The following are some reflections on what Customs-related enforcement activity in the US and China last year. The data generally shows the continuing problem of a high level of exports of counterfeit goods from China, difficulties in addressing online and border measures for patents, and the need to work with Customs officials to secure enforcement.
Both US and Chinese data generally showed an increase in Customs activity, especially in Sino-US trade, for 2015. According to US Fiscal Year 2015 data, the number of IPR seizures increased nearly 25 percent to 28,865 from 23,140 in FY 2014. The total estimated manufacturer’s suggested retail price (MSRP) of the seized goods, had they been genuine, increased 10 percent to $1,352,495,341. China and Hong Kong together at 87% of seizures, versus 88% for 2014.
China Customs also released its data in late April 2015. Chinese data shows that the United States rose from the number 5 slot to the number one slot in terms of destination of batches of shipments. However, the US was number 29 in numbers of seized items (suggesting a relatively small quantity in each batch of seizure for export to the US). Postal shipments accounted for 84% of overall seizures, an increase of 2.7% from last year. There was however a drop in seizures upon export from 23,019 to 22,000, which is contrary to the US experience – since increasing on-line sales in particular should likely result in more seizures, presumably at less value.
Iran was the export destination from China with the most goods seized, holding the number one place in 2014 and 2015. As discussed last year, 2014 showed a diversification in destinations of China’s export destinations for counterfeit goods, which continued for this year.
There was also a change in the mix of China and Hong Kong origin seizures coming into US ports. China origin seizures by US Customs dropped by 11% in 2015 and Hong Kong picked up the slack (10%).
Why was there such a dramatic “migration” of counterfeits to Hong Kong? One other odd trend is that trademark litigation in Southern China (Guangdong) actually dropped by 4.11%, according to data from the Guangdong High Court. Any downward trend in Chinese IP statistics is often a warning sign – by comparison, the Supreme People’s court noted in its 2015 White Paper that national civil TM cases increased nationwide by 13.14% during this time frame to 24,168 cases. The data might suggest that Guangdong is becoming less important as a place for enforce trademarks and/or that transshipment through Hong Kong is becoming more important, but it is too early to tell.
US data shows that the three largest categories by numbers of seizures were wearing apparel, consumer electronics and pharmaceuticals/personal care for 2015. China reported that cosmetics, tobacco products, and machinery were amongst the major categories of seized products. Cosmetics, jewelry, medical devices, and watches showed the greatest levels of increases in Chinese seizures.
Chinese Customs data also shows that the number of articles seized based on ex officio actions dropped dramatically (65% vs. 98%) comparing 2015 to 2014, suggesting the need for increased engagement by rightsholders with Chinese Customs to alert them to suspected infringing shipments.
Interestingly, China reported a noticeable increase in seizures on behalf of its domestic IP rights owners, which included 1939 batches with a value of more than 55,900,000 RMB.
As with the United States, Chinese Customs’ emphasized seizing trademark infringing goods over other rights. In 2014, TM’s occupied 96.86% of total items seized, with only 1.94% related to patent. In 2015, TM related seizures increased to 98% of total items seized; copyright and patent combined were about 2% of the items seized.
US Customs reports that there was also a big increase in exclusion orders issues and enforced on behalf of the International Trade Commission, typically involving patents, with a 13-fold increase in shipments seized from 2 to 26. In China, on-line enforcement against articles that infringe patents is also attracting more attention from Chinese regulators, with the Chinese patent law amendments also looking at an increased scope of liability for online service providers (Art. 63).
While on-line enforcement is getting more attention, the Federal Circuit decided last year in ClearCorrect v. Align that the USITC Section 337 jurisdiction over the importation of “articles that infringe” does not extend to the “electronic transmission of digital data”, which may reduce the ITC’s role in the digital environment, particularly those involving patents. This otherwise appears to be a trend that is contrary to an increased focus on on-line infringement.