cbp’s intellectual property rights (ipr) border
TRANSCRIPT
CBP’s Intellectual Property Rights (IPR) Border Enforcement Regime:
What the Florida Broker Community Needs to Know
ROADMAP• Introduction to CBP’s IPR Enforcement• CBP e‐Recordation Program• Overview of IP Border Enforcement Procedure• Legal Enforcement Authorities • Disclosure and Timelines• Counterfeiting trends• Regulatory Activity • Questions/Appendix
CBP’s Interest in IP Enforcement
• IPR is one of seven CBP Priority Trade Issues (PTIs)• PTIs represent high‐risk areas that:
• cause significant revenue loss;• harm the U.S. economy; and/or• threaten the health and safety of the American people
• IPR infringement, specifically:• threatens US economic competitiveness and livelihood of U.S. workers• implicates national security• threatens the health and safety of unsuspecting consumers• funds criminal activity and transnational criminal organizations (TCO)
IPR Seizure Statistics
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CBP’s IP Border Enforcement Authority
• CBP is the primary federal agency responsible for securing American’s borders; this includes civil enforcement of Intellectual Property Rights (IPR)
• CBP has independent authority (ex officio) to examine, detain, seize and/or exclude merchandise at US ports of entry that violate recorded IP rights
• CBP has the authority to make infringement determinations, forfeit merchandise imported in violation of U.S. trade laws, impose penalties, and ultimately destroy infringing goods
• RECORDATION is the cornerstone of TMK and COP protection at the border
Customs andBorder
Protection
Office of FieldOperations
Office of Trade
Main CBP Offices Involved in IP Enforcement
Office of Field Operations IP Enforcement Structure
OFO
Centers
CBP Officers/Inspectors
Fines Penalties and Forfeiture Officers Import Specialists Entry Specialists
Ports of Entry
20 CBP Field Offices
CENTERS OF EXCELLENCE & EXPERTISE
CBP created 10 industry‐specific Centers to increase uniformity at the ports, facilitate the timely resolution of trade compliance issues nationwide, and further strengthen the agency’s knowledge about industrypractices.
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Regulations & Rulings DirectorateDivisions based in Washington, DC and New York, NY
Commercial and Trade Facilitation Division
Border Security and Trade Compliance Division*
Regulations and Disclosure Law Division
National Commodity Specialist Division
IPR Branch, Regulations & Rulings, OT • Issue binding rulings, renders legal advice and administrative decisions on all customs law matters
• Provides advice to the field on IP and trade enforcement issues
• Administers ITC exclusion orders• Maintains IPRR, IPRS and IPRiS databases• Grants recordations; reviews applications for gray market protection andLever‐rule protection
• Provides training to the field and international customs organizations
What IP does CBP Enforce?
Trademark (ex officio)
Copyright (ex officio)
Utility Patent*
Design Patent*
Trade Secret* * only pursuant to an ITC exclusion order
CBP Ex Officio Seizure Authority
CBP Ex Officio Seizure Authority
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ITC Exclusion Order AdministrationTRADEMARK or COPYRIGHT based:
DESIGN PATENT or UTILITY PATENT based:
TRADE SECRETbased:
IPR Recordation
Registration v. RecordationRegistration relates to the official act of filing (1) a trademark with the U.S. Patent & Trademark office, or (2) a copyright with the U.S. Copyright Office for a federal registration.
Recordation refers to bringing a valid, federally registered right (trademark or copyright) to CBP (IPR Branch, R&R) in order to protect against the importation of infringing goods. 19 CFR § 133.1, et seq.
Distinction: Seizure is not always possible of goods that violate unrecorded rights.
Importance of Recordation• The longstanding CBP policy is to focus its IP enforcement efforts on recorded trademarks and copyrights
• The legal authorities for detaining, seizing and forfeiting merchandise are different depending on whether the trademark or copyright has been recorded with CBP
• Recorded trademarks and copyrights are afforded more protection than those that are unrecorded:
‐ Enforcement against “confusingly similar” marks‐ Right holders receive notice of the name and address of the parties associated with the seized goods (disclosure of information post‐seizure)
‐ 19 CFR 133.21 pre‐seizure exchange of information and images with CBP‐ §1526(f) penalty available to deter future violations
Electronic Application Processing
Registration Recordation
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Recordation data available to all 328 U.S. Ports of Entry, the moment a recordation is approved
IPRS Public Website Searchhttps://iprs.cbp.gov/#/
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IPRS: Public Site
Gray Market and Lever‐rule protection(1) Foreign made goods that; (2) bear a genuine trademark; (3) are intended for sale in a market other than the United States; (4) are imported without authorization from the U.S. trademark
owner; and+ [Lever‐rule: are physically and materially different]
(5) have applied for and received gray market protection from the IPR Branch, CBP/OT/Regulations & [email protected]
See 19 CFR § 133.23 for more information
In rem seizure authority• In civil IPR enforcement the action is taken against the goods themselves, and not the importer• Ex: United States v. 10,500 Computer Towers, United States v. One (1) Lotof Approximately Twenty Thousand (20,000) Pairs of Counterfeit Blue Jeans Bearing the Jordache Trademark
2-32 For Official Use Only
CBP’s IPR Enforcement Regime
ExaminationCBP is authorized to examine ANY shipment coming within the customs territory, regardless of entry type (in‐bond), and with or without any level of suspicion
• Three types of exams:‐ Non‐intrusive inspection systems: X‐ray and gamma imaging, rail gamma
imaging, radiation portal monitors, radiation detection pagers‐ Manual examination: physical tailgate examination, opening of
package(s), sampling ‐ Intensive examination: transportation and unloading at CES
EXAMINATION
• If a shipment is selected for examination the importer would have received notice • However, random examinations and/or inspections can occur when goods are off‐loaded, wherein merchandise is diverted to an examination station without prior notice to the importer
• Importers are responsible for covering all costs relating to the preparation and transportation of merchandise for examination, and storage costs
• With consolidated containers, all importers share the cost of the exam and/or storage fees• CBP does not share the reason a shipment was selected for examination
Timing under 19 U.S.C. §1499• 5 days from presentment to examine the merchandise + 5 days to make a decision to detain
• Notice to importer, in writing, must be given within 5 days of the decision to detain
• Detention will be for a period of up to 30 days from the date on which the merchandise was presented for examination . . .
• After which, if the article is not released, it will be deemed excluded for the purposes of 19 U.S.C. 1514(a)(4)
• CBP has 5 days from presentment to examine merchandise before the goods are deemed detained; detention must be in accordance with a reasonable suspicion that an IP violation exists
• If a suspect counterfeit mark is at issue and CBP needs the right holder’s assistance establishing authenticity, CBP may follow an accelerated disclosure process:
‐ the goods are detained (19 CFR 133.21);
‐ the importer is notified of the detention and that they have has 7 business days to come forward with evidence that use of the mark was authorized, otherwise unredacted images of the merchandise and its retail packaging, as well as a sample, may be provided to the right holder for their review;
‐ after 7 days, if the importer has not proven to CBP’s satisfaction that the merchandise is authorized to bear the protected mark, CBP may disclose potentially confidential business information to the right holder
Working with the Right Holder
• On the 31st day from the date the goods were presented for CBP examination, if CBP has taken no action the merchandise is deemed excluded for purposes of 19 U.S.C. §1514(a)(4)
• CBP can seize merchandise at any time after importation provided there is probable cause to believe the merchandise bears a counterfeit mark or piratical copy, unless a protest has been filed and adjudicated, or has been deemed denied
• CBP can request return of the goods to CBP custody within 30 days of release
Exclusion by operation of law
Within 30 days of the seizure of merchandise bearing a counterfeit mark or consisting of a piratical copy, CBP will disclose to the right holder the following comprehensive importation information, if available:
(1) The date of importation (2) The port of entry; (3) The description of the merchandise from the notice of seizure; (4) The quantity as set forth in the notice of seizure; (5) The country of origin of the merchandise; (6) The name and address of the manufacturer; (7) The name and address of the exporter; and (8) The name and address of the importer
Disclosure to owner of the mark, following seizure, of unredacted photographs, images, and samples
‐ After seizure of merchandise bearing a counterfeit mark, right holder can request photographs, images, or a sample of the seized merchandise and its retail packaging, in its condition as presented for examination
‐ To obtain a sample, right holders must post a bond in the form and amount specified by CBP, conditioned to indemnify the importer or owner of the imported article against any loss or damage
‐ The right holder must return the sample to CBP upon demand or at the conclusion of the examination, testing, or other use in pursuit of a related private civil remedy for infringement.
‐ In the event that the sample is damaged, destroyed, or lost while in the possession of the right holder, in lieu of return of the sample, they must certify to CBP that: “The sample described as [insert description] and provided pursuant to 19 CFR 133.21(f) was (damaged/destroyed/lost) during examination, testing, or other use.”
1. I request that CBP consider my petition administratively before forfeiture proceedings are initiated. My petition is attached.
2. I abandon the property and I request that CBP begin administrative proceedings to forfeit the property.
3. I request that CBP consider my offer in compromise administratively before forfeiture proceedings are initiated.
4. I request that CBP send my case for court action.
5. I request that CBP begin administrative proceedings to forfeit the property.
ELECTION OF PROCEEDINGS NON-CAFRA FORM
Remedies to Seizure
• The importer is provided with notice of what was seized, why it was seized and what recordation numbers are at issue
• Importer can request digital images of the seized merchandise or a sample, provided a bond is posted
• Importer elects to either (1) abandon the merchandise, (2) begin administrative forfeiture proceedings, (3) lodge an administrative appeal, or (4) proceed to judicial forfeiture
• Importer cannot pursue both administrative and judicial avenues of relief at the same time
• At any point in the administrative process importer can file a claim and cost bond and proceed directly to judicial forfeiture proceedings
Petitions for Relief• Importer has 30 days to file a petition for relief with local FP&F Officer• HQ IPR Branch will receive petitions if a certain monetary threshold is met, or importer specifically requests HQ review
• Upon CBP’s denial of the petition, importer has a second opportunity to obtain relief administratively by filing a Supplemental Petition for Relief
• Petitioner can obtain release of the goods if they can prove by a preponderance of evidence that the seized merchandise is not violative
• If the importer is unable to rebut the contention that the marks are counterfeit, the goods are forfeited through the administrative process.
Administrative Forfeiture in Practice• Most importers/claimants waive their rights to immediate forfeiture and elect to file a petition for administrative relief or file a claim and cost bond
• If neither remedy is sought CBP will proceed to forfeit the merchandise and will have to publish a notice of forfeiture:
• If the value of the seized merchandise exceeds $5,000, the notice will be published by its posting on an official Government forfeiture web site for at least 30 consecutive days, and CBPmay also publish it in a print medium.
• When the value of the merchandise is $5,000 or less both internet and print publication must occur
• All known parties‐in‐interest will be notified in writing of the Government website address where merchandise is listed and the date of internet publication
• After 3 consecutive weeks of publication the property is deemed forfeited (unless during that time a claim and cost bond is filed)
• When importer has exhausted their remedies CBP may impose a penalty for 19 U.S.C. §1526(e) violations (merchandise bearing a mark that is a counterfeit of a trademark recordedwith CBP)• Anyone involved any aspect of the importation of merchandise bearing a counterfeit mark may be liable for a 1526(f) penalty• CBP has broad authority to assess penalties, taking aggravating and mitigating factors into consideration
§1526(f) Penalties• 19 U.S.C. 1526(f)(1) specifically allows assessment against "any person who directs, assists financially or otherwise, or aids and abets the importation of merchandise...." This statutory language subjects all parties who exercise control over the import transaction to its application. These individuals may be named individually or jointly and severally in penalty notices.*
• For the first seizure of such merchandise, the fine shall be no more than the domestic value the merchandise would have had if it were genuine, based upon the manufacturer’s suggested retail price (MSRP) at the time of seizure.
• For second and subsequent violations, the fine shall not be more than twice such value.
• If the assessed or mitigated fine is not paid, CBP’s Chief Counsel’s Office can refer the case to the Department of Justice for collection.
• Three main possibilities for the final disposition of merchandise • Many options in effectuating such dispositions• Restrictions on disposition of counterfeit goods and those relating to consumer health and safety• Right holder must consent to donation or auction, and the violative mark must be removed prior to either disposition
Remission• CBP can remit, or return, the property upon payment of a monetary amount and costs associated with the seizure (e.g., storage) as well as upon execution of a Hold Harmless Agreement by the petitioner
• In many cases, of merchandise contrary to law under 19 U.S.C. 1595a(c), Customs will release the seized property upon payment of an amount within the following ranges:
First offense with mitigating, but no aggravating factors: payment of 10‐30% of the dutiable value of the seized goods.
First offense with aggravating factors or second offense with no aggravating factors: payment of 30‐50% of the dutiable value of the seized goods.
Second offense with aggravating factors or third/subsequent offense: payment of 50‐80% of the dutiable value of the seized goods.
Legal enforcement authorities
IP Violations & Legal Standards of Infringement• Counterfeit violation: “identical with or substantially indistinguishable from” the registered and recorded trademark
• “Confusingly similar” violation: suspect mark copies or simulates the protected trademark• Piratical copy: “substantially similar” to the protected work, such than it passes the “ordinary observer” test
• DMCA violative: Device primarily designed for circumventing copyright controls• Lever‐rule protected: trademark has been granted Lever‐rule protection and the merchandise at issue is physically and/or materially different from that intended to be sold in the United States
• Gray market protected: trademark has been granted gray market protection and the merchandise at issue is genuine, foreign made, gray market merchandise
• Subject to exclusion: falls within the scope of a Limited or General ITC Exclusion Order• Subject to SFO: subject to immediate seizure pursuant to an ITC Seizure & Forfeiture Order
Important to Distinguish . . .
• Prohibited merchandise: shall not be permitted entry into the United States, including in‐bond entries for T&E or IE, and is subject to seizure where and when the violation is discovered
• Restricted merchandise: may be permitted entry into the United States under certain conditions, as provided by law ‐type of entry is relevant to whether such goods are permitted entry
Categories of Merchandise
Prohibited Merchandise• Counterfeit• Piratical• DMCA violative• Subject to ITC Seizure & Forfeiture Order
Restricted Merchandise• Confusingly similar• Gray market or Lever‐rule protected
• Subject to exclusion per ITC LEO or GEO
Main IPR Seizure Statutes• 19 U.S.C. §1526(e)
Used only for goods bearing counterfeit marks• 19 U.S.C. §1595a(c)
Used for almost everything else:‐ goods bearing “confusingly similar” marks‐ gray market restricted/ Lever‐rule protected goods‐ §2320 trademark violations‐ piratical copyright violations ‐ DMCA violations
• 19 U.S.C. §1526(b)Used for restricted gray market goods
• 19 U.S.C. §1337(d)Used to exclude merchandise subject to an exclusion order
• 19 U.S.C. §1337(i)Used seize merchandise subject to an ITC Seizure and Forfeiture Order
Legal Standards for Enforcement Action
What is a “counterfeit” mark?
. . . a spurious mark which is identical with, or substantially indistinguishable from, a registered mark . . . (15 U.S.C. § 1127)
With an identical or substantially indistinguishable spurious mark, confusion is automatically presumed
Counterfeit violation• Detention authority19 CFR § 133.21(b)• Opportunity to obtain release19 CFR § 133.21(b)(2)(i) [7 day period – proof of authorization]• Seizure authority 19 U.S.C. § 1526(e)• Post‐ seizure disclosure 19 CFR § 133.21(e)Comprehensive importation information• Penalty 19 U.S.C. § 1526(f)
What is a “Confusingly Similar” mark?
• Neither “identical with” nor “substantially indistinguishable from” the recorded trademark, but instead “copies” or “simulates” the protected mark
• Likely to confuse an ordinarily prudent consumer into associating the source, sponsorship or affiliation of the product with the trademark owner
• Underlying violation of 15 U.S.C. §1124: Importation of goods bearing infringing marks or names forbidden
• Opportunity during the 30 day detention period to ‘cure’ the violation and obtain release
TMK 17‐00581
TMK 02‐00976
“Confusingly similar” trademark violation• Detention authority19 CFR § 133.22• Opportunity to obtain release19 CFR § 133.22(c) [obliteration/removal, right holder consent]• Seizure authority 19 U.S.C. § 1595a(c)(2)(C) for an underlying violation of 15 U.S.C. § 1124• Post‐ seizure disclosure None• PenaltyNone
Gray Market Goods(1) Foreign made goods; (2) Bear genuine trademark; (3) Intended for sale in a market other than the United States; and (4) Imported with or without authorization from the U.S. trademark
owner
General rule: The importation of gray market market goods is permissible unless the recorded mark has been specifically afforded “gray market” or Lever‐rule protection by CBP
Restricted Gray Market Goods(1) Foreign made goods that; (2) Bear a genuine trademark; (3) Are intended for sale in a market other than the United
States; (4) Are imported without authorization from the U.S. trademark
owner; and(5) Have applied for and received gray market or Lever‐rule
protection from the IPR Branch, CBP/OT/Regulations & Rulings
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Lever-rule Protection• Gray market protection is not available to those right holders who own the trademark abroad and/or share common control or ownership with the foreign owner(s) of the trademark
• Right owners who are denied standard gray market protection have the opportunity to obtain Lever‐rule protection from CBP
• If they establish that the goods that are not intended for sale in the US are physically and/or materially different from those so intended, CBP may restrict importation of such merchandise unless it bears a required label
• See 19 CFR 133.23(b)
Marking Requirement: 19 CFR § 133.23(b)
• “This product is not a product authorized by the United States trademark owner for importation and is physically and materially different from the authorized product.”
• Label must be in close proximity to the trademark as it appears in its most prominent location on the article itself or the retail package or container.
• Other information designed to dispel consumer confusion may also be added.
Gray market/Lever‐rule violation
• Detention authority19 CFR § 133.23• Opportunity to obtain release19 CFR § 133.23(b) [Lever‐rule labels, obliteration/removal, right holder consent]19 CFR § 133.23(d) [obliteration/removal, right holder consent]• Seizure authority 19 U.S.C. § 1526(b)• Post‐ seizure disclosure None• PenaltyNone
PIRATICAL COPYRIGHT
Legal Standard of InfringementSubstantial Similarity
Whether an ordinary observer would recognize the suspect work as having been taken from the work protected by a copyright (i.e., is the suspect work substantially similar to the work protected by a copyright?)
Suspect WorkProtected Work
Piratical Copyright violation
• Detention authority * CBP NPRM Enforcement of Copyrights 19 CFR § 133.43(a) and the Digital Millennium Copyright Act• Opportunity for release (October 16, 2019)None• Seizure authority 19 U.S.C. § 1595a(c)(2)(C) for an underlying violation of 17 U.S.C. § 602• Post‐ seizure disclosure 19 CFR § 133.42 Comprehensive import information • PenaltyNone
Digital Millennium Copyright ActProhibits importation of devices primarily designed for circumventing copyright controls, and have no commercially significant purpose otherwise
• Seizure authority 19 U.S.C. § 1595a(c)(2)(C) for an underlying violation of 17 U.S.C. § 1201• Post‐ seizure disclosure None• PenaltyNone
If the U.S. International Trade Commission finds violation of 19 U.S.C. §1337 (“Section 337”) it may issue an exclusion order
Two types of exclusion orders:
• Limited Exclusion Order (“LEO”): All goods of a certain description imported by a certain company or companiesmust be denied entry
• General Exclusion Order (“GEO”): All goods of a certain description must be denied entry, with specified exceptions
ITC Exclusion Orders
www.usitc.gov https://edis.usitc.gov/external/
Bonding pursuant to Exclusion Orders
• Collected during the 60 day review period• Single Entry Bonds; 19 CFR Appendix B to Part 113, Bond To Indemnify
Complainant Under Section 337, Tariff Act of 1930, as Amended• Uploaded to Document Imaging System (“DIS”)• Coordination between broker and IPR Branch• §1337(j): exclusion of articles from entry during investigation except under bond; procedures applicable; preliminary relief
§1337(j)
Exclusion• Importer will receive a Notice of Exclusion indicating available remedies, such as exportation, entry into a FTZ, or bonded warehouse
• Right holder (“Complainant”) is not notified of the exclusion• ITC may issue a Seizure & Forfeiture Order (SFO) against the importer applicable to future importations
• All SFOs are posted on the ITC website, accessible through the Electronic Document Information System (EDIS)
• EDIS accounts are free, and can be obtained at: https://edis.usitc.gov/external/register/registration.html
19 CFR Part 177 Ruling Request• CBP “will give full and careful consideration to written requests from importer and other interested parties for rulings or information setting forth, with respect to a specifically described transaction, a definitive interpretation of applicable law, or other appropriate information.”
• “Generally, a ruling may be requested under the provisions of this part only with respect to prospective transactions ‐that is, transactions which are not already pending,” or before an office of CBP.
Trademark / Copyright Enforcement
Ex officio authority to seize merchandise bearing an infringing trademark or copyright that has been recorded with CBP
Competent authority to render the infringement determination
Disclosure of five pillars of information to the right holder upon detention
Pre-seizure disclosure of confidential business information to the trademark owner, as well as a sample, under 133.21
Field officials may contact right holder for assistance authenticating merchandise
Post-seizure disclosure of importer, exporter and manufacturer information to the right holder in the case of seizures of counterfeit and piratical merchandise
No ex officio authority exclude patent infringing merchandise absent an ITC exclusion order covering the product, and no ex officio authority to seize patent infringing merchandise absent an ITC Seizure and Forfeiture Order
U.S. International Trade Commission adjudicates the patent infringement allegations and issues the order if it finds infringement
NO disclosure of information to the right holder (“Complainant”) in any circumstance, including following exclusion or seizure pursuant to a SFO
CBP cannot contact the right holder for any reason relating to enforcing an exclusion order, nor answer right holder’s inquiry as to how many exclusions have occurred
SFOs are posted on EDIS within the particular investigation
Forfeiture.gov will reveal forfeitures resulting from CBP seizures pursuant to an ITC SFO
Exclusion Order Enforcement
Disclosure in trademark and copyright cases
Permissible pre‐seizure disclosure
• Date of importation
• Port of entry
• Description of goods
• Quantity
• Country of origin
• Digital images of merchandise and/or its packaging (provided all identifying information is redacted)
Impermissible pre‐seizure disclosure
Name of importer, exporter or manufacturer;
Any information that might disclose the identity of these parties, i.e.:
• Product numbers• Bar codes• Manufacturing numbers• Serial numbers, SKU numbers, etc.
Trade Secrets Act 18 U.S.C. § 1905
Determining Authenticity
Determining authenticity
Helpful Documentation• License agreement with right owner• License/certificate from partner government agencies • Purchase orders and invoices • Evidence of place and date of manufacture• USPTO/USCO Registration Certificate • CBP Advance Ruling
If relevant:• Evidence of where and when components were purchased • Evidence that manufacturer of components was authorized to apply the protected trademarks at the time of manufacture
• Evidence that end product is authorized to bear the protected trademark
Online Directories
www.csagroup.org/us/en/services/testing‐and‐certification/certified‐product‐listing
www.bluetooth.org/en‐us/members/member‐directory
www.dvdfllc.co.jp/license/lifc/index.htm
www.intertek.com/directories/
www.hdmi.org/learningcenter/adopters_founders.aspx
http://www.ip.philips.com/licensing/
Detention under § 133.21CBP may contact the right holder if they need assistance establishing whether a suspect counterfeit mark was applied to the imported merchandise with authorization
Timing under 19 U.S.C. §1499• 5 days from presentment to examine the merchandise + 5 days to make a decision to detain
• Notice to importer, in writing, must be given within 5 days of the decision to detain
• Detention will be for a period of up to 30 days from the date on which the merchandise was presented for examination . . .
• After which, if the article is not released, it will be deemed excluded for the purposes of 19 U.S.C. 1514(a)(4)
Notice of Detention Under 133.21
• Issuance to importer with notification that they have 7 business days to come forward with evidence that use of the mark is authorized, otherwise disclosure of sensitive information to the right holder may occur
• Importer may request images and/or a sample of the merchandise at issue
• CBP can work with the importer to establish that the merchandise is authorized to bear the protected trademark
After 7 days . . . .If the importer has not proven to CBP’s satisfaction that the merchandise sought to be imported is authorized to bear the protected trademark or CBP can disclosure to the right holder the following:
• info. appearing on, and/or photographs of, the merchandise and/or its retail packaging, including labels, in its condition presented for examination
• CBP may release a sample, subject to bond and return requirements
• CBP must notify right holder that some or all of the info. being released may be subject to Trade Secrets Act and is being disclosed for the limited purpose of assisting CBP
Helpful Responses to CBP Requests for Authentication Assistance
• Response received within 24 hours, or confirmation of receipt and that a response will be forthcoming
• Reference a review of the digital images• Articulate specific factors derived from a visual review of the images• Link these factors to the conclusion that the mark was, or was not, applied to the imported merchandise with authorization
• “Only parties authorized to import”‐ type responses are not helpful, as all IP related seizures are in rem
Counterfeiting Trends 2020
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• NIOSH maintains an online directory listing ALL NIOSH approved respirators. https://wwwn.cdc.gov/niosh‐cel/
• NIOSH maintains an online directory of confirmed countefeit products: https://www.cdc.gov/niosh/npptl/usernotices/counterfeitResp.html#:~:text=Counterfeit%20Respirators%20%2F%20Misrepresentation%20of%20NIOSH%2DApproval,‐Updated%20September%2029&text=Counterfeit%20respirators%20are%20products%20that,appropriate%20respiratory%20protection%20to%20workers.
• A recording from the CDC discussing how to identify a counterfeit is available at: https://niosh‐connect.adobeconnect.com/paugggz8g1f0/?proto=true
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Risk Indicators• Country of origin • Low value• Hot/popular item names • First time importers• Goods seeking importation are unrelated to industry associated with the company’s name
• Mixed and unrelated commodities in shipment• Vague or general description of goods on invoice: “samples,” “household items,” “plastic toys,” “masks”
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REGULATORY ACTIVITY 2020
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DHS Report on Combatting Trafficking in Counterfeit and Pirated Goods
Best Practices for E‐Commerce Platforms and Third‐Party Marketplaces Foremost among these best practices is the idea that e‐commerce platforms, online third‐party marketplaces, and other third‐party intermediaries such as customs brokers and express consignment carriers must take a more active role in monitoring, detecting, and preventing trafficking in counterfeit and pirated goods.
Rulemakings and Procedures CBP has recently published two notices of proposed rulemaking related to the protection of intellectual property rights. In the first, CBP proposes to standardize the process by which customs brokers verify the identity of their clients, typically importers. The proposed regulations would formalize the verification process and require that a re‐verification process be carried out by brokers every year. This improved broker knowledge is designed to allow for better commercial fraud prevention and revenue protection, and to help prevent the use of shell or shelf companies by importers who attempt to evade the customs laws of the United States. Preventing the use of shell or shelf companies by importers would help reduce the misclassification of merchandise to avoid duties, protect against IPR violations, reduce antidumping/countervailing duty infractions, and reduce the importation of unsafe merchandise.
Customs Broker Verification of an Importer's Identity
Publication Date: 08/14/2019
Comments Closed as of 10/15/2019
Document Type: Proposed Rule
Document Citation: 84 FR 40302
Page: 40302-40317 (16 pages)
CFR: 19 CFR 111
Agency/Docket Number: USCBP-2019-0024
Document Number: 2019-17179
Available at: https://www.federalregister.gov/documents/2020/06/05/2020-04711/modernization-of-the-customs-brokers-regulations
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Modernization of the Customs Brokers RegulationsPublication Date: 06/05/2020
Comments Closed as of 08/04/2020
Document Type: Proposed Rule
Document Citation: 85 FR 34836
Page: 34836-34867 (32 pages)
CFR: 19 CFR 24; 19 CFR 111
Agency/Docket Number: Docket No. USCBP-2020-0009
Document Number: 2020-04711
Available at: https://www.federalregister.gov/documents/2020/06/05/2020-04711/modernization-of-the-customs-brokers-regulations
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QUESTIONS?
Intellectual Property Rights Branch
Regulations & Rulings DirectorateOffice of Trade, Washington DC
• Branch Chief [email protected]• IP Enforcement Matters: [email protected]• Recordation Questions: [email protected]
APPENDIX
Web resources for IP EnforcementFAQs on CBP recordation: https://iprr.cbp.gov/Content/Docs/instruction.pdf
CBP Recordation application: https://iprr.cbp.gov/
IPR Search: https://iprs.cbp.gov/#/
Informed Compliance Publication, CBP Enforcement of IPRhttps://www.cbp.gov/sites/default/files/assets/documents/2017‐Feb/enforce_ipr_3_0.pdf
How to update recordation information
• To update contact information, please submit a request on your firm/company’s letterhead via email to [email protected]
• To change the ownership of a recordation, access the IPRR application at https://iprr.cbp.gov and use the CHANGE OF OWNERSHIP online application form/button.
• To makes changes to licensees, countries of manufacture and/or ‘additional information,’ please submit a request on your firm/company’s letterhead, specifying the recordation number(s) you are seeking to modify, to [email protected]
Applicable Regulations
19 CFR Part 133 ‐ TRADEMARKS, TRADE NAMES, AND COPYRIGHTS• § 133.0 Scope.• Subpart A ‐ Recordation of Trademarks (§§ 133.1 ‐ 133.7)• Subpart B ‐ Recordation of Trade Names (§§ 133.11 ‐ 133.15)• Subpart C ‐ Importations Bearing Recorded Marks or Trade Names (§§ 133.21 ‐ 133.27)• Subpart D ‐ Recordation of Copyrights (§§ 133.31 ‐ 133.37)• Subpart E ‐ Importations Violating Copyright Laws (§§ 133.41 ‐ 133.46)• Subpart F ‐ Procedure Following Forfeiture or Assessment of Liquidated Damages (§§133.51 ‐ 133.53)
• Subpart G [Reserved]• Subpart H ‐ Donations of Intellectual Property Rights Technology and Related Support Services (§ 133.61)
Overview of Entry Authorities • Key Statutes:
− 19 U.S.C. § 1484: Entry of Merchandise − 19 U.S.C. § 1498: “Informal” Declaration and Entry of Merchandise
− 19 U.S.C. § 1500: Appraisement, Classification, and Liquidation Procedure
− 19 U.S.C. § 1501: Voluntary Reliquidations by CBP (w/in 90‐days/no protest)
− 19 U.S.C. § 1504: Limitation on Liquidation—Entries for Consumption; Drawback Claims; Extension to Liquidate; Suspension‐Notice/Removal
− 19 U.S.C. § 1505: Payment of duties and fees‐‐interest under (c)− 19 U.S.C. § 1508: Recordkeeping− 19 U.S.C. § 1514: Protests against decisions of CBP
Overview of Enforcement Authorities
• Seizures− CBP Takes Possession of Merchandise that is Subject to Seizure under Federal Statutes; Detentions Typically Precede Seizures (19 U.S.C. § 1499)
• Penalties− CBP Imposes a Monetary Penalty Against an Entity for a Violation of Laws Enforced by CBP
• Liquidated Damages− CBP Issues a Claim for Liquidated Damages for Breach of a Bond Condition under 19 CFR Part 113
Overview of Enforcement Authorities Key Seizure Statutes
‒ 19 U.S.C. § 1497: Undeclared Merchandise (“Smuggling”)‒ 19 U.S.C. § 1499: Examination of Merchandise (Detention PrecedesSeizure)
‒ 19 U.S.C. § 1526(e): Merchandise Bearing Counterfeit Marks‒ 19 U.S.C. § 1595a(c): A Wide Variety of Articles which Have Been Introduced or Attempted to be Introduced into the U.S. Contrary to Law
‒ 19 U.S.C. § 1595a(a): Conveyances or Other Things Facilitating Importation of Articles Contrary to Law
‒ 19 U.S.C. § 1595a(d): Articles Exported Contrary to LawOther Enforcement:19 U.S.C. § 1337: Unfair Practices in Import Trade
Overview of Enforcement Authorities
Key Penalty Statutes‒ 19 U.S.C. § 1592: Penalties for Fraud, Gross Negligence, Negligence‒ 19 U.S.C. § 1595a(b): Penalties for Introduction or Attempted Introduction of Articles Contrary to Law‒ 19 U.S.C. § 1509: Recordkeeping Penalties. See Appendix to Part 163—Interim (a)(1)(A) List‒ 19 U.S.C. § 1641: Penalties Against Customs Brokers‒ 19 U.S.C. § 1526(f): Penalties for Importation of Merchandise Bearing Counterfeit Marks
Major CBP Publications Federal Register (daily) “Official Notice to Public”
– Substantive and Procedural Rules (5 U.S.C. § 553)– Guidance: Statements of General Policy; Interpretations of
General Applicability– General Announcements
Customs Bulletin and Decisions (weekly)– Hard Copy Subscribers and Posted on www.cbp.gov– Reprints CBP Documents Published in FR (Rulemakings and
Notices)– Specific CBP Documents (Recordations; Quota; Currency Rates;
Ruling Revocations under § 1625) – Slip Opinions—CIT, Federal Circuit Court of Appeals
CROSS—Customs Rulings Online Search System (Over 200,000 Rulings)
Resources
Electronic (“FOIA”) Reading Room– Records Posted When Two or More Requests for the Same
Document are Received PODS ‐‐ Internal Policy, Handbooks, and CBP Directives ICPs—Informed Compliance Publications
– Restates Policy and Procedures Found in Other Official Publications: https://www.cbp.gov/trade/rulings/informed‐compliance‐publications
www.regulations.gov– Public Comments Submitted for Rulemakings
Programs Available to Recordation Holders
Product Identification Guides• Recordation holders have the ability to upload product identification guides, introducing their brand and providing information on how to identify genuine merchandise and distinguish it from others
• Product identification guides are posted on CBPʹs internal website, and used by CBP personnel to help evaluate suspect shipments
• Side‐by‐side comparisons of genuine vs. unauthorized goods may be provided
• All CBP personnel are governed by the Trade Secrets Act, 18 U.S.C. §1905, and cannot disclose this proprietary information
• For more information, and a sample guide, visit: https://www.cbp.gov/document/guidance/ipr‐product‐id‐training‐guide
IPR Product Identification Webinars• Right holders who conduct product identification trainings, either in‐person or online, see heightened identification of counterfeit goods.
• Trainings can now be conducted online, maximizing the number of CBP attendees, and allowing for question and answer periods.
• The webinars are recorded, and available for future viewing by CBP personnel
• The IPR MUST be recorded with CBP, a product ID guide must be current, and all materials must vetted prior to delivering the webinar
• To schedule online training events please contact the IPR Division at [email protected].
• For more information visit: https://www.cbp.gov/trade/priority‐issues/ipr/webinar
IP Authentication Technology• Through the Donations Acceptance Program (DAP) CBP is authorized to accept trade tools from right holders, such as IP authentication technology
• If interested in exploring partnership opportunities with CBP or for more information, please contact the DAP at [email protected]
• The DAP is authorized by 6 U.S.C. § 301a, and consistent with 19 CFR 133.61 as mandated by Section 308(d) of the Trade Facilitation and Trade Enforcement Act of 2015
Engage the Centers of Excellence and Expertise
• Suspected violations, as well as any questions about CBP operations should be directed to the appropriate Center of Excellence and Expertise.
http://www.cbp.gov/trade/centers‐excellence‐expertise‐information/cee‐directory
• Email [email protected] for assistance in determining which Center to contact.
Utilize e‐Allegations with actionable intelligence on illegal trade activity
https://eallegations.cbp.gov/
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Participation in CTPAT is voluntary and there are no costs associated with joining the program. Moreover, a company does not need an intermediary in order to apply to the program and work with CBP; the application process is easy and it is done online. The first step is for the company to review the CTPAT Minimum Security Criteria for their business entity to determine eligibility for the program. The second step is for the company to submit a basic application via the CTPAT Portal system and to agree to voluntarily participate. The third step is for the company to complete a supply chain security profile. The security profile explains how the company is meeting CTPAT’s minimum security criteria. In order to do this, the company should have already conducted a risk assessment. Upon satisfactory completion of the application and supply chain security profile, the applicant company is assigned a CTPAT Supply Chain Security Specialist to review the submitted materials and to provide program guidance on an on‐going basis. The CTPAT program will then have up to 90 days to certify the company into the program or to reject the application. If certified, the company will be validated within a year of certification.
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If you have CTPAT issues or questions, please contact your Supply Chain Security Specialist or one of the six CTPAT Field Offices by email at:• Buffalo, New York [email protected]• Houston, Texas [email protected]• Los Angeles, California [email protected]• Miami, Florida [email protected]• New York, New York [email protected]• Newark, New Jersey c‐tpatfieldoffice‐[email protected]
Visit www.cbp.gov/CTPAT for instructions to complete annual reviews, and to view training materials related to common CTPAT processes. Also information on new features will be posted to the CTPAT Public Library.
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CTPAT Trade Compliance FAQs What must an Importer do to apply for CTPAT Trade Compliance?If determined potentially eligible for CTPAT Trade Compliance, a company must:
• Complete the CTPAT Trade Compliance Eligibility Questions,• Complete the CTPAT Trade Compliance Questionnaire,• Complete a Memorandum of Understanding (MOU).
Once submitted, the CTPAT Trade Compliance Team (representatives from the Trade Compliance Branch, Office of Trade; Regulatory Audit, and a designated National Account Manager) will begin the application review process.After an Importer becomes a member, how do they maintain program membership?• An importer must complete an Annual Notification Letter, which allows the Member to inform CBP of any business modifications that may have an
impact on their customs operations and to reaffirm its commitment to the requirements listed in the Trade Compliance MOU and other program documentation. This letter is submitted electronically through the CTPAT Trade
• Compliance Portal, and is due annually within 30 days of the anniversary of the program acceptance date.How do I transition from Focused Assessment (FA) to CTPAT Trade Compliance?• The FA to CTPAT Trade Compliance transition opportunity allows acceptable importers to transition into CTPAT Trade Compliance without further
CBP review within 12 months from the date of the FA Report wherein Office of Trade; Regulatory Audit Division, has determined the company represents an acceptable risk to CBP. Importers seeking to transition into CTPAT through this opportunity must meet the previously mentioned eligibility requirements.
What is CTPAT Trade Compliance‐Product Safety?• The CTPAT Trade Compliance‐Product Safety is a joint initiative among CBP, the Consumer Product Safety Commission (CPSC), and importers who
commit to maintain a high level of product safety compliance and strive to prevent the importation of unsafe products. It is an expansion of CTPAT Trade Compliance and is administered by CBP and CPSC.
When will CTPAT Trade Compliance begin processing new applicants?ALERT: CTPAT Trade Compliance Program is temporarily suspending the processing of new applications and/or amending company MOU’s . If you have any questions or concerns please reach out to the CTPAT Trade Compliance Branch at [email protected].
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