Protecting Your Intellectual Property Rights (IPR)

Intellectual property is property that enjoys legal protection and stems from the exercise of the mind. This includes patents, trademarks, industrial designs, lay-out designs of integrated circuits, copyrights, geographical indications and trade secrets (confidential information). Textile designs are generally considered copyrights, or may fall under industrial designs, and brand names and logos fall under trademarks.

Copyrights
  • Protection in the United States
    • Registering a Copyright
    • Stopping Infringing Imports at the U.S. Border
    • Reporting IPR Crimes in the United States
    • Taking action against IPR infringers
  • Protection in Foreign Markets
    • Registering Copyrights Abroad
    • Steps for Protecting Intellectual Property Globally
    • Enforcement: Using Local Laws
Trademarks
  • Protection in the United States
    • Obtaining a Trademark
    • Stopping Infringing Imports at the U.S. Border
    • Reporting IPR Crimes in the United States
    • Taking Action Against IPR Infringers
  • Protection in Foreign Markets
    • Steps for Protecting Intellectual Property Globally
    • Enforcement: Using Local Laws
Focus on China
Web-based China IPR Seminar



Copyrights

U.S. companies spend millions of dollars each year to develop innovative new textile designs. These distinctive designs give them an advantage over foreign competitors. The U.S. upholstery fabric and carpet industries have reported serious problems regarding illegal copying of their designs. IPR infringement is a chronic problem for the domestic textile industry and industry estimates that it costs $100 million or more annually in lost sales. Foreign merchandise that infringes upon American intellectual property rights is marketed not only in the originating country of the counterfeiter, but also in the U.S. and third markets.

Protection in the United States

Registering a Copyright: Although the United States does not require registration in order to enjoy copyright protection, registration can offer several benefits, such as proof of ownership. For information on registering a literary or artistic work for U.S. copyright protection with the U.S. Copyright Office, see the U.S. Copyright Office website.

Stopping Infringing Imports at the U.S. Border: For additional protection from imports infringing on U.S. registered copyrights, it is advisable to apply for recordation with the U.S. Customs and Border Protection (CBP). U.S. law provides for seizure of pirate and counterfeit goods at the border, and provides various procedures for requesting assistance from CBP to prevent pirate and counterfeit goods from entering the United States. Recording textile designs makes it easier for CBP officials to identify infringing goods. For more information on how CBP can assist in protecting a company’s IPR, see the CBP website on IPR Enforcement.

Reporting IPR Crimes in the United States

U.S. Department of Justice: To report an intellectual property crime, including internet-related crimes, see the U.S. Department of Justice website.

National Intellectual Property Rights Coordination Center: If a company learns of infringement occurring in the United States, it should contact the National Intellectual Property Rights Coordination Center.

Taking action against IPR infringers

Section 337: U.S. companies may want to consult with their legal counsel to discuss whether filing a Section 337 complaint with the U.S. International Trade Commission (USITC) might be useful for their particular situation. Section 337 declares the infringement of certain statutory IPR and other forms of unfair competition in import trade to be unlawful practices. Most Section 337 investigations involve allegations of patent or registered trademark infringement but they can involved copyright infringement as well. In the event that the USITC determines that Section 337 has been violated, 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. For more information, see the USITC website.

The 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 provides technical and legal assistance and advice to eligible small businesses to assist them in preparing and filing Section 337 complaints.

Protection in Foreign Markets

Registering Copyrights Abroad: Although most countries do not require registration in order to enjoy copyright protection, registration can offer several benefits, such as proof of ownership. For information on registering a textile design for copyright protection abroad, see the U.S. Copyright Office website.

Enforcement: Using Local Laws: Copyright protection may be enforced using local laws. Enforcement can either be through civil suits, or criminal investigations and prosecutions, or both. Generally, a company will need to work with the country's law enforcement authorities or through its courts to initiate investigations and lawsuits. Countries must ensure that its IPR laws are implemented effectively and are enforced consistently. If you feel that your U.S. company is being adversely affected because a foreign government is not adequately enforcing its IPR laws, Contact Us.

Trademarks

A trademark is a word, name, symbol, devices or combination of these, used by manufacturers and merchants to identify their goods and to distinguish them from the products of their competitors. Names of apparel brands, textile company names, and logos would be fall in this category.

Protection In the United States

Obtaining a Trademark: A first step in protecting your company’s unique name or symbol in the United States is to file for a trademark. For more information on filing for a trademark in the United States contact the U.S. Patent and Trademark Office (USPTO) or see the USPTO website on filing electronically.

Stopping Infringing Imports at the U.S. Border: For additional protection from imports infringing on U.S. registered trademarks and trade names, it is advisable to apply for recordation with the U.S. Customs and Border Protection (CBP). U.S. law provides for seizure of pirate and counterfeit goods at the border, and provides various procedures for requesting assistance from CBP to prevent pirate and counterfeit goods from entering the United States. Recording trademarks and trade names makes it easier for CBP officials to identify and seize infringing goods. For more information on how CBP can assist in protecting a company’s IPR, see the CBP website on IPR Enforcement.

Reporting IPR Crime in the U.S.

U.S. Department of Justice: To report an intellectual property crime, including internet-related crimes, see the U.S. Department of Justice website.

National Intellectual Property Rights Coordination Center: If a company learns of infringement occurring in the United States, it should contact the National Intellectual Property Rights Coordination Center.

Taking Action Against IPR Infringers

Section 337: Companies may want to consult with their legal counsel to discuss whether filing a Section 337 complaint with the U.S. International Trade Commission (USITC) might be useful for their particular situation. Section 337 declares the infringement of certain statutory IPR and other forms of unfair competition in import trade to be unlawful practices. Most Section 337 investigations involve allegations of patent or registered trademark infringement. In the event that the USITC determines that Section 337 has been violated, 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. For more information see the USITC website.

The 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 provides technical and legal assistance and advice to eligible small businesses to assist them in preparing and filing Section 337 complaints.

Protection In Foreign Markets

Steps for Protecting Intellectual Property Globally: It is important to note that intellectual property rights are generally territorial. That is, a U.S. trademark provides protection only in the United States; a Japanese trademark provides protection only in Japan, etc. This means that, in most cases, the first step in enforcement is for companies to register for trademark or patent protection with the appropriate authorities in each country or with international offices that coordinate registration in multiple countries. We recommend that companies seek assistance from an attorney familiar with the intellectual property laws of the country or countries where they are interested in conducting business to determine the costs and benefits of registration. The U.S. Department of Commerce can put companies in contact with U.S. Embassies overseas in order to help companies locate local trademark attorneys.

Madrid Protocol: The Madrid Protocol provides a means for U.S. businesses to simultaneously seek protection for a trademark in a large number of countries by filing one application at the U.S. Patent and Trademark Office, in one language, with one set of fees. This streamlined system for filing for trademark registration in other countries is especially helpful for U.S. businesses, especially small and medium-sized companies, that may find filing separate trademark applications country-by-country to be complicated and expensive. For filing a trademark under the Madrid Protocol, visit the USPTO website. Additional information is also available on the WIPO website on the Madrid Protocol. (Note: The international application itself does not lead to any trademark protection in any country. It simply serves as a vehicle for centralized preprocessing of the application.)

Enforcement: Using Local Laws: Once a company has registered its trademark, it can use local laws to enforce its rights. Enforcement can either be through civil suits, or criminal investigations and prosecutions, or both. Generally, a company will need to work with the country's law enforcement authorities or through its courts to initiate investigations and lawsuits. Countries must ensure that its IPR laws are implemented effectively and are enforced consistently. If you feel that your U.S. company is being adversely affected because a foreign government is not adequately enforcing its IPR laws, Contact Us.


Focus on China

Counterfeit textile and apparel products made in China have been particularly burdensome to U.S. textile and apparel companies and have been reported to affect U.S. textile sales in China, in the U.S., and in third country markets. Since joining the World Trade Organization (WTO) in December 2001, China has strengthened its legal framework and amended its IPR and related laws and regulations to comply with the WTO Agreement on Traded-Related Aspect of Intellectual Property Rights (TRIPS). Despite stronger statutory protection, China continues to be a haven for counterfeiters and pirates.

Early trademark registration is essential in China. While the United States confers trademark rights to the first party to use a trademark in commerce, China has established a "first-to-file" system that grants trademark rights to the party that first applies to register the trademark. Registration and enforcement are handled by the Trademark Office of the State Administration of Industry and Commerce (SAIC). For optimum trademark protection, it is also advisable to register trademarks in other locales within "Greater China" (Hong Kong, Macau, Taiwan and Singapore) and in nations bordering China.

In China, the National Copyright Administration (NCA) is responsible for copyright administration and enforcement. NCA is also responsible for nationwide copyright issues, including investigating infringement cases, administering foreign-related copyright issues, developing foreign-related arbitration rules and supervising administrative authorities. Though administrative remedies are available, NCA generally encourages complainants to use the court system due to lack of personnel.

Unlike the patent and trademark protection, copyrighted works do not require registration for protection. Protection is granted to individuals from countries belonging to the copyright international conventions or bilateral agreements of which China is a member. However, copyright owners may wish to voluntarily register with the NCA to establish evidence of ownership, should enforcement actions become necessary.

State Administration for Industry and Commerce (SAIC)
Trademark Office
8 Sanlihe East Road
Xicheng District
Beijing, 100820
Tel: 86-10-6803-2233
Fax: 86-10-6801-0463
Website: http://www.saic.gov.cn (Chinese language only)

National Copyright Administration of China (NCAC)
85 Dongsi Nan Dajie
Beijing, China 100703
Tel: 86-10-6512-7869 or 6527-6930
Fax: 86-10-6512-7875

Contacting the U.S. Embassy for Resources in China:
The U.S. Embassy in Beijing and the U.S. Foreign Commercial Service (FCS) offices in China can provide in-country information about IPR enforcement resources. Companies can go directly to the U.S. Commercial Service-China website where there are links to "Business service providers in China for U.S. companies," including legal services and investigative services. Also, FCS and the U.S. Embassy in Beijing have created an "IPR Toolkit" that provides more information on IPR protection specific to China.


Special 301

Under the “Special 301" provision of the Trade Act of 1974, the U.S. Government identifies foreign countries that deny adequate and effective protection of intellectual property rights or that deny fair and equitable market access to United States persons that rely upon intellectual property protection. Such foreign countries are identified as “priority foreign countries.” In addition, as a matter of administrative practice, the U.S. has established a “priority watch list” and a “watch list” of countries whose acts, policies, or practices meet some but not all of the criteria for “priority foreign country” designation. Both these lists are useful tools for letting countries know that they need to take the protection of intellectual property rights seriously, and that the United States is prepared to identify and, if necessary, to take trade action against countries that fail to provide protection for intellectual property rights.

In January of each year, a request for written submissions from the public is published in the Federal Register pertaining to the identification of countries under Special 301. Such countries are to be identified within 30 days after the submission to Congress of the National Trade Estimate Report, usually around April 30. Special 301 provides an effective mechanism for the identification of countries that deny adequate and effective protection of intellectual property rights for textiles, which could include countries that are venues for the illegal reproduction of protected copyrighted textile designs, as well as that do not provide adequate and effective protection.

U.S. companies experiencing IPR-related problems in foreign markets are encouraged to provide information for the annual Special 301 report. See the most recent report on the USTR website.

IPR Industry Contacts

Industry associations representing the intellectual property rights sectors (copyright, trademark and patent) are very active in Washington, DC as well as in many major overseas markets. Representatives from these industry associations can be excellent resources for “on the ground” perspectives and intelligence. Their websites often provide in-depth materials on the quality of IPR protection in a particular region, industry Special 301 submissions, educational information for businesses on IPR protection.

IIPA: International Intellectual Property Alliance



U.S. textile and apparel companies experiencing IPR-related problems or that have questions on IPR are encouraged to Contact Us for assistance.


Office of Textiles and Apparel (OTEXA)
U.S. Department of Commerce
Washington, DC 20230
Phone: (202) 482-5078  |  Fax: (202) 482-2331
OTEXA@trade.gov