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U.S. Customs and Border Protection (“CBP”) is Seeking Comments

U.S. Customs and Border Protection (“CBP”) is seeking comments on an interim rule that amends its regulations governing the importation of merchandise bearing recorded trademarks or recorded trade names.  That interim rule becomes effective on publication in the Federal Register.

The interim rule provides CBP with expanded authority to disclose to an intellectual property rights holder information appearing on merchandise or its packaging for the purpose of assisting CBP in determining whether the merchandise bears a counterfeit mark. CBP will now be able to share with the rights holder photographs or a sample of the goods, serial numbers, dates of manufacture, lot codes, batch numbers, universal product codes, and/or other identifying marks appearing on the merchandise or its retail packaging.  The interim rule further establishes a new timeline for CBP’s detention and seizure of goods bearing potentially counterfeit marks that are recorded with CBP:

1)  Within 5 days of determining to detain, CBP must issue a detention notice.

2)  The importer, prior to release of the information to the rights holder, has 7 days excluding weekends and holidays to demonstrate that the marks are not counterfeit.

3)  If the importer fails to demonstrate that that the goods are genuine within the 7 day period, CBP will release the information to the rights holder.

4)  Customs has a 30-day period from the date on which the merchandise is presented for examination (and any extension, if requested by the importer for good cause) to make a determination with respect to admissibility.  If after the 30-day detention period and any authorized extension periods the article is not released, the article will be deemed excluded.

Missing from the notice is a set time frame in which CBP must make its initial determination to detain the goods after entry.  The lack of a set time frame could cause delays in the issuance of a detention notice.  The Interim Rule also fails to address the consequences of the trademark holder not responding within the 30-day detention period or situations in which a rights holder may withhold authorization for legitimate gray market goods.  Left unanswered is how CBP will treat goods bearing potentially counterfeit marks, where such marks are not recorded with CBP.

Comments are due by June 25, 2012.  Please contact Richard M. Wortman if you wish further information or wish to file comments.