Breaking Down Borders in IP Enforcement

The U.S. Customs and Border Protection (CBP) serves as our guardian to the flow of goods in and out of America’s borders. Calling CBP’s job “challenging” is an understatement, especially as sophisticated counterfeiters and pirates continue to inundate our shipping and mail services with illicit and sometimes downright dangerous goods. With a 24% rise in CBP seizures of counterfeits over the period of just one year, it is clear that this problem is steadily growing.

While the rise of counterfeits entering our borders is daunting, it is not insurmountable. CBP has a long standing history of working directly with and learning from the very people whose intellectual property (IP) is being stolen. Unfortunately, this crucial partnership in the fight against counterfeiting and piracy has been greatly disturbed following a questionable interpretation of the Trade Secrets Act in 2008. Congress is trying to overcome this problem as is the CBP, which, along with the Treasury Department issued a better, but not perfect, Interim Rule.

The Interim Rule allows sharing of information with brand owners concerning suspected counterfeit imports, but only under limited circumstances. While the Interim Regulations undo part of the damage by the 2008 Trade Secrets Act interpretation, they still remain flawed. Specifically, the inclusion of the unnecessary 7-day waiting period is not only a waste of time, but it gives counterfeiters a week-long power play while the victims of IP theft are stuck in the penalty box for no reason at all. The new regulation also does not cover the shipment of pirated products or hacking devices, which are 1.) illegal and 2.) greatly facilitate the everyday theft of some of America’s most creative products.

This week, the U.S. Chamber’s Global IP Center sent comments to CBP and the Treasury Department pointing out these problems in the hope that they can be resolved through regulation. Congress is also focused on the problems with the current lack of information and there is a solution in the form of the Foreign Counterfeit Prevention Act (H.R. 4216). This piece of legislation introduced back in March by Representatives Ted Poe (R-TX) and Steve Chabot (R-OH) addresses concerns in rights holder information sharing and circumvention devices.

We greatly appreciate what CBP does in the fight against IP infringement, but we also believe that they shouldn’t have to do it with one hand tied behind their backs.

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