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IP on Rocky Trail: The USTR Special 301 Report Flags Countries for Non-compliance in IP

Last week, the Office of the United States Trade Representative (USTR) published the 2018 Special 301 Report identifying countries that do not effectively protect and/or enforce Intellectual Property Rights. Surprisingly, this year, Colombia was downgraded to the lowest-performing category, the Priority Watch List, due to its failure to fulfil its obligations under the U.S. - Colombia Trade Promotion Agreement (CTPA). According to the report, “Colombia also needs to make other improvements with respect to the implementation of significant IP-related commitments under the CTPA, including commitments to address the challenges of online piracy and accession to UPOV 91.” Notwithstanding the obligation of Colombia to accede UPOV 91, it should be mentioned that this nation de facto complies with the provisions of the UPOV 91 Act. Learn more - The CIOPORA PBR Colombia Factsheet. Under the same category, Chile continues to raise concerns of the Trump Administration, especially regarding the lack of compliance to the U.S. - Chile FTA that came into force in 2004. Pursuant to Article 17.1 (3) of said FTA, Chile committed to acceed to the 91 Act of UPOV. According to the report, “the United States continues to urge Chile to ratify and implement the (…) UPOV 91 and improve protection for plant varieties.” The USTR put ten more countries under the category “Priority Watch List”, including Algeria, Argentina, Canada, China, India, Indonesia, Kuwait, Russia, Ukraine, and Venezuela; and 24 countries under the category “Watch List”: Barbados, Bolivia, Brazil, Costa Rica, Dominican Republic, Ecuador, Egypt, Greece, Guatemala, Jamaica, Lebanon, Mexico, Pakistan, Peru, Romania, Saudi Arabia, Switzerland, Tajikistan, Thailand, Turkey, Turkmenistan, the United Arab Emirates, Uzbekistan, and Vietnam. This year’s report is characterized by a more assertive tone in regard to IP protection, suggesting the readiness of the Trump Administration to push for further negotiation or re-negotiation of bilateral or multilateral trade agreements with view to guarantee for effective protection of Intellectual Property Rights. In regard to the other countries mentioned in both categories, the 2018 Special 301 Report reads: Argentina remains on the Priority Watch List in 2018. The main points of concern include the far from perfect Argentine’s patent system and the lack of effective IP enforcement, such as ex officio actions by the police as well as delays in prosecutions and red tape. Unfortunately, the report does not mention PBR or the urgency of Argentina’s accession to the UPOV 91. For the 14th consecutive year, China appears on the Priority Watch List in 2018. However, the ten-page country report on this nation does not mention either the Chinese PBR system or the lack of effective protection for plant varieties. Nevertheless, the Report acknowledges the steps that have been undertaken by China, including the establishment of the specialized IP courts and tribunals, also competent in the area of Plant Variety Rights.

Ecuador remains on the Watch List in 2018. USTR acknowledges the change of the Ecuadorian Institute of Intellectual Property (IEPI) into the National Service for Intellectual Rights (Senadi), possibly allocating more resources and staff. However, USTR still expresses concerns with the levels of IP protection under the Ecuadorian IP Code and the lack of effective anti-infringement measures.

Mexico remains on the Watch List in 2018, mainly due to the high number of IP infringement cases. The USTR recommends a set of measures to improve the enforcement system in Mexico, i.a. by a better coordination among federal and sub-federal levels, investment of additional resources, introduction of deterrent penalties against infringers. The subject of PBR protection in Mexico is not mentioned in the Report.

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