USTR Solicits Comments on Notorious Markets for Counterfeiting and Piracy

Aug. 31, 2021

    The Covid-19 pandemic has led to a much-publicized global expansion in the e-commerce field, with increasing numbers of people choosing to purchase goods and services over the internet (either voluntarily or due to public health restrictions). The numbers speak for themselves: in the U.S. alone online spending increased 44% year-over-year in 2020, equaling $861.12 billion in total spending or 21.3% of total retail sales for the year. This shifting commercial landscape has further underscored the need to address a growing issue in the e-commerce space, the rise of counterfeit goods sold online. Different industries have reported anywhere between 40% to 54% year-over-year increases in 2020 in the number of counterfeit products sold through online channels.

    On August 30, 2021, the United States Office of the Trade Representative (“USTR”) published notice soliciting comments for its 2021 Review of Notorious Markets for Counterfeiting and Piracy. USTR’s annual list of Notorious Markets for Counterfeiting and Piracy (“Notorious Markets List”) represents one prong in the multifaceted approach taken by the U.S. government to curb the online sale of counterfeit goods. While USTR has published its yearly list since 2006, prevailing commercial trends have brought a magnified importance to this year’s review and the corresponding comment process. It is important that all potentially affected stakeholders take part in this process.

    Pursuant to Section 301 of the Trade Act of 1974, USTR has the legal authority to “address practice that have had significant adverse impact on the value of U.S. innovation.” The Notorious Markets List identifies examples of online and physical markets that reportedly engage in and facilitate substantial copyright piracy or trademark counterfeiting that infringes on U.S. intellectual property. While the Notorious Markets List does not purport to make “{f}indings of legal violations nor does it reflect the U.S. Government’s analysis of the general IP protection and enforcement climate in particular countries or economies”, this list is often used as a springboard to focus and coordinate the efforts of both foreign governmental and private sector entities interested in cracking down on piracy and counterfeiting. The Notorious Markets List published by USTR for the year 2020 included 39 online markets and 17 physical markets.

    USTR’s notices requests that interested parties participate in this year’s review by submitting “comments concerning examples of online and physical markets that reportedly engage and facilitate substantial copyright piracy or trademark counterfeiting”. This year’s review has an additional “issue focus” relating to counterfeit goods that are “produced in unsafe workplaces with substandard and unsafe materials, by workers who often may be paid little or sometimes nothing in the case of forced labor.” USTR invites the submission of research, studies, reports, evidence, and business or personal experience on this topic. 

    All submission must be in English and sent electronically via Regulations.gov. The deadline for submission of written comments is October 11, 2021, with the submission of rebuttal comments due on October 25, 2021. If you have information or views on this topic that you would like USTR to consider in drafting its Notorious Markets List, and questions about what this process entails, please do not hesitate to contact an attorney at Barnes, Richardson & Colburn, LLP to lend their support in helping to prepare your submission.