Today, the United States Trade Representative (“USTR”) concludes its annual collection information from the public regarding markets outside of the United States that should be included in the 2016 “Notorious Markets” List. Published annually, USTR’s Notorious Markets List identifies both Internet and physical markets that are reported to engage in and facilitate substantial copyright piracy and trademark counterfeiting.
Alibaba Group Holding Ltd. (“Alibaba Group”) has yet again found itself on the defensive as it has been identified by various commenters as operating a notorious market. Alibaba Group is China’s largest e-commerce company; its various online marketplaces bring together buyers and sellers for a host of goods – including potentially counterfeit merchandise. USTR initially identified two of Alibaba Group’s online forums, Alibaba.com and Taobao.com, as notorious markets in 2008, but later removed them in 2011 and 2012, respectively, based on efforts that Alibaba Group made to combat the sale of counterfeit goods.
Nonetheless, USTR stated in its 2015 report that it was “increasingly concerned by rights holders’ reports that Alibaba Group’s enforcement program is too slow, difficult to use, and lacks transparency.” USTR also outlined steps Alibaba Group should take to improve its measures, but ultimately chose not to re-list any Alibaba Group forums. Still, many U.S. rightsholders are not convinced that Alibaba Group has cleaned up its act, and a number of groups have submitted comments this year urging USTR to re-list Alibaba Group’s various online platforms in its 2016 report. Specifically, the American Apparel & Footwear Association, the Auto Care Association, Maus Freres International Services S.A.S., the Motor & Equipment Manufacturers Association, the Specialty Equipment Market Association, the Trademark Working Group, and Union des Fabricants have all identified Alibaba Group’s online marketplaces as being rife with counterfeit goods and having insufficient measures in place to identify and combat the sale of such goods. While Alibaba Group has submitted comments to USTR in response identifying steps it has taken to improve its intellectual property enforcement efforts, it remains to be seen whether USTR will consider these steps sufficient to prevent it from being re-listed.
The enforcement of intellectual property rights is an important aspect of enabling companies to compete in the global market place on a level playing field. USTR’s annual review of its Notorious Markets List presents an important opportunity for U.S. companies and the associations that represent them to provide USTR with information that may not otherwise be available to the government and which may assist the government in taking steps to help protect and enforce U.S. companies’ rights here and abroad. Copies of the written comments that have been submitted are available at www.regulations.gov under Docket Number USTR-2016-0013.