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Joint Strategic Plan on Intellectual Property Enforcement SECTION 3 (1) Import shipments of counterfeit goods into FTZs, and then re-export counterfeit goods to other destinations (i.e., FTZs are used to disguise original points of manufacture and become distribution points in the supply chain of counterfeit goods); (2) Import unfinished goods and then further manufacture them in FTZs by adding counterfeit trademarks, or by repacking or re-labeling the goods, and then export those finished counterfeit goods to other countries; or (3) Completely manufacture counterfeit goods in FTZs. 33 These illicit merchants are exploiting the very ecosystem that governments have put in place to help FTZs contribute to economic development, and if this criminal activity is allowed to occur or is ignored, the underlying objectives of FTZs to promote trade and economic growth are undermined and weakened. Opportunities exist to collect and analyze additional information as to the nature and scope of illicit activity occurring within legitimate FTZs, and to promote enhanced IP enforcement mechanisms in these zones. ACTION NO. 3.24: Identification of opportunities to curb IPR abuses in Free Trade Zones. Within 18 months of the issuance of this Plan, the U.S. Interagency Strategic Planning Committees on IP Enforcement will convene an interagency working group, including the Department of Labor and other relevant agencies, to discuss the extent and nature of IP infringement in FTZs and to identify opportunities for Federal agencies to engage in activities that could enhance IP enforcement in FTZs. 3. Support Modern Recordation Systems in Developing Countries Many developing countries lack adequate means for electronically recording or searching for registered trademarks and copyrights by way of an online database, which in turn makes the interdiction of counterfeit and pirated goods more complicated and inefficient. The amount of information exchanged with and collected by customs authorities, if not automated, is overwhelming. “In Africa, for example, the average customs transaction involves 20–30 different parties, 40 documents, 200 data elements (30 of which repeated at least 30 times), and the rekeying of 60-70 percent of all data at least once. In most African countries, there are two complete sets of controls to be completed – one on each side of the border post – with numerous forms of documents to be filled and cleared. These administrative hurdles escalate trade costs…[and] also encourage illicit trade and corruption in order to bypass delays at customs and border posts.” Source: African Development Bank (AfDB), Border Posts, Checkpoints, and Intra-African Trade: Challenges and Solutions (Jan. 2012); United Nations Economic Commission for Africa (UNECA), Assessing Regional Integration in Africa IV (May 2010). As a result, it is important that we continue to support and strengthen the infrastructure of our global partners in combating counterfeit and pirated trade, making sure that they have the right tools in place to combat illicit trade in the 21 st Century. The United States relies extensively on electronic recordation systems to enforce IPR. By exploring the expansion of programs like the WCO’s Interface Public Members reference tool for IPR violations, and the development of the United Nations’ Automated SYstem for CUstoms DAta (ASYCUDA) Intellectual Property Module, international customs processes are able to modernize and increase the level of enforcement globally. 34 For example, the ASYCUDA system currently used by 97 countries is a framework that provides developing countries with a customs system at relatively low cost, by reforming and streamlining the customs clearance process, increasing trade facilitation, and strengthening the institution in member states. By modernizing global customs practices, law enforcement officers are able to use technology to speed up and simplify the goods clearance process, while providing a greater focus on enforcement. Through the addition of an IP module into a system that manages the entire customs clearance process prior to the arrival of the goods, up to their warehousing and ultimate release, the risks and costs associated with counterfeit and pirated trade may be diminished. 110
Office of the Intellectual Property Enforcement Coordinator Automating the customs clearance process increases speed and predictability by simplifying and standardizing the information coming into the system and the steps involved in determinations. By elevating global enforcement through shared and best practices, and use of electronic information systems like online databases with robust IPR-based modules, international shipping channels can become more secure. 35 ACTION NO. 3.25: Support modern recordation systems in developing countries to enhance global enforcement of IPR. DHS and the Department of State will engage with international counterparts to identify opportunities for improving recordation systems, including the international interoperability of such systems. 4. Tackle the Growing Costs Associated with the Storage and Destruction of Counterfeit Goods. The storage and destruction of counterfeit goods have become a major issue in a substantial number of countries. 36 Governments (i.e., taxpayers) or right holders often bear the costs for the storage and destruction associated with seized counterfeit and pirated goods, while those entities that profit from illicit trade are generally subject to no disposal costs. Given the increase in illicit trade in counterfeit and pirated products, governments and rights holders are facing a growing and significant financial burden that needs to be solved without further delay. FIG. 54: Over 100,000 counterfeit ‘hover boards’ (comprised of metals, plastics, rubber, electrical components, and lithium-ion batteries) and related parts are stored at CBP facilities, awaiting destruction. In some countries, such as the United States, the Federal Government incurs the costs to store and destroy counterfeit and pirated goods, while other countries require the infringed rights holder to pay the costs for counterfeit and pirated goods seized by customs authorities. 37 From a policy standpoint, taxpayers should not carry the burden of paying for costs associated with the storage and destruction of fake goods that have been shipped in violation of law in instances where the importer, exporter, or carrier transporting the infringing goods is in a position to bear the costs. Similarly, inequities exist when the costs of storage and destruction are placed on the victim of the crime (i.e., the infringed rights holder), as the victim has committed no wrong and the enforcement of a country’s laws represents a significant state interest (e.g., promoting economic development; ensuring public health and safety; curbing the flow of illicit proceeds; supporting labor and environmental standards, etc.). 38 Moreover, rights holders in the form of small and medium enterprises (SMEs), as well as larger entities, may not be prepared to pay storage and destruction costs the world over for illicit goods that they did not manufacture and do not control. “Transport operators provide critical services that are subject to abuse as part of the counterfeiting supply chain. Counterfeit goods depend on land, air and sea shipping and transportation services to cross borders and reach foreign markets. These intermediaries are critical players…in stopping the flow of fake goods.” Source: International Chamber of Commerce (ICC- BASCAP), “Roles and Responsibilities of Intermediaries: Fighting Counterfeiting and Piracy in the Supply Chain” (March 2015), p.16 Source: CBP (2016), Port of Chicago To address this problem, the roles of the individual players in the supply chain must be fully understood and opportunities to reasonably shift costs explored. Specifically, the United States and foreign countries must explore opportunities to pass costs directly to infringers, and where that is not possible or practical, to assess the role of importers, exporters, carriers, and others along the supply chain that profit (knowingly or SECTION 3 111
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U.S. JOINT STRATEGIC PLAN ON INTELL
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B. In Furtherance of a Healthy Doma
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PREAMBLE A Reflection on Creativity
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Senior Advisory Committee Establish
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INTRODUCTION IP-intensive industrie
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EXECUTIVE SUMMARY Services, the Dep
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EXECUTIVE SUMMARY • Advertising B
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1 THE GLOBAL SCALE OF INTELLECTUAL
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INTRODUCTION The story of intellect
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Office of the Intellectual Property
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