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CBP Finalizes Rule on Sharing IPR Information with Rights Holders to Detect Counterfeiting

Friday, September 18, 2015
Sandler, Travis & Rosenberg Trade Report

U.S. Customs and Border Protection has adopted as final, with some changes, an April 2012 interim rule that allowed CBP to disclose to an intellectual property right holder information appearing on merchandise or its retail packaging that may comprise information otherwise protected by the Trade Secrets Act for the purpose of assisting CBP in determining whether the merchandise bears a counterfeit mark.

In a change from the interim rule, this final rule requires CBP to release to the importer an unredacted sample or image of the suspect merchandise or its retail packaging any time after presentation of the suspect goods for examination. CBP believes that releasing this information to importers will assist them in providing a meaningful response before or within the seven business day response period. If an importer does not identify a need for a sample until after CBP seizes goods as bearing counterfeit marks, the importer may request a sample at that time.

Other changes from the interim rule include the following.

- CBP must release limited importation information to the mark owner upon issuance of the detention notice to the importer (rather than within 30 business days from the date of detention)

- CBP must notify the mark owner that use of any information otherwise protected by the Trade Secrets Act that is disclosed by CBP to the mark owner is for the limited purpose of assisting CBP

- the optional 30-day extension of the detention period has been eliminated

- the quantity of merchandise involved in a detention and the description of detained merchandise will be drawn from CBP arrival or entry documents or their electronic equivalents, which could include CBP forms 3461, 7533 and 7512 (if the detention is for merchandise moving in-bond), the cargo manifest (if no entry has yet been filed) or any other document or information, as applicable

This rule will be effective as of Oct. 19.

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