Tuesday, November 10, 2009
Trademark Lawyer FOIA Suit
Here is an interesting footnote to my recent post on Customs and Border Protection's enforcement of intellectual property rights.
First, I received an e-mail from some well-respected customs lawyers expressing concerns over Customs' enforcement. The concerns included the timing of infringement decisions and, surprisingly, the fact that Customs' has seized legitimate merchandise bearing registered a trademark on the theory that the registered trademark infringed another registered trademark. That sounds like CBP has stepped into the Patent and Trademark Office's territory.
Another interesting point is this post by Seattle Trademark Lawyer Michael Atkins. According to the post, another Seattle trademark lawyer has filed a suit under the Freedom of Information Act seeking the release of all seizure notices relating to counterfeit merchandise. From the post, it is not clear whether the suit goes so far as to seek records of detentions and Notices to Redeliver. Either way, it is also not clear what has triggered the plaintiff's interest. It is hard to say whether the plaintiff thinks CBP is being too tough or not tough enough, or has some other interest entirely.
Maybe the suit is trying to get identifying information on specific importers. That possibility, by the way, relates directly to the District Court's decision to uphold Customs denial of the request on the grounds that releasing the information would release competitively sensitive information. That triggers exception 4 to the FOIA. Apparently, an appeal has been filed.