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Joint Strategic Plan on Intellectual Property Enforcement ENDNOTES SECTION 3 1 See, e.g., United States Department of Homeland Security, Customs and Border Protection, “Intellectual Property Rights Seizure Statistics - Fiscal Year 2015,” at p. 6, accessed from https://www.cbp.gov/sites/default/files/assets/ documents/2016-Nov/ipr_annual_report_FY%202015_final1. pdf. 2 See, e.g., R. Gil Kerlikowske, Commissioner, United States Customs and Border Protection, United States Department of Homeland Security, “Commissioner Kerlikowske’s Remarks at the University of South Florida” (February 19, 2016), accessed from https://www.cbp.gov/newsroom/speeches-andstatements/commissioner-kerlikowske%E2%80%99s-remarkuniversity-south-florida. 3 See, e.g., World Customs Organization, “Illicit Trade Report 2013,” at p. 69 (June 2014), accessed from http://www.wcoomd. org/en/media/newsroom/2014/june/~/media/WCO/Public/ Global/PDF/Topics/Enforcement%20and%20Compliance/ Activities%20and%20Programmes/Illicit%20Trade%20Report%20 2012/ILLICIT%202013%20-%20EN_LR2.ashx. 4 See, e.g., United States Department of Homeland Security, Customs and Border Protection, “Intellectual Property Rights Seizure Statistics - Fiscal Year 2015,” at p. 19, accessed from https://www.cbp.gov/sites/default/files/assets/documents/2016- Nov/ipr_annual_report_FY%202015_final1.pdf; see also United States Department of Homeland Security, Customs and Border Protection, “Intellectual Property Rights Seizure Statistics - Fiscal Year 2013,” at p. 7, accessed from https://www.cbp.gov/sites/ default/files/documents/ipr_annual_report_2013_072414%20 Final.pdf. 5 See, e.g., World Customs Organization, “Illicit Trade Report 2013,” at p. 69 (June 2014), accessed from http://www.wcoomd. org/en/media/newsroom/2014/june/~/media/WCO/Public/ Global/PDF/Topics/Enforcement%20and%20Compliance/ Activities%20and%20Programmes/Illicit%20Trade%20Report%20 2012/ILLICIT%202013%20-%20EN_LR2.ashx. 6 See, e.g., United States Department of Homeland Security, Customs and Border Protection, “Intellectual Property Rights Seizure Statistics - Fiscal Year 2015,” at p. 27 (finding that in FY2015, 52% of all seizures were from the express environment), accessed from https://www.cbp.gov/sites/default/files/assets/ documents/2016-Nov/ipr_annual_report_FY%202015_final1. pdf. 7 See, e.g., United States Department of Homeland Security, Customs and Border Protection, “Intellectual Property Rights Seizure Statistics - Fiscal Year 2015,” at p. 7, accessed from https://www.cbp.gov/sites/default/files/assets/ documents/2016-Nov/ipr_annual_report_FY%202015_final1. pdf. 8 Infographic provided by U.S. Department of Homeland Security, Customs and Border Protection. The infographic depicts U.S. Customs and Border Protection’s intellectual property rights seizure process, and is for illustrative purposes only; a number of intermediary steps are not present. From a process management standpoint, an imported parcel containing counterfeit goods may go through several dozen “touch points” before a seizure is fully effected. 9 See, e.g., United States Department of Homeland Security, Customs and Border Protection, “Intellectual Property Rights Seizure Statistics - Fiscal Year 2015,” at p. 7 (the $800 amount is based on a pilot program which resulted in the voluntary abandonment of 2,857 shipments, saving the Government $2.2 million in interdiction and processing costs), accessed from https://www.cbp.gov/sites/default/files/assets/ documents/2016-Nov/ipr_annual_report_FY%202015_final1. pdf. 10 See, e.g., United States Department of Homeland Security, Customs and Border Protection, “Advisory Committee on Commercial Operations to U.S Customs & Border Protection - Government Report on Intellectual Property Rights Enforcement,” at p. 1 (October 2015), accessed from https:// www.cbp.gov/sites/default/files/documents/TERC%20IPR%20 Issue%20Paper.pdf. 11 See, e.g., United States Department of Homeland Security, Customs and Border Protection, “Intellectual Property Rights Seizure Statistics - Fiscal Year 2015,” at pp. 7,14 (finding that the pilot program resulted in 2,857 additional interdictions in FY 2015, the equivalent of 10 percent of average annual total seizures for containers of all sizes), accessed from https:// www.cbp.gov/sites/default/files/assets/documents/2016-Nov/ ipr_annual_report_FY%202015_final1.pdf. 12 See, e.g., Global Intellectual Property Strategy Center, P.C., Comment Letter to U.S. Intellectual Property Enforcement Coordinator, at p. 3 (September 25, 2015) (providing comments in response to IPEC’s Federal Register notice of September 1, 2015), accessed from https://www.regulations.gov/ document?D=OMB-2015-0003-0010. 13 See, e.g., World Customs Organization, “WCO News,” at p. 7 (October 2014), accessed from http://www. wcoomd.org/en/media/wco-news-magazine/previous/~/ media/1B6D8A89F61142AC9F4ADB8678DEF5C9.pdf; see also United States Department of State, “The Global Illicit Trade In Tobacco: A Threat To National Security,” at p. 19 (December 2015), accessed from http://www.state.gov/documents/ organization/250513.pdf. 14 With respect to copyrights, The Trade Facilitation and Trade Enforcement Act of 2015 calls for the enforcement of a copyright, by the United States Customs and Border Protection, for which an application is pending in the United States Copyright Office “…to the same extent and in the same manner as if the copyright were registered with the Copyright Office, including by sharing information, images, and samples of merchandise suspected of infringing the copyright….” See Trade Facilitation and Trade Enforcement Act of 2015, Pub. L. 114–125, § 304, 130 Stat. 122, 150 (2016) (codified as amended at 19 U.S.C. § 4343). 15 See, e.g., United States Department of Homeland Security, Customs and Border Protection, “e-Allegations” submission, accessed from https://eallegations.cbp.gov/Home/Index2; see also United States Department of Homeland Security, National Intellectual Property Rights Coordination Center, “Allegation of Counterfeiting and Intellectual Piracy” submission, accessed from https://www.iprcenter.gov/referral. 16 See Section I. 114
Office of the Intellectual Property Enforcement Coordinator 17 See Section I. 18 See, e.g., United Nations Interregional Crime and Justice Research Institute, “Ensuring Supply Chain Security: The Role of Anti-Counterfeiting Technologies,” at p. 15 (February 2016) (finding that “…increased knowledge concerning technology developed to fight counterfeiting and ensure supply chain security may represent an important element to support national and international efforts aimed at fighting counterfeiting and illicit trade…”), accessed from http://www. unicri.it/topics/counterfeiting/anticounterfeiting_technologies/ Ensuring_supply_chain_security_report.pdf. 19 See, e.g., Massachusetts Institute of Technology, Lincoln Laboratory, “Colorful microparticles for anticounterfeiting: Glowing, smartphone-readable nanocrystals could authenticate products” (February 2016), accessed from https://www.ll.mit. edu/news/REMcodes.html. 20 See, e.g., Massachusetts Institute of Technology, Technology Review, “Tiny Particles Could Help Verify Goods: Chemical engineers hope smartphone-readable microparticles could crack down on counterfeiting” (April 14, 2014), accessed from https://www.technologyreview.com/s/526621/tiny-particlescould-help-verify-goods/; see also Massachusetts Institute of Technology, Lincoln Laboratory, “Colorful microparticles for anticounterfeiting: Glowing, smartphone-readable nanocrystals could authenticate products” (February 2016), accessed from https://www.ll.mit.edu/news/REMcodes.html. 27 See, e.g., World Customs Organization, “Model Provisions For National Legislation To Implement Fair And Effective Border Measures Consistent With The Agreement On Trade- Related Aspects Of Intellectual Property Rights,” accessed from http://www.asean.org/uploads/archive/20534-annex3.pdf. 28 See, e.g., World Customs Organization, “Model Provisions For National Legislation To Implement Fair And Effective Border Measures Consistent With The Agreement On Trade- Related Aspects Of Intellectual Property Rights,” at p. 125, accessed from http://www.asean.org/uploads/archive/20534- annex3.pdf. 29 For more information, visit the Economic Commission for Latin America and the Caribbean, “Ports Ranking. The Top 20 in Latin America and the Caribbean in 2015” (issued June 13, 2016), accessed from http://www.cepal.org/cgi-bin/getprod.asp?xml=/ perfil/noticias/noticias/4/54974/P54974.xml&xsl=/perfil/tpl/p1f. xsl&base=/perfil/tpl/top-bottom.xsl. The top 100 ports in Latin America and the Caribbean alone (as summarized in FIG. 55 on next page)—without consideration of ports in Asia, the Middle East, Europe, Africa or elsewhere—demonstrate the high volume and container port throughput, and the resulting burden on a rights holder when customs officers will not or cannot act without the lodging of an application by a rights holder. 30 Office of the United States Trade Representative, “2016 Special 301 Report” (2016) p. 33, 56, accessed from https://ustr. gov/sites/default/files/USTR-2016-Special-301-Report.pdf. 21 See, e.g., Bernstein, Kerry, “Supply Chain Hardware Integrity for Electronics Defense (SHIELD),” Defense Advanced Research Projects Agency, accessed from http://www.darpa.mil/program/ supply-chain-hardware-integrity-for-electronics-defense. 22 See e.g., United States Department of Homeland Security, Customs and Border Protection, “CBP Seizes $12 Million in Counterfeit Goods in Operation Super Fake” (February 4, 2015) (finding that Operation Super Fake, led by the United States Customs and Border Protection’s Mobile Intellectual Property Enforcement Teams, resulted in the interdiction of nearly 700 shipments of counterfeit merchandise valued at $12 million as part of a Super Bowl XLIX focused blitz conducted over three days in January 2015), accessed from https://www.cbp. gov/newsroom/national-media-release/cbp-seizes-12-millioncounterfeit-goods-operation-super-fake. 23 19 U.S.C. § 1526(f)(2). 24 19 U.S.C. § 1526(f)(3). 25 Allen Gina, Assistant Commissioner, Office of International Trade, United States Customs and Border Protection, United States Department of Homeland Security, “Statement Before the Senate Judiciary Committee” (June 22, 2011), accessed from https://www.judiciary.senate.gov/imo/media/doc/11-06- 22%20Gina%20Testimony.pdf. 26 See, e.g., The World Bank, “Trade Logistics and Facilitation: The Role of Customs,” accessed from http://web.worldbank. org/WBSITE/EXTERNAL/TOPICS/EXTTRANSPORT/ EXTTLF/0,,contentMDK:22677049~menuPK:7327167~pageP- K:210058~piPK:210062~theSitePK:515434,00.html. SECTION 3 115
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PREAMBLE A Reflection on Creativity
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INTRODUCTION The story of intellect
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