Intellectual Property Protection and Enforcement Manual - Ipr-policy.eu
Intellectual Property Protection and Enforcement Manual - Ipr-policy.eu
Intellectual Property Protection and Enforcement Manual - Ipr-policy.eu
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ownership expires in less than 20 years, recordation will remain in effect until the ownership expires.<br />
If the ownership has not expired after 20 years, recordation can be renewed.<br />
Once the copyright is recorded, “piratical” articles, that is, copies or phonorecords that are made<br />
without the authorization of the copyright owner, are then denied entry by CBP <strong>and</strong> are subject<br />
to forfeiture as prohibited imports. Suspect goods may be detained by CBP, <strong>and</strong> the importer will<br />
be notified <strong>and</strong> advised that it may file a statement denying that the article is in fact an infringing<br />
copy <strong>and</strong> alleging that the detention of the article will result in a material depreciation of its value<br />
or a loss or damage to the company. If the importer does not file such a statement within 30 days,<br />
the suspect goods will be considered infringing copies <strong>and</strong> be subject to seizure <strong>and</strong> forfeiture. This<br />
procedure involves the constitutionally required notice <strong>and</strong> hearing elements for any administrative<br />
adjudication. Upon notice, the importer of the pirated goods has the opportunity to petition for relief<br />
from the forfeiture. If the importer fails to obtain such relief, the goods are disposed of by CBP.<br />
CBP, in the course of examining imported goods, may provide a sample of the suspect merch<strong>and</strong>ise<br />
to the copyright owner for examination, testing, or any other use in pursuit of a related private civil<br />
remedy for copyright infringement, provided that the copyright owner furnishes a bond holding CBP<br />
harmless from any loss or damage resulting from the furnishing of the sample.<br />
Laws Protecting Your <strong>Intellectual</strong> <strong>Property</strong><br />
Under the United States’ system of federalism, governing is shared between the state <strong>and</strong> federal<br />
governments. In other words, there may be laws at both the state <strong>and</strong> federal levels that are intended<br />
to address the same issues. At the same time, the uncodified, or so-called common law, may provide<br />
additional protections, at least with respect to civil actions. As it pertains to trademarks, this means<br />
that trademarks are protected under federal law <strong>and</strong> may also be protected under state law through<br />
state anti-counterfeiting statutes, trademark infringement or anti-dilution laws, or unfair trade<br />
practices <strong>and</strong> consumer protection laws. In contrast, with very limited exceptions, the U.S. Copyright<br />
Act expressly preempted all state <strong>and</strong> common law protections for copyright.<br />
While this manual focuses on the protections available at the federal level with respect to both<br />
criminal <strong>and</strong> civil proceedings, you should keep in mind that additional trademark protections may<br />
exist at the state level.<br />
Federal Civil Trademark Laws<br />
The primary way a trademark owner may enforce its rights is by bringing suit against alleged<br />
trademark infringers. The Lanham Act of 1946 created the federal statute governing trademark<br />
infringement. Under this act, the key statutory elements of trademark infringement are use in<br />
commerce <strong>and</strong> likelihood of confusion. Use in commerce generally requires the sale, or at least the<br />
importation or other shipment, of goods bearing the infringing trademark. 22<br />
Page 8<br />
Under the Lanham Act, a successful plaintiff can receive (1) injunctive relief, (2) the defendant’s<br />
profits, (3) any damages sustained by the plaintiff, <strong>and</strong> (4) the costs of the action. Moreover, in cases