Using the International Trade Commision (ITC) to protect your IP!

The following is a brief overview of how the International Trade Commission’s (ITC’s) process works.  The proceedings involve investigation of infringing activities by the ITC.  Generally, the ITC is attempting prevent the importation of patented or trademarked goods.[1] However, the investigation can include copyrighted or trade secret materials.  Antitrust claims may also be asserted relating to the importation of certain goods. (Generally, this type of investigation is referred to under the rubric of investigating unfair trade practices in the importation of goods.)

Generally, the investigation is started after a proper complaint is filed with the commission.  The complaint must meet the requirements of 19 CFR 210.4, 210.12 and 68 Fed. Reg. 32971 (June 2003).  Next, the ITC votes on whether or not it will initiate an investigation.  If, an investigation is initiated, a NOTICE of investigation will be announced in the Federal Register.

Each investigation is assigned an Administrative Law Judge (ALJ) to preside over the proceedings and issue an initial determination about the violation of section 337.  The parties to these proceedings are the Commission Investigative Attorney (CIA), the Complainant, and the Respondent.  The CIA comes from the Commissions Office of Unfair Import Investigations (OUII) represents the public’s interest in preventing the importation of infringing goods.  The NOTICE generally announces the parties and the CIA.

The Complainant and the Respondent is typically represented by private firms that practice in customs, international trade or IP work.  Generally, the ALJ is required to resolve a section 337 proceeding within 15 months from the date the NOTICE is issued in the Federal Register.

Understanding this process and working with attorneys that understand the ITC and how it can be a important part of your patent and trademark strategy can be vital to the success of your business.  The ITC can be used to protect against the importation of infringing or counterfeit goods, and protect vital revenue streams.

[1] Most claims involved are patent and trademark infringement claims.  However, unfair competition claims, such as misappropriation of trade secrets, passing off, reverse passing off, false advertising and antitrust claims may also be asserted in front of the ITC.

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