IP Update: Irish and Northern Irish Businesses Now Must Be Represented by a U.S.-Licensed Attorney on USPTO Matters

As of early August, all Irish and Northern Irish persons and entities (whose permanent legal residence or principal place of business is outside the U.S.) are required to be represented by a licensed U.S. attorney in good standing in all matters before the U.S. Patent and Trademark Office and the Trademark Trial and Appeal Board. This is a significant change for Irish and Northern Irish companies with IP registrations in the US, especially those protecting their brands.

This new rule applies to (i) new application filings and subsequent filings in pending applications; (ii) maintenance filings in connection with existing registrations; and (iii) ex parte appeals and contested proceedings before the TTAB, including, opposition and cancellation actions.

Irish and Northern Irish applicants, registrants and parties now need to engage a licensed U.S. attorney to file submissions on their behalf.

If you have any questions about the impact of this changed rule, contact me –AGG has a great IP practice that represents a number of Irish and Northern Irish businesses on US IP matters.

@agglaw

Growing Complexity of U.S. Visa Processing for Irish/NI Companies

U.S. visa processing is growing in complexity, with many new U.S. operations of Irish/NI parent struggling to qualify for classification to sponsor qualified professionals for work authorization in the U.S . New U.S affiliates usually do not qualify to sponsor foreign nationals for work authorization until they are fully established, with a lease for offices, investment, and in many cases U.S. personnel on payroll.

If a U.S. affiliate of an Irish/NI parent is not qualified to sponsor key personnel for work authorization, professionals may often qualify for a temporary professional visitor visa to travel to the US . B-1 visas and/ or B-1 in lieu of H-1 visas are alive and well at most European posts (including Dublin and Belfast) when a visitor can show that he or she is traveling to the U.S. for purposes of investing in a U.S. business, or engaging in professional services related to their employment outside the U.S. and their area of their expertise, provided they have earned a Bachelor’s degree equivalency. For example, an employee of an Irish/NI parent company may qualify for a B-1 visa to travel to the U.S. for up to 6 months in one stay to set up corporate operations. An IT professional may qualify for a B-1 in lieu of H-1 visa for purposes of setting up critical IT systems in the US to support operations.

 Documentation reflecting qualification is required, as is a prepared applicant. My partner, Teri Simmons (who wrote most of this post) is an expert in U.S. business immigration law and has advised many Irish/NI businesses on these issues. Reach out to her or me if you have any questions or need guidance.

 

Will China-Specific Tariffs Impact Irish/NI Exports to US?

My last post discussed the potential (but likely very small) impact of the relatively new U.S. steel and aluminum tariffs on Irish and Northern Irish exports to the U.S. In this post, I turn to the related question of whether proposed U.S. tariffs against China could impact Irish and Northern Irish exports to the U.S. The answer is ‘maybe.’ In fact, U.S. tariffs on Chinese products could have a larger impact on U.S. imports from Ireland and Northern Ireland than the steel/aluminum tariffs.

U.S. tariffs are applied on certain imports that meet the (i) relevant country of origin test; and (ii) the relevant HTSUS code test. In other words, the tariffs hit certain products (each item imported into the U.S. is given a multi-digit Harmonized Tariff Schedule number) from certain jurisdictions–in this case, China. In general, the jurisdiction of product’s ‘last substantial transformation’ will be the product’s country of origin for U.S. customs purposes. And that could be an issue for some Irish/NI companies that source their product from China.

Let’s assume for a minute that an Irish company sources a widget (I remember my college economics) from China, imports it into Ireland for labeling and packaging, and then exports the packaged widget to the U.S. Let’s assume further that the U.S. has just placed a 50% tariff on all Chinese origin widgets. Are the Irish company’s subject to the tariff? In this scenario, yes. If the product is sourced from China and not substantially transformed elsewhere (and packaging/labeling almost always will not be a substantial transformation for U.S. customs purposes), then the product is determined to be–again, for U.S. customs purposes–of Chinese origin. It doesn’t matter that the exporter/seller is an Irish company–the relevant questions focus on the product(s) at issue.

Of course, the precise scope, and timing, of U.S. tariffs on Chinese products remains a bit foggy. But we have some indications as to scope from U.S. government pronouncements.

Irish and Northern Irish exporters should, sooner rather than later: (i) determine if their products are included within the HTSUS code of products subject to tariffs; and (ii) check their supply chain to determine if their products would be considered to be of Chinese origin under relevant U.S. customs rules. If their products are subject to tariffs, affected companies have few options; (i) continue to sell to the U.S. market at a higher cost; (ii) alter their supply chains to source from a place other than China and/or have the last substantial transformation of the product happen outside of China; or (iii) seek a tariff exemption from the U.S. government. None of these options is particularly attractive, easy or inexpensive.