As part of its responsibilities in protecting your intellectual property at the border, U.S. Customs and Border Protection (CBP) targets and seizes imports of counterfeit and pirated goods.
In Part I, we discussed the steps that IPR holders can take to get CBP’s help in enforcing their rights. In Part II, we discuss exceptions for personal travelers and steps that a legitimate importer should take if CBP has detained or seized its merchandise for violating another company’s intellectual property rights.
Has CBP Detained Your Merchandise for Violating IPR?
CBP will notify an importer whose merchandise has been detained for violating a company’s IPR. If the importer is unable to establish to CBP’s satisfaction that the imported merchandise is neither counterfeit nor pirated, CBP will notify the IPR holder of the detention. The holder may give the importer written consent for the importation. Failing that, CBP has the right to determine that the importation violates the holder’s IPR.
The time to get legal advice is at the beginning, as soon as you have received notification from CBP that your merchandise has been detained! Contact DevelopTradeLaw, LLC for legal advice and support.
Has CBP Determined that Your Imported Merchandise is Violating IPR ?
If CBP determines that the merchandise is counterfeit or pirated, the merchandise can be destroyed or excluded from the United States. CBP may impose civil monetary fines, depending on how many violations previously occurred by the specific importer; the importer’s level of experience and business knowledge; and other mitigating factors, including but not limited to the value of the merchandise.
Should CBP determine that your merchandise is being imported in violation of another company’s IPR, you have the following options:
- File a petition for relief; or
- File a bond requesting that CBP immediately refer the case to the US Attorney for court action; or
- Tender an offer in compromise to the Commissioner of Customs
Contact DevelopTradeLaw, LLC for legal advice and support.
Exceptions to Intellectual Property Rights Restrictions
A personal traveler arriving in the United States and carrying one item of counterfeit or pirated merchandise may be granted an exception to the import restrictions, under the following conditions:
- The product accompanies the traveler;
- The product is for personal use only and will not be re-sold; and
- The traveler has not previously been granted an exemption for the same type of product within thirty (30) days before arrival.
CBP’s Help Desk provides assistance regarding intellectual property rights enforcement and can be contacted at IPRHELPDESK@cbp.dhs.gov. Contact DevelopTradeLaw, LLC for legal advice and support.