Toothless Trade? Implications of the Federal Circuit’s ClearCorrect Decision for the Enforceability of Intellectual Property Protections in Digital Trade under USMCA

Digital trade is growing faster than trade in goods and services and comprises a key area for innovation and intellectual property concerns. The United States-Mexico-Canada Agreement (“USMCA”) acknowledged this development by including chapters devoted to both digital trade and intellectual property. In 2015, the Federal Circuit held that the International Trade Commission (“ITC”) does not have jurisdiction over unfairly traded digital goods. Without exclusion orders issued by the ITC, the United States lacks a powerful tool to enforce the USMCA provisions protecting intellectual property in unfairly traded digital goods. This comment explores the implications of the Federal Circuit’s 2015 ClearCorrect decision for the United States’s enforcement obligations under USMCA and provides options to intellectual property rights holders and practitioners interested in protecting the domestic industry’s digital goods from intellectual property rights infringement