Importing Goods From Abroad Can Infringe On The Intellectual Property Rights of Others
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by: RKlein
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I recently received a call from a client who complained that the MP3 players they imported from China were seized and confiscate by the Custom Service at the United States border. The reason for the seizure and forfeiture, I was told, was that the MP3 players had software downloaded in the devices and the software amounted to a copyright infringement.
The software was not counterfeit, it merely exceeded the copyright license in that the license precluded the sale by this distributor of that software in the United States. The client wanted to know if they would suffer the same hardship if they imported additional MP3 players without that illicit software.
The answer to that question depended on whether the imported goods infringed on any other ones intellectual property rights. One concern was whether the soon to be imported MP3 players infringed upon a valid design patent of another manufacturer.
The United States Constitution grants Congress the power to promote the progress of science and useful arts by giving inventors exclusive rights to their inventions for a limited time. Under federal patent law, whoever invents or discovers any new and useful process, machine, manufacture or composition of matter, or any new and useful improvement thereof, may obtain a patent, with certain specified exceptions. A patent grants the patentee and his or her heirs and assigns the right to exclude others from making, selling, or using the patented article throughout the United States for a term of 17 years. In order to determine if the MP3 players infringed on a valid design patent we conducted a search in the Patent and Trademark office.
When importing goods into the United States one must be mindful of infringing on another entities trademark rights as well as the copyright or patents. Even goods bearing a valid United States trademark that is imported without the consent of the United States trademark holder is an act of trademark infringement. These type of goods are known as gray-market goods and can also be seized by the US Immigration and Customs Enforcement.
Gray-market goods, or parallel imports, are genuine products possessing a brand name protected by a trademark or copyright. They are typically manufactured abroad, and purchased and imported into the United States by third parties, thereby bypassing the authorized U.S. distribution channels. Retailers are able to sell these products at a discount because the gray market arbitrages international discrepancies in manufacturers pricing systems.
There is something called the first sale doctrine which can operate as a defense to a copyright infringement action but only where the disputed copies of a copyrighted work were either made or previously sold in the United States with the authority of the copyright owner. However that defense does not apply when the sale involves foreign made nonpirated copies of a U.S. copyrighted work unless those same copies have already been sold in the United States with the copyright owner's authority.
Before one decides to import goods into the United States it is prudent to investigate whether the goods you intend to import will infringe on another ones intellectual property.
Article Source: http://articles-collections.com
About the Author
Robert G. Klein, Esq. is a Los Angeles business litigation attorney whose emphasis is in trademark infringement litigation, unfair competition lawsuits, trade secret litigation, and business disputes. Visit our web site http://www.kleinligitation.com or call him at 213.996.8508
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