HIGHLIGHTS:

  • Next month, intellectual property owners will have the benefit of a permanent federal rule that provides for the disclosure of information essential to blocking counterfeit goods from invading the domestic market. The rule, covering certain intellectual property rights enforced at the border, goes into effect Oct. 19.
  • Counterfeit clothing, software, food and pharmaceuticals not only hurt business, but can also pose a danger to consumers.
  • Under the new federal rule, CBP now has permanent authority to verify the authenticity of imported goods with intellectual property owners by sharing identifying visual marks with mark holders and copyright owners.

Next month, intellectual property owners will have the benefit of a permanent federal rule that provides for the disclosure of information essential to blocking counterfeit goods from invading the domestic market. The rule, covering certain intellectual property rights enforced at the border, goes into effect Oct. 19.

The harm that knock-off goods pose for companies is obvious. Counterfeit clothing, software, food and pharmaceuticals not only hurt business, but can also pose a danger to consumers. There have been documented cases of American consumers ingesting counterfeit (unregulated) pharmaceuticals, resulting in death or serious bodily injury. Other harmful side effects of counterfeit goods include: lost tax revenue; proliferation of underground economies that serve as hotbeds for other illegal activity, including violence; and the unchecked use of child labor in order to produce unsanctioned goods.

One relatively simple and inexpensive tool available to Copyright and Trademark owners is to "Post the Ports" by recording Trademark and Copyright registrations online with U.S. Customs and Border Protection (CBP).

Sophisticated, Savvy Counterfeiters

CBP reviews its database of registered marks as part of its task of stopping inauthentic goods at the border – sorting the "real" from the "fake" among thousands of products streaming across the border each day. The volume alone is sufficiently daunting, but counterfeiters have grown increasingly savvy and sophisticated about developing production techniques that make spotting fake products even more difficult, especially for an agent tasked with authenticating a number of brands and types of goods.

From 2008 to 2012, CBP was prohibited by law from sharing certain information about incoming products with trademark and copyright holders because some product-identifying information was deemed subject to the Trade Secrets Act. Specifically, field staff were directed to redact identifying markings, serial numbers and product codes prior to attempting to verify a good's authenticity with a mark holder. This, of course, prevented CBP agents from verifying or disregarding their suspicions with finality and, therefore, decreased the accuracy and precision of their work.

The 2012 interim rule, 77 Fed. Reg. 24375, amended 19 C.F.R. Part 133.

Under the new federal rule, CBP now has permanent authority to verify the authenticity of imported goods with intellectual property owners by sharing identifying visual marks with mark holders and copyright owners. The permanent regulation addresses the concerns of importers worried about unduly delay by providing mechanisms to ensure that withheld goods would be quickly verified so as to not delay proper goods' entrance into the U.S. Moreover, under the regulation, officials will give the importer notice and an opportunity to prove that questionable goods are authentic before any identifying information is sent to an intellectual property owner.

Here is a list of the current rules governing CBP inspections.

Additional Impacts

Some other features of the new rule that takes effect Oct. 19:

  • Customs must release import information to the intellectual property owner once an importer is notified of the detention of his goods. Under the old rule, Customs was required to send such information within 30 business days from the date it detained the goods.
  • There is no more option to extend the detention period of the goods an additional 30 days.
  • Importers have the option to submit evidence to verify authenticity before goods are detained.

If you are concerned about counterfeit goods being imported into the U.S., record your federally registered trademark or copyright with CBP.