Intellectual Property Protections Enhanced with the Trade Facilitation and Trade Enforcement Act of 2015

With the Trade Facilitation and Trade Enforcement Act of 2015 (the “Act”) passing the Senate, enforcement tools to protect intellectual property rights have been bolstered in several meaningful ways and a new National Intellectual Property Rights Coordination Center has been created. Particularly, this Act will provide intellectual property rights holders with better notice of potentially infringing merchandise crossing U.S. borders as well as a stronger representative at the US Trade Representative’s office in future intellectual property negotiations with foreign countries.

Upon enactment of the Act, where there is suspicion that merchandise is being imported into the U.S. in violation of trademark or copyright laws, Customs and Border Patrol (CBP) must provide the IP rights owner all information appearing on the merchandise and can seize any technology entering the country that can be used to circumvent copyright.

The Act also sets up a National Intellectual Property Rights Coordination Center. This Center, which is a division of U.S. Immigration and Customs Enforcement (ICE), is designed to coordinate investigation of infringing merchandise in order to identify those organizations and individuals that produce, smuggle, or distribute said merchandise. The Center has a number of duties regarding investigation of infringement such as coordinating investigations and assisting with the prosecution of crimes relating to the infringement of intellectual property rights. The Secretary of Homeland Security may assign other duties as necessary. The Center will have 3 full-time dedicated CBP employees assigned to it and “sufficient personnel” at each U.S. port to carry out Center directives.

The Department of Homeland Security has also been tasked with developing and carrying out an educational campaign to inform travelers entering or leaving the U.S. about the “legal, economic, and public health and safety implications” of acquiring merchandise that infringes intellectual property rights outside the U.S. and the ramifications of importing such merchandise into the United States. Declaration forms used at border entry points will also be updated to include a written warning about infringing intellectual property rights and potential civil or criminal penalties.

The Act also establishes a Chief Innovation and Intellectual Property Negotiator. This negotiator is in charge of conducting trade negotiations and enforcing trade agreements with respect to intellectual property and taking appropriate actions to address foreign acts, policies or practices that have a “significant adverse impact” on the value of U.S. innovation.

The Act has passed both houses of Congress and, after resolving any differences between drafts, will be sent to President Obama’s desk for a signature. President Obama has signaled that he intends to sign the bill into law. 

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