On September 18, 2015, US Customs and Border Protection (CBP) published a final rule regarding the disclosure of information on goods suspected of bearing counterfeit trademarks or trade names. This new rule allows Customs to share more information with trademark owners about suspect goods. The most notable change is that Customs will share information was protected by the Trade Secrets Act. The new rule will become effective on October 19, 2015. Below is a description outlining the regulations of the rule, as well as the changes made regarding disclosure.
Detention
- CBP may detain article suspected of bearing counterfeit marks for a period of up to 30 days
- Within 5 business days from the date of detention, CBP will notify the importer in writing.
- By this time (i.e., prior to the issuance of notice of detention), CBP may have disclosed to the trademark owner “limited importation information” such as
- The date of importation
- The port of entry
- The description of the merchandise
- The quantity
- The country of origin
If CBP has not previously disclosed to the trademark owner “limited importation information,” it will disclose this information to the trademark owner concurrently with the issuance of notice of detention
7 Business Days After the Notice of Detention
- If the importer fails to establish within 7 business days of the notice of detention that the detained merchandise does not bear a counterfeit mark, CBP may disclose the following additional information to the trademark owner:
- Mark information that appears on the detained merchandise and/or its retail packaging (including labels), unredacted photos, images, or samples, serial numbers, dates of manufacture, lot codes, batch numbers, universal product codes, or other identifying marks appearing on the merchandise or its retail packaging (including labels), in alphanumeric or other formats.
- The release of a sample to the trademark owner, subject to bond and return requirements
Any Time
- Notwithstanding the above, CBP may disclose to the trademark owner:
- Photographs, images, or a sample of the suspect merchandise or its retail packaging (including labels), provided that identifying information (such as serial numbers, dates of manufacture, lot codes, batch numbers, universal product codes, the name or address of the manufacturer, exporter, or importer of the merchandise, or any mark that could reveal the name or address of the manufacturer, exporter, importer of the merchandise, in alphanumeric or other formats) has been removed, obliterated, or otherwise obscured.
- DISCLOSURE TO IMPORTER: CBP will disclose to the importer unreadacted photographs, images, or an unredacted sample of the imported merchandise.
Conditions Of Disclosure To Trademark Owner Prior To Seizure
- Upon disclosure of such information, CBP will state that some or all of the information being released may be subject to the protections of the Trade Secrets Act, and that CBP is only disclosing the information to the trademark owner for the purpose of assisting CBP in determining whether the merchandise bears a counterfeit mark.
Seizure
- Upon a determination by CBP that the imported merchandise bears counterfeit marks, CBP will seize it.
- CBP will disclose to the trademark owner comprehensive information within 30 business days from the date of the notice of the seizure, including:
- The date of importation
- The port of entry
- The description of the merchandise from the notice of seizure
- The quantity as set forth in the notice of seizure
- The country of origin
- The name and address of the manufacturer
- The name and address of the exporter
- The name and address of the importer
- Upon proper request from the trademark owner, CBP may provided photographs, images, or a sample of the seized merchandise and its retail packaging to trademark owner.
Among other things, the change means that a lot of previously confidential business information, especially that of suppliers and manufacturers, will be provided to trademark owners now. This will have a very bad effect on legitimate gray market importers, whose trade relies on supplier data being kept confidential. That detriment, in turn, will likely mean higher consumer prices as gray market supplies are decreased.
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