Intellectual property protection sees its most fiercest manifestation at our nation's borders. The border is where, for example, Samsung and Apple are duking it out over who gets to numb our brains and maim our social interactions with their gleaming rectangles of addicting apps and unwholesome tactile rituals they force upon us (I am an writing this on my iPad). The border is also where companies and individuals canregister their trademarks and copyrights with US Customs and Border Protection (CBP) and, once done, CBP can forego any pretense of the usual due process surrounding IPR protection (IPR holders usually have to initiate court proceedings to protect their interests) and impound any merchandise indefinitely (or so it seems) upon the slightest suspicion of an infringement. At that point, good luck trying to convince CBP that it made a mistake or that the perceived infringement was trivial and inadvertent and, thus, deserving of dispensation.
I am keen to protecting intellectual property, but it's been overdone to the detriment of both innovation and the common weal, the two reasons that those protections were ostensibly put in place. Case in point, US Customs and Border Protection just announced that it has trademarked its C-TPAT logo. This triggered a double-take from me. C-TPAT has never been known in its two-decades of plodding existence for regulatory refinement or initiative. Except for a few cosmetic changes, it's been the same catatonic C-TPAT from the beginning. It's gotten bigger, but not prettier.
A couple of days ago, C-TPAT sent this announcement to program participants:
The Customs-Trade Partnership Against Terrorism (C-TPAT) program has applied to the U.S. Patent and Trademark Office for a trademark on its logo to protect the program against the misuse of the logo and deceptive business practices. C-TPAT worked with the Office of Public Affairs within U.S. Customs and Border Protection and the Department of Homeland Security (DHS) Office of the General Counsel, the office responsible for overseeing the DHS Intellectual Property Policy, to complete this task. All licensing agreements will be issued free-of-charge. The C-TPAT Partner Agreement will be updated within the C-TPAT Portal to include clauses describing the proper use of the logo. When each Partner completes their annual profile review and re-signs the Agreement, they will also be agreeing to the proper use clauses. Until such time as a Partner's next annual review, Partners are authorized to continue current uses of the trademark. Partners who are removed or withdrawn from the C-TPAT program must cease using the trademark. Note the display of the trademark does not denote program status; only the Status Verification Interface within the C-TPAT Portal verifies current program status. At this time the C-TPAT trademark is being licensed only to C-TPAT Partners, as a benefit for continued program membership. In addition, a method already exists to record the user agreement and identify the number of licensees. The C-TPAT program is developing a method external to the Portal to allow non-C-TPAT Partners to request and register use of the logo.
There are huge problems with this notice. CBP sent it only to those companies already in C-TPAT (there is no Federal Register notice, for example), which reflects one of the most aggravating and delusional mindsets ever from an entrenched bureaucracy. C-TPAT does not like talking to, communicating with, assisting, or associating with individuals or companies who are not already in the program, and barely to those who are. The C-TPAT phone operators, it would be a stretch to call them counselors, who answer the well-hidden official C-TPAT phone line deflect queries from the public with "we refer you to the C-TPAT guidelines on our website," a ludicrous suggestion that exposes a level of bureaucratic ineptitude, indolence, and superfluousness that would make Ron Swanson proud. Some of the C-TPAT guidelines are of dubious, well, guidance. C-TPAT imposes on importers that their "buildings must be constructed of materials that resist unlawful entry." One can only infer that CBP is thankfully trying to exclude from C-TPAT the thousands of manufacturers, importers, customs brokers, and others who occupy facilities made out of Legos.
The few helpful C-TPAT guidelines that exist are buried deep in the C-TPAT portal, which you can't enter unless you are C-TPAT certified. I must admit, however, that CBP has taken some valiant steps to upgrade its website in the past few weeks with promising results. However, CBP hosts a huge C-TPAT conference about once a year, but you can attend only if you are C-TPAT certified. Thus, the only companies that benefit are companies that supposedly have already been proven compliant by CBP's thorough vetting. In other words, no one benefits, at least not much, especially not the non-member riffraff trying to crash the party. I hear, however, that the mixers are dynamite.
C-TPAT holds the public at arms-length ostensibly because it views itself as a volunteer program, the "partnership" of C-TPAT, not as a true government program. Funny how C-TPAT officials still carry federal badges and guns. It's a convenient (for CBP) hybrid. C-TPAT is codified in statute but I have no idea why. It's a silly statute that serves no purpose other than to remind the CBP Commissioner to continue with CBP. A good calendaring app, maybe even a string tied around the Commissioner's finger, would have worked just as well.
CBP hasn't issued any regulations on C-TPAT, presumably because it doesn't want to be held accountable. The appeals process for companies who have been rejected or expelled from C-TPAT are ludicrously vague and provide no court review. CBP alone decides whether it acts reasonably in all C-TPAT matters, and we all know
No doubt that CBP is trying to make sure that people and companies do not use its C-TPAT logo for personal gain or without CBP's imprimatur. From CBP actions, you would think that the C-TPAT logo is universally recognized and coveted. Like Nike's swoosh. CBP may even consider registering its trademark with its own IPR department to stop the flood of C-TPAT knockoffs that is surely diluting the worth of its priceless logo and engendering a seedy black market of unwholesome counterfeits. Walter White could make billions.
But here's the problem. CBP is supposed to recruit companies into the C-TPAT program. Greater enrollment is the best way to secure our borders and shipments into our country. This is not a controversial claim. CBP has said so publicly many times and, if I had to dig through the legislative history, I would bet that Congress echoed the sentiment. CBP claims success in getting most large importers and logistics providers into C-TPAT, but the numbers appear to have stagnated and there is no visible push to increase enrollment. There is no discernible push to educate or help companies not already in C-TPAT. CBP should consider holding conventions and seminars for companies who are interested in joining. Even if CBP is happy with its enrollment numbers, which I guess is ok until suddenly it isn't ok, there remains its parochial, bordering on xenophobic, thinking. It's not only that CBP stands on shaky legal grounds when it tries to register a trademark. Are taxpayers supposed to ask for permission to use a symbol that they paid for? Are the stars and stripes or the US Constitution trademarkable? With this precedent, you may be forced to take a laser to that Abe Lincoln tattoo on your forearm or pay royalties to celebrate the 4th of July, which, granted, may have the unintended benefit of curtailing binge consumption of hot dogs.
It looks like CBP may be jumping the gun. It announced that it applied for a trademark, not that it was granted one, and the tentativeness of this status should probably have given it pause before it laid down all sorts of rules, which the notice does, regarding what is allowed and what is forbidden. All this reveals an unwelcoming philosophy by a government agency for the people who paid for the creation of the logo and who fund every C-TPAT activity and CBP employee. But fortunately, again, for members, the hors d'oeuvres are killers.
Principal and a founding member of GRVR Attorneys.