U.S. Strengthens the Legal Tools to Combat Illegal Trade
Earlier this month, it was announced that President Obama will sign the Trade Facilitation and Trade Enforcement Act of 2015. The Act empowers U.S. Customs and Border Protection (CBP) to seek the assistance of copyright and trademark owners to determine if imported goods infringe trademarks and copyrights recorded with CBP. In addition, the Act specifically expands CBP’s authority regarding enforcement against attempts to import technology, products, devices or components that are intended to circumvent protection measures to protect copyrighted content.
This legislation also adds a new section to the broad and general provision of the Tariff Act regarding the “Exhange of Information Related to Trade Enforcement” and strengthens an additional section on “Forfeitures and Other Penalties,” stating that merchandise may be seized and forfeited if CBP concludes that “it is a technology, product, service, device, component, or part thereof the importation of which is prohibited under subsection (a)(2) or (b)(1) of section 1201 of title 17, United States Code.” New provisions also address the ability to make information on merchandise, packaging, labels and sample items available to trademark and copyright owners in unredacted form.
At its core, this legislation includes copyright owners as beneficiaries of the new information sharing by CBP. Although CBP issued final regulations in September 2015 regarding what it may provide to trademark owners, it did not have the force of statutory language behind it.
Perhaps most notable, the Act adds greater clarity to CBP’s enforcement to stop the attempted importation of circumvention devices. In addition to clarifying CBP’s authority, new language adds that CBP may also seek the assistance of persons who may be able to determine if a suspect device is “primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under that title” or “primarily designed or produced for the purpose of circumventing protection afforded by a technological measure that effectively protects a right of an owner of a copyright.” In cases involving circumvention devices, the disclosure information to persons who may be able to assist CBP is the same as that for trademark and copyright owners.
Finally, the Act directs the Department of Homeland Security (DHS) to implement a process whereby copyright owners who have submitted an application to register their works to have the benefit of the disclosure provisions of the Act. DHS would have 180 days from the date of enactment of this Act to implement the process.
CBP is likely to engage in regulatory drafting to implement the disclosure provisions. Trademark owners can take advantage of the new provisions immediately in view of the September 2015 regulation that, for the most part, implement the statutory provision. Copyright owners should consult with CBP once the Act is signed by the President.
For more on the Trade Facilitation and Trade Enforcement Act of 2015, please refer to the latest edition of Customs Enforcement of Intellectual Property Rights, from my coauthor Vicki Allums and published by Thomson Reuters.
This post was written by Timothy Trainer, coauthor of Customs Enforcement of Intellectual Property Rights. Trainer also is the founder of the Global Intellectual Property Strategy Center, P.C., a consulting firm representing domestic and international clients, in Washington, D.C.