As we move into Congress’ annual summer recess period, and with elections looming just three months away; we can expect a flurry of activity in the House and Senate during the relatively few legislative days remaining in the 118th Congress. Much of that time will be devoted to moving “must-pass” legislation, including bills necessary to keep the government funded, the annual Defense Authorization bill, and the like. As such, there’s very little chance that we’ll see Congress take up IP- or counterfeiting-focused legislation before the end of the year. With that in mind, the IACC has already begun planning for the 119th Congress in 2025, and we’re actively seeking members’ input regarding your priorities for 2025 and 2026.
IACC Relaunches Legislative / Policy Working Group
During the recent annual conference, we hosted a meeting with a number of interested brands aimed at relaunching the IACC’s Legislative / Policy Working Group. Approximately two dozen member companies joined the briefing and discussion to share their key concerns regarding legislative and regulatory gaps, adverse court rulings, policy proposals under consideration in the United States and abroad, which may be ripe for collective engagement. As noted above, the working group’s first order of business is to gather member feedback to aid in developing the IACC’s legislative strategy and agenda for the 119th Congress.
If you’d like to participate in the working group, and be kept apprised of upcoming meetings, please contact IACC VP for Legislative Affairs, Travis Johnson – tjohnson@iacc.org – to register your interest.
SHOP SAFE Update
Many brands have been closely monitoring the SHOP SAFE Act (S 2934) – a bill that would open the door to contributory liability claims against e-commerce platforms who fail to adopt a range of best practices aimed at reining in third-party sellers engaged in the trafficking of counterfeits online. The bill was introduced by Sens. Coons (D-DE) and Tillis (R-NC) as a bipartisan measure last September, and referred to the Judiciary Committee, which held a hearing on the legislation in early October. Progress on the bill slowed shortly thereafter however as the sponsors and relevant staff sought feedback from private sector stakeholders on the bill’s text; those discussions have continued throughout the 118th.
More recently, Reps. Issa (R-CA) and Nadler (D-NY) – the Chair and Ranking Member, respectively, of House Judiciary’s IP Subcommittee, along with subcommittee members Ben Cline (R-VA) and Hank Johnson (D-GA), introduced an identical companion bill (HR 8684) in the House of Representatives.
Given the limited time remaining in the current session, the odds of the bills’ enactment before the end of the year remains low; though we would fully expect its reintroduction in some form or another again next year.
Push for Expanded Sharing of Information by CBP in the NDAA
In recent weeks, the IACC has been working closely with Senator Grassley’s office to advocate for the adoption of an amendment to the National Defense Authorization Act for Fiscal Year 2025 (S 4638). The text of the amendment largely mirrors language passed by the Senate during last year’s NDAA cycle, and as part of the U.S. Innovation and Competition Act. The legislation would expand both the scope of information that U.S. Customs and Border Protection is authorized to share with relevant partners in the private sector, while also expanding the range of stakeholders with whom such information could be shared as CBP seeks assistance in enforcing IP rights at the border.
New Customs Regulations re: Enforcement of Trademarks, Copyrights, and Circumvention Devices
In late-June, U.S. Customs and Border Protection published its long-awaited final rule to implement Sections 302 and 303 of the Trade Facilitation and Trade Enforcement Act of 2015. Those provisions sought to clarify the extent of CBP’s authority to disclose certain information related to the enforcement of IP rights at the border, including a long-standing gap in the agency’s ability to share information regarding seizures of circumvention devices with impacted copyright owners.
The final rule largely preserves the status quo in the context of CBP’s procedures related to trademark enforcement – namely the bifurcated disclosure process and 7-day waiting period prior to CBP’s disclosure of unredacted images of the goods – though it does clarify CBP’s expectations surrounding the use of any information disclosed to rights-holders in the pre-seizure context. As set out in the revised regulations related to the bonding conditions imposed in connection with CBP’s provision of samples, e.g., the new rules explicitly prohibit the use of any information derived from such disclosures for any purpose other than assisting the agency in determining whether the importation of suspect merchandise would violate the recipient’s IP rights. For example, if CBP provided a sample which turned out to be gray market (authentic) merchandise, and the rights-holder was able to determine that the goods had been diverted by a “rogue” distributor in violation of its contractual agreement with the IP owner, the use of that information to take remedial action against the distributor would be grounds for forfeiture of the IP owner’s bond.
In addition, the final rule completely rewrites the existing procedural framework for the enforcement of copyrights at the border, establishing new processes that mirror the rules in place for trademark enforcement. The rationale for this decision was to provide harmonized and consistent treatment across both types of intellectual property rights.
Finally, the new rules set out new procedures related to pre- and post-seizure disclosures to IP owners whose rights may be implicated by the importation of prohibited circumvention devices. As detailed in CBP’s Federal Register publication, rights-holders who wish to avail themselves of the opportunity to receive information in connection with detained or seized circumvention devices will need to submit a letter to the agency requesting their placement on a list of authorized recipients that will be published by CBP. We have a number of questions related to these new procedures and will be seeking additional guidance from CBP in the coming weeks. We are also currently working on a detailed analysis of these new procedures, and those IACC members who make use of copyright protection measures to safeguard their works are encouraged to reach out to Travis Johnson – tjohnson@iacc.org – for more information.
National Anti-Counterfeiting and Consumer Education and Awareness Month
Senators Chris Coons, Chuck Grassley, Mazie Hirono, and Thom Tillis sponsored a resolution (S. Res. 736) that was agreed to in the Senate by unanimous consent, designating July as “National Anti-Counterfeiting and Consumer Education and Awareness Month.” Full text of the resolution is available here.
IACC Scam Awareness Project
Last July, the IACC sent out an alert regarding a reported increase in online scams targeting influencers with fraudulent offers for marketing collaborations with well-known brands. We received responses from a number of brands who’d had direct experience with the issue – most often uncovered as a result of inquiries or referrals from individuals who’d been targeted. In light of those responses, the IACC began working with some of the impacted brands, and with our colleagues at the American Apparel & Footwear Association to dig into the topic in more detail.
Those initial discussions led to a broader conversation around a variety of other scams, including HR/employment scams, fake online storefronts, and others impacting both consumers and undermining the hard-earned reputations of brands. Over the course of the last year, we’ve undertaken outreach to additional stakeholders, and have begun working with law enforcement partners to develop a more coordinate response to these issues.
With the aid of IACC & AAFA members, we’ve been working with the FBI and the National IPR Coordination Center to develop a standardized format for the submission of information and referrals involving a variety of online scams, and we would welcome input from the IACC more broadly. The more – and more detailed – information that we’re able to share with our law enforcement partners regarding the tactics being used by scammers to perpetrate these frauds, will aid in gaining traction for this effort.
In addition, we’re exploring the development of public awareness messaging to ensure that consumers, brands, law enforcement, and policymakers are able to identify and protect themselves and others from fraudulent offers.
If you’d like to contribute to these efforts, please contact Travis Johnson - tjohnson@iacc.org – for additional information.
International AntiCounterfeiting Coalition, 727 15th Street NW, 9th Floor, Washington, District of Columbia 20005, United States
