The new US administration: still more questions than answers

18-06-2017

Travis Johnson

The new US administration: still more questions than answers

rex_wholster / iStockphoto.com

Companies concerned with IP protection and enforcement are wondering what President Donald Trump’s administration will mean for them, says Travis Johnson of the International AntiCounterfeiting Coalition.

Companies concerned with IP protection and enforcement are wondering what President Donald Trump’s administration will mean for them, says Travis Johnson of the International AntiCounterfeiting Coalition.

While the arrival of a new Presidential administration often comes with a degree of uncertainty, and many questions with regard to the direction of policy, it is safe to say that these questions were more pronounced following the election of Donald Trump. This is particularly so because Trump’s populist rhetoric on the campaign trail—especially on issues such as trade—often seemed to clash with the Republican Party’s more orthodox positions.

As a result, the private sector is watching closely for indicators of what course the Trump administration will take on a number of key issues, from immigration and energy to innovation and infrastructure. Equally important is how he’ll manage and cooperate with his own party’s leadership in the House and Senate. With regard to IP, here are a few key matters on which rights owners will be keeping a close eye.

Trade deals

Just three days after his inauguration, Trump followed through on one of his signature campaign promises, signing a memorandum regarding the withdrawal of the US from the Trans-Pacific Partnership (TPP). That agreement, signed by 12 nations, was seen as a key part of the Obama administration’s trade legacy and had received broad support from rights owners, thanks in part to a variety of IP commitments made by signatories outside of the US. 

Trump had railed against the pact throughout his campaign, arguing that the TPP and past agreements like it had undercut American manufacturing to the detriment of US workers and contributing to trade deficits. The path ahead remains unclear, although the most likely successor appears to be the Regional Comprehensive Economic Partnership agreement, which unlike the TPP includes China as a negotiating partner; the US has not been participating in those talks. 

Closer to home, the North American Free Trade Agreement (NAFTA) between the US, Canada, and Mexico also found itself in the crosshairs of “candidate” Trump, although the extent of any action on reopening that agreement remains to be seen. A draft memorandum leaked in late March appeared to step back from wholesale renegotiation of NAFTA, although more recent comments from the administration take a tougher stance. 

Key nominations

The US’s trade relationships with China, Canada, and Mexico remained front and centre during recent confirmation hearings on Trump’s nominee for the position of US Trade Representative (USTR), Robert Lighthizer. A trade attorney by practice and a former deputy USTR, Lighthizer noted his expectation that the US would undertake a “very vigorous enforcement policy”, during questioning from the Senate Judiciary Committee. 

Committee chairman Orrin Hatch noted his own expectation that the USTR, and the administration more broadly, would seek to vigorously protect IP rights, calling them “the backbone of our economy”. The Senate was expected to take up the nomination of Lighthizer shortly after the Easter recess, and rights owners are optimistic that Trump’s nominee for the position of Intellectual Property Enforcement Coordinator (IPEC), Vishal Amin, will likewise receive quick action. 

Amin is no stranger to IP issues, having served in the Commerce Department under George W Bush, and was most recently a senior counsel to the House Judiciary Committee. The office of the IPEC was created following the enactment of the Prioritizing Resources and Organization for Intellectual Property (PRO-IP) Act of 2008, and has been highly regarded by rights owners since its inception. Daniel Marti, who previously held the IPEC position, published a joint strategic plan late last year that was well received and has provided a roadmap for building on existing efforts across the executive branch.

Legislation, regulation and executive actions

With all the bandwidth at the start of the new Congressional and Presidential terms dedicated to issues such as immigration and healthcare, one could be forgiven for thinking that there was little activity of direct interest to IP owners. In reality, it’s been one of the busier periods in recent memory.

Pharmaceutical manufacturers (not to mention a number of doctors and patient advocacy groups) are mobilising against proposals to loosen restrictions on the importation of drugs into the country. Separate legislation—originally intended to address the illegal smuggling of synthetic opioids into the country—has also caught the attention of some rights holders. 

That latter bill seeks to address a significant weakness in border security by tightening controls over international mail shipments, which have become a preferred method of smuggling for drug traffickers and counterfeiters. In recent years, US Customs and Border Protection (CBP) has reported a sizeable increase in the volume of counterfeit goods seized at the border via international mail and express consignments, and new weapons to address that trafficking would be welcomed by rights owners. 

"A draft memorandum leaked in late March appeared to step back from wholesale renegotiation of NAFTA, although more recent comments from the administration take a tougher stance."

On the regulatory front, CBP continues to proceed with its implementation of the comprehensive reauthorisation bill enacted last year, the Trade Facilitation and Trade Enforcement Act of 2015. That legislation provided rights owners and CBP with a variety of new tools, including a clarification of the agency’s authority to disclose information to trademark and copyright owners, and those impacted by the illegal importation of circumvention devices.

That the formal rulemaking process remains ongoing is not surprising, given the number and breadth of changes to the law, but rights owners remain hopeful that many new enforcement tools will be put into practice soon. 

Rights owners have also applauded a recent executive order issued by the White House directing CBP to take necessary steps, including additional rulemaking actions, to ensure robust information-sharing and cooperation with the agency’s partners in the private sector. Rights owners have raised a number of concerns in recent years regarding customs’ interpretation of its legal authority to consult with and seek assistance from trademark and copyright owners. 

Those concerns were heightened with the adoption of a pilot programme to expedite the interdiction of suspected counterfeits, but which greatly diminished the disclosure to rights owners of relevant information about the shipments. The executive order appears to be a very positive step to allaying those concerns, and should help foster increased collaboration with IP owners and shipping intermediaries. 

Only months into the 115th Congress and the new administration, we have more questions than answers with regard to what this term will bring for those concerned with IP protection and enforcement, but things continue to unfold rapidly.

Given the importance of IP to the US and global economy, rights owners will be closely monitoring the words and actions coming out of Washington, DC. If the first 100 days are any indication, it’s going to be a busy couple of years.

Travis Johnson is the vice president, legislative affairs and senior counsel at the International AntiCounterfeiting Coalition (IACC). He oversees all aspects of the IACC’s government relations and policy development functions in North America, and serves as the IACC’s primary lobbyist in Washington, DC. Johnson also serves as the IACC’s senior in-house attorney, advising the organisation on a variety of corporate legal matters. He can be contacted at: tjohnson@iacc.org 

Travis Johnson, AntiCounterfeiting Coalition, Trump, questions, international, NAFTA, Senate, USTR, leaked, legislation

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