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In a custom's reauthorization bill introduced March 22, Sen. Max S. Baucus called for the establishment of a national Intellectual Property Rights Coordination Center that would be housed within the Department of Homeland Security.
The center would be headed by an assistant director of homeland security and would be responsible for coordinating efforts related to “the investigation of sources of merchandise that infringes intellectual property rights.”
The Trade Facilitation and Trade Reinforcement Act of 2013 (S. 662), which is cosponsored by Sen. Orrin G. Hatch (R-Utah), also includes another legislative attempt to allow U.S. Customs and Border Protection to share with U.S. rights holders samples of suspected counterfeit products in order to determine the authenticity of the goods.
Much of S. 662 concerns the reauthorization, and in some cases expansion, of certain functions and activities of the CBP. Chapter three of the bill, however, is captioned “Import-Related Protection of Intellectual Property Rights.”
That section of the legislation calls for the creation of the coordination center, which, although seemingly separate from the CBP, would work with that agency and others to coordinate “activities conducted by the United States to prevent the importation or exportation of merchandise that infringes intellectual property rights.”
The new coordination center would also be tasked with working with other international agencies to establish best practices with respect to training personnel on how to detect infringing goods, and on developing metrics to determine the effectiveness of global anti-infringement efforts.
Moreover, the legislation calls for the creation of “a single platform or portal to receive information regarding infringements of intellectual property rights from such agencies and other sources and a database to organize and search that information.”
The legislation calls for the center to be staffed by at least three full-time staff members. The bill also requires both the center and the secretary of homeland security to carry out educational campaigns to inform the public about IP infringement.
The coordination center would reach out to private sector group within the United States to “determine trends in and methods of infringing intellectual property rights.”
develop and carry out an educational campaign to inform travelers entering or leaving the United States about the legal, economic, and public health and safety implications of acquiring merchandise that infringes intellectual property rights outside the United States and importing such merchandise into the United States in violation of United States law.
In another bill that was also introduced March 22, Hatch called for the creation of a new position within the Office of the U.S. Trade Representative for an officer who would be responsible for the negotiation of strong intellectual property provisions within U.S. trade agreements (59 PTD, 3/27/13).
S. 660 would amend Section 141 of the Trade Act of 1974 to allow for the appointment of a chief innovation and intellectual property negotiator. That position, like the deputy trade representatives and the chief agriculture negotiator, would be appointed by the president with the advice and consent of the Senate. The position would carry the rank of ambassador.
S. 660 was also referred to the Senate Finance Committing, of which Baucus is chairman and Hatch is the ranking minority member.
S. 662 also proposes an amendment to the Tariff Act of 1930, 19 U.S.C. §1526, to allow for customs officials to share with rights holders unredacted samples of merchandise suspected of being infringing. Thus, by seeking to amend the Tariff Act, rather than the Trade Secrets Act, the bill differs from other legislation aimed at the same issue--the CBP's refusal to share suspected infringing items with rights holders for fear that such disclosures would violate the Trade Secrets Act.
Under 18 U.S.C. §1905, a government official is prohibited from disclosing trade secrets that were disclosed to the official in the court of his or her official capacity.
Until 2007, the CBP personnel freely shared information with rights holders in order to determine if the goods were suitable for importation.
However, that year the Customs Service began enforcing a rule that it had promulgated in 2000. That rule, Customs Direct 2310-0081, states, “Customs officers should remove or obliterate any information indicating the name and/or address of the manufacturer, exporter, and/or importer, including all bar codes or other identifying marks.”
There have been numerous attempts in the House of Representatives to amend the Trade Secrets Act in order to make it explicit that it is not a violation of the Act to share certain types of information with rights holders who may be able to help the CPB confirm whether the goods are authentic. The most recent measure, H.R. 22, was introduced Jan. 3 by Rep. Lloyd “Ted” Poe (R-Texas).
H.R. 22 was Poe's third bill on the issue. Both of his previous efforts failed to clear committee.
S. 662 differs from H.R. 22 by focusing on the Tariff Act rather than the Trade Secrets Act. Under the Senate's bill, if a customs official suspects that a good contains an infringing trademark, and if a rights holder is likely to be able to help determine if the goods are in fact counterfeit, then the customs official will be required to “provide to the person information that appears on the merchandise and its packaging and labels, including unredacted images of the merchandise and its packaging and labels.”
Text is available at http://pub.bna.com/ptcj/S662March2213.pdf
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