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Seattle Court Dismisses FOIA Suit for Information on Counterfeit Seizures

Seattle IP lawyer Samuel Watkins sued the U.S. Bureau of Customs and Border Protection (CBP) under the Freedom of Information Act (FOIA) for the release of Notices of Seizure of Infringing Merchandise from various ports, including the Port of Seattle. He asked for all notices to trademark owners in recent years regarding merchandise seized as being counterfeit. The records Mr. Watkins requested included the date the merchandise was imported, the port of entry, the description of the merchandise, the quantity of the merchandise, the country of origin, and the names and addresses of the exporter, importer, and manufacturer.

In November 2008, he brought suit in the Western District to enjoin the CBP from: “(a) improperly withholding agency records entirely; (b) failing to respond at all to lawful requests for agency records; (c) producing improperly redacted agency records; and (d) demanding excessive fees expressly not authorized by the CBP’s own regulations as a precondition to processing requests for agency records.”

CBP defended its response to Mr. Watkins’ FOIA requests in part based on two FOIA exemptions: Exemption 4, for “commercial information,” and Exemption 7, for law enforcement records that are “expected to constituted an unwarranted invasion of personal privacy.”

The parties cross-moved for summary judgment. Now, this is a trademark blog and not a FOIA blog, but suffice it to say Judge James Robart granted CBP’s motion and denied Mr. Watkins’ motion.

The court found: “As to Exemption 4, the court concludes that the Agency has met its burden of showing that there is actual competition in the commercial importation market which it defines as ‘fierce’ and that if the Notices of Seizures were released — evidencing an importer’s supply chain — the importer would likely suffer substantial competitive injury” justifying the exemption from disclosure.”

With regard to Exemption 7, the court also sided with CBP: “[T]he court agrees with the Agency that the identity [of the] individual acting as the responsible party and contact person for the trademark holder is private information. The court further notes that there is nothing before it that supports a finding that there is any public interest in knowing who these people are.”

On Nov. 4, Mr. Watkins filed a Notice of Civil Appeal, appealing the court’s decision to the Ninth Circuit.

The case cite is Watkins v. U.S. Bureau of Customs and Border Protection, 2009 WL 3633893, No. 08-1679 (W.D. Wash. Oct. 30, 2009) (Robart, J.).

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