The CP removes legal barriers to collaboration by creating anti-trust exemptions – that incentivizes stronger cooperation

//DH

CBP = Customs and Border Patrol

Brand sellers, online marketplaces, and law enforcement agencies need additional capabilities to cooperatively address the scourge of counterfeiting. To this end, Congress should amend existing laws to facilitate real-time data sharing about authorized manufacturers, distributors, and sellers and resellers regarding the geographic origin of products and key identifying aspects of authentic products and their packaging. Congress should also establish a public-private partnership that can assimilate this information and foster new data-driven technologies to proactively disrupt the flow of counterfeits and other related threats to the nation’s commerce and public welfare.

Amend Existing Laws and Regulations that Pose Barriers to Real-Time Anti-Counterfeiting Data Sharing

There are statutory and regulatory barriers arising from TSTEA and TSA that inhibit some types of information sharing on counterfeit goods and distribution networks between law enforcement agencies and retailers as well as among retailers.57 Congress should remove these barriers. In addition, CBP should update its rules to permit disclosing to rights holders details about abandoned infringing goods.58

Legal and regulatory changes that encourage cooperation on data sharing, including by overcoming antitrust concerns, could go a long way to encourage standard setting, research, and innovation. Congress should enact a selective antitrust exemption to foster collaboration among e-commerce firms. As precedent, the Cooperative Research Act of 1984 granted a partial antitrust exemption to certain research joint ventures by firms in the semiconductor industry.59 This could be modified to allow companies to seek DOJ exemptions to cooperate in the fight against counterfeiting. More recently, the Cybersecurity Information Sharing Act of 2015 authorized cybersecurity information sharing among private firms and state and federal governments, thereby exempting it from federal antitrust laws.60