Contributing Lawyers

Canada

Cyndee Todgham Cherniak

United States

Susan Kohn Ross

Australia

Andrew Hudson



Aggressive Intellectual Property Enforcement

It has long been the case that U.S. Customs and Border Protection will stop an import shipment if there is a question about what license rights the importer holds. The same is true with exports. Now, however, we are starting to see the rights holders coming after importers and seeking damages and other remedies. In some instances, rights holders have been demanding records about suppliers. In other cases, rights holders are threatening lawsuits if satisfactory settlements cannot be reached.

While the right of the trademark or copyright holder to proceed against an importer who is conducting unauthorized trading in the rights holder's goods would seem to be logical, some rights holders are attempting to proceed against customs brokers on the grounds there was not sufficient due diligence conducted during the intake of the customer. This attitude seems to be akin to Customs saying if only the customs broker had done a better job of vetting the importer and his power of attorney, he would have discovered the underlying shipments consisted of counterfeit goods. While both Customs and the trademark or copyright holder are looking for easy answers, neither position is supported by law. Unfortunately, that does not seem to be stopping either.

 

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