Steps Taken to Curtail Intellectual Property Rights (IPR) Violations

TRADE ALERT

Steps Taken to Curtail Intellectual Property Rights (IPR) Violations

(November 17, 2005)

Patents, copyrights, trademarks, industrial designs, and trade secrets represent the key areas covered by Intellectual Property Rights (IPR). These rights help foster innovation and economic growth by monitoring the emulation of intellectual property. In recent years, counterfeiting, piracy, and other IPR violations have grown in magnitude and complexity, costing U.S. business billions of dollars in lost revenue. The growth in IPR violations has been fueled in part by the spread of enabling technology - technology that facilitates the simple and low-cost duplication of copyrighted products.

Laws setting forth the scope and duration of rights provide the basis for intellectual property protection. But laws comprise only part of a national system of intellectual property protection. Effective protection also depends on the institutions administering the system and the means available for enforcement.

The United States Department of Commerce, in conjunction with the American Bar Association, the National Association of Manufacturers, and the American Chamber of Commerce in China has developed the China Intellectual Property Rights Advisory Program.

The program provides U.S. small and medium sized enterprises the opportunity to request:

Free one-hour consultations with an experienced volunteer attorney to learn how to protect and enforce IPR in China.

Help American businesses understand the steps they must take to develop an IPR protection strategy for the Chinese market.

Help companies facing China related IPR disputes pursue resolution to their problems.

Reinforce the message that it is essential for U.S. companies to take action to protect and enforce their IPR in accordance with China’s civil, administrative and criminal laws, and that failing to act can have devastating consequences for future business.

In addition, the Bush Administration and Congress have also taken additional steps to help American businesses protect IPR.

Bill S 1095 Protecting American Goods and Services Act of 2005, amends the Federal criminal code to prohibit:

(1) The intentional trafficking, or attempting to traffic, in goods or services and knowingly using a counterfeit mark on or in connection with such goods or services.

(2) Possessing goods with a counterfeit mark with the intent to traffic such goods. Provides for enhanced penalties in the case of subsequent offenses.

(3) Prohibits intentional transportation of goods bearing a counterfeit mark or copies or phonorecords of a copyrighted work not authorized by the copyright holder into or out of the United Sates for the purpose of commercial advantage or private financial gain.

Bill S 1699 Stop Counterfeiting in Manufactured Goods Act, modifies Federal criminal code provisions regarding trafficking in counterfeit goods and services to prohibit trafficking in counterfeit marks. Subjects to forfeiture any article that bears or consists of a counterfeit mark and any property derived from proceeds of, or used in the commission of, the violation.
Directs the courts to:

At the conclusion of forfeiture proceedings, to order the destruction of any forfeited article bearing or consisting of a counterfeiting mark.
To order a person convicted of such offense to pay restitution to the owner of the mark and any other victim of the property offense.
Modifies the definition of "counterfeit mark." A spurious mark that is applied to, or consists of, a label, patch, medallion, documentation, or packaging that is designed, marketed, or otherwise intended to be used on or in connection with goods or services for which the mark is registe4red in the U.S. Patent and Trademark Office. Provides that nothing in this Act shall entitle the United Sates to bring a criminal cause of action for the repackaging of genuine goods or services not intended to deceive or confuse.

Directs the U.S. Sentencing Commission to:

(A) Review and demand the federal sentencing guidelines applicable to persons convicted of trafficking in counterfeit labels or marks.

(B) Determine whether the definition of "infringement amount" under the guidelines is adequate to address situations in which the defendant has been so convicted and the item the defendant trafficked in was intended to facilitate infringement.

Bill HR 32 Stop Counterfeiting in Manufactured Goods Act.

Related Bill S 1699

Deringer's consulting & regulatory affairs group offers a full scope of services to support importers/exporters, carriers, and supply chain partners. For more information regarding this alert, please call 518-297-3511, or email us at consulting@anderinger.com.