President Trump has directed federal agencies to develop a plan to combat “the dangers and negative effects of counterfeit and pirated goods, including those that are imported” through third-party intermediaries such as online marketplaces, carriers, customs brokers, payment providers, vendors, and others. A CQ article cites presidential trade advisor Peter Navarro as saying that the White House is seeking to “‘shift the burden’ of policing counterfeit products” to these entities.

A recent presidential memorandum states that counterfeit trafficking impairs U.S. economic competitiveness, cheats consumers, poses risks to public health and safety, and may threaten national security through the introduction of counterfeit goods destined for the Department of Defense and other critical infrastructure supply chains. As a result, the memo states that preventing the manufacture, importation, and sale of counterfeit and pirated goods is a priority for federal law enforcement agencies.

While the memo encourages deeper partnerships with third-party intermediaries as part of an effort to expand and enhance federal efforts to deter online trafficking in counterfeit and pirated goods, it also allows for the possibility of tougher enforcement. In particular, the memo directs the Department of Homeland Security (in cooperation with the Department of Commerce, Office of the U.S. Trade Representative, and others) to submit to the president by Oct. 30 a report evaluating current practices and policies and identifying possible improvements. Specific areas of focus include the following.

- the extent to which third-party intermediaries are used to facilitate the importation and sale of counterfeit and pirated goods and the factors that contribute to trafficking in such goods

- third-party intermediary practices that have been most effective in curbing the importation and sale of counterfeit and pirated goods

- the effectiveness of efforts by the U.S. and foreign governments

- categories of data that should be collected and possible changes to federal data collection practices

- administrative, statutory, regulatory, or other changes, including enhanced enforcement actions, that could substantially reduce trafficking or promote more effective law enforcement

- guidance that agencies may provide to third-party intermediaries to help them prevent the importation and sale of counterfeit and pirated goods

- administrative, regulatory, legislative, or policy changes that would enable agencies to more effectively share information regarding actual or suspected counterfeit and pirated goods with intellectual property rights holders, consumers, and third-party intermediaries

- ways to make detection, interdiction, investigation, and prosecution efforts more effective

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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