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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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Or Click Here to read Lee Sandler, Esq.'s Testimony before the House Judiciary Committee Opposing HR. 4216 On Behalf of AFTA

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.