U.S. Customs and Border Protection is proposing to amend its regulations to create a procedure for the disclosure of information otherwise protected by the Trade Secrets Act to a trademark owner when goods bearing suspected counterfeit trademarks has been voluntarily abandoned. Comments on this proposed rule are due by Oct. 28.

CBP states that if it suspects that an imported article bears a counterfeit mark it may detain the article for up to 30 days from the date it is presented for examination. During the detention period CBP may disclose limited importation information to the owner of the mark if CBP concludes that doing so would help it determine whether the imported article bears a counterfeit mark.

However, this disclosure does not occur when goods are voluntarily abandoned, which is becoming an enforcement problem. CBP explains that the low-value shipments that are increasingly typical of e-commerce transactions are often voluntarily abandoned if CBP detains the goods on suspicion of an IPR violation because the cost of demonstrating that a shipment is legitimate may outweigh the importation’s value. An executive order in 2017 instructed CBP to address this problem by ensuring that it can share information about voluntarily abandoned goods with right owners to ensure the timely and efficient enforcement of laws protecting them from imports of counterfeit goods.

As a result, CBP is proposing to add a new paragraph to 19 CFR 133.21 under which it would disclose the same comprehensive importation information provided to trademark owners when goods have been seized in cases where goods have been voluntarily abandoned if it suspects that (a) the successful importation of those goods would have violated U.S. trade laws prohibiting imports of goods bearing counterfeit marks and (b) disclosure would assist CBP in its IPR enforcement mission. Such information includes the date of importation, the port of entry, a description of the goods, the quantity and country of origin of the goods, and the name and address of the manufacturer, exporter, and importer.

For more information on IPR-related trade issues and/or the impact of this proposed rule, please contact customs and trade attorney Lee Sandler at (305) 894-1000.

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