Overlap between IP and International Trade

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Overlap between IP and International Trade

  1. 1. Catching the ‘Tweeners Addressing
Overlapping
Legal
Issues Between
International
Trade
&
Intellectual
Property J. F. (Jim) Chester JD, LL.M, CCS, CHB Chester/Associates, PLLC Dallas, Texas March 28, 2008 © Chester/Associates, PLLC 2008
  2. 2. What
is
a
‘Tweener? tweener (n) 1. a ball hit between the outfielders. 2. a softly hit fly ball that lands just beyond the infield. SOURCE: Enlexica Dictionary of Baseball March 28, 2008 2
  3. 3. What
is
Intellectual
Property? Tangible manifestations of creations of the mind. Examples: inventions, literary and artistic works, and symbols, names, images, and designs used in commerce. March 28, 2008 3
  4. 4. What is International Trade Law? Regulation of the exchange of goods and services across international borders March 28, 2008 4
  5. 5. What is International Trade Law? IBT ICL Weeks/Months Years/Decades March 28, 2008 © Chester/Associates, PLLC 2008
  6. 6. Key Overlap Issues  Customs Enforcement of IP Rights  Export Laws  EAR & Transfers of Technology  Deemed Exports  Import Laws (Undeclared Value)  Assists  IP License Agreements March 28, 2008 6
  7. 7. Customs Enforcement of IP Rights How do IP owners obtain Customs protection? How does Customs enforce IP rights? Example “compatible with NOKIA” March 28, 2008 7
  8. 8. EAR & Transfers of Technology • What is an Export? – Physical shipment of EAR- subject goods, technology, or technical data outside US Customs Territory – Downloads and emails of technology and technical data outside US – Example • Programming or patent drafting in India March 28, 2008 8
  9. 9. Deemed Exports  What is the Deemed Export Rule?  “Release”  “Technology or technical data”  “Foreign National”  Example  Telecom test contractors March 28, 2008 9
  10. 10. Penalties
for
EAR
Violations – Up
to
$1
million – Up
to
5
years
in
prison – Denial
of
export
privileges March 28, 2008 © Chester/Associates, PLLC 2008
  11. 11. International
Traffic
in
Arms
Regulation
(ITAR) – “Munitions” – Include
anything
manufactured to
“Military
Std.”
or
“Spec.” – Dual
Use – Encryption March 28, 2008 © Chester/Associates, PLLC 2008
  12. 12. ITAR
Penalties • Criminal:
“Willful”
violation: – Up
to
$1
million
per
violation
for
corporations – Up
to
$1
million
per
violation
and
up
to
10
years in
jail
for
individuals • Civil:
“Any”
Violation: – Up
to
$500k
per
violation
for
corporations and/or
individuals • Other
Enforcement
Measures: – Seizure
or
forfeiture
of
goods – Debarment
from
licensing
for
as
long
as
three years – Potential
debarment
from
Government contracting
for
up
to
three
years March 28, 2008 © Chester/Associates, PLLC 2008
  13. 13. Common
Importing
Pitfalls – Assists – Undeclared
Values • Royalties • Indirect
Payments March 28, 2008 © Chester/Associates, PLLC 2008
  14. 14. Assists  What are Assists and how do they affect import duties?  What types of IP can be considered assists?  Exception – US developed designs and tech. March 28, 2008 14
  15. 15. IP License Agreements  How do IP license agreements impact Customs duties?  Royalties  Indirect payment March 28, 2008 15
  16. 16. • Import
Penalties
-
Civil – False
Statement
or
Omission • Domestic
value
of
imported
goods – Record
Keeping • Up
to
$100,000
per
transaction – Marking • 10%
of
domestic
value • Other
Customs
Enforcement – Seizure
&
Forfeiture – Criminal
–
5
yrs;
$500,000 – Additional
scrutiny,
exams
&
audits – Referral
to
other
agencies
for
action March 28, 2008 © Chester/Associates, PLLC 2008
  17. 17. How to Catch the ‘Tweeners  Compliance Integration  Inter-Departmental Awareness & Communication  Use of Outside Experts  Periodic Compliance Assessments March 28, 2008 17
  18. 18. Conclusion  Failure to catch ‘tweeners can result in:  lost opportunities  potential liabilities  One can budget and plan for compliance; but not for enforcement. “The unexamined life. . . .” March 28, 2008 18
  19. 19. Questions? Jim
Chester Email

JFChester@tradelawfirm.com Phone
214.800.2845 Chester/Associates,
PLLC 6060
NCX,
Suite
560 Dallas,
Texas
75206 www.tradelawfirm.com March 28, 2008 19

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