Detection and Enforcement Task Force
Final Report
Background and Methodology
The Detection and Enforcement Task Force is one of five task forces of the CACP. The goal of the CACP is to “increase the understanding of the negative impact of counterfeiting and piracy by working with Congress and the administration to drive greater government-wide efforts to address this threat”. The mission of the detection and enforcement task force and the purpose of its recommendations is to identify needs and opportunities to improve detection and enforcement, and implement plans to increase detection and enforcement actions in the domestic market and overseas.
Regarding methodology, task force members have shared their views and expertise on detection and enforcement, providing input for the final recommendations. The task force considered domestic, international, private and public sector, and federal and local detection and enforcement in its review.
In the course of their work, CACP members have met with key officials including Arif Alikhan, vice-chairman and executive director of the U.S. Department of Justice intellectual property task force and Chris Israel, intellectual property enforcement coordinator of the U.S. Department of Commerce. Meetings were also held with officials from the Federal Bureau of Investigation, the Department of Homeland Security and the Office of the U.S. Trade Representative. The CACP Strategic Action Plan, the Report of the Department of Justice’s Task Force on Intellectual Property and the Strategy Targeting Organized Piracy (STOP) also provided guidance for the work of the detection and enforcement task force.
Recommendations of the Task Force
Detection and enforcement is a very broad, complex subject area. IP detection and enforcement involve many different government agencies with different missions, priorities and jurisdictions. No set of recommendations could adequately address the needs of all copyright and trademark holders for all aspects of their intellectual property detection and enforcement problems. Different industries have, naturally, tended to follow different approaches to solving their IP problems depending upon their individual needs and circumstances. The Task Force does hope, however, that implementation of these recommendations will contribute to improved IP detection and enforcement, directly or indirectly, across a broad range of American business interests.
- Using alternative criminal statues against counterfeiters
Criminal prosecutions of pirates and counterfeiters under copyright and trademark statues, while producing some progress in the United States and abroad, could be significantly bolstered by reaching outside those specific statues to other criminal violations often associated with counterfeiting and piracy. Persons engaged in piracy and counterfeiting in many cases are also engaged in serious RICO violations, such as money laundering, corruption, fraud, tax evasion and other crimes.
Next Steps
Implementation of this recommendation will require resources not currently available to the task force or the CACP. The task force will address raising resources with the CACP as a separate matter. Implementation may also require close coordination with the international task force.
Phase I (6 to 8 months)
- Request input from CACP members on domestic and foreign cases where alternative laws were used, or could have been used, in the prosecution of a piracy or counterfeiting case.
- Select two countries with active cases. Review these country’s laws and regulations. These countries should preferably be among the 5 priority countries identified by the CACP.
- Contact the legal authorities in the countries in question, (with the support of the appropriate US government agencies and international organizations), with the aim of developing a test case including charges brought under alternative statues (corruption, bribery, money laundering, other.)
- Seek support and assistance from the appropriate international organizations (Interpol, UN Council for Trade and Development, OECD, WIPO, others)
Phase II (long-term)
- Develop the concept of prosecuting IP criminals under alternative criminal statues as a better alternative to prosecution under trademark or copyright statues alone among law enforcement and the private sector, (e.g. training programs, professional publications and seminars, other means.) Share results the appropriate international organizations.
- Deployment of IPR staff at embassies
Increased deployment of IP expert legal and law enforcement staff to embassies and consulates would appear to have significant potential for enhancing private sector-public sector cooperation, detection and enforcement.
Next Steps
We are pleased that the Administration has announced a plan to deploy more IPR experts to U.S. embassies in certain key countries. The detection and enforcement task force will work with the Administration and specifically with U.S. embassies to ensure the newly assigned staff is fully briefed about specific private sector IP problems and possible solutions and policies relevant to their respective countries.
- Dissemination of IP violator information
Knowing the identities of violators operating in the United States and abroad is valuable information to business seeking to protect their IP, or ones investigating current violations against their trademarks or copyrights. Often a company finds it is the victim of a recidivist offender after considerable damage has been done.
Next Steps
Over the next year, the Task Force will work with law enforcement agencies and companies with access to violators’ identities to determine if this information could be made available to interested CACP members by subscription or through some other arrangement. If a legal or regulatory change is required to obtain information collected through the use of Federal, state or local funds, the detection and enforcement task force may seek advice and assistance from the legislative task force.
- Continue work with Customs and Border Protection (CBP) on risk modeling
During the past year, the Strategic Trade Center-Long Beach, CBP has approached CACP members with proposals for transferring risk-modeling techniques used in screening cross-border shipments for national security purposes to commercial IP protection and detection. For example, CBP-Long Beach has a proposal for using tax identification numbers (and the information associated with those identification numbers) to screen shipments with a low risk of violation from shipments with a high risk of violation.
Next Steps
The task force will continue to work with CBP-Long Beach and other parts of the agency on the application of risk model techniques to detection of counterfeit and pirated products, including development of a pilot program or test case, as needed. The task force will continue to raise the importance of this risk modeling within STOP and seek resources for implementation of this recommendation.
- Addressing the needs of small and medium sized enterprises (SMEs)
A serious, well-orchestrated effort to steal the trademark or copyright of an SME can wipe the company of in a short period of time. In many cases, an SME may lack the ability and resources to effectively bring a claim in a foreign market, or even in the United States market, before the damage is irreparable.
Next Steps
During the next six months, the task force will work with CACP SMEs and relevant government agencies to identify the best ways to provide adequate and expeditious protection to SME victims.
- Raising standards at foreign trade shows
Trade Shows offer an important venue to promote IPR and to take action against violators. Currently, many foreign trade shows have no standards or procedures for IP protection and no history of disciplining violators. Professionally operated trade fairs in
America have standards in place and discipline violators. Many trade shows, particularly in developing markets actively seek participation and certification by the FCS and the agency has staff in all key markets. While the U.S. Department of Commerce, Foreign Commercial Service, (FCS) does not have the authority to compel foreign trade shows to protect IP, it has staff in all key markets that could benchmark standards of protection at foreign trade shows and seek remedies and higher standards where needed.
Next Steps
The task force has had preliminary discussions with the Commerce Department on raising IP protection standards at foreign trade shows and looks forward to working closely with Chris Israel, the Administration’s Intellectual Property Enforcement Coordinator at the Department of Commerce on this recommendation. Over the next six months the task force will work with Mr. Israel and senior management in the Department of Commerce to benchmark IP protection at trade fairs supported by the FCS. Ultimately, ensuring adequate standards of IP protection should be a requirement for trade fairs to obtain FCS endorsement and support. (This requirement could be subject to a reasonable phase-in period. Also, USPTO and private sector consultants could advise foreign show organizers seeking FCS endorsement on industry standards and practices.)
Conclusion
The detection and enforcement task force will meet with the secretariat in the near future to discuss options for securing resources to implement these recommendations, particularly studying the use of alternative statutes against counterfeiters. The task force is pleased to offer these recommendations to the CACP and welcomes comments and suggestions from all coalition members, law enforcement and administrative agencies and NGOs on these recommendations and their implementation. The detection and enforcement task force looks forward to working with other CACP task forces, as needed and is prepared to report back to the group on our progress on a regular basis.