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Imports of Counterfeit and Pirated Goods are Focus of DOC Inquiry

Wednesday, July 10, 2019
Sandler, Travis & Rosenberg Trade Report

The Department of Commerce is accepting through July 29 comments that will be used to develop a report on dealing with imports of counterfeit and pirated goods.

In April 2019 President Trump issued a memorandum stating that preventing the importation, manufacture, and sale of counterfeit and pirated goods is a priority for federal law enforcement agencies and directing the development of a plan to combat the dangers and negative effects of such goods, including those imported through third-party intermediaries such as online marketplaces, carriers, customs brokers, payment providers, vendors, and others. The memo also required the submission by Oct. 30 of a report that evaluates current practices and policies and identifies possible improvements.

To aid in the preparation of that report, the DOC is seeking comments from intellectual property rights holders, online third-party marketplaces, and other third-party intermediaries, as well as other private-sector stakeholders, on the following issues.

- interests affected by imports of counterfeit or pirated goods through online third-party marketplaces and other third-party intermediaries

- factors that contribute to trafficking in such goods through these marketplaces or intermediaries and what market incentives and distortions may contribute to such activity

- effective technologies that could be used to substantially reduce such imports and sales and/or enable more effective law enforcement

- the degree to which expanded collaboration and information sharing could substantially reduce trafficking and/or enable more effective law enforcement

- federal agency data collection or standardization practices, or practices involving the provision of data to parties, that could promote more effective detection, interdiction, investigation, or prosecution of underlying violations of U.S. customs laws and intellectual property rights

- existing policies, procedures, or best practices that have been effective in curbing the importation and sale of counterfeit and pirated goods, as well as additional policies, procedures, or best practices that could also be effective

- policy remedies, including administrative, regulatory, or legislative changes (including enhanced enforcement actions), that could substantially reduce trafficking in counterfeit and pirated goods and/or promote more effective law enforcement

In addition, the administration is currently considering potential best practices guidance for online third-party marketplaces, including (1) conducting advance vetting of potential sellers/vendors, including to ensure that goods are not being produced by forced labor, (2) establishing and enforcing a list of those goods that may not be sold through the marketplace (e.g., due to the risks posed by counterfeit or pirated versions of such goods), (3) taking down listings for counterfeit and pirated goods, (4) notifying customers that they have or may have purchased counterfeit or pirated goods and providing appropriate remedies, and (5) notifying other third-party intermediaries, IPR holders, other stakeholders, and law enforcement that a particular seller/vendor has been supplying counterfeit or pirated goods.

For more information, including how to ensure your imports are not counterfeit or pirated, please contact Lee Sandler at (305) 894-1000.

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