CBP Publishes Final Rule Allowing Disclosure of Confidential Information to Trademark Owners | Practical Law

CBP Publishes Final Rule Allowing Disclosure of Confidential Information to Trademark Owners | Practical Law

US Customs and Border Protection (CBP) has issued a final rule concerning the disclosure of confidential information to trademark owners so that mark owners may assist CBP in determining whether seized goods are counterfeit. CBP issued the rule after receiving comments on 2012 interim amendments that govern the disclosure of information to mark owners.

CBP Publishes Final Rule Allowing Disclosure of Confidential Information to Trademark Owners

by Practical Law Intellectual Property & Technology
Published on 21 Sep 2015 • USA (National/Federal)
US Customs and Border Protection (CBP) has issued a final rule concerning the disclosure of confidential information to trademark owners so that mark owners may assist CBP in determining whether seized goods are counterfeit. CBP issued the rule after receiving comments on 2012 interim amendments that govern the disclosure of information to mark owners.
On September 18, 2015, US Customs and Border Protection (CBP) published a final rule amending Subpart C of Part 133 and Part 151 of Title 19 of the Code of Federal Regulations. The final rule amends and implements interim amendments that had been published and made effective on April 24, 2012 (see Legal Update, US Customs to Seek IP Owners' Help With Suspected Fake Goods).
The purpose of the final rule is to allow CBP to provide information to and communicate with trademark owners to assist CBP's determination of whether a seized product is counterfeit. This exchange is necessary due to the development of sophisticated techniques by counterfeiters and the highly technical nature of some imported goods.
Under the final rule:
  • Within five days of a decision to detain goods, CBP must provide the importer with notice that:
    • the goods have been detained; and
    • information otherwise protected by the Trade Secrets Act may be disclosed to the mark owner.
  • CBP must provide to the mark owner limited, non-confidential importation information and redacted images or samples of the goods by no later than the time of issuance of the detention notice to the importer.
  • If the importer does not satisfy CBP that the goods are genuine within seven days of the detention letter, CBP may disclose to the trademark owner commercial and financial information appearing on the suspected counterfeit product or its product packaging, including information that otherwise may be protected by the Trade Secrets Act (18 U.S.C. § 1905).
  • CBP must provide to the importer an unredacted sample or image of the suspect goods or their packaging.
  • CBP must notify the mark owner that use of information disclosed by CBP that is otherwise protected by the Trade Secrets Act is for the limited purpose of assisting CBP in determining whether the goods are counterfeit.
The final rule eliminates an optional 30-day extension of the detention period that was included in the interim amendments. The final rule becomes effective on October 19, 2015.