Have Your Say About ‘Notorious Markets’

Trade Update • AUGUST 16, 2021

The Office of the United States Trade Representative is seeking comments that identify online and physical markets to be considered for inclusion in the 2021 Review of Notorious Markets for Counterfeiting and Piracy (Notorious Markets List). The Notorious Markets List identifies examples of online and physical markets that reportedly engage in and facilitate substantial copyright piracy or trademark counterfeiting.

Background

An outgrowth of the USTR’s annual Special 301 Report, since 2010 the Notorious Markets List has been separately published as an Out-of-Cycle Review. USTR develops the List based on public comments and in consultation with an interagency committee.

USTR invites written comments concerning examples of online and physical markets that reportedly engage in and facilitate substantial copyright piracy or trademark counterfeiting that infringe on U.S. intellectual property.

Current ‘Issue Focus’

Written comments are also being sought that highlight the “issue focus” for the 2021 Notorious Markets List, which is the adverse impact of counterfeiting on workers involved with the manufacture of counterfeit goods.

In this regard, USTR notes that “some governmental and intergovernmental organization reports suggest that counterfeit goods often may be 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.” Accordingly, the submission of research, studies, reports, evidence, and business or personal experience on this topic is being solicited.

Scope of Comments

To facilitate the review, written comments should be as detailed as possible. Comments must clearly identify the market and the reasons why the commenter believes that the market should be included in the Notorious Markets List. Commenters should include the following information, as applicable:

For Physical Markets:

• The market’s name and location, e.g., common name, street address, neighborhood, shopping district, city, etc., and the identity of the principal owners/operators.

For Online Markets:

• The domain name(s) past and present, available registration information, and name(s) and location(s) of the hosting provider(s) and operator(s).
• Information on the volume of internet traffic associated with the website, including number of visitors and page views, average time spent on the site, estimate of the number of infringing goods offered, sold, or traded and number of infringing files streamed, shared, seeded, leeched, downloaded, uploaded, or otherwise distributed or reproduced, and global or country popularity rating (e.g., Alexa rank).
• Revenue sources such as sales, subscriptions, donations, upload incentives, or advertising and the methods by which that revenue is collected.

For Physical & Online Markets:

• Whether the market is owned, operated, or otherwise affiliated with a government entity.
• Types of counterfeit or pirated products or services sold, traded, distributed, or otherwise made available at that market.
• Volume of counterfeit or pirated goods or services or other indicia of a market’s scale, reach, or relative significance in a given geographic area or with respect to a category of goods or services.
• Estimates of economic harm to right holders resulting from the piracy or counterfeiting and a description of the methodology used to calculate the harm.
• Whether the volume of counterfeit or pirated goods or estimates of harm has increased or decreased from previous years, and an approximate calculation of that increase or decrease for each year.
• Whether the infringing goods or services sold, traded, distributed, or made available pose a risk to public health or safety.
• Any known contractual, civil, administrative, or criminal enforcement activity against the market and the outcome of that enforcement activity.
• Additional actions taken by right holders against the market such as takedown notices, requests to sites to remove URLs or infringing content, cease and desist letters, warning letters to landlords and requests to enforce the terms of their leases, requests to providers to enforce their terms of service or terms of use, and the outcome of these actions.
• Additional actions taken by the market owners or operators to remove, limit, or discourage the availability of counterfeit or pirated goods or services, including policies to prevent or remove access to such goods or services, or to disable seller or user accounts, the effectiveness of market policies and guidelines in addressing counterfeiting and piracy, and the level of cooperation with right holders and law enforcement.
• Any other additional information relevant to the review.

Submission Instructions & Dates

All submissions must be in English and sent electronically via Regulations.gov, referencing docket number USTR-2021-0013.  Additional instructions, including alternatives to online submissions, are detailed in the Federal Register notice.

October 11, 2021, at 11:59 p.m. ET: Deadline for submission of written comments.

October 25, 2021, at 11:59 p.m. ET: Deadline for submission of rebuttal comments and other information USTR should consider during the review.