GIPC Welcomes House Bill to Allow CBP Officers to Share Information With Right Holders

The GIPC applauds Representatives Ted Poe (R-TX) and Steve Chabot (R-OH) for introducing legislation, H.R. 4216, to facilitate cooperation between law enforcement and the business sector in fighting the illegal importation of counterfeit and pirated products. The bill directly addresses a significant encumbrance to the Customs and Border Protection’s (CBP) enforcement of intellectual property rights at the border: the inability of CBP officers to seek the expertise of trademark and copyright owners by sharing information to identify counterfeit and pirated imports. With a clear statement that the Foreign Counterfeit Prevention Act does not prohibit CBP from sharing unredacted samples, digital images or other information about goods at our borders with right holders, the House bill will make crystal clear that it approves of effective enforcement by border inspectors.

Prior to 2008, when CBP’s legal interpretation was communicated to the field, CBP officers routinely sought help from trademark and copyright owners to determine the authenticity of suspect products detained at the border. With the elaborate and sophisticated techniques of today’s counterfeit operations, this often is the only way a CBP officer can differentiate between a real product and a fake.

In 2008, however, CBP officers were told to remove or obliterate the most useful information appearing on the product or its packaging, including bar codes or other identifying marks, before sharing information with a rights holder. In most cases, with the most meaningful information removed, the right holder is unable to confirm whether the product was genuine or counterfeit. So, in recent years, deprived of this valuable resource, CBP officers are often unable to verify that the suspect product is counterfeit, forcing them to release the shipment into U.S. commerce despite serious questions about its legitimacy. This is particularly alarming when the products are fake electronic components or microcircuits or similar parts that could end up in sophisticated medical equipment, an aircraft navigation system or even cellphones for everyday use.

With passage of the H.R. 4216, CBP officers will once again have access to the resource they need – the knowledge and expertise of the owner of the trademark or copyright being violated – to intercept illegal and often dangerous products from entering the stream of U.S. commerce.

The Foreign Counterfeit Prevention Act also addresses a corollary issue involving circumvention devices – a device that hacks technology used by copyright owners to prevent illegal access or copying of their works. Trafficking in such devices is illegal under the Digital Millennium Copyright Act (DMCA) and the DMCA authorizes CBP to seize them. However, there is no specific authority for CBP to share information on circumvention devices with injured parties to help CBP identify devices suspected of being illegal. This amendment addresses this deficiency. It also provides authority to share information about circumvention devices with right holders post-seizure as a way to help right holders work cooperatively with law enforcement to shut down the criminal organizations that traffic in these devices.

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