USICA / COMPETES in Limbo

While many in Congress remained hopeful that the House and Senate could reach an agreement in a Conference Committee to advance a compromise between the Senate-passed U.S. Innovation and Competition Act and the House-passed America COMPETES Act, those efforts have reportedly bogged down. The legislation, which was originally aimed at boosting American competitiveness against China and boosting domestic manufacturing has hit numerous speedbumps over the past few months.

With negotiations stalled as of mid-July, the Democratic leadership in the Senate is said to be contemplating a scaled-back version of the legislation, including provisions of the Creating Helpful Incentives to Produce Semiconductors (CHIPS) for America Act. Republican leadership has meanwhile signaled that they will seek to block even those components of the bill in response to a Democratic push to revive parts of President Biden’s “Build Back Better” plan through the budget reconciliation process. Meanwhile some House Democrats are reportedly pressing for a vote on the Senate-passed USICA bill; a proposal that has, thus far, been roundly rejected by party leaders.

Much hangs in the balance as the political maneuvering continues – the Senate legislation included provisions mandating increased inspections by CBP for counterfeit imports, along with additional reporting obligations in connection with those efforts; the publication of criteria by USTR used in connection with the designation of “notorious markets; the publication by USTR of action plans for all countries named to the agency’s Priority Watch List during its annual Special 301 review; and an expansion of CBP’s authority to share relevant IP enforcement data with rights-holders and other stakeholders. The House version included both the SHOP SAFE Act and the INFORM Consumers Act – both geared at reigning in rampant online sales of counterfeits by creating best practices for implementation by e-commerce platforms.

Each of these provisions is now in limbo, with Congress’ August recess and mid-term elections looming. We will continue to monitor these developments and urge the House and Senate to find a path forward for commonsense improvements to our IP protection and enforcement regimes.

USTR’s Annual Notorious Markets Review

As we move further into summer, we’ve begun to prepare for the Office of the U.S. Trade Representative’s annual request for comments in connection with its annual Special 301 Out-of-Cycle Review of Notorious Markets.

As you’re no doubt aware, each year, USTR prepares a report to Congress highlighting the threats to legitimate manufacturers, retailers and consumers posed by the illicit sale of counterfeit and pirated goods through both physical and online marketplaces around the world. That report is based largely on the input provided to USTR by stakeholders, drawn from their direct experiences in dealing with those marketplaces.

As implied by its name - the Notorious Markets List shines a spotlight on those marketplaces that are seen as the most significant concerns to intellectual property owners. In doing so, USTR seeks to encourage the owners and operators of those markets to adopt more effective policies and procedures for combating illicit sales, and in turn, fostering legitimate commerce.

Though no formal announcement has been made yet regarding this year’s timeline, we urge you to begin taking stock of your company’s enforcement efforts online and off, so that you’re able to provide meaningful input for this process.

To facilitate your provision of feedback, I'd ask that you take a few minutes to complete a brief questionnaire for each marketplace for which you would recommend including comments to USTR.

For your reference, USTR's most recent Notorious Markets Report is available for your review here.

The IACC's comments in support of that report are available here.

If you have any questions regarding this matter or would like to contribute to our efforts, please contact me at your earliest convenience, via email: tjohnson@iacc.org.