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The U.S. government is soliciting comments that identify online and physical markets based outside of the United States that reportedly engage in and facilitate substantial copyright piracy and trademark counterfeiting. The deadline for submitting comments is October 1, 2018. Rebuttal comments are due October 15, 2018. The comments are being solicited for the 2018 Notorious Markets List (the "List"). The List is being compiled by the Office of the U.S. Trade Representative (USTR). If you are a company with brands and valuable intellectual property content, this is something for you – it provides an opportunity to influence and inform U.S. policymakers who can assist you in your intellectual property enforcement efforts.

The Notorious Markets List

The United States recognizes that copyright piracy and trademark counterfeiting on a commercial scale cause significant financial losses for U.S. intellectual property rights holders. The List seeks to identify select online and physical marketplaces that reportedly engage in or facilitate piracy and trademark counterfeiting. The List was started in 2006 as part of USTR's Special 301 Report on intellectual property. Given the growing importance of protecting U.S. intellectual property rights, starting in February 2011 the List began to be published separately from the Special 301 Report.

The List helps U.S. rights holders with enforcement efforts by encouraging owners and operators of markets reportedly involved in piracy and counterfeiting to adopt business models that rely on the licensed distribution of legitimate content. The List also enables USTR to identify government resources that can assist with enforcement efforts. The List is not a legal finding and does not reflect the U.S. government's view regarding the general climate for intellection property protection in a certain jurisdiction. Rather, it is tool to help identify specific online and physical markets that reportedly infringe U.S. intellectual property rights.

What Is Being Requested

To the extent known, written comments should include such information as the following:
  • If a physical market, 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.
  • If an online market:
    • 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); and
    • Revenue sources, such as sales, subscriptions, donations, upload incentives, or advertising, and the methods by which that revenue is collected.
  • Whether the market is owned, operated, or otherwise affiliated with a government entity.
  • The types of counterfeit or pirated products or services sold, traded, distributed, or otherwise made available at that market.
  • The 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.

Comments may include business confidential information but are not required to do so. To the extent that you have questions on this or want to know how this process can work better for you, please call a member of the team at Venable to assist.