U.S. Customs and Border Protection (CBP) today released for publication in the Federal Register a final rule concerning disclosure of information for certain intellectual property rights enforced at the border. Today’s release finalizes an interim rule from April 2012.
CBP’s final rule includes changes to provisions in the Code of Federal Regulations (19 CFR part 133) regarding the detention of suspect merchandise and the disclosure of information to trademark or trade name owners, during detention of goods bearing potentially counterfeit trademarks and after seizure of goods bearing counterfeit trademarks.
The final rule [PDF 260 KB] will be published in the Federal Register on Friday, September 18, 2015, and will be effective 30 days from that date, so as to provide time to the trade community to make adjustments to their business practices.
Under the final rule, CBP is authorized to detain any article of domestic or foreign manufacture imported into the United States that bears a trademark suspected by CBP of being a counterfeit version. The detention is allowed for a period of up to 30 days from the date when the merchandise is presented for examination.
At the same time, CBP must notify the importer, in writing, of the detention within five business days from the date of the decision to detain suspect merchandise. The importer then has seven business days to provide information in response to CBP’s written request. If the response is not provided or if the response is insufficient, CBP will have authority to disclose to a trademark or other mark owner information appearing on merchandise or its retail packaging that otherwise is protected by the Trade Secrets Act, including: labels, images (including photographs) of the merchandise, sample of the merchandise, serial numbers, dates of manufacture, lot codes, batch numbers, universal product codes, or other identifying marks appearing on the merchandise or its retail packaging, in alphanumeric or other formats.
The disclosure of information by CBP will not be limited to the expiration of the seven-day period. Under the new final rule, CBP will have authority to do three things from the date the notice is provided to the importer and before the expiration of the seven-day response period.
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