Context
Recently, the US Trade Representative’s 2024 Special 301 Report has been released that has again included India in the ‘Priority Watch List’ of countries, along with China, Russia, Venezuela, Indonesia, Chile and Argentina.
US puts India on Priority Watch List
- Over the years (including 2020 and 2021), India has been listed in this Report.
- There has been progress under the US-India Trade Policy Forum in addressing issues with trademark infringement investigations and pre-grant opposition proceedings, but numerous long-standing concerns remain as per the US Trade Representative’s 2024 Special 301 Report.
Reasons for placing India on Priority Watch List
- For alleged problems related to Intellectual Property (IP) protection and enforcement.
- Intellectual Property Rights (IPR): IPRs are the legal privileges granted to the inventor or creator to safeguard their intellectual work (in the arts, sciences, literature, etc.) for a specific period of time.
- Maintenance of High Customs Duties: India maintains high customs duties directed to IP-intensive products such as information and communications technology (ICT) products, solar energy equipment, medical devices, pharmaceuticals, and capital goods.
- Patent Issues: Threat of patent revocations and the procedural and discretionary invocation of patentability criteria under the Indian Patents Act impact companies across different sectors.
- Also, patent applicants continue to confront long waiting periods to receive patent grants and excessive reporting requirements. Stakeholders continue to express concerns over vagueness in the interpretation of the Indian Patents Act.
- Various Challenges: These include inadequate IP enforcement, including high rates of online piracy, an extensive trademark opposition backlog, and insufficient legal means to protect trade secrets.
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India’s Stance
- Strict Adherence to Laws: India has always maintained that its intellectual property laws were in strict adherence to the WTO’s Trade Related Intellectual Property Rights (TRIPS) Agreement and that it was not bound by any global rules to make changes in its laws.
- Trade-Related Aspects of Intellectual Property Rights (TRIPS): TRIPS is an agreement under the WTO that establishes minimum standards for intellectual property protection across member countries. It covers various forms of intellectual property, including patents, copyrights, trademarks, and trade secrets.
- No Threat: No action is threatened by the US against countries on the ‘priority watch list’, but if a country slips further and is categorized as a ‘priority country’, the US may impose ‘retaliatory’ measures.
About “Special 301” Report
- An Annual Report: The USTR releases the Special 301 Report annually, highlighting the state of IP protection and enforcement regimes in various countries it trades with.
- It is mandated by Section 182 of the US Trade Act of 1974.
- Deals with: This annual review reflects the US Administration’s resolve to encourage and maintain enabling environments for innovation, including effective IP protection and enforcement, in markets worldwide, which benefit not only U.S. exporters but the domestic IP-intensive industries in those markets as well.
- Classification: Based on this review, the U.S. Trade Representative determines which, if any, of these countries to identify as Priority Foreign Countries or place on the Priority Watch List or Watch List.
- Priority Watch List: This list includes countries that face the most serious allegations of inadequate IP protection and enforcement.
- The USTR may initiate formal trade investigations or impose sanctions if they fail to demonstrate significant improvements.
- Watch List: This list includes countries that the US believes merit bilateral attention to address underlying IP problems but are better than the “priority watch list” countries.
- This year, Twenty trading partners are on the ‘watch list’.
- These are Algeria, Barbados, Belarus, Bolivia, Brazil, Bulgaria, Canada, Colombia, Ecuador, Egypt, Guatemala, Mexico, Pakistan, Paraguay, Peru, Thailand, Trinidad and Tobago, Türkiye, Turkmenistan, and Vietnam.
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Required Actions
- Full Implementation of Norms: India still needs to fully implement the WIPO Internet Treaties and ensure that copyright statutory licences do not extend to interactive transmissions.
- Collaboration: To combat such issues, there is a need for establishment of a Joint IP Commission with representatives from government, industry and academia.
- Focus on Capacity Building: India needs to enhance its capacitive building capacity while taking help from the examples of other countries, such as the US-Mexico-Canada Agreement (USMCA), which includes provisions for technical assistance on IP enforcement.
- Transparency: Both India and the US need to promote increased transparency in IP decision-making processes.
- Establishment of Efficient Dispute Resolution Mechanisms: Time has come to establish a streamlined arbitration mechanism for resolving IP disputes between companies, similar to the IP arbitration provisions within the Singapore-India Comprehensive Economic Cooperation Agreement (CEPA).
Also Read: Patent and Patent Rules in India
April 29, 2024
