Decisions of the Customs Service are reviewable in court under Chapter 7 of title 5 of the United States Code. The reviewing court can decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. Section 706(2) authorized the court to hold unlawful and set aside agency action, findings, and conclusions found to be "(C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right", "(E) unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute; or (F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court".

Currently, under 19 C.F.R. § 133.23a(c), notice is given to the trademark owner of the quantity of articles seized. The amendments to the regulations now being reviewed and pending approval, will provide for the disclosure of additional information. Under 19 C.F.R. § 133.43, notice is given to copyright owners that delivery of suspected infringing copies or phonorecords is being withheld a sample of the imported article is provided.

Customs regulations governing the treatment of confidential information are contained in Part 103 of title 19 of the Code of Federal Regulations. Customs employees can be subject to disciplinary action within the Service or held liable for the improper disclosure of confidential information under 18 U.S.C. § 1905 (the Trade Secrets Act), 40 U.S.C. § 759 (the Computer Security Act of 1987, and 5 U.S.C. § 552a (the Privacy Act).

Procedures governing seizures and detentions are described in 19 C.F.R. §§ 133.21 through 133.24 for trademarks and 19 C.F.R. §§ 133.42 through 133.47 for copyrights. The final provisions regarding forfeiture and assessment of liquidated damages in connection with both trademarks and copyrights are contained in 19 C.F.R. §§ 133.51 through 133.53.

Decisions made by field offices are subject to review by Customs' headquarters. Decisions of the Customs' headquarters are reviewable in the courts pursuant to 5 U.S.C. § 701 et seq.

Section 113.11 of title 19 of the Code of Federal Regulations authorizes port directors to determine the appropriate type of bond and the amount. The amount of the bond is based upon consideration of factors set out in 19 C.F.R. § 133.13.

The importer pays the cost of detention in accordance with 19 C.F.R. §§ 24.12 and 24.17(a)(9).

Counterfeit trademarked goods may not be reexported. The Anti-counterfeiting Consumer Protection Act of 1996 amended 17 U.S.C. 603(c) to prevent re-export of copyright-infringing goods.

The requirements will be set out in amendments to previously cited regulations. These amendments are currently under review and pending approval.

See the response to question 16.

The discovery procedure governed by the Federal Rules of Civil Procedure (the Rules) is fully consistent with the obligations of Article 41.2. The discovery procedure enables each party to an action for enforcement of intellectual property rights to obtain information related to any claim or defence in that action. The Rules authorize the judge in any enforcement action to limit discovery requests which are unreasonably cumulative or duplicative; if the information is obtainable from some other source that is more convenient, less burdensome, or less expensive; if the party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought; or if the burden or expense of the proposed discovery outweighs its likely benefit, taking into account the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues. See Rule 26. The judge in any enforcement action also is required to issue a scheduling order that, among other things, limits the time for completion of discovery. See Rule 16(b).

Section 337 is fully consistent with Article 41.2. By statute, Section 337 investigations must be completed at the earliest practicable time. Target dates for the completion of the investigation are set by the Administrative Law Judge early in the investigation. These requirements parallel the procedures set out in recently revised Rule 16 of the Federal Rules of Civil Procedure providing district courts with various mechanisms for expediting litigation. These target dates typically call for completion of the investigation in one year, although complex investigations may take about eighteen months to complete. The Commission has the flexibility to ensure that the target date set is not unreasonable and does not allow unwarranted delays.

In 1995, 11 section 337 petitions were filed, 11 investigations were initiated, nine were given target dates by the US International Trade Commission (the other cases were subject to the old rules). Eight of the nine were to be completed within 12 months and one within 12 1/2 months. In 1996, 13 section 337 petitions were filed, 12 investigations were initiated, and all 12 were assigned target completion dates. The target completion dates varied from ten 1/2 months to 21 months. As of 1 December 1997, 11 section 337 petitions have been filed in 1997, 11 investigations were initiated, and all but three have been assigned target dates and target dates will be assigned those three shortly. Target completion dates ranged from 12 months to 15 months.

The amendments to Section 337 resolved the problem that the panel identified in its report. Namely, a respondent in a section 337 action may file with the USITC any counterclaim that may be filed with a federal court. If the claim is of the form of a defence to the alleged violation of section 337, the USITC will consider the matter. If the party raising the counterclaim seeks a remedy such as damages, the amendments now make that remedy available. Moreover, the amendments ensure that the party raising the counterclaim is not prejudiced by any delay or payment of fees.

The amendments to section 337 provided the means to prevent infringement proceedings being brought against imported goods in two forums at the same time. A district court hearing an infringement case is required to stay its proceedings, at the request of a respondent in a section 337 proceeding, in respect of any claim that involves the same issues as those pending before the ITC. Such issues would include questions of patent validity, infringement, and any defences that might be raised in both proceedings. The district court may use its discretionary authority to stay any other claims in the case.

(a) The outline of the present regulations is found at the beginning of 19 C.F.R. § 133. (b) The amendments being prepared will expand and clarify the information that may be disclosed to interested parties, clarify Customs position regarding materially and physically different grey market goods and make the procedures that apply to trademarks and copyrights more uniform. (c) The amendments have been prepared for final publication and are being processed as expeditiously as possible.

The United States amended section 337 of the Tariff Act of 1930, 19 U.S.C. § 1337, as part of US implementation of the Uruguay Round results. As stated in the "Statement of Administrative Action" accompanying the Uruguay Round Agreements Act, the amendments to § 337 bring US procedures into conformity with national treatment obligations under GATT 1994, while providing for effective enforcement of intellectual property rights at the border. The TRIPS Agreement, which was negotiated after the GATT panel report finding that certain aspects of section 337 were inconsistent with Article III of GATT 1947, recognizes that it may be necessary to treat domestic and imported products differently to enforce intellectual property rights effectively in respect of imported goods. The procedures applied under section 337 comply fully with Article 49 of TRIPS in that they "conform to principles equivalent in substance to those set forth" in Section 2 of the TRIPS Agreement. For example, each element of Articles 41 and 42 of the TRIPS Agreement are met in the context of a section 337 proceeding. The 1994 amendments to section 337 made the following changes to USITC procedures to implement the panel's recommendations. - Eliminated the requirement that the USITC issue a final determination within a fixed period of time. Instead, the amendment provides that the ITC must complete its investigation "at the earliest practicable time". To promote rapid adjudication, the USITC must, within 45 days of initiating an investigation, establish a "target date" for its completion. See 19 U.S.C. § 1337(b)(1). These requirements parallel the procedures set out in recently revised Rule 16 of the Federal Rules of Civil Procedure providing district courts with various mechanisms for expediting litigation. They are also consistent with district court efforts to avoid delay, such as by establishing a schedule for the completion of various stages of litigation. - Provide a means to prevent infringement proceedings being brought against imported goods in two fora simultaneously. A district court hearing an infringement case is required to stay its proceedings, at the request of a respondent in a section 337 proceeding, in respect of any claim involving the same issues as those pending before the ITC. Such issues would include questions of patent validity, infringement, and any defences that might be raised in both proceedings. The district court may, in its discretion, stay any other claims in the case. - Resolved the problem regarding counterclaims that the GATT panel identified in its report. A respondent in a section 337 action may file with the USITC any counterclaim that may be filed with a federal court. If the claim is of the form of a defence to the alleged violation of section 337, the USITC will consider the matter. If the party raising the counterclaim seeks a remedy such as damages, the amendments now make that remedy available. Moreover, the amendments ensure that the party raising the counterclaim is not prejudiced by any delay or payment of fees. See 19 U.S.C. § 1337(c).

Decisions of the CAFC regarding § 337 can be appealed to the US Supreme Court.

A claim based on state law may be heard in a federal district court under the following statutory provisions: 28 U.S.C. § 1332, which provides for federal court jurisdiction in cases where the citizenship of the parties is diverse (i.e. they are citizens of different states or one is a foreign national) and the amount of the claim exceeds US$50 000; or 28 U.S.C. § 1367, which provides federal jurisdiction to hear state law claims that are related to and part of the same case or controversy as a separate federal claim. In addition, under 28 U.S.C. § 1441, a case bought in state court that satisfies federal jurisdictional requirements may in most cases be removed to federal court at the request of a party.

Federal districts courts have original jurisdiction over infringement actions involving industrial designs under 35 U.S.C. § 281 and 28 U.S.C. § 1338 and involving geographical indications registered as certification marks under 15 U.S.C. § 1114 and 28 U.S.C. § 1338.