On February 23, 2016 Congress presented to President Obama the Trade Facilitation and Trade Enforcement Act of 2015 (H.R. 644), which contains provisions strengthening trademark and copyright enforcement mechanisms and creates a new agency called the National Intellectual Property Rights Coordination Center. The Act was introduced in the House of Representatives by Tom Reed [R-NY] on February 2, 2015, and a similar version was introduced in the Senate by Orrin Hatch [R-UT] on May 11, 2015.
The new Act, which is expected to be signed into law by President Obama in the next few weeks, is directed to enhancing the accountability and enforcement capabilities of the U.S. Customs and Border Protection (CBP) and U.S. Immigration and Customs Enforcement (ICE) agencies. Title III of the Act focuses on intellectual property protection, and provides for a number of stepped up enforcement directives that will assist trademark and copyright owners in preventing the importation of infringing and counterfeit products.
Currently holders of trademark registrations issued by the U.S. Patent and Trademark Office and copyright registrations issued by the U.S. Copyright Office are able to record these registrations with CBP, and CBP works with rights holders to prevent the unlawful importation of infringing and counterfeit merchandise. The Act increases the role of rights holders by requiring CBP to share information with trademark and copyright holders that will assist them in establishing whether imported products entering the United States violate their intellectual property rights. In addition to the information currently provided, rights owners should now also be able to examine the intercepted merchandise to determine the authenticity of the imported articles. In addition, owners of copyright applications before the U.S. Copyright Office who register their pending applications with CBP will now receive the same enforcement benefits as owners of copyright registrations.
The Act also creates the National Intellectual Property Rights Coordination Center, which will function as a division of ICE. This new center will function as the government's central hub for the investigation of infringing products and the determination of the identity of entities and individuals responsible for the production and distribution of such products. In addition, the National Intellectual Property Rights Coordination Center will coordinate with other domestic and international agencies on investigative best practices for the enforcement of intellectual property rights. The Center will also be responsible for collecting, integrating and sharing information relating to the infringement of intellectual property rights, including a determination of the top U.S. ports of entry from which CBP seizes infringing and counterfeit merchandise. Finally, the Act provides for an increase in intellectual property rights enforcement staff, including employees at U.S. ports of entry, to carry out the directives of the Center.
A new position, Chief Innovation and Intellectual Property Negotiator, is also provided for in the Act. This individual will be a part of the Office of the United States Trade Representative, and act as an advocate on behalf of United States innovation and intellectual property interests. The position includes conducting trade negotiations and monitoring trade agreements with regard to intellectual property enforcement. The Act also requires that the Trade Representative submit annual reports to Congress regarding the enforcement actions taken to ensure the protection of innovation and intellectual property interests.
Finally, the Act includes an educational component directed to prevent the importation of infringing articles and assist with the seizure of these goods. The Department of Homeland Security will be required to carry out a public education campaign to teach travelers about intellectual property rights and infringement. In addition, declaration forms that are issued to travelers arriving into the United States will include written warnings regarding the civil and criminal penalties that may result from the importation infringing merchandise, along with the risks such products pose to consumers' safety and health. The Act also provides for annual educational seminars to improve the ability of CBP personnel in identifying infringing merchandise.
In a Congress that has been divided by partisan politics during the last year, it is a welcome surprise that this legislation has received strong bipartisan support in both houses of Congress and from the international trade sector.
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