Many brand owners take the trouble to mark each individual product with a unique bar code or serial number. This unique marking tells the owner whether the product is counterfeit as well as where it was made, and possibly other information such as to where it was shipped or distributed.
In the United States, parallel imports are legal. U.S. Customs and Border Protection (“CBP”) has historically taken the position that it will not share bar code or serial-number information of seized goods with brand owners because if those goods turn out to be genuine gray market goods, the trade secrets of the gray marketer regarding sourcing and shipping information will be disclosed to the brand owner. This has been frustrating to brand owners who need this information to determine that the shipment is counterfeit.
Although brand owners have long been negotiating for legislative change of this position, we understand that national security considerations by the U.S. Defense Department, as well as general considerations of health and safety, pushed through a change due to concerns about counterfeit parts for military equipment.
As of April 24, 2012, CPB has adopted a new temporary (“Interim”) rule that allows CBP to share this kind of information with brand owners if the importer does not provide proof of genuineness after notification of CPB’s suspicions.
The Interim Rule is open for public comment until June 25, 2012. It is important that brand owners support this rule with comments as opposition from Gray Marketers is fully anticipated. A link to Notice for the Interim Rule can be found here.