Trademark holders have long had to clear a frustrating series of legal hurdles in order to get their hands on infringing product detained and/or seized by CBP. Section 818(g) of the National Defense Authorization Act of 2012 now authorizes CBP to share unredacted samples of imported products, packaging, and labels that are suspected of being copied or simulated with rights holders for the purpose of determining infringement. CBP is now satisfied there is nothing in the Trade Secrets Act that bars it from sharing these unredacted samples with rights holders, and any such sharing does not require notice to the importer. The bill was signed into law right after the first of this year.

Clearly, the Dept. of Defense is concerned about the quantity of counterfeit electronics that are ending up in military products. Obviously such products could malfunction, or have malicious software on them which causes, for example, a missile to be remotely redirected.

This new law imposes a risk-based approach to purchasing. Defense is now going to include track and trace requirements on its suppliers, see Section 818(b). At the same time, in a section titled “Detection and Avoidance of Counterfeit Electronic Parts,” the law contains a sunset provision. This measure will expire with the enactment of the Customs Facilitation and Trade Enforcement Reauthorization Act of 2012 (which has been pending since 2009).