Friday, November 06, 2009
New IPR Bond
Customs and Border Protection has established a new continuous bond category for intellectual property rights holders to use to secure the release of samples of allegedly infringing merchandise. This will simplify the process of getting samples for analysis for companies that often work with CBP to interdict counterfeits or infringing merchandise. Rights holders can also use a single transaction bond, if they prefer.
Here is the notice from Customs, which includes an contact number for more information.
While we are talking IPR, Customs has also finally republished the Informed Compliance Publication on CBP Enforcement of Intellectual Property Rights. All this activity is probably evidence of Customs' continuing focus on IPR enforcement.
Here is a nagging question I have. Does anyone in Customs represent the innocent legitimate importer in enforcement policy. The reason I ask is that I have seen clients with legitimate, non-infringing merchandise suffer very serious expense and delays trying to secure the release of merchandise. I understand that the the rights holders a legally entitled to protection and I am also very aware of the economic contribution intangible property makes to the U.S. economy. We should not allow free riders and criminals to hijack a brand. But, the innocent party that buys legitimate merchandise through parallel, unauthorized channels can rarely produce a chain of documentation back to the authorized producer. Neither the producer nor the rights holder has any interest, under the current system, in facilitating that importation. So the importer is stuck.
For now, the solution for the importer is to make sure the purchase agreement is contingent upon release of the merchandise and includes an indemnification for losses due to defending infringement claims, CBP penalties, storage expenses, etc. Of course, the guy selling NFL jerseys from a truck in Tijuana or shampoo from a card table in Red Square in Moscow is unlikely to agree to those terms.