U.S. Customs and Border Protection (CBP) provided a 60-day extension as part of their “Agency Information Collection Activities” requesting comments on the CTPAT and Trusted Program.
CBP will be submitting the information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995 (PRA). The PRA changed many aspects of Information Collection by the Federal government. requiring agencies to plan for the development of new collections of information and the extension of ongoing collections well in advance of sending proposals to OMB. Agencies must:
Seek public comment on proposed collections of information through “60-day notices” in the Federal Register;
Certify to OMB that efforts have been made to reduce the burden of the collection on small businesses, local government and other small entities, and
Have in place a process for independent review of information collection requests prior to submission to OMB.
Comments are encouraged and must be submitted (no later than May 20, 2019) to be assured of consideration. Written comments and/or suggestions regarding the item(s) contained in this notice must include the OMB Control Number 1651-0077 in the subject line and the agency name.
What Should Your Written Comment Include?
Written comments and suggestions from the public and affected agencies should address one or more of the following four points:
Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
the accuracy of the agency’s estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
suggestions to enhance the quality, utility, and clarity of the information to be collected; and
suggestions to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, g., permitting electronic submission of responses.
The comments that are submitted will be summarized and included in the request for approval. All comments will become a matter of public record.
What is CTPAT (Customs Trade Partnership Against Terrorism)?
The Customs Trade Partnership Against Terrorism(also known as CTPAT) is a voluntary security program designed to safeguard the world’s trade industry from terrorists and smugglers by prescreening its participants (U.S. importers, customs brokers, consolidators, port and terminal operators, carriers, and foreign manufacturers). CTPAT is part of a multi-layered cargo enforcement strategy. CBP works with the trade community (which involves the trade communities detailed analysis, measurement, monitoring, reporting, and enhancement of their supply chains) in order to strengthen international supply chains and improve United States border security. CTPAT is a voluntary public-private sector partnership program and the Security and Accountability for Every Port Act of 2006 provided a statutory framework for CTPAT and imposed program oversight requirements.
How does CTPAT Work?
When an entity joins CTPAT, an agreement is made to work with CBP to protect the supply chain, identify security gaps, and implement specific security measures and best practices. Applicants must address a broad range of security topics and present both a company and a security profile that includes the companies process to align security throughout its supply chain. CTPAT members are considered to be of low risk and are therefore less likely to be examined at a U.S. port of entry.
What are CTPAT Partner’s Benefits:
Reduced number of CBP examinations.
Front of the line inspections.
Possible exemption from Stratified Exams.
Shorter wait times at the border.
Assignment of a Supply Chain Security Specialist to the company.
Access to the Free and Secure Trade (FAST) Lanes at the land borders.
Access to the CTPAT web-based Portal system and a library of training materials.
Possibility of enjoying additional benefits by being recognized as a trusted trade.
Partner by foreign Customs administrations that have signed Mutual Recognition with the United States.
Eligibility for other U.S. Government pilot programs, such as the Food and Drug Administration’s Secure Supply Chain program.
Business resumption priority following a natural disaster or terrorist attack.
Importer eligibility to participate in the Importer Self-Assessment Program (ISA).
Priority consideration at CBP’s industry-focused Centers of Excellence and Expertise.
Which business can participate in CTPAT?
U.S. importers, customs brokers, consolidators, port and terminal operators, carriers, and foreign manufacturers are all welcome to apply for membership in the CTPAT program.
What is the Application Process for CTPAT?
The online application process consists of the following steps (when you review these, think of what can be improved to include in your comment!):
Submit a basic application with your company profile via the CTPAT Portal.
Complete a more detailed supply chain security profile.
Comments to CBP should be detailed around what information collected via the supply chain security profile are NOT necessary to enhance the quality, utility, and clarity of the information to be collected.
What is the Trusted Trader Program?
The Trusted Trader program combines the Customs Trade Partnership Against Terrorism (CTPAT) and Importer Self Assessment (ISA) or trade compliance programs (making ISA extinct), as well as includes Partner Government Agencies (PGA)s. The announcement of the Trusted Trader pilot program was made on June 16, 2014. Since, then, the trade community has been advised that companies like Apple, Toyota, VLM Foods, and Rico were some of the participants in the Trusted Trader Pilot Program. The trusted trader program has not yet been officially rolled out. We have been advised that there will be a phased implementation of security measure requirements with feedback from trade industry (and we will keep you updated as we hear more).
Contact DTL TODAY at 305-456-3830 or firstname.lastname@example.org to start drafting your comment or to start your application to join CTPAT.
USTR estimates the harm from the EU subsidies as $11 billion in trade each year. The final amount is expected to be issued summer of 2019. “Our ultimate goal is to reach an agreement with the EU to end all WTO-inconsistent subsidies to large civil aircraft. When the EU ends these harmful subsidies, the additional U.S. duties imposed in response can be lifted.” USTR’s determination will reflect with the outcome of the WTO dispute settlement proceedings should the findings show that the EU and certain member States have denied U.S. rights under the WTO Agreement.
While the list and, more pressing, the additional duties imposed are finalized, USTR is releasing for public comment a preliminary list of EU products containing a list of 317 tariff subheadings to be covered by additional duties. The products listed in Section 2 of the Annex are being considered for additional duties if they are the product of any of the 28 member States of the EU. The value of the list is approximately $21 billion in terms of the estimated import trade value for calendar year 2018.
Now You Have the Ability to Tell USTR Why Your EU Products Should NOT be on the 301 Section List.
There are two opportunities to remove your product from the 301 Section list.
Pursuant to the Customs Modernization Act, the importer of record (IOR) must use “reasonable care” when providing the value of the goods to Customs and Border Protection (CBP). All merchandise imported into the United States is subject to valuation or appraisement. The Trade Agreements Act of 1979, codified at 19 U.S.C. § 1401a, sets forth a hierarchy of methods for the appraisement of imported merchandise. Under the Trade Agreements Act of 1979, the transaction value of imported merchandise is the primary or preferred method for determining the value of imported merchandise. Generally, transaction value is the price actually paid or payable for merchandise when sold for exportation to the United States, plus certain statutorily enumerated additions.
What is First Sale?
First Sale is a system that decreases the dutiable value of imported goods by authorizing importers to use the price paid in the first sale. It allows an earlier sale to be used in declaring customs value as long as that sale can be documented as a sale for exportation to the United States and the importer meets all other Customs requirements. Consequently, that equivalent value is assigned according the transaction between the manufacturer and the middleman not between the middleman and the new buyer.
What Do I have to do to Qualify to Use the First Sale Valuation?
CBP’s Informed Compliance publication entitled, “BONA FIDE SALES & SALES FOR EXPORTATION TO THE UNITED STATES” discusses the two elements required to qualify for the first sale program.
Typically, when considering the value of the merchandise that is being exported to the United States, the importer must establish 1) Bona Fide Sale and 2) a Sale for Exportation of merchandise to the United States that has occurred; if these two elements are present, the transaction value requirement is satisfied.
Further, case law provides that importers must meet certain factors to avail themselves of the benefit of First Sale Valuation. In Nissho Iwai American Corp. v. United States, 982 F.2d 505 (Fed. Cir. 1992), the Court addressed the question of how to determine transaction value in a multi-tiered transaction. The Court held that the transaction value of the imported goods can be based on the first sale price between the manufacturer and the middleman (as opposed to the price the importer paid to the middleman). To determine whether the first sale value can represent the transaction value of the merchandise, the following must apply:
The first sale must be a bona fide sale from the manufacturer/seller to the middleman;
Merchandise must be clearly destined for the United States at the time of the first sale;
The first sale price must be an arm’s length price; and
Statutory additions to the price actually paid or payable must be included in the first sale price.
Who Uses First Sale?
The First Sale benefit is available to all importers that meet the above criteria. We are currently seeing importers subject to China tariffs avail themselves to this duty savings opportunity. Importers subject to high duty rates or high middleman markup and have a cooperative relationship with the middleman would greatly benefit from the First Sale valuation option.
What Do I Do Next?
Contact DTL TODAY to find out if you can avail yourself of First Sale. Join us in our upcoming Seminar on April 17, 2019 discussing CBP Compliance & Enforcement. Our Customs and International Trade Attorneys are available at 305-456-3830 or email@example.com.
The Department of Homeland Security (DHS) published a press release announcing a new multi-agency task force, The Global Trade Task Force (GTTF), which is designed to protect national security and combat counterfeit good. The multi-agency task force was launched recently in Detroit and DHS believes the task force could serve as a national model for related investigations.
The weeklong pilot program held in Detroit resulted in HSI and CBP seizing over $1 million MSRP in counterfeit goods. The seizures included counterfeit products and prescription drugs, such as transceiver network modules, electronic cigarettes, watches and smartphones. For more information related to seizure cases visit our blog discussing “The ABC’S of Customs Seizures – PLUS Top 10 Tips to Ensure Import Compliance”.
GTTF’s primary mission, include:
Targeting the Trafficking of counterfeit, substandard, or tainted goods, that can put at risk public’s health or safety. (Automotive, aerospace, rail, and heavy industry products; and environmental crimes)
Halting financial frauds that deprive the U.S. government of revenue, companies or rights holders.
Preventing illegal export of U.S. military products, sensitive dual-use technology, weapons of mass destruction, or chemical, biological, radiological, and nuclear materials
The press release describes GTTF as a “robust import and export controls and investigative authorities to combat illicit commercial activities”. We can only anticipate the amount of seizures to quickly grow from those reported by CBP in 2018 now that other agencies will be involved.
For more information related to e-commerce strategies please visit our Blog. Our Customs and International Trade Attorneys are available at 305-456-3830 or firstname.lastname@example.org.
CBP appreciates the need to stay modern to face the challenges of an evolving business landscape. To fulfill its mission, CBP is carrying out an initiative entitled “The 21st Century Customs Framework” which will seek to address and improve many aspects of CBP’s trade mission to better position the agency to operate in the 21st Century business environment. Below are the topics CBP is seeking public input on:
Topics for Comments
CBP has identified key themes for which CBP seeks public input:
1.- Emerging Roles in the Global Supply Chain;
What new roles in the global supply chain are unaccounted for in CBP’s current legal framework? How should the agency account for these roles?
How can CBP work with e-commerce platforms and carriers to identify and deter illicit shipments?
How can new actors in the global supply chain work with CBP to improve trade security?
2.- Intelligent Enforcement;
What technologies are useful in predicting violative activities and an entity’s potential for violations?
What tools or sources of information regarding CBP’s compliance requirements have you found the most useful? What other resources can CBP provide to ensure that trade stakeholders understand CBP requirements?
How can CBP improve violation referral systems and allegation processing?
3.- Cutting-Edge Technology;
What emerging technologies are most important for CBP to monitor or adopt?
What technologies are being adopted by the private sector that are incompatible with CBP’s current legal or policy frameworks?
What technologies on the horizon have the potential to be a disruptive force (enabling or challenging) within the trade ecosystem?
4.- Data Access and Sharing;
What data would you like CBP to share with importers, and vice versa, to improve trade facilitation and enforcement?
How can CBP’s overall data sharing with trade stakeholders be improved?
5.- 21st Century Processes; and
What specific import procedures or requirements can be improved or refined, and how?
What are some international best practices (i.e., processes used by other customs agencies) that CBP should examine?
6.- Self-Funded Customs Infrastructure.
Outside of the annual Congressional appropriations cycle, what mechanisms should CBP explore for consistent and timely funding for ACE enhancements?
How could the fee collection process be streamlined, improved, or redesigned to more directly fund ACE enhancements?
The comment submission deadline is rapidly approaching:
Based on our experience in submitting comments to respective dockets, we recommend comments contain strong support and persuasive evidence. If you would like to address any of the 6 key themes identified by CBP, contact DTL TODAY to start drafting your comment. Our Customs and International Trade Attorneys are available at 305-456-3830 or email@example.com.
Effective February 4, 2019, Customs and Border Protection (CBP) has ordered the detention at all U.S. ports of entry of tuna and any such merchandise manufactured wholly or in part by the Tunago No. 61, which is a fishing vessel owned by Tunago Fishery Co., LTD a company located in Vanuatu. According to the CBP press release of February 6, 2019, importers of detained shipments are provided an opportunity to export their goods or demonstrate that they were not produced with forced labor. The Tariff Act of 1930 (19 U.S.C. § 1307) bans imports of merchandise or food produced in whole or at least in part by forced labor, including convict labor, forced child labor, and indentured labor.
Human trafficking has long been considered an issue affecting global seafood trade. CBP’s investigations into imports of forced labor span across a variety of different industries and have been applied on a country-wide basis as well as to specific producers and, most recently, as to a shipping vessel.
How can this new import detention affect you?
Importers have an obligation to exercise reasonable care and take all necessary and appropriate steps to comply with the forced labor import ban and the sanctions for forced labor and slavery of North Koreans under the Countering Adversaries through Sanctions Act (CAATSA). If an importer’s shipment is detained, the importer bears the responsibility to demonstrate to CBP through clear and convincing evidence that the merchandise was not produced with a form of prohibited labor. If this requirement is not met by the importer, CBP will provided the importer an opportunity to export their goods to a location outside the United States within the 3-month detention period.
How can DTL help the importer?
Diaz Trade Law is a Customs and International Trade Law Expert and can help ensure that you have taken all the precautions to comply with CBP’s mandated Reasonable Care and Forced Labor requirements.
Routinely, individuals in the U.S. have property taken from them under “Asset Forfeiture” laws and are unaware of their rights. Civil judicial forfeiture does not require a criminal conviction, and is a powerful legal tool used by law enforcement and Federal Agencies to seize property that is involved in a crime. Fines and forfeitures have become a key source of revenue, bringing in hundreds of millions of dollars each year.
The majority of federal forfeiture cases are uncontested when there is a related criminal case. Administrative forfeiture occurs when property is seized but no one files a claim to contest the seizure. Property that can be administratively forfeited includes merchandise prohibited from importation; a conveyance used to import, transport, or store a controlled substance; a monetary instrument; or other property that does not exceed $500,000 in value. Federal law imposes strict deadlines and notification requirements in the administrative forfeiture process. If the seizure is contested, then the U.S. government is required to use either criminal or civil judicial forfeiture proceedings to gain title to the property.
What is the difference between Asset Seizure and Asset Forfeiture?
Asset Seizure occurs when the Government takes position of your property. However, different Government agencies may have different seizure proceedings. Click the hyperlinks to learn the difference between a seizure under CAFRA’s rules under 18 U.S.C. 983 and a seizure by U.S. customs.
Asset Forfeiture is the legal process used by the Government to take ownership of property it has seized. Civil Asset Forfeiture proceedings charge the property itself with involvement in a crime. Therefore, the owner of the property doesn’t even need to be guilty of a crime to have his/her asset forfeited.
Recent Supreme Court Ruling
On February 20, 2019, The Supreme Court of the United States decided Timbs v. Inidiana. The Court ruled in favor of Tyson Timbs, who bought and transported $225.00 worth of heroin using his car. The maximum fine for the drug charge to which he plead guilty in 2015 was $10,000. The state of Indiana sought civil forfeiture of Timbs’s $42,000 Land Rover, charging that it had been used to transport the heroin. The Supreme Court found that the imposition of such fine was excessive and ruled that state governments must comply with the Eighth Amendment’s ban on excessive fines.
How this ruling affects you?
This decision could restrain the state seizure of property from criminal suspects. The Supreme Court said that the Excessive Fines Clause was an incorporated protection that applied to the states as a result of the 14th Amendment’s Due Process Clause. The Supreme Court’s holding is a first step toward transforming the Eighth Amendment into a tool to combat the proliferation of fines around the country. Government Asset forfeiture is more common than what you might think.
Do you know what to do if your property is seized?
The on-going trade war continues as China and the US make progress to come to an agreement. For background information on past actions taken by the Trump Administration to protect American Intellectual Property, check out our previous blogs.
China Tariff Increase is Postponed
President Trump reported in a February 24th tweet that as a result of the “substantial progress” in trade negotiations with China on “important structural issues” he will be delaying the increase from 10 percent to 25 percent in the additional Section 301 tariffs on the List 3 goods (valued at about US$200 billion) that is scheduled to take place on 2 March. To formalize the extension, the administration will have to publish a Federal Register notice stating the Section 301 additional tariff on the so-called List 3 products will remain at ten percent for now and the notice will likely provide the new date for the tariff increase. To date no formal notice has been published.
In a February 25 tweet President Trump stated, “Relationship between our two Countries is very strong.” The President intends to take this time to further the still on-going bi-lateral trade negotiations with China. Both Presidents are planning a Summit at Mar-a-Lago to conclude an agreement. Some issues being discussed include intellectual property protection, technology transfer, agriculture, services, currency, and many other issues.
The tweet announcing the extension of time was sent just two days after the President met with members of the U.S. and Chinese delegations. At the meeting, U.S. Trade Representative Robert Lighthizer referenced “major hurdles” still remaining in the negotiations.
With an additional extension of time, this provides time for importers to assess their options to best prepare for the future increase and avail themselves of viable opportunities to ensure your company’s price points remain competitive during this ever-changing trade environment.
Options to consider:
Conduct a Harmonized Tariff System classification review;
Consider tariff engineering;
Watch out for an exclusion request process (anticipated to be announced on March 17);
Consider your country of origin;
Shift supply chains where appropriate;
Consider bonded warehouse or FTZ’s (ensure you plan for an approximate 6-month lead time);
Report First Sale to CBP (after a thorough review with counsel);
Exclusion Process: Now You Have the Ability to Tell USTR Why Your Products Should NOT be on the Section 301 List 3.
The Office of the U.S. Trade Representative (USTR) has been directed to report to Congress by March 17 on the establishment of a process for requesting exclusions for good on List 3 for U.S. businesses to obtain relief from the existing ten percent tariff on these goods.
In a statement issued on February 15, 2018, Congress voiced its concerns that exclusion process was provided for Lists 1 and 2, but not for List 3. Congress’ intent is for the USTR to provide the same procedures as those for Lists 1 and 2, allowing stakeholders to request that particular products classified within a tariff subheading subject to List 3 tariffs be excluded from the Section 301 tariffs. For more information on this process visit our blog discussing the process for exclusion from List 2.
“China Tariffs/ AD/CVD 101” Seminar
The rapid changes that concern trade negotiation with China has left many importers questioning how their business is being impacted. As a result, Diaz Trade Consulting is hosting a one day in person seminar on the topic of “China Tariffs/ AD/CVD 101” where participants will learn how to identify whether their product is subject to Section 301 Tariffs along with strategies on how to avoid paying the additional tariffs and whether their product is subject to Antidumping/Countervailing duties! This seminar is limited to the first 30 registrants and will discuss the following:
President Trump’s Directive
China Tariffs: The 3 Lists
What can you do to avoid Chinese Tariffs?
What can I do if my competitor isn’t paying the extra duties?
What are anti-dumping and countervailing duties (AD/CVD)?
How do I know if my products are subject to AD/CVD or one of the lists?
What are the CBP’s Centers of Excellence and Expertise (CEE) and how can they help you?
What is CBP’s role in administering and enforcing imports subject to AD/CVD?
What are top tips when importing to ensure compliance with AD/CVD & China Tariffs?
What’s the difference between a binding ruling and a scope ruling?
In most jurisdictions, the majority of trademark filings are made by small businesses and entrepreneurs or solopreneurs. When starting a business, it is easy to get caught up on getting your business off the ground. Below outlines the TOP 10 mistakes trademark owners can make (and we will teach you how to avoid them and MUCH more in our seminar, ABC’s of Protecting Your Brand, on February 20, 2019).
Not Realizing That Protecting Trademarks Could Create Value for Your Business.
Most new businesses should analyze the value of their business from the start. While most businesses operate out of rented/leased space or straight out of the owner’s home and rely on loans to promote their services or financing for product inventory, businesses fall short in adding value to their own brand name. When it’s time to sell or liquidate businesses are left with little or no assets apart from their client lists and intellectual property, if any. Not investing in protecting their trademarks will diminish the value of their business in the future.
Not Conducting A Trademark Availability Search Prior To Selecting Your Brand(s).
In order to minimize expenses, solopreneurs avoid hiring a trademark attorney to conduct a trademark availability search. Often relying on their own internet searches to vet the brand selected. Businesses that follow this process forgo the trademark availability search, which includes the federal trademark registry and each state trademark registry as well. A properly conducted trademark availability search will look for active trademarks and cancelled or abandoned marks. Additionally, the trademark availability search offers a limited search of the web for use of same and/or similar marks and a search of not only identical but phonetically equivalent marks. Its highly recommend that all businesses conduct a trademark availability search before proceeding with the filing of a trademark application.
Not Waiting for The Trademark Office to Approve Your Trademark Application Before You Start Using It in Commerce.
Under U.S. law, the actual use of a mark in commerce creates rights and priority over others. The rule for “ownership” of a mark starts with the “first to use”, not the “first to file”. Thus, if a trademark availability search was performed and it showed that the mark may be available, we recommend that you immediately start using the trademark to secure your priority of ownership over potential claimants.
Not Expanding Trademark Protection to Countries Where You Intend to Manufacture Or Commercialize Your Brands In The Near Future.
The ability to market and sell your product internationally is more feasible than ever. With viable overseas manufacturing opportunities becoming more attainable, it is now very common to find small business manufacturing or using their brands in foreign countries. It’s important for those international businesses to follow the requirements for proper ownership rights in foreign jurisdictions. While in the US ownership is based on the “first to use” system, most foreign jurisdictions follow the “first to file” system – meaning that outside of the United States you are encouraged to file your registration for your trademark as quickly as possible. The “first to file” system has made it easier for some manufacturers or potential distributors to file for trademark protection in bad faith with the sole intent of holding them for ransom from the real trademark owners.
Thus, if you are or intend to expand operations such as manufacturing or commercializing your brand overseas, we highly recommended to preemptively file for trademark protection in those jurisdictions before proceeding with any initial contact or negotiation for said manufacturing or commercialization
Incorrect Use of the ®, TM or SM dominations.
Although the use of intellectual property symbols is not required, it’s highly recommended that mark owners use them appropriately to make sure that the public knows that their brand is protected by a federal registration or they are simply claiming common law rights over the mark.
These symbols represent:
® Registered mark symbol is a federal registration symbol reserved for registered marks, not pending, with the United States Patent and Trademark Office. Should be noted that it’s prohibited to use the ® before the actual certificate of registration is actually issued by United States Patent and Trademark Office.
TM and SM are reserved for use by unregistered marks.
TM: is intended to be used on unregistered marks that identify PRODUCTS such as sodas, cereals, produce, and canned products.
SM: is intended to be used on unregistered marks that identify SERVICES such as those of restaurants, hotels, travel agencies, and import/export agencies, etc.
It’s very common to find service mark owners using the TM next to their mark even when the correct denomination should be SM. Properly identifying your rights over the mark will help solidify it.
Use of Generic, Descriptive and Suggestive Terms On Your Mark.
A trademark or service mark includes any word, name, symbol, device, or any combination, used or intended to be used to identify and distinguish the goods/services of one seller or provider from those of others, and to indicate the source of the goods/services.
The more arbitrary the word(s) used on the mark, the better. Generic, descriptive, and/or suggestive terms are non-distinctive and weakens the protection granted on the mark. Therefore, selecting a strong and unique trademark is highly recommended.
CBP recognizes the importance of intellectual property protection and provides assistance in stopping the infringing products at our borders. CBP’s Intellectual Property Rights Recordation (“IPRR”) system allows holders of registered trademarks and copyrights to record their registration with CBP, so that CBP can police the borders for infringing goods. Once recorded, it is entered into a online search system named IPRS.
Considering the incentives for counterfeiters along with the potential losses for intellectual property rights holders, companies that import merchandise must consider recordation a necessity. Importantly, when you record your marks, you must go to an expert in this area – as this is your opportunity to train CBP on the methods of policing your mark – and only trained experts can work on this proficiently, so you have the best results with CBP, like Hermes did. To learn more about the top four benefits of recording your intellectual property, review this article.
Failing to Enforce Their Trademark Rights After Obtaining Registration.
More often than not, trademark holders forget about the trademark once a registration is obtained. Thinking that they now have federal protection over their brand and the USPTO will prevent others from obtaining trademark for the same or similar marks. However, trademark owners must police the market and be vigilant of the registry to prevent:
Unauthorized use of their mark by others. Failure to enforce your trademark could represent losing the rights granted.
Prevent a trademark from becoming generic. When the mark, due to its popularity or significance, becomes generic or synonymous for product or service that it is registered for could lose the protection granted by its registration.
Prevent the granting of similarly confusingly trademarks by the Trademark Office.
Not Using the Mark as Registered.
Once a registration is granted, the mark must be used in the same manner as it was registered for all goods/services listed in the certificate of registration. This means that if you filed your trademark in class 25 for clothing items such as t-shirts, shorts, hats and caps, with a word and a logo. Then, after securing registration, the mark is used only on hats and caps and without the logo, not as registered and not for all goods listed in the registration, you are opening the registration to a possible full or partial cancellation attack for lack of use as registered.
We recommended to ALWAYS use the mark as registered for all goods/services listed in the original registration. Otherwise, a new trademark application should be filed.
Thinking That Obtaining Approval by The Division of Corporations To Open The Corporation Means Your Trademarks Are Protected.
In the US, you are required to register with the Division of Corporations of the state you intend to open or operate a business. When a corporation files its articles of incorporation, the Division of Corporations will search their databases to determine whether an identically named corporation exist on the registry. If no identical namely corporation exist, then you are granted a right to operate in that state under that name. However, the Division of Corporations will often allow a corporation with a similar name to register as long as it not the same. Also, they don’t search based on the similarity of the goods/services being provided. As long as the names are not identical, you are allowed to operate. It is not the same when a trademark owner is granted protection by the Trademark Office. A trademark owner can prevent similarly confusing trademarks from being registered or used in commerce even as a name of a corporation.
We have helped countless new businesses and solopreneurs avoid these common mistakes and would like to help you on how to better protect your rights to trademarks, copyrights, and other intellectual property rights in the US and overseas. On Wednesday, February 20, you will have the opportunity to meet our newest Of Counsel attorney, Augusto Perera, who will teach the “ABC’s of Protecting Your Brand” with Jennifer Diaz, and Denise Calle. Attendees will learn:
Why should I protect my brand?
What do I do if a similar brand already exists?
How does CBP protect your brand at the border?
What is the difference between a CBP detention and seizure case?
What documentation should CBP provide you upon detention and/or seizure?
What is the most effective way to respond to CBP during the detention and/or seizure process?
What is a CBP Recordation?
What type of enforcement action would CBP take against infringers?
Does CBP have additional enforcement measures available if you record a trademark or copyright with CBP?
What information would the brand holder receive upon detention and/or seizure?
What is the most effective way for brand holders to go after infringers?
What is the most effective way to respond to CBP if you receive a Notice of Penalty from CBP?
Register HERE or https://www.eventbrite.com/e/abcs-of-protecting-your-brand-tickets-54886894178
Now that the Section 301 tariffs are effective, importers are required pay additional duties – but not all are doing so. We found that while some importers know their product is subject to one of the 3 Chinese tariff lists, they are either using HTS’s not on the list (even though that is not the correct HTS for their product), or using an HTS subject to additional tariffs, but, not paying the additional tariffs. If you are an honest importer paying the correct amount of additional duties, this may leave you unable to compete in the current market.
If you’ve noticed that some of your competitor’s pricing has not been affected by the additional tariffs and you have been forced to increase your prices to stay in business, you have an option to help equal the playing field.
What can you do if you know that one or more of your competitors are not paying the Section 301 Chinese tariff?
You can inform CBP of the violation through their e-Allegation portal. An e-Allegation provides the public the opportunity to report to CBP any suspected violation of trade or regulations related to the importation of goods into the U.S. Anyone can report a violation through e-Allegation. CBP allows you to remain anonymous when reporting an allegation. CBP will not keep you advised of the status of their investigation (unlike an EAPA allegation), but, CBP will take the allegation seriously (especially if written professionally with specific details).
What information are you required to provide CBP through the e-Allegation portal?
Some of the information includes but is not limited to the name and address of the importer against whom the allegation is brought; description of the covered merchandise; harmonized tariff schedule (HTS) of the merchandise at issue; and information reasonably available to you to support your allegation of the importer with respect to whom the allegation is filed is engaged in evasion. CBP often takes allegations that are supported by evidence more seriously. If you elect to not submit anonymously, CBP will accept supplemental evidence on an ongoing basis and will contact the reporter for clarification. It is essential to keep in mind that the Privacy Act and Trade Secrets Act laws prevent CBP from providing a reporter with updates or the results of an e-Allegation.
CBP may issue a Request for Information (CBP 28) to the alleged violator to confirm that the product is subject to the additional duties and thereafter verify whether your competitor declared/paid the additional duties. In our previous blog, we discussed the fact that importers typically still have the ability to file a Prior Disclosure with CBP after receiving a CBP 28. Remember, CBP 28’s can lead to CBP 29’s, and CBP Penalties under 19 U.S.C. 1592.
How can DTL help you?
DTL can help you identify whether your product is subject to the Section 301 tariffs, and if you believe your competitor is not paying the required Chinese tariffs, we are able to assist in submitting an e-allegation with sufficient supporting evidence to CBP, and escalate the allegation to the appropriate CBP CEE. We can be reached at firstname.lastname@example.org or 305-456-3830.