New rules proposed by the U.S. Customs and Border Protection (CBP) will help trademark owners prevent counterfeit goods from entering the U.S. market. The Intellectual Property Rights Interim Final Rule (IFR) will allow the agency to share information about potentially infringing products with trademark holders.
As explained in by in this CBP news release, the IFR amends regulations pertaining to importation of merchandise bearing recorded trademarks or recorded trade names. This change provides a pre-seizure procedure for disclosing information about imported merchandise suspected of bearing a counterfeit mark for the limited purpose of obtaining the right holder’s assistance in determining whether the mark is counterfeit or not.
Prior to this rule, the agency had interpreted the Trade Secrets Act to bar such disclosures. However, as the interim rule notes, “The protection afforded by the Trade Secrets Act, however, must be balanced against the important and legitimate interests of government.”
Under the new rule, the CFP is authorized to disclose to rights holders information appearing on merchandise or retail packaging that may have information otherwise protected by the Trade Secrets Act. This information includes photographs, a sample of the goods and/or their retail packaging as well as serial numbers, universal product codes, and stock keeping unit numbers.
This amendment also establishes a procedure to protect importers. It requires that before any information or sample is sent to the right holder, the importer will be provided notice, and an opportunity to show that the suspect merchandise is authentic.
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