Tuesday, June 1, 2010

Summary of IPEC’s Responsibilities

On October 13, 2008, President Bush signed into law the Prioritizing Resources and Organization for Intellectual Property Act of 2008 ("PRO-IP Act of 2008"). Pub. L. No. 110-403, 122 Stat. 4256 (2008). While the Act principally targets copyright issues, it also increases civil penalties for trademark counterfeiting (including for direct as well as for certain types of contributory infringement), enhances criminal penalties for trafficking in counterfeit goods bearing others' trademarks and provides additional anti-piracy tools at the executive branch level in the form of an Intellectual Property Enforcement Coordinator (IPEC). It took a full year before someone was appointed to fill the IPEC role (see my October 2009 post describing Ms. Victoria Espinel, the current IPEC).

Since Ms. Espinel's appointment, however, a number of projects have been assigned to her office. The purpose of this blog post is to summarize briefly those projects and provide links for more information. I also commend to you an article published on CNET shortly after the PRO-IP Act was enacted by Congress (but before the President signed it into law) that provides a basic outline of the position.

As Assigned by the PRO-IP Act

From the outset, the IPEC was tasked with coordinating the development and implementation of a Joint Strategic Plan against counterfeiting and infringement and to facilitate the issuance of policy guidance to other U.S. government agencies and departments relating to domestic and international intellectual property enforcement programs. Pub. L. No. 110-403 § 301. This position appears to be directed to correct a flaw in the "lack of permanent and effective leadership in coordinating" IP enforcement efforts. Prioritizing Resources and Organization for Intellectual Property Act of 2008, House Report 110-617, May 5, 2008 ("House Report"), at 26. As enacted, however, this position does not have any independent prosecutorial or other law enforcement authority, and appears to only have "advisory" duties. Pub. L. No. 110-403
§ 301(b)(2).

Among the IPEC's initial advisory responsibilities were the following:

1) chair an "interagency intellectual property enforcement advisory committee";

2) coordinate the Joint Strategic Plan (the "Plan");

3) assist, when requested, in the implementation of the Plan;

4) facilitate the issuance of policy guidance on "basic issues of policy and interpretation, to the extent necessary to assure the coordination of intellectual property enforcement policy and consistency with other law;"

5) report to the President and to Congress about IP enforcement programs;

6) report to Congress about the implementation of the Plan; and

7) "carry out such other functions as the President may direct." Id. § 301(b)(1).

So, where is this Joint Strategic Plan? On February 23, 2010, the IPEC requested public comment about the proposed content of a Joint Strategic Plan. Coordination and Strategic Planning of the Federal Effort Against Intellectual Property Infringement: Request of the Intellectual Property Enforcement Coordinator for Public Comments Regarding the Joint Strategic Plan, 75 Fed. Reg. 8137 (Feb. 23, 2010). Comments were due by March 24, 2010, and can be found on the IPEC's web site.

As Assigned by the Trademark Technical and Conforming Amendment Act of 2010

On January 26, 2010, Representatives John Conyers, Jr. (MI) and Lamar Smith (TX) co-sponsored a bill (H.R. 4515) intended to "make certain technical and conforming amendments to the Lanham Act." Similarly, on January 28, 2010, Senators Patrick Leahy (VT) and Jeff Sessions (AL) co-sponsored an identical bill in the Senate (S. 2968) which was passed without amendment by Unanimous Consent the same day. These bills have now been enacted. See Pub. L. No. 111-146 (enacted Mar. 17, 2010).

In addition, the Act requires the IPEC to conduct a one-year study and prepare a substantive report on two subjects: 1) "the extent to which small businesses may be harmed by litigation tactics by corporations attempting to enforce trademark rights beyond a reasonable interpretation of the scope of the rights granted to the trademark owner;" and 2) "the best use of Federal Government services to protect trademarks and prevent counterfeiting." The IPEC's report would be due within one year after the enactment of the Bill, or no later than March 17, 2011.

For More Information

The Official Site for the IPEC's Office is http://www.whitehouse.gov/omb/intellectualproperty/. Should you wish to contact the IPEC, the official e-mail address is mailto:intellectualproperty@omb.eop.gov?subject=Contact%20IPEC.

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