Intellectual Property Protection Plan Argues for Refinements on Importer of Record
A recent strategic plan on intellectual property enforcement strategy and policy efforts mandated by statute calls for more executive action to strengthen CBP's hand, statutory changes to allow injunctions against online marketplaces that list counterfeit goods, and possible changes to who can ship de minimis packages. The plan is required under the Prioritizing Resources and Organization for Intellectual Property Act of 2008, known as PRO-IP.
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The plan recommends that an executive order issued at the beginning of the year (see 2002100042) be amended to explicitly bar those who have been suspended and debarred from participating in the importer of record program. It also said the EO needs to clarify the scope of debarment from the importer of record program so that CBP can require regulated parties to screen customers to see if they're on the suspension and debarment list. “This will improve targeting and reduce the number of packages sent by repeat offenders, thereby stopping the flow of contraband at their sources,” the plan said.
Once these changes are made, CBP will require express shippers to verify their customers aren't barred from participating in the importer of record program, and if they are, to refuse to import their goods. CBP will condition trusted trader status on compliance with this screening.
The report issued in January just before the EO in question had this exact recommendation, so it's not clear why it couldn't be put in place in the past 10 months.
The White House first said in January (see 2001240043) that the Department of Homeland Security would reexamine the legal framework for nonresident importers' ability to ship packages under de minimis. “Currently, non-resident importers can legally enter goods into the United States provided they have a 'resident agent' as defined in regulation. In practice, it can be difficult to compel nonresident importers to pay civil penalties and respond to other enforcement actions,” the new plan said.
The administration should push for new laws “to explicitly permit the government to seek injunctive relief against third-party marketplaces and other intermediaries dealing in counterfeit or pirated merchandise,” the new plan said -- as did the White House report 11 months ago. “In the interim, DHS will provide information and support to registered and recorded brand owners looking to utilize statutory authorities to seek injunctive relief against persons dealing in counterfeit merchandise, whether through direct sales or facilitation of sales, following seizures of goods that are imported contrary to law.”
Where appropriate, CBP and ICE will pursue civil fines against third-party intermediaries that have aided and abetted the importation of counterfeit goods, it said.
The report recommends that the administration examine state product-liability laws to see if they can apply those laws to e-commerce platforms that sell counterfeits that can be harmful. “Also, with respect to the brick-and-mortar world, we continue to examine state landlord liability laws, with respect to the potential liability -- and related duty of care -- of landlords for the sale of IP-infringing goods by their tenants,” the report said.
The report also repeats the White House's January report recommendation that bonding be amended in a way that assesses the risk of importing counterfeits.