CPB expands information sharing to address counterfeit imports

Originally published by Mayura Noordyke (US).

On September 18, 2015, U.S. Customs and Border Protection (“CBP”) published a final rule that allows for increased information sharing between CBP and trademark owners in cases of importation of merchandise suspected of bearing counterfeit marks. The new rule, which went into effect October 19, 2016, allows CBP to release information to mark owners that was traditionally protected by the Trade Secrets Act for the limited purpose of identifying counterfeit marks.

Background

Traditionally, CBP could disclose to mark owners only limited information, such as the date of importation, the port where merchandise was received, the country of origin, and a basic description. In April 2012, CBP published an interim rule that established a process for CBP to disclose additional information to mark owners for the purpose of assisting CBP in identifying counterfeit marks. In the past, the Trade Secrets Act (18 U.S.C. §1905) was interpreted as preventing CBP from disclosing any markings, symbols, or codes on imported products to mark owners – exactly the kind of information that is most helpful to mark owners when determining the legitimacy of imported goods. The interim rule and now the final rule address that issue.

Changes implemented by new rule

The new regulations allow CBP to release information that would otherwise be protected by the Trade Secrets Act to the mark owner in cases where merchandise is suspected of bearing counterfeit marks. CBP will now also be able to disclose serial numbers, codes, or any other identifying marks or symbols on the merchandise or packaging as well as unredacted samples (subject to a bond requirement) and/or photographs or images of the merchandise to mark owners. The new regulations also require CBP to release basic information about importation of suspected merchandise to mark owners, at the latest, by the date of issuance of the detention notice.

Additionally, CBP will release unredacted images or samples of any suspicious merchandise to the importer after the presentation of the merchandise for examination, giving the importer a chance to show that the goods do not bear counterfeit marks.

As a summary, the following describes the disclosures that CBP can now make:

• After merchandise is presented to CBP, basic importation information may be released to a mark owner. CBP will also disclose unredacted images or samples of the merchandise to the importer any time after presentation.
• CBP will issue a detention notice to the importer within five business days from a decision to detain. If CBP has not already provided the mark owner with limited importation information, it will do so no later than the date of issuance of the detention notice.
• The importer has seven days after the issuance of the detention notice to present information showing that the merchandise does not bear a counterfeit mark. If the importer fails to do so, CBP may disclose additional information, including any symbols or codes appearing on the merchandise or its packaging as well as unredacted photographs, images, or samples, to the mark owner.

Concerns and Take-Aways

Some commenters expressed concerns over mark owners receiving information about an importer’s supply chain which could lead to competitive disadvantages and may upset the parallel market for “gray market” goods. The CBP has stated that it has addressed these issues in the new rule. When additional information is released to mark owners, they are advised that some of the information provided to them may be protected by the Trade Secrets Act. Also, the more detailed information is not disclosed to mark owners until after the importer has had the opportunity to show that the goods do not bear counterfeit marks.

The new rules apply only to marks that have been registered with the U.S. Patent and Trademark Office and recorded with CBP. These are important first steps for any brand owner seeking to protect its marks. Furthermore, mark owners should provide the CBP with as much information as possible about their own marks and goods as well as any known counterfeit marks or importers. The more information the CBP has about a recorded mark, the more efficiently and accurately CBP can identify counterfeit marks. With this greater information sharing between CBP, importers, and mark owners, the new regulations will make the policing of counterfeit marks more collaborative, and perhaps, more effective.

The post CPB expands information sharing to address counterfeit imports appeared first on The Brand Protection Blog.

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Pulling the Plug on EFH, Oncor Deal May Mean Higher Costs for Consumers

Originally published by Androvett Legal Media Blog.

Faced with an apparently unsuccessful deal to reorganize electricity transmission unit Oncor, Energy Future Holdings Corp. may now be staring at a lengthy and expensive bankruptcy fight, according to Sam Stricklin of Dallas’ Gruber Elrod Johansen Hail Shank.

“If this transaction is really dead, the bankruptcy case could drag on for a year or more and accumulate gigantic amounts of professional fees,” Mr. Stricklin told the national legal news service Law360. According to the article, professional fees in the EFH case already have reached $300 million, not counting the month-long trial that resulted in its Chapter 11 plan’s confirmation. Late last week EFH told the Delaware bankruptcy court that the deal at the heart of its Chapter 11 plan could not be concluded due to conditions imposed by Texas regulators. The state’s Public Utility Commission balked at the tax savings from the deal structure not being shared with ratepayers. But Mr. Stricklin says those costs may ultimately wind up being passed onto consumers. “I applaud the commission’s desire to share some of those tax savings, but they may be cutting off their nose to spite their face,” he says.

 

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Less Disclosure of Donors, More Disclosure of Applicants for Exemption?

Originally published by Nonprofit Blogger.

In both Congress and the federal courts battles continue over disclosure of information relating to tax-exempt organizations. In California, a federal district judge ruled that California Attorney General Kamala Harris cannot force Koch brothers-related IRC section 501(c)(3) Americans for Prosperity…

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Internet Use By Jurors Is Causing Mistrials; How Do We Stop It?

Originally published by William K. Berenson.

Outside Research Threatens Integrity of the Civil Court System

The idea that jurors should consider only the evidence presented during the trial is as old as the American justice system. Only the judge is allowed to decide what evidence is admissible, since outside sources might be inaccurate, biased, and/or irrelevant.

But in our age of instant communication with family, friends, and the news media, these outside influences can easily influence the internal deliberations of jurors. Is there a solution?

 

 

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Opera about Houston’s first pro bono case doubles as fundraiser

Originally published by Amy Starnes.

The Houston Grand Opera will present the story of the city’s first known pro bono case — the fight of a woman named Emeline — in a three-hour event Tuesday and Wednesday designed to raise money for access to justice efforts.

Emeline was a woman of color born to a freed slave, but when she was enslaved herself, Houston lawyer Peter Gray took up her case in 1847 and argued that Emeline and her sons could not be held as slaves because of her birth to a free woman. A Houston jury of six white men agreed.

“What Wings They Were: The Case of Emeline” is a commissioned opera that will be presented as part of a fundraiser to support pro bono legal services of the Houston Bar Association’s Houston Volunteer Lawyers program.

The 45-minute opera will be featured from 6 to 9 p.m. Tuesday and Wednesday at the historic 1910 Courthouse, 301 Fannin St. Before the opera there will be an explanation of Gray’s representation of Emeline. After the event there will be an opportunity to talk to judges and local officials who discovered her story in Harris County files.

Baker Botts LLP commissioned the opera to celebrate its 175^th year and to support equal access to justice for low-income Houstonians. After representing Emeline, Peter Gray went on to become a judge, the first president of the HBA, and a founder of what is now Baker Botts.

“Peter Gray has inspired many generations of Baker Botts lawyers, who have followed Gray’s lead and been active in the Houston community since the days of the Republic of Texas,” Bill Kroger, a Baker Botts partner, said in a news release on the event.

To purchase tickets, visit http://ift.tt/1SKUNoK

Tickets are $100, including 1 hour of CLE ethics credit for attorneys.

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Colorado Supremes Invalidate Fracking Moratoria, Bans

Originally published by Land Use Prof.

In long-awaited decisions, today the Colorado Supreme Court invalidated the City of Fort Collins fracking moratorium and the City of Longmont’s fracking ban as pre-empted by state law. The decisions can be found here. The cities had argued that their…

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Texas: Settlement Agreements, Arbitration, Indemnification, and Summary Judgment

Originally published by Gene Roberts.

The Tenth Court of Appeals (Waco), in Capstone Building Corp. v. IES Commercial, Inc., reversed the trial court’s summary judgment in favor of IES.
This case is a severed part of a broader dispute relating to a housing complex at Sam Houston State University.* Capstone was the general contractor, and IES was the mechanical/HVAC/electrical subcontractor. Capstone and IES entered into a settlement agreement after IES filed a petition for arbitration alleging a payment dispute. The settlement agreement included a payment amount, a warranty that the sub’s subs had been paid, and that IES would indemnify Capstone from claims brought by subs or suppliers. Capstone released claims relating to HVAC warranty claims.
Several years later, SHSU sued ACC alleging construction defects, including alleged HVAC defects, according to the opinion. IES filed for summary judgment on Capstone’s claims against it, and the trial court granted the motion for summary judgment.
The Court of Appeals rejected IES’ argument that the s …

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