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Will the AGREE Act Enhance Copyright Protections?

By Robyn Hagan Cain on November 18, 2011 | Last updated on March 21, 2019

Senators Chris Coons and Marco Rubio introduced the American Growth, Recovery, Empowerment and Entrepreneurship (AGREE) Act on Tuesday. While this is primarily a jobs bill, it includes a clarification of the Trade Secrets Act that could benefit your copyright/trademark/patent-holding clients.

According to the sponsors, the bill will help protect American intellectual property from counterfeit and otherwise-infringing commercial activity by clarifying the Trade Secrets Act.

Coons and Rubio assert that the only way for Customs and Border Patrol (CBP) officials to determine if merchandise coming into the U.S. is legitimate is to ask the owner of the trademark that appears on the product. That poses a problem because CBP interprets the Trade Secrets Act as prohibiting agents from sharing un-redacted photos or product samples with the rightful trademark holder.

If passed, the AGREE bill would eliminate the ambiguity, and arguably prevent counterfeit merchandise from crossing the border.

This bill could potentially cut down on the litigation costs that a company incurs in fighting counterfeit goods and imports that use misappropriated trade secrets.

In October, the Federal Circuit Court of Appeals ruled that the International Trade Commission (ITC) can halt imports that incorporate misappropriated trade secrets, even when the misappropriation occurs entirely in a foreign country.

In that case, TianRui Group Company LLC v. International Trade Commission, the Federal Circuit Court of Appeals effectively expanded ITC authority to permit downstream consequences for extraterritorially misappropriated trade secrets, according to Washington College of Law's Intellectual Property Brief.

In theory, the AGREE Act's Trade Secrets Act amendment would compliment that Federal Circuit ruling, and snare more imports produced in violation of U.S. intellectual property laws.

Would the AGREE Act help your clients?

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