AFTA™ - American Free Trade Association Washington, D.C.
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Issue Links
Decoding
First Sale Doctrine
CBP Disclosures
Material Differences
Manifest Confidentiality
Legislation
Litigation
Innocent Infringement
Infringing Exports
Trademark Bullies
Rogue Websites
Free Trade Agreements
What Does AFTA Support?
New Anti-Counterfeiting Programs Should Be Designed and Measured
by the Twin Goals to Stop Fakes and Expedite Release of Genuine
Merchandise Manufactured By and/or Under Authority or License of the U.S.
Rights Holder
Re-engineer Detention and Seizure Processes, including Improved
Opportunities for Importers to Resolve Questions Pre-Seizure and to Cure
Problems Post-Seizure
Encourage Rights Holders' Cooperation while Protecting Confidential
Importer/Exporter Business Information
Do Not Seize In-Transit Goods If Manufactured In Compliance With Laws
In Country of Production/Manufacture
Eliminate monetary penalties for innocent infringers whose goods have
been forfeited
Laws, Regulations And Enforcement Initiatives Which Foster And
Sustain The Legality Of Parallel Market Trade In Genuine Branded
Goods
(click here for more information)
IPR Distribution Rights Should Be Limited to the First Sale Regardless of
Place of Manufacture
Exclusions of Genuine Goods differing from those in the US marketplace
would be limited to those with material and physical differences in the
product (and not its packaging, labeling, warranties, etc.) where notice is
provided to consumers.
Deter Trademark/IP Bullying
ISP Take-Down only after due process
International Agreements should mirror but not expand U.S. law
More Effective IPR Enforcement and Facilitation at our Borders by
CBP and ICE
(click here for more information)
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AFTA Supports CBP IPR Border Enforcement and Anti-Counterfeiting Programs That
Expedite Release of Genuine Merchandise Manufactured By and/or Under Authority or
License of the U.S. Rights Holder
A.
Confidentiality of Transactional Information: CBP should protect the
Confidentiality of Transactional Information prior to Seizure of Suspect goods.
i. Samples and Commercial Information. CBP should not provide coded samples, or
transactional and supply chain information, to rights holders prior to seizure or before
the importer has had a meaningful opportunity to provide evidence of product
authenticity directly or through an independent, third-party testing or other facility. If a
rights holder certifies that a coded sample must be inspected to verify authenticity, it
should provide CBP with the means to conduct that verification or designate an
independent third party to conduct the verification. In the event CBP believes it
necessary to provide product samples to rights holders prior to seizure, the U.S.
importer should be provided an opportunity to first remove any product distribution
tracking codes from that sample.
ii. Manifest Information. CBP should adopt more effective and timely procedures to
better protect the confidentiality of manifest information and to take remedial actions
where public release of shipper information has occurred despite its entitlement to
confidential treatment. Moreover, to the extent any disclosure of manifest information
is considered warranted, CBP should limit such disclosure to general merchandise
descriptions so as not to impede marketplace competition.
B. In-Transit Goods. Shipments of genuine branded goods passing through the
United States in-transit, or temporarily stored for export in bonded warehouses or
foreign-trade zones, should not be subject to seizure unless determined to be in
violation of the IPR laws in the country of manufacture.
C. CBP Penalties. CBP penalties for IPR violations should be limited to cases in which
CBP determines that goods are counterfeit or piratical. Where a court or the ITC has
determined that goods are infringing, CBP may be empowered to seize as directed by
that body. Monetary penalties should not be assessed where the goods have been
forfeited by an infringer without knowledge of infringement; forfeiture of the goods is a
sufficient penalty for such a violator.
D. Voluntary Disclosures. CBP should not impose any penalties against a party who
voluntarily discloses it has, without prior knowledge or intent, taken possession or
ownership of counterfeit, piratical or infringing goods.
E. Cooperation of Rights Holders. Rights holders must affirmatively commit to
maximize their cooperation and support of CBP and ICE programs to enforce IPR
rights in order to maintain the privilege of CBP devoting its resources to protecting
private, intellectual property rights. Cooperative efforts include providing sworn
statements to support applications for recordation, security posting to ensure CBP's
recoupment of storage and related administrative fees as well as Consequential
Damages caused to an importer (e.g. storage charges, invoice price, lost sales, etc.)
as a result of false allegations or representations, and timely responding to CBP's
requests for information regarding suspicious, detained or seized shipments.
AFTA support laws, regulations, agreements and enforcement initiatives which support
the legality of continued parallel market trade in genuine branded goods
A.
First Sale Doctrine - Copyright Law. Copyright owners' rights to control
importation and distribution of copyrighted products should be exhausted upon the first
sale of those goods -- whether the goods were produced in the United States or
outside the United States.
B.
Lever Rule Enforcement. - Genuine goods which are physically and materially
different from those sold in the U.S. marketplace should be excludable only if the
difference between the products is both material and physical. Differences in
packaging, labeling, and/or post-sale warranties, for example, should not merit
protection against parallel imports of genuine products. In no case should genuine
goods be excluded from the U.S. marketplace if reasonable disclosure is made to the
consumer of the differences between the imported and domestic article.
C.
Trademark/IP Bullying. - Sanctions, including cancellation of IP rights, should
be imposed for abuse of IP rights in the nature of coercive bullying through
unreasonable threats of litigation or filing of a lawsuit.
D.
ISP Take-Downs. - Attorneys General, working together with IPR owners,
should not be empowered to require ISPs to disable third party domains without
providing due process to the domain owner, requiring the posting of sufficient security
from an accusing rights holder and/or without a valid, binding judicial order.
E.
International Agreements. - The United States should adopt international
agreements which support the legality of parallel market trade by providing for
exhaustion of intellectual property rights under patent, trademark and copyright laws
consistent with and not exceeding U.S. law.