourage

allocating resources for training and staffing.

Developments, Including Progress and Actions Taken

India made meaningful progress to promote IP protection and enforcement in some areas over the

past year and expressed a willingness to improve long-standing issues with trademark infringement

investigations and patent pre-grant opposition proceedings, and to engage on the copyright

provisions in view of commitments under the WIPO Internet Treaties. In addition, the United

States welcomes India’s recent efforts towards resolving the extensive trademark opposition

backlog pursuant to the directions of the Delhi High Court. However, it failed to resolve recent

and long-standing challenges, and it created new concerns for right holders. The United States is

monitoring India’s next steps, including any actions taken on the many recommendations in the

earlier referenced DRPSCC July 2021 report, “Review of the Intellectual Property Rights Regime

in India”.

In December 2021, a Joint Parliamentary Committee released a report recommending changes to

the Personal Data Protection Bill, 2019 (PDPB) that could undermine important IP protections in

India. The United States on several occasions and in various fora raised IP concerns regarding this

report and the Data Protection Bill, 2021. In November 2022, the Ministry of Electronics and

Information Technology (MeitY) released an improved draft Digital Personal Data Protection Bill

(DPDPB) that took steps to address concerns from the previous draft regarding intellectual

property protection. However, right holders remain concerned with the concise language of the

bill noting that problematic issues may be reintroduced at the rule-making stage after the bill is

enacted. The United States is closely following the progress of this bill. On this and other potential

legislation affecting IP, the United States encourages India to undertake a transparent process that

provides stakeholders with sufficient opportunity to comment.

India took steps to address stakeholder concerns over burdensome patent reporting requirements

by issuing a revised Manual of Patent Office Practice and Procedure in November 2019 and revised

Form 27 on patent working in October 2020. The Manual includes the requirement for patent

examiners to look to the WIPO Centralized Access to Search and Examination (CASE) system

and Digital Access Service (DAS) to find information filed by patent applicants in other

jurisdictions, with the aim of eliminating the need for applicants to file redundant information with

India, although stakeholders report that this practice is not always followed and uncertainty persists

over the scope of reporting requirements and consequences of non-compliance. While some

stakeholders have welcomed the revised version of Form 27, concerns remain with respect to

whether Indian authorities will treat as confidential sensitive business information that parties are

required to disclose on Form 27. The United States welcomes India’s ongoing domestic

consultations regarding the treatment of business confidential information related to working of

patents, including the requirements on Form 27, and will continue to engage with India on this

issue.

The Cell for Intellectual Property Rights Promotion and Management, organized under the

guidance of DPIIT, continues to promote IP awareness, commercialization, and enforcement

throughout India. In December 2020, the United States Patent and Trademark Office (USPTO)

and DPIIT signed a new Memorandum of Understanding (MOU) relating to IP technical

cooperation mechanisms, and DPIIT and USPTO are implementing a biennial work plan to guide

implementation of the MOU.

The United States intends to continue to engage with India on IP matters, including through the

TPF’s Intellectual Property Working Group.

INDONESIA

Indonesia remains on the Priority Watch List in 2023.

Ongoing Challenges and Concerns

U.S. right holders continue to face challenges in Indonesia with respect to adequate and effective

intellectual property (IP) protection and enforcement, as well as fair and equitable market access.

There continues to be widespread piracy and counterfeiting, and concerns regarding IP

enforcement remain, including lack of enforcement against counterfeit goods, the lack of deterrent-

level penalties for IP infringement in physical markets and online, and ineffective border

enforcement. Stakeholders have raised concerns over Indonesia’s Copyright Law, including with

respect to the circumvention of technological protection measures, and have urged Indonesia to

consider revisions to the Copyright Law. Online piracy through piracy devices and applications

is a concern, and unauthorized camcording and unlicensed use of software remain problematic.

Also, the Ministry of Finance issued regulations in 2018 clarifying its ex officio authority for border

enforcement against pirated and counterfeit goods and instituting a recordation system, but few

foreign right holders are able to benefit from the system because of local domicile and large deposit

requirements. The effectiveness of the Directorate General for Customs and Excise (DGCE) has

been limited because its recordation system only contains a small number of trademarks and

copyrights, and DGCE has not been able to make full use of its ex officio authority to detain

infringing goods.

Other concerns include Indonesia’s law concerning geographical indications (GIs), which raises

questions about the effect of new GI registrations on pre-existing trademark rights and the ability

to use common food names. In addition, Indonesia’s 2016 Patent Law continues to raise concerns,

including with respect to patentability criteria and the disclosure requirements for inventions

related to traditional knowledge and genetic resources. Stakeholders have also expressed concern

about the lack of an effective system for protecting against the unfair commercial use, as well as

unauthorized disclosure, of undisclosed test or other data generated to obtain marketing approval

for pharmaceutical and agricultural chemical products.

In addition, the United States remains concerned about a range of market access barriers in

Indonesia, including certain measures related to motion pictures and certain requirements for

domestic manufacturing and technology transfer for pharmaceuticals and other sectors. For

example, although Indonesia took steps in 2016 to allow 100% foreign direct investment in the

production of films and sound recordings, as well as in film distribution and exhibition, Indonesia

has issued implementing regulations to the 2009 Film Law that, if enforced, would further restrict

foreign participation in this sector. Specifically, Ministry of Education and Culture Regulation

34/2019 includes screen quotas and a dubbing ban for foreign films.

Developments, Including Progress and Actions Taken

Indonesia has made progress in addressing some of these concerns, but significant concerns remain

in other areas.

U.S. stakeholders continue to note positive developments related to Indonesia’s efforts to address

online piracy, including increased enforcement efforts and cooperation between the Ministry of

Communications and Informatics and the Directorate General for Intellectual Property (DGIP),

but raise concerns about increasing sales of counterfeit goods online.

In 2022, Indonesia expanded its IP Enforcement Task Force, which aims to improve intra-

government coordination on enforcement, to include four additional ministries. The Task Force’s

activities have included efforts to raise awareness of IP challenges among government agencies

and to increase investigation of IP cases. To address insufficient IP enforcement, the United States

urges Indonesia to use the IP Enforcement Task Force to improve enforcement cooperation among

relevant law enforcement agencies and ministries. The United States also encourages Indonesia

to develop a specialized IP unit under the Indonesia National Police to focus on investigating the

Indonesian criminal organizations behind counterfeiting and piracy and to initiate larger and more

significant cases. Last year, the police only conducted 134 IP investigations and only one case

was prosecuted, which are low numbers relative to the country’s population. Indonesia also has

imposed excessive and inappropriate penalties on patent holders as an incentive to collect patent

maintenance fees. The United States continues to monitor the issue.

In November 2020, Indonesia amended its 2016 Patent Law through the Omnibus Law on Job

Creation to remove requirements for patents to be worked in Indonesia. However, due to a ruling

by the Indonesia Constitutional Court that the Omnibus Law was unconstitutional for procedural

reasons, in December 2022, Indonesia revoked the Omnibus Law and issued a new regulation to

replace it, which Parliament passed in March 2023. The United States continues to urge Indonesia

to undertake a more comprehensive amendment to the 2016 Patent Law to address remaining

concerns. As Indonesia amends the 2016 Patent Law and other legislation and develops

implementing regulations, the United States also urges Indonesia to provide affected stakeholders

with meaningful opportunities for input.

The United States also continues to urge Indonesia to fully implement the bilateral Intellectual

Property Rights Work Plan and plans continued engagement with Indonesia under the United

States-Indonesia Trade and Investment Framework Agreement to address these issues.

RUSSIA

Russia remains on the Priority Watch List in 2023.

Ongoing Challenges and Concerns

In response to Russia’s premeditated and unprovoked further invasion of Ukraine in 2022, the

United States, in conjunction with its allies and partners, has taken or plans to take additional steps

to isolate Russia from the global economy and hold President Putin accountable for his war against

Ukraine. Consequently, the ability of the Office of the U.S. Trade Representative to raise and

resolve intellectual property (IP) protection and enforcement issues in Russia is limited.

The overall IP situation in Russia remains extremely challenging. Challenges to IP protection and

enforcement in Russia include continued copyright infringement, trademark counterfeiting, and

the existence of nontransparent procedures governing the operation of collective management

organizations (CMOs). In particular, the United States is concerned about stakeholder reports that

IP enforcement remains inadequate and that Russian authorities continue to lack sufficient staffing,

expertise, and, most importantly, the political will to effectively combat IP violations and criminal

enterprises.

The lack of robust enforcement of IP rights is a persistent problem, compounded by burdensome

court procedures. For example, the requirement that plaintiffs notify defendants a month in

advance of instituting a civil cause of action allows defendants to liquidate their assets and thereby

avoid liability for their infringement. Additionally, requiring foreign right holders to abide by

strict documentation requirements, such as verification of corporate status, hinders their ability to

bring civil actions.

Inadequate and ineffective protection of copyright, including with regard to online piracy,

continues to be a significant problem, damaging both the market for legitimate content in Russia

as well as in other countries. Although implementation of 2017 anti-piracy legislation has shown

some promise, Russia remains home to several sites that facilitate online piracy, as identified in

the 2022 Review of Notorious Markets for Counterfeiting and Piracy (Notorious Markets List).

Stakeholders continue to report significant piracy of video games, music, movies, books, journal

articles, and television programming. Mirror sites related to websites that offer infringing content

and smartphone applications that facilitate illicit trade are also a concern. Russia needs to direct

more action against rogue online platforms targeting audiences outside the country. In 2018, right

holders and online platforms in Russia signed an anti-piracy memorandum, which was extended

until February 2022, to facilitate the removal of links to websites that offer infringing content.

Stakeholders had expected that in 2022 this memorandum would be implemented as legislation

covering all copyrighted works and applying to all Russian platforms and search engines, but no

further progress was made in 2022. Stakeholders also reported that in December 2021, right

holders and online platforms agreed to update the original memorandum to include new measures

on search engines. However, although right holders are able to obtain court-ordered injunctions

against websites and smartphone applications that offer infringing content, Russia must take

additional steps to target the root of the problem, namely, investigating and prosecuting the owners

of the large commercial enterprises distributing pirated material, including software. Moreover,

prominent Russian online platforms continue to provide access to thousands of pirated films and

television shows. Stakeholders report that, in 2022, Russia remained among the most challenging

countries in the world in terms of video game piracy. While an August 2021 government decree

on rules for showing films in theaters allows exhibitors to remove viewers attempting to record

films illicitly, the decree does not remedy the existing lack of legal liability under Russian law for

unauthorized camcording.

Royalty collection and distribution by CMOs in Russia continue to lack transparency and do not

correspond to international standards. Reports indicate that right holders are denied detailed

accounting reports, making it difficult to verify how much money is being collected and

distributed. Also, right holders are excluded from the selection and management of CMOs. The

United States encourages Russia to update and modernize its CMO regime and institute practices

that are fair, transparent, efficient, and accountable.

Russia remains a thriving market for counterfeit goods sourced from China. Despite increased

seizures by the Federal Customs Service, certain policies hamper IP enforcement efforts. For

example, the “return to sender” policy for small consignments, which returns counterfeit goods to

their producer, is problematic because it does not remove such goods from channels of commerce.

Stakeholders also report that, in practice, Russia’s trade secret regime places an undue burden on

right holders in terms of requiring specific prerequisites for protection that do not reflect the

commercial realities of most businesses. Examples include keeping an inventory of trade secret-

protected information and marking trade secrets with the names and addresses of owners. In terms

of trade secret enforcement, stakeholders report that, despite their availability, deterrent-level

penalties and preliminary measures are rarely imposed by courts for trade secret misappropriation.

The United States is also concerned about Russia’s implementation of its World Trade

Organization commitments related to the protection against the unfair commercial use, as well as

the unauthorized disclosure, of undisclosed test or other data generated to obtain marketing

approval for pharmaceutical products. Stakeholders report that Russia is eroding protections for

undisclosed data, and the United States urges Russia to adopt a system that meets international

norms of transparency and fairness. Stakeholders also report that Russia lacks an effective

mechanism for the early resolution of potential pharmaceutical patent disputes, and continue to

express concerns regarding certain evidentiary standards applied by the judiciary.

Developments, Including Progress and Actions Taken

Over the course of 2022, Russia has taken steps backward with respect to IP protection and

enforcement. For example, the United States is concerned regarding plans to target IP rights for

foreign right holders from countries whose governments have taken action to hold Russia

accountable for its illegal invasion of Ukraine. Some of these plans have been implemented,

including Decree 299, which would not require Russian companies and individuals to pay

compensation for the use of inventions, utility models, and industrial designs under Article 1360

of the Russian Civil Code, if the right holder comes from a list of countries designated by Russia

as “unfriendly” due to factors including publicly supporting or calling for sanctions against Russia.

Another new measure, Decree 322, restricts the ability of foreign right holders from “unfriendly

states” to collect license payments for most types of IP. Russia continues to consider other changes

as well, including a reported proposal to allow exploitation of copyrighted works of right holders

from “unfriendly states” without authorization from the right holder. Stakeholders have expressed

concerns that after many brands exited the Russian market in 2022, Russia may deny them the

ability to register or renew their trademarks in the country, which could result in their trademarks

being registered by another party.

The United States urges Russia to develop a more comprehensive, transparent, and effective

enforcement strategy to reduce IP infringement, particularly the sale of counterfeit goods and the

piracy of copyright-protected works. The United States continues to monitor Russia’s progress on

these and other matters through appropriate channels.

VENEZUELA

Venezuela remains on the Priority Watch List in 2023.

Ongoing Challenges and Concerns

Recognizing the significant challenges in Venezuela at this time, the United States has several

ongoing concerns with respect to the country’s lack of adequate and effective intellectual property

(IP) protection and enforcement. Venezuela’s reinstatement several years ago of its 1955

Industrial Property Law, which falls below international standards and raises concerns about trade

agreements and treaties that Venezuela subsequently ratified, has created significant uncertainty

and deterred investments related to innovation and IP protection in recent years. Piracy, including

online piracy, as well as unauthorized camcording and widespread use of unlicensed software,

remains a persistent challenge. Counterfeit goods are also widely available, and IP enforcement

remains ineffective. The World Economic Forum’s 2019 Global Competitiveness Report ranked

Venezuela last in IP protection, out of 141 countries, for the seventh straight year. The Property

Rights Alliance’s 2022 International Property Rights Index also ranked Venezuela last out of 129

countries in a metric that includes standards for IP protection.

Developments, Including Progress and Actions Taken

While Venezuela’s Autonomous Intellectual Property Service (SAPI) granted new patents and also

waived various filing fees for small and medium enterprises to encourage IP system usage in 2021,

the country did not make any notable progress towards improving IP protection in 2022.

WATCH LIST

ALGERIA

Algeria remains on the Watch List in 2023. Algeria continues to take steps to improve intellectual

property (IP) protection and enforcement, including by implementing a new digital risk

management scheme for customs, actively reviewing the IP regulatory framework, constituting a

new specialized commercial court responsible for IP- and international trade-related disputes, and

engaging in capacity-building and training efforts for law enforcement, customs officials, judges,

and IP protection agencies. Algeria is also contemplating legislative amendments to address

outstanding concerns, including measures to address counterfeiting. As Algeria plans to amend

and implement its IP-related laws, the United States encourages Algeria to provide interested

stakeholders with meaningful opportunities for input. Furthermore, Algeria has continued to make

improvements on market access issues, including by issuing regulations reducing registration wait

times and allowing companies to register their representative offices to do business in Algeria.

However, concerns remain. Algeria needs to increase enforcement efforts against trademark

counterfeiting and copyright piracy, particularly online and Internet Protocol television (IPTV)

piracy. Algeria also needs to provide adequate judicial remedies in cases of patent infringement

and provide administrative opposition, as well as fewer formalities, in its trademark system.

Algeria still lacks an effective mechanism for the early resolution of potential pharmaceutical

patent disputes, and there is a lack of clarity about whether Algeria’s system protects against the

unfair commercial use, as well as unauthorized disclosure, of undisclosed test or other data

generated to obtain marketing approval for pharmaceutical products. The United States will

continue to engage with Algeria to improve Algeria’s IP protection and enforcement environment.

BARBADOS

Barbados remains on the Watch List in 2023. Barbados acceded to the World Intellectual Property

Organization (WIPO) Performances and Phonograms Treaty (WPPT) and WIPO Copyright Treaty

(WCT), collectively known as the WIPO Internet Treaties, in 2019. Last year’s review of draft

amendments to Barbados’s Copyright Act to implement the treaties has been delayed, and

Parliament is now expected to discuss the amendments by the end of 2023. However, the lack of

enforcement of intellectual property judgments, insufficient resources for law enforcement, weak

enforcement of existing legislation, and long-standing backlogs in the judicial system remain as

concerns. In the realm of copyright and related rights, the United States continues to have concerns

about the unauthorized retransmission of U.S. broadcasts and cable programming by local cable

operators in Barbados, particularly state-owned broadcasters, without adequate compensation to

U.S. right holders. Several outstanding copyright infringement cases filed by stakeholders against

local cable operators and one local radio station remained at a virtual standstill in 2022. The United

States also has continuing concerns about the refusal of Barbadian TV and radio broadcasters and

cable and satellite operators to pay for public performances of music. The United States urges

Barbados to take all actions necessary to address such cases to ensure that all composers and

songwriters receive the royalties they are owed for the public performance of their musical works.

The United States looks forward to working with Barbados to resolve these and other important

issues.

BELARUS

Belarus returns to the Watch List in 2023. Belarus was removed from the Watch List in 2016 after

demonstrating commitment to improve its laws on intellectual property (IP) protection and

enforcement. However, in 2022, Belarus passed a law (Law No. 241-З) that legalizes unlicensed

use of copyrighted works, including computer programs, broadcasts of a broadcasting

organization, audiovisual works, and musical works, if the right holder or collective management

organization (CMO) is from a government list of foreign states “committing unfriendly actions.”

Furthermore, the law requires Belarus’s National Center of Intellectual Property (NCIP) to collect

royalties on this unlicensed use of copyrighted works on behalf of the individuals and entities from

“unfriendly” states. While NCIP is instructed to retain this remuneration for three years on behalf

of the right holder or CMO, after this period, any royalties not requested by the right holder or

CMO will be transferred to Belarus’s general budget within three months. In this event, the

Lukashenka regime would directly financially benefit from the unlicensed usage of others’ IP. The

United States urges Belarus to rescind this law and to ensure that it complies with its international

obligations, including with respect to copyright and related rights.

BOLIVIA

Bolivia remains on the Watch List in 2023. Challenges continue with respect to adequate and

effective intellectual property (IP) protection and enforcement in Bolivia. The IP laws in Bolivia

are outdated, and constitutional restrictions limit effective IP protection. For example, Bolivia

relies on a century-old industrial privileges law, which does not address areas such as trade secrets.

In addition, Bolivia has not acceded to the World Intellectual Property Organization (WIPO)

Performances and Phonograms Treaty (WPPT) and WIPO Copyright Treaty (WCT), collectively

known as the WIPO Internet Treaties. While the Servicio Nacional de Propiedad Intelectual

(SENAPI) announced in 2022 that they would be drafting an updated national IP law, there has

been little movement on this initiative. In September 2022, Bolivia established new administrative

procedures for filing and processing infringement complaints, but it remains to be seen whether

these procedures will in practice streamline the process. . SENAPI has the primary responsibility

for IP protection but continues to suffer from inadequate resources. Similarly, Bolivian Customs

lacks ex officio authority necessary to interdict potentially infringing goods without an application

from the right holder. Additionally, the customs authority does not have the human and financial

resources needed to effectively address shipments containing counterfeit goods at its international

borders. Significant challenges also persist with respect to adequate and effective IP enforcement

and communication between SENAPI and Customs. Video, music, literature, and software piracy

rates are among the highest in Latin America. Rampant trademark infringement persists, and

counterfeit medicines remain prevalent throughout the country. Bolivian law provides for

substantial penalties for IP offenses, but criminal charges and prosecutions remain rare. Bolivian

Customs has authority under the Cinema and Audiovisual Arts Law of 2018 to pursue criminal

prosecutions for IP violations of foreign and domestic visual works, but Bolivia has not

promulgated implementing regulations that are necessary to exercise this authority.

BRAZIL

Brazil remains on the Watch List in 2023. The United States has long-standing concerns about

the very high levels of pirated content and counterfeit goods that are available in Brazil, despite

some significant intellectual property (IP) enforcement actions taken by authorities in 2022. Brazil

conducted several effective enforcement campaigns against online piracy, some in conjunction

with enforcement officials in the United States and other countries, including enforcement focused

on combatting illicit streaming devices (ISDs), sports piracy during the weeks leading up to the

2022 FIFA World Cup, video game piracy, and piracy in the metaverse. The Ministry of Justice

and Public Security’s Cybernetic Operations Lab (Ciberlab), the Ministry of Justice and Public

Security’s National Council to Combat Piracy and Intellectual Property Crimes (CNCP), the

Brazilian Audio-Visual Agency (ANCINE), and the cybercrime unit of the State of São Paulo’s

Prosecutor’s Office (CyberGaeco) have been particularly active in this area. Nevertheless, online

piracy, use of ISDs, signal theft, and use of unlicensed software, remain significant barriers to the

adoption of legitimate content distribution channels. The United States encourages Brazil to join,

as soon as possible, the World Intellectual Property Organization (WIPO) Performances and

Phonograms Treaty (WPPT) and WIPO Copyright Treaty (WCT), collectively known as the WIPO

Internet Treaties, which are aimed at preventing unauthorized access to creative works online.

Regarding enforcement against counterfeit goods, the São Paulo Municipal Government increased

the number of large-scale raids of the Rua 25 de Março area, which was identified in the 2022

Review of Notorious Markets for Counterfeiting and Piracy (Notorious Markets List), and

conducted an IP enforcement campaign that resulted in over 2,000 tons of counterfeit items worth

an estimated $250 million being seized during November 2022. In another positive development

for enforcement, Brazil’s “Best Practices Guide” for online platforms was adopted by many

e‑commerce marketplaces, but stakeholders remain concerned that the overall volume of

counterfeit goods available online remains high. The port of Santos, which is the busiest container

port in Latin America, and the Brazil-Paraguay-Argentina tri-border area also continue to be

significant entry points for counterfeit goods. Factors that reduce the effectiveness of enforcement

against counterfeit goods include the lack of ex officio authority for customs officials to seize

counterfeit goods upon inspection, the lack of deterrent-level penalties authorized by statute and

issued by the courts, insufficient numbers of customs officers posted at the border, and lengthy

prosecution times. Right holders also report difficulties in obtaining information about seized

counterfeit goods from customs, which prevents effective follow-on investigations into the source

and distribution network of the counterfeits. Brazil continues to implement the country’s first

National Strategy on Intellectual Property and, reportedly, has reduced the overall average patent

pendency time to 6.9 years (although it remains closer to 10 years for biopharmaceutical patents

applications). The United States also recognizes the continued implementation of the technology-

neutral Patent Prosecution Highway Program. The United States remains concerned, however,

about the pendency of patent applications and the impact on the effective patent term. Also,

pharmaceutical stakeholders remain concerned that Brazilian law and regulations do not provide

protection against unfair commercial use, as well as unauthorized disclosure, of undisclosed test

and other data generated to obtain marketing approval for pharmaceutical products although such

protection is provided for veterinary and agricultural chemical products. The United States urges

Brazil to ensure transparency and procedural fairness in the protection of geographical indications

(GIs) and to ensure that the grant of GI protection does not deprive interested parties of the ability

to use common names, particularly as Brazil proceeds with the European Union (EU)-Mercosur

Trade Agreement. The United States is also concerned about the additional market access impact

of Brazil’s revocation of the previous determination of entities that qualified as prior users for

certain GIs under the EU-Mercosur Trade Agreement, requiring these entities to reapply but with

criteria that now disqualifies many U.S. producers. Strong IP protection, available to both

domestic and foreign right holders, provides a critical incentive for businesses to invest in future

innovation in Brazil, and the United States will engage constructively with Brazil to build a strong

IP environment and to address remaining concerns.

BULGARIA

Bulgaria is placed on the Watch List in 2023. In the 2022 Special 301 Report, the Office of the

U.S. Trade Representative initiated an Out-of-Cycle Review of Bulgaria to consider the extent to

which Bulgaria addressed deficiencies in its investigation and prosecution of online piracy cases,

particularly its failure to adopt evidence sampling in criminal cases. Bulgaria did not adopt

evidence sampling or other similar measures last year. However, Bulgaria’s Intellectual Property

(IP) Rights Working Group did begin drafting possible legislative language that may improve the

investigation and prosecution of online piracy cases in a way similar to evidence sampling. In

addition, Bulgaria raised the maximum sentence for certain IP crimes from five years to six (a

long-sought change that will enable police and prosecutors to use additional tools to investigate

such offenses) and also created a new cybercrime department within the National Investigative

Service, which will assume responsibility for investigating significant computer-based crimes.

Long-standing IP enforcement concerns in Bulgaria continue to include inadequate prosecution

efforts, lengthy and inefficient procedures, and the lack of deterrent criminal penalties, particularly

in the area of online piracy. Stakeholders have raised concerns as to notorious online piracy sites

reportedly hosted in or run from Bulgaria. The United States looks forward to continuing to work

with Bulgaria to address these IP concerns.

CANADA

Canada remains on the Watch List in 2023. Canada made significant progress in intellectual

property (IP) protection and enforcement with the implementation of important IP provisions in

the United States-Mexico-Canada Agreement (USMCA), particularly in areas where there have

been long-standing concerns, including with full national treatment for copyright protections,

transparency and due process with respect to geographical indications (GIs), and more expansive

trade secret protection, including criminal penalties for willful misappropriation. In December

2022, Canada extended the general term of copyright protection for all works measured by the life

of the author from life of the author plus 50 years to life of the author plus 70 years. The United

States continues to monitor Canada’s outstanding USMCA commitments with transition periods,

including on the Brussels Satellites Convention and patent term extensions for unreasonable patent

office delays. Right holders also report that Canadian courts have established meaningful penalties

against circumvention devices and services, but piracy through these means persists. In 2019,

Canada made positive reforms to the Copyright Board related to tariff-setting procedures for the

use of copyrighted works. Despite this progress, various challenges to the adequate and effective

protection of IP rights in Canada remain. Significant concerns regarding Canada’s IP environment

include poor enforcement with respect to counterfeit or pirated goods at the border and within

Canada, high levels of online piracy, and inadequate transparency and due process regarding GIs

protected through free trade agreements. In particular, reports of enforcement levels suggest that

Canadian authorities have yet to take full advantage of expanded ex officio powers. Canada’s

system to provide for patent term restoration for delays in obtaining marketing approval is limited

in duration, eligibility, and scope of protection. The United States remains deeply troubled by the

ambiguous education-related exception added to the copyright law in 2012, which reportedly has

significantly damaged the market for educational publishers and authors.

COLOMBIA

Colombia remains on the Watch List in 2023. In 2022, Colombia made limited progress on the

outstanding provisions related to its obligations under Chapter 16 of the United States-Colombia

Trade Promotion Agreement (CTPA), including on provisions regarding enforcement against

online copyright infringement. In addition, Colombia’s accession to the 1991 Act of the

International Union for the Protection of New Varieties of Plants Convention (UPOV 1991)

remains outstanding. With respect to concerns raised about Article 72 of the National

Development Plan, Colombia issued Decree 433 in March 2018, as amended by Decree 710 of

April 2018, to clarify that Colombia would not condition regulatory approvals on factors other

than the safety and efficacy of the underlying compound. Due to an action challenging these

decrees, the Council of State provisionally suspended them in September 2019. Colombia is still

considering how it will resolve this issue. Colombia’s success in combating counterfeiting and

other intellectual property (IP) violations remains limited. High levels of digital piracy persist,

and Colombia has not curtailed the number of free-to-air devices, community antennas, and

unlicensed Internet Protocol Television (IPTV) services that permit the retransmission of

otherwise-licensed content to a large number of non-subscribers. Stakeholders also report that

piracy of licensed content through mobile apps has become a growing concern in Colombia.

Colombia continues to face a large number of pirated and counterfeit goods crossing the border or

sold at markets, on the street, and at other distribution hubs around the country, and stakeholders

report that the number of seizures and criminal raids remains low. The United States recommends

that Colombia increase efforts to address online and mobile piracy and to focus on disrupting

organized trafficking in illicit goods, including at the border and in free trade zones. The United

States encourages Colombia to provide key agencies with the requisite authority and resources to

investigate and seize counterfeit goods, such as expanding the jurisdiction of the customs police.

The United States looks forward to continuing to work with Colombia to address outstanding

issues, particularly with respect to full implementation of the CTPA, in 2023.

DOMINICAN REPUBLIC

The Dominican Republic remains on the Watch List in 2023. The Dominican Republic continues

to demonstrate a strong political will to improve intellectual property (IP) protection and

enforcement, including the creation in December 2022 of the National Inter‑Ministerial Council

of Intellectual Property, intended to coordinate the agencies involved in IP protection and

enforcement and ensure better cooperation and information sharing. The government has

designated a specialized prosecutor in every one of the country’s provinces to work on IP cases.

As a result of increased coordination between the Attorney General’s office and Customs, as well

as better training of local prosecutors, IP case prosecutions in the country rose from 73 cases in

2018, to 217 cases in 2021, and 584 cases in 2022. Moreover, last year, authorities seized tens of

millions of counterfeit items in raids and enforcement operations, including counterfeit medicines.

However, despite this progress, the United States remains concerned with prevalent online and

signal piracy, the widespread sale of counterfeit goods, and the inconsistent quality of patent

examinations. The United States continues to urge the Dominican Republic to improve

coordination among enforcement agencies, particularly the Attorney General’s Office, National

adequately funded and staffed, and to improve support of IP inspections, investigations, and

prosecutions. The Dominican Republic should also require IP protection and enforcement

agencies make information publicly available about how right holder complaints have been

handled and resolved, either through the administrative or criminal process. The United States

will continue to engage with the Dominican Republic and monitor the effectiveness of the National

Inter-Ministerial Council of Intellectual Property in addressing these and other concerns.

ECUADOR

Ecuador remains on the Watch List in 2023. While Ecuador has made some efforts to improve

intellectual property (IP) enforcement in 2022, particularly in the area of border enforcement,

Ecuador continues to lack effective laws and regulations covering IP protection and enforcement.

Ecuador’s Organic Code on Social Economy of Knowledge, Creativity, and Innovation (Ingenuity

Code) governs the protection, exercise, and enforcement of IP rights. The Ingenuity Code’s

implementing regulations, issued in December 2020, do not address concerns raised by the U.S.

Government and various stakeholders on issues related to overly broad or vaguely defined

(GIs), including opposition procedures for proposed GIs, the treatment of common food names,

and the protection of prior trademark rights. While Ecuador still plans additional revisions to the

Ingenuity Code, little tangible progress has been made. The United States remains open to any

engagement on this process. Enforcement of IP rights against widespread counterfeiting and

piracy remains weak, including online and in physical marketplaces. Ecuador is also reportedly a

source of unauthorized camcording. Despite some increased enforcement activity, Ecuador needs

to take additional steps to address continued concerns regarding online piracy. The United States

urges Ecuador to continue to improve its IP enforcement efforts and to provide for customs

enforcement on an ex officio basis, including actions against goods in-transit. The United States

also encourages Ecuador to ensure that all government ministries use licensed software and to

make meaningful progress to ensure that all right holders receive the royalties they are owed for

their copyrighted works. The United States will continue working with Ecuador to address these

and other issues.

EGYPT

Egypt remains on the Watch List in 2023. Egypt has made some efforts to strengthen intellectual

property (IP) protection and enforcement, including adopting a new national IP strategy and a new

system that facilitates sharing of information regarding counterfeit goods among customs offices

at different ports. The Egyptian Patent Office published patent examination guidelines for

biotechnology in May 2022, and the Ministry of Interior increased its enforcement against

unlicensed satellite channels offering pirated broadcasts. Despite these improvements, concerns

remain. On enforcement, Egypt should provide deterrent-level penalties for IP violations, grant

ex officio authority for customs officials to seize counterfeit and pirated goods at the border, and

increase training for enforcement officials. Stakeholders raise concerns regarding the lack of an

effective mechanism for the early resolution of potential patent disputes and the mandatory

requirement to record trademark licenses. Egypt should also complete its plans to update and

publish the remainder of its patent and trademark examination guides online. Additionally, the

United States encourages Egypt to join and fully implement the World Intellectual Property

Organization (WIPO) Performances and Phonograms Treaty (WPPT) and WIPO Copyright Treaty

(WCT), collectively known as the WIPO Internet Treaties. The United States looks forward to

continuing to work with Egypt to address these and other issues.

GUATEMALA

Guatemala remains on the Watch List in 2023. Despite a generally strong legal framework in

place, resource constraints, inconsistent enforcement actions against counterfeiting of apparel and

other products, as well as a lack of coordination among law enforcement agencies continue to

result in insufficient intellectual property (IP) enforcement. The United States urges Guatemala

to strengthen enforcement, including criminal prosecution, administrative and border measures,

and intergovernmental coordination to address widespread copyright piracy and commercial-scale

sales of counterfeit goods. While the government’s use of unlicensed software moderately

declined in 2022, signal piracy continues to be a concern, with online piracy through Internet

Protocol television (IPTV) services increasing in 2022. The production and sale of counterfeit

apparel and pharmaceuticals in Guatemala increased during the past two years, and stakeholders

report that the government, while aware of such activity, lacks capacity to effectively curtail the

activity. Stakeholders also reported that significant delays in the patent registration process

continued in 2022, that the judiciary continues to lack specialization and knowledge to hear and

adjudicate IP issues, and that poor communication and coordination between enforcement agencies

delayed notifications of alleged counterfeit cases to attorneys for right holders and impeded

effective representation. The United States continues to urge Guatemala to take clear and effective

actions in 2023 to improve the protection and enforcement of IP in Guatemala.

MEXICO

Mexico remains on the Watch List in 2023. As part of its intellectual property (IP) commitments

under the United States-Mexico-Canada Agreement (USMCA), Mexico undertook significant

legislative reforms, with amendments to its Copyright Law and Criminal Code, and the passage of

the 2020 Federal Law for the Protection of Industrial Property. However, Mexico has not yet

issued implementing regulations for the Copyright Law amendments or the Industrial Property

Law, which is creating uncertainty for the creative and innovative sectors looking to protect and

enforce their IP. In addition, stakeholders report that Mexican authorities are not enforcing certain

provisions of the Copyright Law while a constitutional challenge of the Copyright Law remains

unresolved with Mexico’s Supreme Court. Mexico continues to suffer from very high rates of

stream ripping, illicit streaming devices and apps, circumvention devices for video games and

consoles, and physical media. As broadband access increases, online piracy has been increasing,

and stakeholders report that Mexico has one of the highest rates of music and video game piracy

in the world. A barrier to effective criminal copyright enforcement is the requirement to prove a

direct economic benefit to the infringer and the submission of a legitimate physical copy of the

pirated content, even if the pirated copies were distributed online. The “direct economic benefit”

requirement also prevents effective criminal enforcement against not-for-profit acts of piracy, such

as interrupting and distributing cable and satellite signals. According to stakeholders, civil

service providers (ISPs), no pre-established damages, no lost profit recovery, no recovery of

attorney’s fees, and lengthy court cases. Mexico also continues to suffer from significant sales

and distribution of counterfeit goods. The prevalence of counterfeit goods at notorious physical

marketplaces remains a significant problem, exacerbated by the involvement of transnational

criminal organizations. Mexican authorities used to conduct IP enforcement raids against markets

listed in the Review of Notorious Markets for Counterfeiting and Piracy (Notorious Markets List)

such as La Pulga Rio, Mercado San Juan de Dios, and Tepito, but this enforcement activity appears

to have ceased in recent years. Criminal investigations and prosecutions for trademark

counterfeiting and copyright piracy appears to be non-existent, with the Attorney General’s Office

(FGR) failing to report any IP enforcement statistics for the past three years. Right holders report

that FGR has imposed an internal ban on seeking search warrants in IP cases, which eliminates an

essential tool in IP investigations. While administrative actions against counterfeiters through the

Mexican Institute of Industrial Property (IMPI) remain effective, they are very limited due to

budget cuts and staffing reductions. Regarding enforcement at the border, the National Customs

Agency (ANAM) facilitated 493 cases against the importation of counterfeit goods. However,

ANAM’s effectiveness is also limited due to its inability to make determinations, seize, or destroy

the counterfeit goods without an order from IMPI or FGR. Stakeholders continue to raise ongoing

issues pertaining to bad faith trademark filings and registrations. Regarding the enforcement

against both pirated content and counterfeit goods, Mexico continues to operate with reduced

resources for numerous government agencies. To combat growing levels of IP infringement in

Mexico, the United States encourages Mexico to restore funding for federal, state, and municipal

enforcement, improve coordination among federal and sub-federal officials, prosecute more IP-

related cases, and impose deterrent-level penalties against infringers. Right holders also express

concern about the length of administrative and judicial IP infringement proceedings and the

persistence of continuing infringement while cases remain pending. Right holders are also

concerned that, in administrative procedures on infringement, preliminary measures still can be

lifted if the alleged infringer posts a counter-bond, where the counter-bonds are valued at non-

deterrent levels. With respect to geographical indications (GIs), the United States urges Mexico

to ensure transparency and procedural fairness in the protection of GIs and to ensure that the grant

of GI protection does not deprive interested parties of the ability to use common names,

particularly with respect to protection granted pursuant to trade agreements. The United States

continues to engage with Mexico and urges Mexico to fully implement the USMCA and to address

long-standing concerns, including with respect to enforcement against counterfeiting and piracy,

protection of pharmaceutical-related IP, pre-established damages for copyright infringement and

trademark counterfeiting, and enforcement of IP rights in the digital environment.

PAKISTAN

Pakistan remains on the Watch List in 2023. Pakistan has maintained a positive dialogue with the

United States on intellectual property (IP) matters and engaged in meaningful capacity-building

and training programs to promote IP protection and enforcement in Pakistan. Pakistan’s

Intellectual Property Organization (IPO) also continues to make efforts to coordinate various

government bodies involved in IP. Nonetheless, serious concerns remain, particularly in the area

of IP enforcement. Counterfeiting and piracy remain widespread, including with respect to

pharmaceuticals, printed works, digital content, and software. Reports of numerous cable

operators providing pirated content are also prevalent. Pakistan’s establishment of IP Tribunals in

three cities in 2016 was a welcome development, but plans to create new tribunals in other cities

have not moved forward. Moreover, litigants with experience in these tribunals have raised

concerns over the lack of capacity, inconsistency of rulings, nominal fines, a general lack of

expertise among tribunal judges, and confusion over standards by which courts review tribunal

decisions. In addition, judicial bodies in Pakistan have limited jurisdiction to adjudicate criminal

complaints for IP violations. Effective trademark enforcement also continues to be a challenge

due to the lack of ex officio authority to take criminal enforcement actions without a right holder’s

complaint. Nonetheless, the Competition Commission of Pakistan has made some progress in

cases involving counterfeit trademarks and other trademark-related anti-competitive violations.

The reconstituted IP Policy Board, established by the IPO Act, met once in 2021 and not again

until a new IP Policy Board was reconstituted in January 2023. The United States urges Pakistan

to conduct regular meetings of the Board. On IP enforcement, addressing the lack of deterrent-

level penalties and a sustained focus on judicial consistency and efficiency are critical to moving

forward. A strong and effective IPO will support Pakistan’s reform efforts. The IPO continues to

face challenges in coordinating enforcement among different government agencies and operates at

levels well below approved staffing. The Office of the United States Trade Representative, in

conjunction with the U.S. Patent and Trademark Office (USPTO), the U.S. Copyright Office, and

the Commercial Law Development Program (CLDP), provided technical advice on draft

amendments to the Patent, Trademark, and Copyright Ordinances. The trademark amendment bill

is proceeding through the legislative process. However, further engagement on the amendments

has stalled, and the timeline for enactment of all of the amendments is unclear. The United States

encourages Pakistan to continue to work bilaterally, including through USPTO capacity-building

programs, CLDP programs, and Trade and Investment Framework Agreement meetings, and make

further progress on IP reforms, with a particular focus on aligning its IP laws, regulations, and

enforcement regime with international best practices. As Pakistan amends its IP laws, the United

States encourages Pakistan to undertake a transparent process that provides stakeholders with

sufficient opportunity to comment on draft laws. The United States also welcomes Pakistan’s

interest in joining international treaties, such as the World Intellectual Property Organization

(WIPO) Performances and Phonograms Treaty (WPPT) and WIPO Copyright Treaty (WCT),

collectively known as the WIPO Internet Treaties, and the Patent Cooperation Treaty.

PARAGUAY

Paraguay remains on the Watch List in 2023. Paraguay remains a major transshipment point for

counterfeit and pirated goods. Ciudad del Este, which is listed in the 2022 Review of Notorious

Markets for Counterfeiting and Piracy (Notorious Markets List), serves as one of the main

distribution and sales hubs for counterfeit goods in the region and has reportedly become a home

to manufacturing and “finishing” facilities for counterfeit goods. Although right holders report

strong intellectual property (IP) enforcement efforts by Dirección Nacional de Propiedad

Intelectual (DINAPI), the IP Prosecutor’s Office, and the Economic Crimes Unit of the National

Police, these efforts are overshadowed by the scale of the IP enforcement challenges, particularly

challenges with effective and consistent prosecutions and judicial actions. Paraguay also has an

interagency coordination center to address IP violations and to improve coordination among

agencies. The United States urges Paraguay to ensure transparency and procedural fairness in the

protection of geographical indications (GIs) and to ensure that the grant of GI protection does not

deprive interested parties of the ability to use common names, particularly as Paraguay proceeds

with the European Union-Mercosur Trade Agreement. In September 2022, the United States and

Paraguay agreed on an IP Work Plan that will serve as a roadmap to address issues on the

protection and enforcement of IP rights in Paraguay. The United States looks forward to

continuing to work with Paraguay to address outstanding IP issues through bilateral engagement,

including through the IP Work Plan.

PERU

Peru remains on the Watch List in 2023. The primary reasons are the long-standing

implementation issues with the intellectual property (IP) provisions of the United States-Peru

Trade Promotion Agreement (PTPA), particularly with respect to Articles 16.11.8 and

16.11.29(b)(ix). The United States urges Peru to implement fully its PTPA obligations and

recognizes the steps that Peru has begun to take on establishing statutory damages. Peru has

introduced a draft bill addressing statutory damages for copyright and trademark infringement, but

the legislation remains pending with a ministerial working group and has not significantly

progressed in 2022. With respect to IP enforcement, Peru took a number of positive steps in 2022.

Stakeholders have noted that Peru’s National Institute for the Defense of Competition and the

Protection of Intellectual Property (INDECOPI) serves as a model for strong IP enforcement

practices in the Andean region, despite limited resources. INDECOPI has increasingly taken

action to fine individuals and legal entities that violate Peru’s copyright laws. However,

stakeholders have raised concerns regarding the introduction of Proyecto de Ley 878/2021-CR,

known as the General Internet Bill, arguing that the legislation needs amendments to require

Internet service providers (ISPs) to expeditiously take down infringing content and to provide

adequate legal incentives for ISPs to work in conjunction with right holders to take down infringing

content. The United States recognizes Peru’s efforts to increase the number of prosecutions against

piracy and counterfeiting, particularly its efforts with respect to the sale of counterfeit medicines.

The United States urges Peru to continue these efforts and to expand the imposition of deterrent-

level fines and penalties for counterfeiting and piracy more broadly. The United States further

encourages Peru to continue its public awareness activities about the importance of IP protection

and enforcement. The United States also continues to encourage Peru to enhance its border

enforcement measures and to continue to build the technical IP-related capacity of its agencies,

law enforcement officials, prosecutors, and judges. The United States looks forward to continuing

to work with Peru to address outstanding issues, particularly with respect to full implementation

of the PTPA, in 2023.

THAILAND

Thailand remains on the Watch List in 2023. Thailand continues to make significant progress on

improving intellectual property (IP) protection and enforcement. In August 2022, amendments to

its Copyright Act entered into force, which included notice-and-takedown provisions intended to

address infringement online and prohibitions against circumvention of technological protection

measures. The amendments also allowed Thailand to accede in July 2022 to the World Intellectual

Property Organization (WIPO) Copyright Treaty (WCT), which subsequently entered into force

with respect to Thailand in October 2022. The United States continues to urge Thailand to

complete the amendment process to accede to the WIPO Performances and Phonograms Treaty

(WPPT). In September 2022, Thailand established the “Thai Customs IPR Recordation System,”

a new online recordation database that allows right holders to file confidential information with

Customs that would allow customs officers to verify the authenticity of copyrighted or

trademarked goods being imported, being exported, or in transit. A subcommittee on enforcement

against IP infringement, led by a Deputy Prime Minister, regularly convenes, and agencies have

signed an action plan to identify physical markets and other areas for high-priority enforcement

actions against counterfeit and pirated goods. Right holders continue to use Thailand’s 2021

memorandum of understanding (MOU) with e-commerce platforms to report online listings of

counterfeit products. In 2022, Thailand established another MOU between right holders and online

advertisers to combat the sale of counterfeit goods online and online piracy. Thailand has also

taken a number of successful enforcement actions against online piracy, particularly through

enhanced intra-agency coordination, though stakeholders remain concerned about delays in

follow-on criminal prosecutions. Thailand remains in the process of amending its Patent Act to

streamline the patent registration process, to reduce patent backlog and pendency, and to help

prepare for accession to the Hague Agreement Concerning the International Registration of

Industrial Designs. While Thailand is making progress in these areas, concerns remain.

Counterfeit and pirated goods are still readily available, particularly online, and the United States

urges Thailand to continue to improve on its provision of effective and deterrent enforcement

measures, especially against upstream suppliers. In addition, the United States urges Thailand to

consider additional amendments to its Copyright Act to address concerns expressed by the United

States and other foreign governments and stakeholders, including regarding procedural obstacles

to enforcement against unauthorized camcording, unauthorized collective management

organizations, and a process established by the 2022 Copyright Act amendments that may lead to

overly broad exceptions to the circumvention of technological protection measures. The United

States also encourages Thailand to persist in efforts to address the issue of online piracy by devices

and applications that allow users to stream and download unauthorized content. Thailand should

also address the backlog in pending patent examinations in particular sectors. Other U.S. concerns

include continued use of unlicensed software in the private sector, lengthy civil IP enforcement

proceedings, and low civil damages. U.S. right holders have also expressed concerns regarding

legislation that allows for content quota restrictions for films. Stakeholders also continue to

encourage Thailand to provide an effective system for protecting against the unfair commercial

use, as well as unauthorized disclosure, of undisclosed test or other data generated to obtain

marketing approval for pharmaceutical and agricultural chemical products. The United States

looks forward to continuing to work with Thailand to address these and other issues through the

United States-Thailand Trade and Investment Framework Agreement and other bilateral

engagement.

TRINIDAD AND TOBAGO

Trinidad and Tobago remains on the Watch List in 2023. In 2022, the Telecommunications

Authority of Trinidad and Tobago (TATT) continued to conduct audits of compliance with the

concessions agreement it requires of domestic broadcasters, which mandates respect for

intellectual property (IP). The concessions agreement prohibits broadcasters from transmitting

any program, information, or other material without first obtaining all required permissions from

relevant IP right holders. Although there is reportedly a high level of compliance among

broadcasters, TATT has yet to take any enforcement action against the remaining non-compliant

broadcasters. Specifically, the United States remains concerned about the lack of enforcement

action against the two state-owned telecommunications networks that continue to violate the

agreement, both of which broadcast unlicensed U.S. over-the-air signal content as part of their

commercial television subscription packages. In other areas, Trinidad and Tobago made progress

with respect to IP protection and enforcement. In 2022, through efforts such as the

operationalization of the National Intellectual Property Training Centre of Trinidad and Tobago,

the country increased training sessions on IP enforcement and prosecution for customs and police

authorities. Furthermore, Trinidad and Tobago continues to improve the capabilities of its Anti-

Illicit Trade Task Force and, in 2022, worked with United States Customs and Border Protection

and the World Intellectual Property Organization (WIPO) on the creation of a Customs Recordal

System for IP rights to combat counterfeits at the point of entry. The United States will monitor

TATT’s enforcement of the concessions agreement with broadcasters and will continue to engage

with Trinidad and Tobago to address these and other IP issues.

TURKEY

Turkey remains on the Watch List in 2023. Over the last few years, Turkey has worked to

strengthen its intellectual property (IP) regime, including through continued implementation of the

2016 Industrial Property Law that, among other things, increases criminal sanctions for importing

and exporting counterfeit goods and enhances authorities’ ability to destroy counterfeit goods. An

updated copyright law has also been under review, as has a five-year, government-wide IP strategy.

In addition, the Turkish Patent and Trademark Office increased its number of patent and trademark

examiners. Despite these positive developments, right holders continue to have concerns

regarding overall IP protection and enforcement in Turkey. U.S. companies report that Turkey’s

national pricing and reimbursement policies for pharmaceutical products suffer from a lack of

transparency and procedural fairness. Stakeholders continue to express concerns over vagueness

in the interpretation of Industrial Property Law No. 6769. Stakeholders also continue to raise

concerns that Turkey does not adequately protect against the unfair commercial use, as well as

unauthorized disclosure, of test or other data generated to obtain marketing approval for

pharmaceutical products, and has not done enough to reduce regulatory and administrative delays

in granting marketing approvals for products. Furthermore, the United States urges Turkey to

establish an effective mechanism for the early resolution of potential pharmaceutical patent

disputes. The United States encourages Turkey to fully implement its obligations under the World

Intellectual Property Organization (WIPO) Performances and Phonograms Treaty (WPPT) and

WIPO Copyright Treaty (WCT), collectively known as the WIPO Internet Treaties, and develop

effective mechanisms to address online piracy. The United States continues to encourage Turkey

to require that collective management organizations adhere to fair, transparent, and non-

discriminatory procedures. Turkey remains a significant source of, and transshipment point for,

counterfeit and pirated goods across a variety of industry sectors, and is one of the world’s largest

sources of counterfeit medicines and apparel. This has continued throughout 2022 with

stakeholders continuing to report high levels of counterfeit good production and purchasing.

Furthermore, right holders continue to note the use of unlicensed software by some government

agencies, as well as high levels of online piracy. Turkey’s enforcement processes are hampered

by procedural delays, insufficient personnel staffing, and poor cooperation between the police,

Ministry of Trade, Customs, and prosecutors, as well as laws that contain lax penalties and

inadequate procedures. Stakeholders also report that a lack of IP training for the judiciary and

burdensome evidence requirements for search warrants continue to hamper enforcement efforts.

The Turkish National Police should be given ex officio authority over trademark violations, as well

as other tools they currently lack, to help enhance IP enforcement capabilities. The United States

will seek to engage with Turkey to address these and other issues.

TURKMENISTAN

Turkmenistan remains on the Watch List in 2023. While the adoption of a Programme of

Development of the Intellectual Property System of Turkmenistan for 2021-2025, issuance of a

Presidential resolution on the establishment of an interdepartmental commission for the protection

of intellectual property (IP), and participation at meetings of the Intellectual Property Working

Group under the United States-Central Asia Trade and Investment Framework Agreement (TIFA)

are positive steps, Turkmenistan’s lack of tangible progress in recent years in raising its IP

protections to international standards remains concerning. Several long-standing IP concerns

raised in previous Special 301 Reports remain unaddressed. Although some government agencies

have started to use licensed software, Turkmenistan has yet to issue a presidential-level decree,

law, or regulation mandating the use of licensed software by government ministries and agencies.

Additionally, Turkmenistan has yet to modernize its copyright protection for foreign sound

recordings, including through accession to and implementation of the World Intellectual Property

Organization (WIPO) Performances and Phonograms Treaty (WPPT) and WIPO Copyright Treaty

(WCT), collectively known as the WIPO Internet Treaties. The United States continues to

encourage Turkmenistan to undertake legislative IP reforms, including to provide ex officio

authority for its customs officials and to improve its enforcement procedures. The United States

also continues to have concerns with Turkmenistan’s reported failure to enforce its IP laws.

Counterfeit and pirated goods reportedly remain widely available in major cities in Turkmenistan.

Publishing the activities of the State Service for Intellectual Property and providing data pertaining

to the seizures facilitated by the State Customs Service would provide transparency that may help

inform and enhance IP enforcement in Turkmenistan. The United States stands ready to assist

Turkmenistan in improving its IP regime through engagement facilitated by the Intellectual

Property Working Group under the United States-Central Asia TIFA.

UZBEKISTAN

Uzbekistan remains on the Watch List in 2023. In recent years, Uzbekistan has taken important

steps to address certain long-standing issues pertaining to intellectual property (IP) protection and

enforcement. In particular, accession in 2019 to the World Intellectual Property Organization

(WIPO) Performances and Phonograms Treaty (WPPT) and WIPO Copyright Treaty (WCT),

collectively known as the WIPO Internet Treaties, represents progress toward improving the

political attention to IP, including Uzbekistan’s support for and participation in the Intellectual

Property Working Group under the United States-Central Asia Trade and Investment Framework

Agreement (TIFA); the establishment of regional IP Protection Centers; and plans, as announced

in the National Strategy for the Development of IP in April 2022, to ensure Uzbekistan’s IP regime

meets its international obligations. Although Uzbekistan took steps in 2022 toward providing ex

officio authority for border enforcement, Uzbekistan needs to take further steps to provide full ex

officio authority. In addition, several concerns raised in the 2022 Special 301 Report remain

unaddressed. The United States encourages Uzbekistan to continue improving its copyright

statutory framework, including through providing adequate protection for foreign sound

recordings and implementing the WIPO Internet Treaties. Also, Uzbekistan needs to make

progress to address other long-standing concerns, including by mandating government use of

licensed software via presidential decree, law, or regulation.

VIETNAM

Vietnam remains on the Watch List in 2023. Vietnam took steps to improve intellectual property

(IP) protection and enforcement, including amending its Intellectual Property Law in June 2022

and acceding to the World Intellectual Property Organization (WIPO) Performances and

Phonograms Treaty (WPPT) and WIPO Copyright Treaty (WCT), collectively known as the WIPO

Internet Treaties, in April 2022 and November 2021 respectively. Right holders also welcomed

greater engagement with enforcement authorities and increases in Vietnam Customs’ border

enforcement in certain areas. However, IP enforcement continues to be a serious challenge. While

Vietnamese authorities initiated a criminal investigation against the operators of Phimmoi.net, the

investigation has stalled. There are almost no criminal investigations or prosecutions, even though

Vietnam has criminal laws imposing substantial fines and years of incarceration for copyright and

trademark infringement. Vietnam continues to rely heavily on administrative enforcement actions,

which have consistently failed to deter widespread counterfeiting and piracy. In particular, online

piracy, including the use of illicit streaming devices and associated piracy applications to access

unauthorized audiovisual content, remains a significant concern. Moreover, although Vietnam

issued a decree to address the online sale of counterfeit goods, the trafficking of pirated and

counterfeit goods through e-commerce sites and elsewhere online remains a serious problem.

Counterfeit goods remain widely available in physical markets as well. According to right holders,

weak IP enforcement in Vietnam is due to poor coordination among ministries and agencies

responsible for enforcement, delays in investigations and court proceedings, and the lack of

familiarity with IP law among police, prosecutors, and judges. The United States is closely

monitoring and engaging with Vietnam on the ongoing implementation of amendments to the 2015

Penal Code with respect to criminal enforcement of IP violations. In addition, right holders have

raised concerns about trademark application backlogs. Furthermore, Vietnam’s system for

protecting against the unfair commercial use, as well as the unauthorized disclosure, of undisclosed

test or other data generated to obtain marketing approval for pharmaceutical products needs

clarification. The United States is also monitoring the implementation of IP provisions pursuant

to Vietnam’s commitments under trade agreements with third parties. The European Union-

Vietnam Free Trade Agreement (EVFTA) grandfathered prior users of certain cheese terms from

the restrictions in the geographical indications (GIs) provisions of the EVFTA, and it is important

that Vietnam ensure market access for prior users of those terms who were in the Vietnamese

market before the grandfathering date of January 1, 2017. The United States urges Vietnam to

engage on and address these issues and to provide interested stakeholders with meaningful

opportunities for input as it proceeds with these reforms. The United States will continue to press

on these and other IP issues with Vietnam through the United States-Vietnam Trade and

Investment Framework Agreement and other bilateral engagement.

ANNEX 1: Special 301 Statutory Basis

Pursuant to Section 182 of the Trade Act of 1974, as amended by the Omnibus Trade and

Competitiveness Act of 1988, the Uruguay Round Agreements Act of 1994, and the Trade

Facilitation and Trade Enforcement Act of 2015 (19 U.S.C. § 2242), the Office of the United States

Trade Representative (USTR) is required to identify “those foreign countries that deny adequate

and effective protection of intellectual property rights, or deny fair and equitable market access to

United States persons that rely upon intellectual property protection.”

The United States Trade Representative shall only designate as Priority Foreign Countries those

countries that have the most onerous or egregious acts, policies, or practices and whose acts,

policies, or practices have the greatest adverse impact (actual or potential) on the relevant U.S.

products. Priority Foreign Countries are subject to an investigation under the Section 301

provisions of the Trade Act of 1974. The United States Trade Representative may not designate a

country as a Priority Foreign Country if it is entering into good faith negotiations or making

significant progress in bilateral or multilateral negotiations to provide adequate and effective

protection of intellectual property (IP). The United States Trade Representative is required to

decide whether to identify countries within 30 days after issuance of the annual National Trade

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.

To aid in the administration of the statute, USTR created a Priority Watch List and Watch List

under the Special 301 provisions. Placement of a trading partner on the Priority Watch List or

Watch List indicates that particular problems exist in that country with respect to IP protection,

enforcement, or market access for persons relying on IP rights. Countries placed on the Priority

Watch List are the focus of increased bilateral attention concerning the specific problem areas.

The Trade Facilitation and Trade Enforcement Act of 2015 requires USTR to develop “action

plans” for each foreign country that USTR has identified for placement on the Priority Watch List

and that has remained on the list for at least one year. The action plans shall include benchmarks

to assist the foreign country to achieve, or make significant progress toward achieving, adequate

and effective IP protection and fair and equitable market access for U.S. persons relying on IP

protection. USTR must provide to the Senate Finance Committee and to the House Ways and

Means Committee a description of the action plans developed for Priority Watch List countries

and any actions taken by foreign countries under such plans. For those Priority Watch List

countries for which an action plan has been developed, the President may take appropriate action

if the country has not substantially complied with the benchmarks set forth in the action plan.

Section 306 of the Trade Act of 1974 requires USTR to monitor a trading partner’s compliance

with measures that are the basis for resolving an investigation under Section 301. USTR may take

trade action if a country fails to implement such measures satisfactorily.

The Trade Policy Staff Committee, in particular the Special 301 Subcommittee, in advising the

USTR on the implementation of Special 301, obtains information from and holds consultations

with the private sector, civil society and academia, U.S. embassies, foreign governments, and the

U.S. Congress, among other sources.

ANNEX 2: U.S. Government-Sponsored

Technical Assistance and Capacity Building

In addition to identifying intellectual property (IP) concerns, this Report also highlights

opportunities for the U.S. Government to work closely with trading partners to address those

concerns. The U.S. Government collaborates with various trading partners on IP-related training

and capacity building around the world. Domestically and abroad, bilaterally and in regional

groupings, the U.S. Government remains engaged in building stronger, more streamlined, and

more effective systems for the protection and enforcement of IP.

The Office of Policy and International Affairs (OPIA) of the U.S. Patent and Trademark Office

(USPTO) conducts programs through its Global Intellectual Property Academy (GIPA) in the

United States, around the world, and through distance learning to provide education, training, and

capacity building on IP protection, commercialization, and enforcement. These programs,

conducted for the benefit of U.S. stakeholders, are offered to patent, trademark, and copyright

officials, judges and prosecutors, police and customs officials, foreign policy makers, and

U.S. right holders. OPIA-designed GIPA programs are frequently conducted in collaboration with

Intellectual Property Attaches and other U.S. Government agencies.

Other U.S. Government agencies bring foreign government and private sector representatives to

the United States on study tours to meet with IP professionals and to visit the institutions and

businesses responsible for developing, protecting, and promoting IP in the United States. One

such program is the Department of State’s International Visitor Leadership Program, which brings

groups from around the world to cities across the United States to learn about IP and related trade

and business issues.

Internationally, the U.S. Government is also active in partnering to provide training, technical

assistance, capacity building, exchanges of best practices, and other collaborative activities to

improve IP protection and enforcement. The following are examples of these programs:

• In Fiscal Year (FY) 2022, USPTO developed and delivered capacity-building programs

that addressed a full range of IP protection and enforcement matters, including enforcement

of IP rights at national borders, online piracy, express mail shipments, trade secrets,

programs were very limited during this time, training efforts continued as USPTO

continued to provide live online training by leveraging various technologies. During

FY 2022, USPTO provided 222 programs, serving over 18,633 individuals, including over

11,000 government officials representing 161 countries and intergovernmental

organizations. More information is available at www.uspto.gov/GIPA.

• In addition, the USPTO’s OPIA provides capacity building in countries around the world

and has formed partnerships with 31 national, regional, and international IP organizations,

such as the Japan Patent Office, European Patent Office, German Patent and Trademark

Office, government agencies of China, the Mexican Institute of Industrial Property, the

Korean Intellectual Property Office, the Association of Southeast Asian Nations (ASEAN),

the Oceania Customs Organisation (OCO), the African Regional Intellectual Property

Organization (ARIPO), the Organisation Africaine de la Propriété Intellectuelle (OAPI),

and the World Intellectual Property Organization (WIPO). These partnerships help

establish a framework for joint development of informational and educational IP content,

technical cooperation, and classification activities.

• The Department of Commerce’s International Trade Administration (ITA) Office of

Standards and Intellectual Property (OSIP) leads and manages the United States

government interagency STOPfakes program, which helps U.S. companies navigate IP

processes globally. STOPfakes presents Roadshows across the country with over 10

United States government partner agencies. These Roadshows are day-long, in-depth

seminars for U.S. companies focused on guidance regarding protecting IP at home and

abroad. U.S. companies can also find specific IP information on the STOPfakes.gov

website, including valuable resources on how to protect patents, copyright, trademarks, and

trade secrets as well as targeted information about protecting IP in more than 80 global

markets. The website also includes IP highlights on industry- and policy-specific IP topics,

including the newest resource, the Clean Technology Industry toolkit. Consumers can also

find webinars focused on best practices to protect and enforce IP in China. In addition to

STOPfakes, ITA develops and shares small business tools to help domestic and foreign

businesses understand IP and initiate protective strategies. Under the auspices of the

Transatlantic Intellectual Property Rights Working Group, ITA collaborates with the

European Union’s Directorate-General for Trade to identify areas of cooperation to help

protect IP in third countries as well as in the United States and the EU. All of the ITA-

developed resources, including the United States-EU TransAtlantic Portal, as well as

information and links to the other programs identified in this Annex, are accessible via

www.STOPfakes.gov. ITA also manages the STOPfakes Twitter account,

@STOPfakesGov, which publicizes the release of new resources, live-tweets the

STOPfakes Roadshows, and supports IP social media posts from other agencies.

• In FY 2022, the Homeland Security Investigations (HSI)-led National Intellectual Property

Rights Coordination Center (IPR Center) conducted IPR Investigative Methods Training

programs in Egypt, Kenya, and South Africa. These programs included representatives

from Botswana, Egypt, Eswatini, Kenya, Lesotho, and South Africa and were supported

by U.S. Customs and Border Protection (CBP), USPTO, the Department of Justice (DOJ)

International Computer Hacking and Intellectual Property Advisors (ICHIPs), and other

U.S. federal agencies. Additionally, the IPR Center, with support from the Department of

State, participated in 12 IP-related international training programs sponsored by the

USPTO and the ICHIPs for audiences from Algeria, American Samoa, Argentina, Bahrain,

Bangladesh, Bhutan, Bulgaria, Cambodia, Commonwealth of the Northern Mariana

Islands, Fiji, Guam, India, Indonesia, Jordan, Kenya, Laos, Malaysia, Maldives, Mongolia,

Montenegro, Morocco, Myanmar, Nepal, Oman, Pakistan, Panama, Paraguay, Peru, the

Philippines, Romania, Sri Lanka, Thailand, Tunisia, and Vietnam.

• CBP officials assigned to the IPR Center participate in many engagements with public,

private, and international stakeholders hosted by any of the IPR Center’s 27 partner

agencies. In FY 2021, despite pandemic related slow-downs, CBP participated in one

meeting with a global toy company and two international delegations. These engagements

promoted U.S. leadership in customs matters, illuminated current trends and issues in

global IP protection, and developed trade intelligence for further review.

• CBP routinely joins HSI training programs and engagements overseas. In FY 2021, this

integrated support included providing training, titled Customs Enforcement of Intellectual

Property Rights at the Border, to foreign officials in the Dominican Republic. The

audience included representatives from Aruba, Bahamas, Barbados, Cayman Islands,

Curacao, the Dominican Republic, Guadeloupe, Haiti, Jamaica, Sint Maarten, St. Kitts and

Nevis, Trinidad and Tobago, Turks and Caicos, and the U.S. Virgin Islands.

• The Department of State provides foreign assistance anti-crime funds each year to U.S.

Government agencies that provide cybercrime and IP enforcement training and technical

assistance to foreign governments. The agencies that provide such training include the

DOJ, USPTO, CBP, and ICE. The U.S. Government works collaboratively on many of

these training programs with the private sector and with various international entities, such

as WIPO and the International Criminal Police Organization (INTERPOL). Department

programs feature deployment of a global network of ICHIPs, experienced DOJ attorneys

dedicated to building international cooperation and delivering training. Additionally, the

State Department leads the U.S. delegation to the Organization for Economic Co-operation

and Development’s Task Force on Countering Illicit Trade, working to establish best

practices in free trade zones and addressing the challenges that illicit trade poses.

• IP protection is a priority of the government-to-government technical assistance provided

by the Department of Commerce’s Commercial Law Development Program (CLDP).

CLDP programs address numerous areas related to IP, including legislative reform,

enforcement, adjudication of disputes, IP protection and its impact on the economy, and IP

curricula in universities and law schools, as well as public awareness campaigns and

continuing legal education for lawyers. CLDP supports capacity building in creating and

maintaining an innovation ecosystem, including technology commercialization as well as

in patent, trademark, and copyright examination and management in many countries

worldwide. CLDP also works with the judiciary in various trading partners to improve the

skills to effectively adjudicate IP cases and conducts interagency coordination programs to

highlight the value of a whole-of-government approach to IP protection and enforcement.

• Every year, DOJ, with funding from and in cooperation with the Department of State and

other U.S. Government agencies, provides technical assistance and training on IP

enforcement issues to thousands of foreign officials around the globe. As noted above,

much of this occurs through the ICHIP programs, which includes a dozen prosecutors, two

agents, and two forensic examiners. Topics covered in training programs include:

investigating and prosecuting IP cases under various criminal law and criminal procedure

statutes; disrupting and dismantling organized crime networks involved in trafficking in

pirated and counterfeit goods; fighting infringing goods that represent a threat to public

health and safety; combatting online piracy; improving officials’ capacity to detain, seize,

and destroy illegal items at the border and elsewhere; increasing intra-governmental and

international cooperation and information sharing; working with right holders on IP

enforcement; and obtaining and using electronic evidence. Major ongoing initiatives

include programs in Africa, the Americas, Asia, and Central and Eastern Europe.

• The U.S. Copyright Office hosts international visitors, including foreign government

officials, to discuss and exchange information on the U.S. copyright system, including law,

policy, and registration and recordation functions, as well as various international copyright

issues. In particular, in September 2022, through its Office of Policy and International

Affairs (PIA), the U.S. Copyright Office co-hosted with WIPO its bi-annual International

officials from twenty-one countries to learn from government, private industry, and civil

society experts on contemporary issues in copyright law and policy. Participants explored

the benefits of registration systems; the role of libraries, museums, and archives; licensing

digital works; and best practices for interagency cooperation, among other topics.

The United States reports to the World Trade Organization (WTO) on its IP capacity-building

efforts, including most recently in September 2022 (see Technical Cooperation Activities:

Information from Members—United States of America, IP/C/R/TC/USA/3 at

https://docs.wto.org/dol2fe/Pages/SS/directdoc.aspx?filename=q:/IP/CRTC/USA3.pdf&Open=T

rue). The United States also reports annually on international IP capacity building and training in

the annual report issued by the U.S. Intellectual Property Enforcement Coordinator pursuant to

Section 304 of the PRO IP Act of 2008 (15 U.S.C. § 8114), issued most recently as the Annual

Intellectual Property Report to Congress in April 2023. The report is available at

https://www.whitehouse.gov/wp-content/uploads/2023/04/FY22-IPEC-Annual-Report_Final.pdf.