UNITED STATES: Trade Facilitation and Trade Enforcement Act of 2015 Strengthens Enforcement of IP Rights at U.S. Borders
This article first appeared here in the INTA Bulletin on August 1, 2016 and was reprinted with permission from the International Trademark Association (INTA).
—By Paul Llewellyn
On February 24, 2016, U.S. President Barack Obama signed into law the Trade Facilitation and Trade Enforcement Act of 2015. In addition to provisions strengthening enforcement of trade agreements and U.S. trade laws, the law improves the ability of U.S. Customs and Border Protection (CBP) to work with trademark owners to address the unlawful importation of counterfeit goods.
Under current U.S. law, prior to the detention of suspected counterfeit goods, CBP is authorized in its discretion to disclose to a trademark owner certain limited information relating to the suspected merchandise, namely, the date of importation, the port of entry, a description of the merchandise, the quantity involved, and the country of origin of the merchandise. In the event of a detention, CBP is required to disclose such information within 30 days.
Under the new statute, CBP is required to disclose identifying information to a trademark owner any time that CBPsuspects that merchandise is counterfeit (provided the trademark at issue is recorded with CBP, and that disclosure will not compromise an ongoing law enforcement investigation). In particular, upon suspicion that merchandise is counterfeit, CBP “shall provide to [the trademark owner] information that appears on the merchandise and its packaging and labels, including unredacted images of the merchandise and its packaging and labels.” Consistent with existing law, CBP also may provide the brand owner with samples of the merchandise for inspection. This mandatory disclosure of information (including images of the merchandise and packaging at issue) earlier in the CBP examination process should provide CBP with a greater ability to identify and seize counterfeit merchandise, and should provide brand owners with increased notice of importation of potential counterfeits and a greater voice in the counterfeit screening process.
Among other things, the law also officially codifies the National Intellectual Property Rights Coordination Center, empowering it to coordinate investigations of intellectual property infringement, collect information regarding infringements from domestic and international law enforcement agencies, disseminate information to federal agencies, assist in international interdictions, develop an alert system to target repeat offenders, and assist with the prosecution of crimes relating to intellectual property infringements.
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