Intellectual Property Rights and United States International Trade Laws
by Herrington, Wayne W.; Thompson, GeorgeFormat: Hardcover
Pub. Date: 2003-08-12
Publisher(s): Oceana TM
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Summary
Expert commentary, pertinent primary source material and a detailed subject index make this an indispensable source for information about how to protect intellectual property rights using the trade laws of the United States.
Table of Contents
| Preface | p. ix |
| About the Authors | p. xi |
| Intellectual Property Actions at the International Trade Commission (Section 337 of the Tariff Act of 1930) | |
| Introduction | p. 3 |
| The United States International Trade Commission | p. 3 |
| The Commissioners | p. 3 |
| Powers of the Commission | p. 4 |
| Proceedings Conducted by the Commission | p. 4 |
| The Commission Staff | p. 5 |
| Commission Rules | p. 7 |
| The Statute: Section 337 of the Tariff Act of 1930 | p. 7 |
| Substantive Provisions: Unfair Practices in the Import Trade | p. 8 |
| Remedial Orders | p. 16 |
| Public Interest Factors Precluding Relief (Section 337(d)-(f)) | p. 18 |
| Important Procedural Aspects of Section 337 | p. 19 |
| Overview of Section 337 Proceedings | p. 20 |
| General Rules for Written Submissions and Computation of Time | p. 23 |
| Written Submissions (Commission Rules 201.8, 201.16, 210.4) | p. 23 |
| Computation of Time (Commission Rules 201.14, 201.16(d)) | p. 25 |
| Confidential Information (Section 337(n); Commission Rule 201.6) | p. 26 |
| Generally | p. 26 |
| Obtaining Confidential Treatment | p. 27 |
| Initiation of a Section 337 Investigation | p. 27 |
| The Complaint | p. 28 |
| Contents of the Complaint (Commission Rule 210.12) | p. 29 |
| Review of Draft Complaint by OUII | p. 36 |
| Filing and Service of the Complaint (Commission Rule 210.8) | p. 36 |
| Duty to Supplement Complaint (Commission Rule 210.12(h)) | p. 36 |
| Amendment of Complaint (Commission Rule 210.14) | p. 37 |
| Commission Action on Receipt of Complaint (Commission Rules 210.9-.11) | p. 37 |
| Withdrawal of the Complaint (Commission Rule 210.10) | p. 39 |
| Initial Steps by Respondent; Obtaining Confidential Version of Complaint; Response to Complaint and Notice of Investigation; Counterclaims | p. 39 |
| Initial Steps: Obtaining Confidential Version of Complaint | p. 39 |
| The Response (Commission Rule 210.13) | p. 40 |
| Counterclaims (Section 337(c); Commission Rule 210.14) | p. 42 |
| Section 337 Investigations: Administrative Law Judge Phase | p. 43 |
| The Administrative Law Judge System | p. 43 |
| Administrative Law Judges at the Commission | p. 44 |
| Action by the ALJ After Assignment: Issuance of Protective Order and Ground Rules | p. 44 |
| Discovery Statements | p. 45 |
| Discovery | p. 46 |
| Pre-Hearing Conferences | p. 46 |
| Answer | p. 46 |
| Target Date; Target Date Statements (Section 337(b)(1); Commission Rule 210.51) | p. 46 |
| The Procedural Schedule; Order of Proceedings | p. 47 |
| Initial Determination on Violation of Section 337 (Commission Rule 210.42(a)(1)) | p. 52 |
| Recommended Determination on Remedy and Bonding (Commission Rule 210.42(a)(1)(ii)) | p. 52 |
| Discovery (Commission Rules 210.27-.34) | p. 52 |
| Scope of Discovery (Commission Rule 210.27(b)) | p. 53 |
| Form of Discovery Requests, Responses, and Objections (Commission Rule 210.27(d)(1)) | p. 53 |
| Signing of Discovery Requests, Responses, and Objections (Commission Rule 210.27(d)(2)) | p. 53 |
| Supplementation of Responses to Discovery Requests (Commission Rule 210.27(c)) | p. 55 |
| Discovery Requests, Responses and Objections Not Filed; Service | p. 55 |
| Discovery by the Commission Investigative Attorney | p. 55 |
| Discovery from the Commission, Commission Employees, and the Commission Investigative Attorney | p. 55 |
| Interrogatories (Commission Rule 210.29) | p. 55 |
| Request for Production of Documents and Things and Entry Upon Land (Commission Rule 210.30) | p. 57 |
| Requests for Admission (Commission Rule 210.31) | p. 58 |
| Depositions (Commission Rule 210.28) | p. 60 |
| Protective Orders (Commission Rule 210.34) | p. 66 |
| Subpoena Practice (Commission Rule 210.32) | p. 67 |
| Motions Practice | p. 70 |
| Content | p. 70 |
| Filing and Service | p. 71 |
| Responses | p. 71 |
| Replies | p. 71 |
| Rulings on Motions | p. 71 |
| Review of Rulings on Motions | p. 72 |
| Default (Section 337(g); Commission Rules 210.16-.17) | p. 74 |
| Statutory Default | p. 74 |
| Failure to Act Other Than Statutory Forms of Default (Commission Rule 210.17) | p. 76 |
| Avoidance of Trial: Summary Determination (Commission Rule 210.18) | p. 77 |
| Time for Filing Motion | p. 77 |
| Affidavits | p. 78 |
| Ruling; Basis | p. 78 |
| Order of Summary Determination | p. 78 |
| Refusal of Summary Determination; Continuations | p. 78 |
| Order Establishing Facts | p. 78 |
| Intervention (Commission Rule 210.19) | p. 79 |
| Intervention Generally | p. 79 |
| Intervention as a Respondent | p. 79 |
| Declassification of Confidential Information (Commission Rule 210.20) | p. 80 |
| Suspension of Investigation (Section 337(b)(3); Commission Rule 210.23) | p. 80 |
| Termination of Investigation Without Adjudication on the Merits (Commission Rule 210.21) | p. 80 |
| By Withdrawal of the Complaint and Otherwise | p. 80 |
| By Consent Order or Agreement Between Private Parties | p. 81 |
| Sanctions and Sanction Proceedings (Commission Rule 210.25 and related rules) | p. 86 |
| Time for Filing Sanctions Motions | p. 86 |
| To Whom Motion for Sanctions is Addressed | p. 87 |
| Deferred Ruling by the ALJ | p. 88 |
| Commission Review of ALJ Sanction Rulings | p. 88 |
| Sanctions--Substantive Law | p. 89 |
| Commission Review of Final Initial Determinations | p. 95 |
| Review by Grant of Petition for Review | p. 95 |
| Commission Review on its Own Motion | p. 97 |
| Decision Whether to Review; The Review Proceeding | p. 98 |
| Nature of Commission Review | p. 98 |
| Commission Action on Issues of Public Interest, Remedy, and Bonding | p. 99 |
| Commission Final Determination | p. 99 |
| Petitions for Reconsideration | p. 100 |
| Presidential Review of Commission Determination and Order | p. 101 |
| Temporary Relief (Section 337(e); Commission Rules 210.52-.69) | p. 102 |
| Generally | p. 102 |
| Procedure | p. 104 |
| Forfeiture or Return of Respondent's Bond (Commission Rule 210.50(d)) | p. 115 |
| Forfeiture or Return of Complainant's Temporary Relief Bond (Commission Rule 210.70) | p. 115 |
| Modification or Rescission of Commission Orders (Section 337(k); Commission Rule 210.76) | p. 116 |
| Generally | p. 116 |
| Procedure for Initiating Modification/Rescission Proceedings | p. 117 |
| Commission Action | p. 117 |
| Advisory Opinions (Commission Rule 210.79) | p. 118 |
| Generally | p. 118 |
| Proceedings for Obtaining Advisory Opinions | p. 118 |
| Advisory Opinions Discretionary | p. 118 |
| Revocation of Advisory Opinions | p. 118 |
| No Judicial Review of Commission Advisory Opinions | p. 119 |
| Judicial Review of Commission Determinations | p. 119 |
| Generally | p. 119 |
| The United States Court of Appeals for the Federal Circuit | p. 119 |
| Commission Decisions Reviewable; Final Determinations | p. 120 |
| Who May Appeal | p. 121 |
| Parties to the Appeal | p. 121 |
| Time for Appeal | p. 121 |
| Divisibility of Final Determinations; Effect on Time for Appeal | p. 122 |
| Issues Before the Court Limited to Those Commission Has Decided | p. 122 |
| Alternative Grounds for Affirmance | p. 123 |
| Standard of Appellate Review | p. 123 |
| Applicable Rules | p. 124 |
| Procedure for Appeal | p. 125 |
| Enforcement of Remedial Orders | p. 128 |
| Enforcement of Exclusion Orders by Customs; Judicial Review | p. 129 |
| Preimportation Rulings by Customs; Judicial Review | p. 130 |
| Preliminary Injunctions in the Court of International Trade | p. 131 |
| Enforcement of Cease and Direct Orders by the Commission | p. 131 |
| Mandatory Stay of Parallel District Court Proceedings (28 U.S.C. [section] 1659) | p. 132 |
| Mandatory Stay Generally | p. 133 |
| Who May Request Mandatory Stay | p. 133 |
| Time for Requesting Mandatory Stay | p. 133 |
| Matters Subject to Mandatory Stay | p. 133 |
| Duration of Mandatory Stay | p. 133 |
| Use of Commission Record in District Court After Stay | p. 134 |
| Stay or Injunction of Commission Proceedings | p. 134 |
| Effect of Commission Determinations on District Court Proceedings | p. 134 |
| No Issue Preclusion Effect Given to Commission Determinations | p. 134 |
| No Claim Preclusion Effect Given to Commission Determinations | p. 135 |
| Non-Patent Cases | p. 136 |
| Preclusive Effect of District Court Judgments | p. 136 |
| A Note on Section 337 and the Gatt | p. 137 |
| Customs Service Enforcement Against Goods That Infringe or Counterfeit a Trademark, Trade Name, or Copyright | |
| Statutory Authority for Enforcement Against Imported Goods That Infringe or Counterfeit a Trademark, Trade Name, or Copyright | p. 141 |
| Trademark and Trade Name Provisions | p. 141 |
| Copyright Provisions | p. 143 |
| The Customs Service Regulations | p. 144 |
| Recordation of Trademarks | p. 144 |
| Recordation of Trade Names | p. 149 |
| Recordation of Copyrights | p. 150 |
| Regulatory Enforcement Procedures | p. 153 |
| The Entry Process in General | p. 154 |
| The Administrative Ruling Process | p. 156 |
| Procedures and Timetable | p. 160 |
| Enforcement Provisions for Goods Suspected of Copying or Simulating a Recorded Trademark or Trade Name | p. 160 |
| Enforcement Provisions for Suspected Gray Market Goods | p. 168 |
| Enforcement Provisions for Goods Suspected of Bearing a Counterfeit Trademark | p. 170 |
| Enforcement Provisions for Goods Suspected of Copyright Infringement | p. 172 |
| Forfeiture Proceedings | p. 180 |
| Administrative Forfeiture | p. 180 |
| Judicial Forfeiture | p. 181 |
| Assessment of Fines for Counterfeit Trademarked Merchandise | p. 182 |
| Liquidated Damages Proceedings | p. 184 |
| Administrative Protests | p. 186 |
| Court of International Trade Jurisdiction for Denied Administrative Protests | p. 189 |
| Basic Procedures | p. 189 |
| Jurisdictional Issues | p. 190 |
| Court of International Trade Jurisdiction for Pre-Importation Rulings | p. 195 |
| District Court Jurisdiction for Forfeitures | p. 198 |
| Factors in Evaluating the Judicial Forum to Choose | p. 199 |
| The Substantive Law Applied by the Customs Service | p. 199 |
| "Copying or Simulating" Trademarks | p. 199 |
| Gray Market Imports | p. 205 |
| Counterfeit Imports | p. 214 |
| Copyright Infringement | p. 217 |
| Trademark-Related Marking Requirements | p. 222 |
| Patent Surveys | p. 224 |
| Enforcement of Rights Under Trade Agreements | |
| U.S. Government Sanctions Against Foreign Intellectual Property Violations | p. 229 |
| Overview of Section 301 | p. 229 |
| Substantive Reach of Section 301 | p. 229 |
| Exceptions to Mandatory Action | p. 231 |
| Remedial Actions Available to USTR | p. 231 |
| Procedures and Timetables Under Section 301 | p. 232 |
| Special 301 | p. 234 |
| Generalized System of Preferences | p. 235 |
| Proceedings Before the World Trade Organization | p. 236 |
| Appendices | |
| Section 1337: Statute and Regulations | p. 241 |
| Title 19 U.S.C.--Customs Duties | |
| Sec. 1337 Unfair practices in import trade | p. 241 |
| 19 C.F.R.--Customs Duties | |
| Part 201--Rules of General Application | p. 249 |
| Part 210--Adjudication and Enforcement | p. 313 |
| About the Commissioners and the Usitc Staff | p. 383 |
| Customs Service Statutes and Regulations | p. 387 |
| Title 15 U.S.C.--Commerce and Trade | |
| Sec. 1124 Importation of goods bearing infringing marks or names forbidden | p. 387 |
| Sec. 1125 False designations of origin, false descriptions, and dilution forbidden | p. 388 |
| Title 17 U.S.C.--Copyrights | |
| Sec. 506 Criminal offenses | p. 393 |
| Sec. 509 Seizure and forfeiture | p. 393 |
| Sec. 602 Infringing importation of copies or phonorecords | p. 394 |
| Sec. 603 Importation prohibitions: Enforcement and disposition of excluded articles | p. 395 |
| Title 19 U.S.C.--Customs Duties | |
| Sec. 1526 Merchandise bearing American trademark | p. 397 |
| 19 C.F.R.--Customs Duties | |
| Part 133--Trademarks, Trade Names, and Copyrights | p. 399 |
| Section 301 Statutes and Regulations | p. 409 |
| Title 19 U.S.C.--Customs Duties | |
| Sec. 2242 Identification of countries that deny adequate protection, or market access, for intellectual property rights | p. 409 |
| Sec. 2411 Actions by United States Trade Representative | p. 413 |
| Sec. 2412 Initiation of investigations | p. 418 |
| Sec. 2413 Consultation upon initiation of investigation | p. 419 |
| Sec. 2414 Determinations by the Trade Representative | p. 420 |
| Title 15 C.F.R.--Commerce and Foreign Trade | |
| Sec. 2006.0 Submission of petitions requesting action under section 301 | p. 423 |
| Sec. 2006.1 Information to be included in petition | p. 423 |
| Sec. 2006.2 Adequacy of the petition | p. 426 |
| Sec. 2006.3 Determinations regarding petitions | p. 427 |
| Sec. 2006.4 Requests for information made to Foreign Governments or Instrumentalities | p. 427 |
| Sec. 2006.5 Consultations with the Foreign Government | p. 427 |
| Sec. 2006.6 Formal dispute settlement | p. 427 |
| Sec. 2006.7 Public hearings | p. 428 |
| Sec. 2006.8 Submission of written briefs | p. 428 |
| Sec. 2006.9 Presentation of oral testimony at public hearings | p. 429 |
| Index | |
| Index | p. 431 |
| Table of Contents provided by Syndetics. All Rights Reserved. |
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