What Intellectual Property Misappropriation Constitutes a Crime?When Is IP Misuse a Crime?
Although civil remedies that may provide compensation to wronged intellectual property rights holders are available, criminal sanctions are often warranted to ensure sufficient punishment and deterrence of wrongful activity. Indeed, because violations of intellectual property rights often involve no loss of tangible assets and, for infringement crimes, do not even require any direct contact with the rights holder, the rights holder often does not know it is a victim until an alleged infringer's activities are specifically identified and investigated. The U.S. Congress has continually expanded and strengthened criminal laws for violations of intellectual property rights specifically to ensure that those violations are not merely a cost of doing business for defendants. Among the most significant provisions are the following:
- The counterfeit trademark crime is set out at 18 U.S.C. § 2320;
- Criminal infringement of copyrighted works is set out at 17 U.S.C. § 506(a) and 18 U.S.C. § 2319;
- The counterfeit labeling provision is set out at 18 U.S.C. § 2318;
- Theft of trade secrets prohibited by 18 U.S.C. §§ 1831 and 1832
Experience has proven that federal investigators and prosecutors can bring cases under these provisions that result in punishment for the wrongdoer, as well as deterrence for intellectual property crimes.
In addition, Congress is concerned about providing adequate protections for both foreign and domestic owners of intellectual property. Indeed, the United States Government has committed, in a number of international agreements, to protect intellectual property rights holders, including foreign rights holders, from infringement in the United States. The United States is a member of the World Intellectual Property Organization (WIPO) and the World Trade Organization (WTO), both of which administer agreements that have established international IP standards. The WTO's Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), Sept. 27, 1994, is the most comprehensive agreement to date, and the first to include enforcement provisions.
Some misuse of intellectual property has not been criminalized. For example, infringement of a patent is not generally a criminal violation. Likewise, the laws protecting personally identifiable information do not generally provide for criminal penalties except in the most narrow of circumstances. See 18 U.S.C. § 2710 (wrongful disclosure of video tape rental or sale records).
U.S. Customs and Border Protection: If you suspect pirated or counterfeit goods are being imported into the United States and wish to prevent the importation of the goods, you should report your suspicions to the U.S. Customs and Border Patrol IPR Help Desk by telephone at (562) 980-3119 x252 or via email at firstname.lastname@example.org.
National Intellectual Property Rights Coordination Center: If you suspect “criminal” violations of intellectual property rights as a result of pirated or counterfeit goods being imported in the United States, you may report your suspicions to the criminal investigators at the National Intellectual Property Rights Coordination Center via its website complaint form.
U.S. International Trade Commission: If you are experiencing a regular problem with infringing imports, you should consider filing an investigation pursuant to 19 U.S.C. § 1337, known as a Section 337 investigation. Section 337 declares it unlawful to import items that infringe utility and design patents, as well as registered and common law trademarks, and registered copyrights. The U.S. International Trade Commission (USITC) will conduct an investigation and if it determines that the imports violate Section 337, it may issue an exclusion order barring the products at issue from entry into the United States, as well as a cease and desist order directing the violating parties to cease certain actions. The U.S. Customs and Border Protection (CBP) enforces the exclusion orders. USITC provides information on Section 337.
USITC also has a Trade Remedy Assistance Office (TRAO) that provides information to small businesses concerning the remedies and benefits available under U.S. trade laws; and assists eligible small businesses in preparing and filing a Section 337 complaint. The TRAO can be reached by telephone at (800) 343-9822 or (202) 205-2200, or by facsimile at (202) 205-2139.
If you suspect products for sale on the Internet are counterfeit or pirated, you can report your suspicions to the Federal Bureau of Investigation Internet Crime Complaint Center (IC3) via an electronic complaint form.
The Federal Bureau of Investigation (FBI)) investigates criminal counterfeiting, piracy, and other federal crimes. You can report suspicions concerning the manufacture or sale of counterfeit or pirated goods to the FBI by contacting your local FBI Office and asking to speak with the Duty Complaint Agent. To obtain contact information for your local FBI office, you can call (202) 324-3000 or use the FBI's field office locator.