Ambassador Lighthizer Urged to Include Intellectual Property Protections in New NAFTA

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As China’s intellectual property practices continue on to be a centerpiece of the Trump Administration’s trade policy, Senate Finance Committee Chairman Orrin Hatch (R-Utah) and Senate Finance Committee Member Bill Nelson (D-Florida) on Friday urged U.S. Trade Representative Lighthizer to include strong copyright protections in U.S. trade agreements, including the new NAFTA.  Digital trade and intellectual property are both topics that the USTR has expected to address in the negotiations.

In February, the American Bar Association Section of Intellectual Property Law also requested that the new NAFTA require increased protections in trade secrets, trademarks, copyrights, and patents.   The proposals included: that Canada and Mexico establish criminal penalties for trade secrets violations similar to those in the U.S. Economic Espionage Act, an agreement that Mexico eliminate its requirement that trademarks be visible, a prohibition on the lowering of minimum standards of patent protection, the creation of a more unified approach to medical patents, increased penalties for copyright infringement, and an agreement to increase the training and resources allotted to customs agents to allow for more robust enforcement of counterfeit goods.

Canada and Mexico remained on the USTR’s Intellectual Property Watch List in the 2017 Special 301 Report.  The 2018 Report has not yet been publicized, but a variety of concerns were raised in the 2018 Special 301 Hearing.

Concerns enumerated in the 2017 report regarding Canadian intellectual property included, for example, a lack of protection for geographical indicators in trademark, the Minister of Health’s broad discretion in the disclosure of confidential information, and a lack of clarity on patent requirements in Canadian courts.

Likewise, despite recent improvements in procedures for the registration of trademarks, Mexico’s intellectual property laws remain an area of concern given the decline in seizures of goods that violate intellectual property rights, widespread availability of pirated and counterfeit goods, and a copyright regime that is not equipped to adequately handle digital trade.

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