LEGISLATIVE UPDATE:

Donald Trump’s inauguration into office in January not only ushered a new family into the White House but also a new set of Department and Agency personnel into Executive Branch leadership positions. This update introduces the officials nominated to lead key positions related to brand protection and particularly intellectual property rights (IPR) policy related to goods manufactured overseas and imported into the United States, and enforcement of IPR.

International IPR Policy

Trade agreements have long been the vehicle by which the United States negotiates IPR policy with foreign nations. In his first week in office, President Trump signed an Executive Order formally withdrawing the United States from the Trans-Pacific Partnership, a 12-country trade agreement with significant negotiated IPR protections. The Trump administration has signaled that it plans to negotiate bi-lateral trade agreements, with initial interest in the United Kingdom. 

Congress passed the Trade Promotion Authority “fast track” bill in 2015. This gives the Executive Branch the authority to negotiate policy within trade agreements, and then send it to Congress for a “yes or no” vote without amendment. This means that Trump administration officials for international trade will have significant authority over the future of IPR policy. Two of the key players will be the Secretary of Commerce and the U.S. Trade Representative.

Secretary of Commerce

One of the top priorities for Wilbur Ross, Secretary of Commerce, is to integrate technology while protecting intellectual property. In his confirmation hearing before the Senate Committee on Commerce, Science, and Transportation, Ross reiterated his commitment to negotiating IPR protections in trade agreements and for enhancing cyber security measures to protect IPR.  Ross is also known for his outspoken stance on China and for his close relationship with China hawk Peter Navarro, who heads the White House National Trade Council. In a campaign white paper, the two called China “the biggest trade cheater in the world.” Whether their views lead to strengthened IPR policies remains to be seen.

U.S. Trade Representative

Robert Lighthizer, who has been nominated to serve as U.S. Trade Representative, is no stranger to that office, having previously served as its deputy in the Reagan administration. Like Ross, he is aggressive in his position towards China, expressing disappointment in 2010 testimony before the U.S.—China Economic and Security Review Commission that China’s entrance into the World Trade Organization did little to improve IPR protections for U.S. businesses.

Lighthizer has not yet had his Senate confirmation hearing. He has, however, received a favorable assessment from U.S. Senator Orrin Hatch (R-UT), chairman of the Senate Finance Committee, who stated, “Through his experience and unique understanding of international trade, I expect Bob to play a significant role in protecting our intellectual property rights abroad…and providing American industry the opportunity to compete in the 21st century global economy.” 

Enforcement of IPR

In tandem with policy makers, agencies within the Executive Branch lead IPR and anti-counterfeit measures. The individuals with greatest impact on these practices are the Secretary of Homeland Security, the Commissioner of Customs and Border Protection (CBP), the Director of the U.S. Patent and Trademark Office and the Intellectual Property Enforcement Coordinator (IPEC).

Secretary of Homeland Security

General John Kelly has been confirmed by the Senate to lead the Department of Homeland Security, a massive agency, which includes CBP. In his confirmation testimony, he stated that his “highest priority would be to close the border to the illegal movement of people and things.” Kelly formerly was Commander for the U.S. Southern Command, responsible for U.S. military operations in the Caribbean and Central and South America.

CBP Commissioner

Gil Kerlikowske retired as CBP Commissioner in December, and the Trump administration has yet to name a replacement. This means that Kevin McAleenan, the former Deputy CBP Commissioner, is now Acting Commissioner. McAleenan has significant experience with international cargo screening, having served as Area Port Director of the Los Angeles International Airport and as Assistant Commissioner of Field Operations. It is unlikely that we will see major policy changes at CBP until a new Commissioner is appointed.

Director of the U.S. Patent and Trademark Office

There will also be some continuity within the Department of Commerce, where Michelle Lee has been asked to remain as Director of the U.S. Patent and Trademark Office. She was originally appointed by former President Obama in 2014. Wilbur Ross highlighted his appreciation of her efforts in his confirmation hearing.

Intellectual Property Enforcement Coordinator

The IPEC role has not yet been filled. It is not uncommon for White House positions such as this, which require Senate confirmation, to take longer to fill. Priority goes to nominating and confirming the Cabinet-level positions.

Conclusion

These individuals are expected to receive confirmation by the full Senate and will begin leading their agencies and appointing additional staff to these departments. The Executive Branch has much control over the future of international trade agreements and the policies created to protect U.S. IPR. These officials will be at the forefront of brand protection enforcement practices as well.