October 2011

Invalidated Trademarks may Still Cause Your Products to be Seized by U.S. Customs and Border Protection, but There’s a Solution.

Michael De Biase

Among its other duties, U.S. Customs and Border Protection (“CBP”) has the daunting task and      responsibility to search and seize products that are counterfeit or otherwise infringe the  intellectual property rights of original goods manufacturers. This is accomplished through CBP’s  Intellectual Property Rights Recordation System. As the name suggests, trademark and copyright  owners record their intellectual property rights with CBP and CBP keeps records of such  recordings via this system, which can be accessed online at http://iprs.cbp.gov/. Using this  system, an importer can determine if any of the products that it is importing actually violate the  intellectual property rights of somebody else. However, there is a big problem with this system  that can cause CBP to wrongfully seize goods, thereby inflicting substantial monetary damages  and significant delays in delivery times.Intellectual property rights are not absolute and can therefore be challenged and cancelled through the U.S. federal court system. When a trademark is cancelled, the U.S. district court has to notify and direct the Director of the U.S. Patent and Trademark Office (“USPTO”) to remove the trademark registration from the USPTO’s registrar. Until CBP is notified that the trademark has been cancelled, CBP will continue to seize products that potentially infringe the rights of the now cancelled trademark. This causes products to be wrongfully seized, and, in turn costs the importer tens of thousands of dollars as […]

By |2015-12-01T06:45:27-05:00October 19, 2011|Import|0 Comments

How to Comply with International Inconsistencies in FDA Cosmetic Labeling Requirements

The U.S. Food and Drug Administration (“FDA”) has strict labeling requirements for cosmetic products.  One area that consistently causes confusion among companies that distribute cosmetic products to countries on different continents is the area of labeling. Different products have different labeling requirements depending on the application of the product, the type of ingredient being labeled, the size of the product, and the country to which the product will be shipped. For example, the rules regarding how to describe color additives for products entering the U.S. are different than those for Canada and Europe.

Fortunately, it is possible to comply with the labeling requirements for the U.S. as well as Canada and Europe using only one label. In fact, it can even be accomplished with a product bearing a label as small as that of mascara. Accomplishing this is greatly beneficial to these companies because they can take advantage of economies of scale and taper production costs by merely having one label printed to be distributed to several countries.  However, this is a delicate maneuver that, if not done properly, will likely result in seizure and detention by the FDA or a foreign country’s equivalent agency. This will cause delays in the shipments, and may cause civil penalties and forfeiture of the products.

To avoid this common mistake and take advantage of the fact that one label may be used throughout the U.S., Canada, and Europe, you should contact an attorney well versed in the FDA regulations. Taking this precautionary measure is an […]

By |2022-07-06T13:32:16-04:00October 11, 2011|Cosmetics, FDA Issues, Import|0 Comments

Penalties by Treasury Department’s Office of Foreign Assets Control

Once again, the Office of Foreign Assets Control (OFAC) is the top of the news. With the payment by mega-bank, J.P. Morgan Chase, of $88 million to OFAC for violations of the Cuban Assets Control Regulations, OFAC has flexed its enforcement muscle.  Besides banks and other financial institutions, companies involved in the business of import, export, logistics, and international trade are targets of OFAC investigations and penalties.  There is a common theme to those investigations and penalties – somehow doing business with Iran or Cuba.

The Office of Foreign Assets Control (OFAC) of the US Department of the Treasury administers and enforces economic and trade sanctions based on the foreign policy and national security goals of the United States against targeted foreign countries and regimes, terrorists, international narcotics traffickers, those engaged in activities related to the proliferation of weapons of mass destruction, and other threats to the national security, foreign policy or economy of the United States.  So, for example, if there is an embargo of a country, virtually no business transactions may take place with the government, persons, or companies of that country (for example, Cuba or Iran). If a certain government regime is on an OFAC list, the prohibitions of doing business are with persons connected to that regime (for example, Sudan).

The second common trend that I have noticed in my years of representing persons and companies which have received a letter of investigation, administrative subpoena, or proposed penalty from OFAC is that the consequences of violations are much […]

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