CBP Enforcement of Intellectual Property Rights

Published CBP guidance; operative status and applicability must be assessed from the retained publisher edition.

What Every Member of the
Trade Community Should Know About:
CBP Enforcement of
Intellectual Property
Rights

AN INFORMED COMPLIANCE PUBLICATION
AUGUST 2012

CBP Enforcement of Intellectual Property Rights
August 2012

NOTICE:
This publication is intended to provide guidance and information to the trade community.
It reflects the position on or interpretation of the applicable laws or regulations by U.S.
Customs and Border Protection (CBP) as of the date of publication, which is shown on
the front cover. It does not in any way replace or supersede those laws or regulations.
Only the latest official version of the laws or regulations is authoritative.

Publication History

First Published: August 2009
Revised February 2010
Revised March 2011

PRINTING NOTE:
This publication was designed for electronic distribution via the CBP website
(http://www.cbp.gov/) and is being distributed in a variety of formats. It was originally set
up in Microsoft Word97
®
. Pagination and margins in downloaded versions may vary
depending upon which word processor or printer you use. If you wish to maintain the
original settings, you may wish to download the .pdf version, which can then be printed
using the freely available Adobe Acrobat Reader
®
.

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PREFACE

On December 8, 1993, Title VI of the North American Free Trade Agreement Implementation
Act (Pub. L. 103-182, 107 Stat. 2057), also known as the Customs Modernization or “Mod” Act,
became effective. These provisions amended many sections of the Tariff Act of 1930 and
related laws.

Two new concepts that emerge from the Mod Act are “informed compliance” and “shared
responsibility,” which are premised on the idea that in order to maximize voluntary compliance
with laws and regulations of U.S. Customs and Border Protection, the trade community needs to
be clearly and completely informed of its legal obligations. Accordingly, the Mod Act imposes a
greater obligation on CBP to provide the public with improved information concerning the trade
community's rights and responsibilities under customs regulations and related laws. In addition,
both the trade and U.S. Customs and Border Protection share responsibility for carrying out
these requirements. For example, under Section 484 of the Tariff Act, as amended (19 U.S.C.
1484), the importer of record is responsible for using reasonable care to enter, classify and
determine the value of imported merchandise and to provide any other information necessary to
enable U.S. Customs and Border Protection to properly assess duties, collect accurate
statistics, and determine whether other applicable legal requirements, if any, have been met.
CBP is then responsible for fixing the final classification and value of the merchandise. An
importer of record’s failure to exercise reasonable care could delay release of the merchandise
and, in some cases, could result in the imposition of penalties.

Regulations and Rulings (RR) of the Office of International Trade has been given a major role in
meeting the informed compliance responsibilities of U.S. Customs and Border Protection. In
order to provide information to the public, CBP has issued a series of informed compliance
publications on new or revised requirements, regulations or procedures, and a variety of
classification and valuation issues.

This publication, prepared by the National Commodity Specialist Division of Regulations and
Rulings is entitled "*Insert Title Here*”. It provides guidance regarding the classification of these
items. We sincerely hope that this material, together with seminars and increased access to
rulings of U.S. Customs and Border Protection, will help the trade community to improve
voluntary compliance with customs laws and to understand the relevant administrative
processes.

The material in this publication is provided for general information purposes only. Because
many complicated factors can be involved in customs issues, an importer may wish to obtain a
ruling under Regulations of U.S. Customs and Border Protection, 19 C.F.R. Part 177, or to
obtain advice from an expert who specializes in customs matters, for example, a licensed
customs broker, attorney or consultant.

Comments and suggestions are welcomed and should be addressed to U.S. Customs and
Border Protection, Office of International Trade, Executive Director, Regulations and Rulings,
799 9
th
Street N.W. 7
th
floor, Washington, D.C. 20229-1177.

Sandra L. Bell
Executive Director, Regulations and Rulings
Office of International Trade

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I. BACKGROUND AND INTRODUCTION...................................................................... 6
II. INTELLECTUAL PROPERTY RIGHTS...................................................................... 6
III. CBP ENFORCEMENT OF INTELLECTUAL PROPERTY: HOW DOES CBP
RESPOND TO INTELLECTUAL PROPERTY RIGHTS INFRINGEMENT?................... 7
A. Trademarks............................................................................................................ 7
1. Counterfeit Marks................................................................................................. 8
2. Copying or Simulating Marks................................................................................ 8
3. Restricted Gray Market Articles (“Parallel Imports”)............................................. 9
4. Lever Rule Protection........................................................................................... 9
5. Personal Use Exemption from Trademark Restrictions...................................... 10
B. Copyrights.............................................................................................................. 10
1. Clearly Piratical.................................................................................................. 11
2. Possibly Piratical................................................................................................ 11
3. Digital Millennium Copyright Act......................................................................... 12
C. Exclusion Orders................................................................................................... 12
D. Criminal Enforcement............................................................................................ 13
IV. RIGHT HOLDERS AND INTELLECT
UAL PROPERTY RIGHTS........................... 13
A. Recordation.......................................................................................................... 13
1. Trademarks........................................................................................................ 13
2. Copyright............................................................................................................ 14
B. Intellectual Property Rights Search Database (IPRS)........................................... 15
V. DISCLOSURE OF INFORMATION.......................................................................... 15
A. Counterfeit Marks.................................................................................................. 15
B. Copying or Simulating Marks................................................................................ 17
C. Clearly Piratical Works.......................................................................................... 17
D. Possibly Piratical Works....................................................................................... 18
VI. REMEDIES FOLLOWING THE SEIZURE OF MERCHANDISE............................ 18
VII. PENALTIES............................................................................................................ 19
ADDITIONAL INFORMATION...................................................................................... 20
The Internet................................................................................................................ 20
Customs Regulations................................................................................................. 20
Customs Bulletin........................................................................................................ 20
Importing into the United States................................................................................. 21
Informed Compliance Publications............................................................................. 21
Value Publications...................................................................................................... 22
“Your Comments are Important”................................................................................. 23

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I. Background and Introduction

Stopping the flow of fake goods is a priority for the U.S. government. U.S Customs and
Border Protection (CBP), a component of the Department of Homeland Security, has a
multi-layered approach to IPR enforcement that includes seizing fake goods at the border,
pushing the border outward through audits of infringing importers, risk modeling, and
cooperation with our international trading partners. CBP partners with industry and other
government agencies to enhance these efforts.

In the international arena, CBP collaborates with international organizations and foreign
governments to enhance IPR border enforcement efforts globally. Domestically, CBP
coordinates enforcement efforts with U.S. government trade policy and law enforcement
agencies, and works closely both with U.S. Immigration and Customs Enforcement (ICE)
to carry out investigative IPR enforcement actions, and with the trade community. CBP
conducts industry outreach by partnering with rights owners and industry organizations
both to collaborate on IPR education, and share information on trends, and where
appropriate, on individual cases of suspected IPR infringement. Members of the public
may inform CBP of potential intellectual property rights violations via CBP’s on-line trade
violation reporting mechanism called e-Allegations. The public may access e-Allegations
and additional relevant information at http://www.cbp.gov/trade/trade-community/e-
allegations/e-allegations-faqs. CBP also maintains an on-line recordation system,
Intellectual Property Rights e-Recordation, which allows rights owners to electronically
record their trademarks and copyrights with CBP, and facilitates IPR seizures by making
IPR recordation information readily available to CBP personnel. CBP’s on-line recordation
system is available at https://apps.cbp.gov/e-recordations/.

As an administrative agency with law enforcement powers, CBP has the powers of
search, seizure, and arrest, and the legal authority to make substantive determinations
regarding infringement of trademarks and copyrights, pursuant to the Tariff Act of 1930,
the Lanham Act of 1946, the Copyright Act of 1976, and the Digital Millennium Copyright
Act of 1998. CBP enforces patents pursuant to Section 337 exclusion orders issued by
the U.S. International Trade Commission (ITC). CBP issues reasoned written decisions
on substantive issues of trademark and copyright infringement, as well as decisions
relative to the enforcement and scope of ITC exclusion orders. There follows below an
overview of the legal framework of CBP’s border enforcement of IPR.

II. Intellectual Property Rights

Intellectual property refers to creations of the mind: Inventions, literary and artistic works,
and symbols, names, images, and designs used in commerce. Under U.S. law, a
trademark is defined as a word, name, symbol, device, color or combination thereof used
to identify and distinguish goods from those manufactured or sold by others and to
indicate the origin and source of goods, even if that source is unknown. CBP protects

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trademarks which are registered on the principal register of the United States Patent
and Trademark Office. Registration of a trademark covers a specific class or classes of
goods, and a registration granted on or after November 16, 1989, lasts for a period of
ten years and is
renewable. CBP’s border enforcement of trademarks is primarily
concentrated on marks that have been recorded with the agency.

A trade name is the name under which a company does business. Trade names are not
registered with the U.S. Patent and Trademark Office but may be recorded with CBP if
the name has been used to identify a trade or manufacturer for at least six months.
Notice of tentative recordation of a trade name shall be published in the Federal
Register and the Customs Bulletin and Decisions (Customs Bulletin) to provide notice to
the public and give interested parties an opportunity to oppose the recordation.

A copyright is a form of intellectual property that protects “original works of authorship,”
which include literary, dramatic, musical, artistic, pictorial, graphic and sculptural works,
motion pictures and other audio visual works, sound recordings, and architectural
works. Copyright protection for U.S. works commences the moment the work is fixed in
any tangible medium of expression, and extends only to the expression of ideas --
words, pictures, and sounds -- but not to the ideas themselves. The term of copyright
protection for current U.S. works created by an individual is the life of the author plus 70
years. If the work is anonymous or made for hire, copyright protection lasts 95 years
from first publication or 120 years from its creation, whichever expires first. Thereafter,
the work enters the public domain and may be freely used by anyone. CBP’s border
enforcement of copyrights is primarily concentrated on works that have been recorded
with the agency. Non-expired claims to copyrights that are registered with the U.S.
Copyright Office may be recorded with CBP.

A patent registered with the U.S. Patent and Trademark Office may not be recorded
with CBP. However, CBP enforces exclusion orders issued by the ITC pursuant to
Section 337 of the Tariff Act of 1930 (19 U.S.C. §1337), which provides relief to U.S.
industries which have established the existence of unfair trade practices in importing.
ITC exclusion orders are issued for findings of infringement, among other things, of
patents. Accordingly, CBP has authority to exclude from entry articles infringing a
patent pursuant to an exclusion order issued by the ITC.

III. CBP Enforcement of Intellectual Property: How Does CBP
Respond to Intellectual Property Rights Infringement?
A. Trademarks

CBP is vested with the authority to exclude from entry, detain and/or seize violative
trademarked merchandise. In this regard, CBP recognizes three levels of infringement
in its enforcement of trademarks: counterfeit marks; copying or simulating marks; and
restricted gray market goods (i.e., parallel imports).

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1. Counterfeit Marks

Pursuant to Title 15, United States Code, s
ection 1127 (15 U.S.C. § 1127), a counterfeit
mark is defined as a spurious mark that is identical with, or substantially
indistinguishable from, a federally registered and recorded trademark. Merchandise
imported into the United States bearing marks “counterfeit” of a federally registered
trademark recorded with CBP shall be seized and forfeiture proceedings instituted
pursuant to Section 526(e) of the Tariff Act of 1930 (19 U.S.C. §1526(e)), as
implemented by 19 CFR § 133.21. Such merchandise shall be seized and, absent the
trademark owner’s written consent to import the merchandise, forfeited for violation of
customs laws. After forfeiture, CBP shall destroy the merchandise. Alternatively, if the
imported merchandise is safe, poses no health hazard, and the trademark owner
consents, CBP may obliterate the counterfeit mark where feasible and dispose of the
seized goods by (1) delivering the merchandise to any Federal, State, or local
government agency, (2) donating the merchandise to a charitable institution, or (3)
selling the merchandise at public auction provided more than 90 days have passed
since the date of forfeiture, and no Federal, State, or local government agency or
charitable institution has a need for such merchandise. CBP may impose a civil fine
against any person who directs, assists financially or otherwise, or aids and abets the
importation of merchandise bearing a counterfeit mark that is seized under section
1526(e) and 19 CFR § 133.21. T.D. 99-76, 33 Cust. B. & Dec. No. 379 (Custom
s
Bulletin and Decisions 1999).

Where administratively feasible and appropriate, CBP is authorized to seize
merchandise bearing a mark that is counterfeit of a federally registered trademark that
is not recorded with CBP. In certain limited circumstances CBP may seize such
merchandise pursuant to 19 U.S.C. § 1595a(c)(2)(C) for a violation of 18 U.S.C. § 2320.

2. Copying or Simulating Marks

In addition, pursuant to 15 U.S.C. § 1124, as implemented by 19 CFR § 133.22, a
copying or simulating mark or trade name is
one that so resembles a recorded mark or
name as to be likely to cause the public to associate the copying or simulating mark or
name with the recorded mark or name. Merchandise bearing a copying or simulating
mark is subject to detention and possible seizure.

Specifically, under 19 CFR § 133.22, merchandise bearing a copying or simulating mark
shall be denied entry and detained for 30 days from the date on which the goods are
presented for examination by CBP, during which time the importer shall be afforded the
opportunity, before expiration of the 30-day period, to establish that any of the
circumstances described in 19 CFR § 133.22(c) are applicable, e.g., the objectionable
mark is removed or obliterated as a condition to entry in such a manner as to be illegible
and incapable of being reconstituted, or the recordant gives written consent to
importation of the merchandise. If the importer has not obtained release of the
merchandise within the 30-day detention period, the merchandise shall be seized and

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forfeiture proceedings instituted. Imported merchandise or
packaging in which
trademark or trade name violations are involved may be seized and forfeited pursuant to
19 U.S.C. § 1595a(c)(2)(C) and 19 CFR § 133.22(f). Merchandise bearing a mark
which is confusingly similar to a trademark registered with the United States Patent and
Trademark Office, but which is not recorded with CBP is not subject to detention or
seizure.

3. Restricted Gray Market Artic
les (“Parallel Imports”)

Gray market goods are defined as foreign-manufactured goods bearing a genuine
trademark or trade name identical with, or substantially indistinguishable from, one
owned and recorded by a citizen of the United States or a corporation or association
created or organized within the United States which are imported into the U.S. without
the authorization of the U.S. trademark owner. In other words, gray market goods are
genuine products bearing a trademark/name which has been applied with the approval
of the right owner for use in a country other than the United States. Goods bearing
counterfeit marks, on the other hand, are never genuine as these are marks (identical to
or substantially indistinguishable from the genuine trademark) which have been applied
without the authority of the trademark/trade name owner. CBP provides limited
protection to trademark owners against importations of certain gray market goods
pursuant to 19 U.S.C. § 1526(a), as implemented by 19 CFR § 133.23.

Only trademarks and trade names that are recorded with CBP are entitled to gray
market protection. Gray market status is determined at the time of recordation with
CBP. Gray market protection is conferred where (1) the U.S. and foreign trademarks
are not owned by the same person, and (2) the U.S. and foreign trademark owners are
not a parent or subsidiary, or otherwise subject to common ownership or control.
“Common ownership” means individual or aggregate ownership of more than fifty
percent of the business entity. “Common control” means effective control in policy and
operations and is not necessarily synonymous with common ownership.

If a trademark/name receives gray market protection, foreign-made goods bearing the
protected mark or name that are imported into the U.S. will be detained pursuant to 19
CFR § 133.23 and 19 CFR § 133.25, except as provided in 19 CFR §133.23(b), and are
subject to potential seizure and forfeiture under 19 U.S.C. § 1526(b) (see
also 19 CFR §
133.23(f)).

4. Lever Rule Protection

An exc
eption to the common control provision of the gray market regulations is the
Lever-rule. Goods bearing marks not entitled to gray market protection, and thus
allowed unrestricted importation, may, in certain cases, be refused entry into the United
States when it is established that such goods are “physically and materially” different
from goods produced for the U.S. market under authority of the U.S. trademark owner.
Part 133 of CBP regulations provides that, even in affiliate exception cases, upon
application of the trademark owner and a finding that specific gray market goods are

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“physically and materially” different from goods authorized by the U.S. trademark owner
for importation into the U.S., CBP will restrict the importation of the gray market goods.
In this instance, gray market goods will only be permitted entry into the commerce of the
United States if the labeling requirements set forth in 19 CFR § 133.23(b) have been
satisfied.

When applying for Lever-rule protection for specific products, a trademark owner must
(1) state the basis for this claim with particularity; (2) support the claim by competent
evidence; and (3) provide CBP with summaries of the alleged physical and material
differences that exist between the merchandise authorized for sale in the United States
and those intended for other markets. “Physical and material” differences between
merchandise authorized for sale in the United States and those intended for other
markets may include, but are not limited to:

 The specific composition of both the authorized and gray market product(s)
(including chemical composition);
 Formulation, product construction, structure, or composite product components, of
both the authorized and gray market product;
 Performance and/or operational characteristics of both the authorized and gray
market product;
 Differences resulting from legal or regulatory requirements, certification, etc.;
 Other distinguishing and explicitly defined factors that would likely result in
consumer deception or confusion as proscribed under applicable law.

CBP will publish in the CBP Bulletin a notice listing the trademark(s) and specific
product(s) for which Lever-rule protection has been requested and granted.

5. Personal Use Exemption from Trademark Restrictions

Under 19 U.S.C. § 1526(d), a traveler arriving in the United States with merchandise
bearing a protected trademark may be granted an exemption to the import restrictions.

Under the personal use exemption, a traveler may import one article of the type bearing
a protected trademark. For example, a person arriving in the U.S. with three watches
bearing an unauthorized mark (whether each watch bears the same mark or different
marks) is allowed to retain only watch. This exemption applies to goods bearing a
counterfeit or confusingly similar version of a registered and recorded trademark, or
otherwise restricted gray market article. The exemption is applicable only if the article
(1) accompanies a traveler to the United States, (2) is for personal use and not for sale,
and if (3) the traveler has not been granted an exemption for the same type of article
within 30 days preceding his or her arrival. See 19 CFR § 148.55.

B. Copyrights

CBP is vested with the authority to detain and/or seize piratical copies of protected
copyrighted works. For CBP purposes, “piratical copies” are identical or substantially

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similar copies of a registered copyrighted work which are produced and imported
without authorization of the copyright owner.

While c
opyright protection exists the moment a work is fixed in any tangible medium of
expression, CBP focuses its enforcement of copyrights on works that have been
recorded with the agency. It is important to note that CBP only records claims to
copyrights which are federally registered with the U.S. Copyright Office.

Copyright law gives the author the right to prevent copying of a copyrighted work in any
medium; however, the determination of copyright piracy is complex. The basic test for
copyright infringement is whether an average lay observer would recognize the alleged
copy as having been appropriated from the copyrighted work. Two steps are involved in
the test for infringement: (1) access to the copyrighted work, and (2) substantial
similarity not only of general ideas, but the expression of those ideas as well. Access to
the copyrighted work may be presumed even without direct evidence in cases where it
is apparent that the importer has ample opportunity to view the copyrighted work, and
the substantial similarities between the works are so striking as to preclude the
possibility that they were arrived at independently.

As a general matter, CBP regulations provide for the possibility of border enforcement
action to enforce the Copyright Act of 1976 where the suspect work is (1) clearly
piratical or (2) possibly piratical of the protected work.

1. Clearly Piratical

"Clearly P
iratical" is defined as overwhelming and substantial similarity between the
copyrighted elements of the protected work and the suspect item so as to clearly
indicate that one work was based upon the other. Imported merchandise constituting
"clearly piratical" copies of a federally registered copyright recorded with CBP is subject
to seizure and forfeiture pursuant to 19 U.S.C. § 1595a(c)(2)(C) for a violation of 17
U.S.C. § 602, as implemented by 19 CFR § 133.42. It should be noted that a person
arriving in the United States may import one infringing copyrighted work as long as the
infringing work is part of the traveler’s personal luggage, and is for private use and not
for distribution.

If administratively feasible and appropriate, where a federally registered copyright has
not been recorded with CBP and an agency determination is made that the
merchandise is clearly piratical, such merchandise is subject to seizure pursuant to 19
U.S.C. § 1595a(c)(2)(C) for violation of 17 U.S.C. § 501.

2. Possibly Piratical

"Possibly Piratical" encompasses situations in which CBP has “reasonable suspicion” to
believe that imported merchandise is piratical of copy
righted works recorded with CBP.
In this instance, possibly piratical copies shall be detained and the process outlined in
19 CFR § 133.43 is to be followed. If such merchandise is determined to be piratical, it

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may be seized and forfeited pursuant to 19 U.S.C. § 1595a(c)(2)(C) for a violation of 17
U.S.C. § 602.

3. Digital Millennium Copyright Act

The Digita
l Millennium Copyright Act (DMCA), among other things, prohibits gaining
unauthorized access to a copyrighted work by circumventing a technological protection
measure put in place by the copyright owner that is designed to control access to the
copyrighted work.

Specifically, section 1201(a)(2) of Title 17 prohibits the manufacture or importation of
devices, the provision of services, or trafficking in any technology, product, service,
device, component, or part thereof, that circumvents technological measure that
effectively control access to a work. To violate section 1201(a)(2), the suspect
technology, service, device, or product must (1) be primarily designed or produced for
the purpose of circumventing such technological measures, (2) have only limited
commercially significant purpose or use other than to circumvent such measures, or (3)
be marketed by the defendant or another acting in concert with that person's knowledge
for use in circumventing a technological measure. Where CBP determines a device
violates the DMCA, such device is subject to seizure and forfeiture under 19 U.S.C. §
1595a(c)(2)(C) for a violation of 17 U.S.C. § 1201.

C. Exclusion Orders

Under Section 337 of the Tariff Act of 1930 (19 U.S.C. § 1337), unfair methods of
competition and unfair practices in the importation or sale of goods, the effect or
tendency of which is to destroy, substantially injure, or prevent the establishment of an
efficiently and economically operated U.S. industry, or to restrain or monopolize trade
and commerce in the United States, are unlawful. Additionally, Section 337 declares
unlawful the importation into the United States of goods which infringe a U.S. patent,
registered trademark, copyright, or mask work. Subsequent to an investigation of an
alleged violation under Section 337, where the U.S. International Trade Commission
(ITC) determines that Section 337 has been violated, it shall issue an order directing the
Secretary of the Treasury, as delegated to the Secretary of Homeland Security, to
exclude the subject goods from entry into the United States. The ITC may also issue
seizure and forfeiture orders against specific importers where, after previously having
had goods denied entry pursuant to an exclusion order and having been notified by
CBP that seizure and forfeiture could result from future attempted entries of such goods,
the importer attempts a subsequent importation of the same or similar goods which are
the subject of the exclusion order. Once a seizure and forfeiture notice has been
issued, importation of the subject goods by the identified importer will be subject to
forfeiture pursuant to 19 U.S.C. § 1337(i), as implemented by 19 CFR § 12.39(c).

Unlike trademarks and copyrights, patents registered with the U.S. Patent and
Trademark Office may not be recorded with CBP. Thus, CBP’s action with respect to
patents is limited to the enforcement of ITC exclusion orders. In this regard, however,

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CBP, upon written request from an importer or interested party, may issue ruling
s
pursuant to 19 CFR Part 177, regarding whether prospective importations fall within the
scope of an exclusion order issued by the ITC.

D. Criminal Enforcement

CBP may seize merchandise that meets the criteria for criminal seizure under the
provisions of 19 U.S.C. § 1595a(c)(2)(C) for violation of the applicable criminal copyright
or trademark statute. The determination to initiate criminal prosecution for a violation of
an intellectual property right law is made by the United States Department of Justice
through the United States Attorney for the jurisdiction where the violation occurred.

IV. Right Holders and Intellectual Property Rights

Following registration of a trademark or copyright, which relates to the official act of
filing or having been granted (1) a trademark with the U.S. Patent & Trademark Office or
(2) a copyright with the U.S. Copyright Office for a federal registration, a right holder
may record its right (trademark or copyright) with CBP.

A. Recordation

While CBP regulations provide for the submission of written recordation applications, an
applicant may also avail themselves of CBP’s on-line recordation system as an
alternative method of filing via the Intellectual Property e-Recordation (IPRR), an on-line
recordation system. The web-based IPRR tool:

 Eliminates paper applications and the need for supporting documents (including
registration certificates);
 Allows right holders to upload images of the protected rights;
 Reduces time from filing of the application to enforcement by field personnel; and
 Allows for on-line payment by credit card or by submission of a check or money
order after the filing of the application.

IPRR is available at CBP's website homepage (https://apps.cbp.gov/e-recordations/
).

1. Trademarks

In regard to trademarks, the information required to record a mark with CBP inc
ludes,
but is not limited to, the following:

 The name, complete business address and citizenship of the trademark owner;
 The place of manufacture of goods bearing the recorded trademark;
 The names and addresses of any persons or companies authorized to use the
trademark;
 The identity of any parent or subsidiary company or other foreign company under

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common ownership or control w
hich uses the trademark abroad; and
 A fee of $190 for each class of goods of a trademark the applicant wishes to
record.

Trademarks that are registered on the principal register of the U.S. Patent and
Trademark Office are eligible for recordation with CBP. To record a trademark with
CBP, an applicant must include the following in its application. See 19 CFR §§ 133.1-
133.2.

 The name, complete business address, and citizenship of the trademark owner or
owners (if a partnership, the citizenship of each partner; if an association or
corporation the State, country, or other political jurisdiction within which it was
organized, incorporated, or created);
 The places of manufacture of goods bearing the recorded trademark;
 The name and principal business address of each foreign person or business
entity authorized or licensed to use the trademark and a statement as to the use
authorized; and
 The identity of any parent or subsidiary company or other foreign company under
common ownership or control which uses the trademark abroad.

2. Copyright

In regard to copyrights, the information required to rec
ord with CBP includes, but is not
limited to, the following:

 The name, complete business address and citizenship of the copyright owner;
 The country of manufacture genuine copies or phonorecords of the protected
work;
 A fee of $190 for each class of goods of a trademark the applicant wishes to
record.

Copyrights registered with the U.S. Copyright Office are eligible for recordation with
CBP. The copyright owner, including any person who has acquired copyright ownership
through an exclusive license, assignment, or otherwise, and claims actual or potential
injury because of actual or contemplated importations of copies (or phonorecords) of
eligible works, may file a recordation application. To record a copyright with CBP, an
applicant must include the following in its application. 19 CFR §§ 133.31, 133.32.

 The name and complete address of the copyright owner or owners;
 If the applicant is a person claiming actual or potential injury by reason of actual
or contemplated importations of copies or phonorecords of the eligible work, a
statement setting forth the circumstances of such actual or potential injury;
 The country of manufacture of genuine copies or phonorecords of the federally
registered copyright;

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
The name and principal address of any foreign person or business entity
authorized or licensed to use the federally registered copyright, and a statement
as to the exclusive rights authorized;
 The foreign title of the federally registered copyright, if different from the U.S. title;
and
 In the case of an application to record a copyright in a sound recording, a
statement setting forth the name(s) of the performing artist(s), and any other
identifying names appearing on the surface of reproduction of the sound
recording, or its label or container.

B. Intellectual Property Rights Search Database (IPRS)

The Intellectual Property Rights Search (IPRS) database contains CBP recorded
trademarks, trade names, and copyrights which are available for viewing by right
holders and the public. These recordations can be retrieved based on simple or
complex search characteristics using keywords and Boolean operators. IPRS is
available to right holders and the general public at http://iprs.cbp.gov/
.

V. Disclosure of Information

CBP regulations provide for disclosure of certain information where merchandise is
detained and/or seized for violations of the trademark laws.

A. Counterfeit Marks

Where merchandise is suspected of bearing a mark that is counterfeit of a recorded
trademark, CBP will provide the trademark owner prior to seizure with any information
appearing on the merchandise or its retail packaging, or a sample of the merchandise
including its retail packaging, for the purpose of determining whether the imported
merchandise bears or consists of a counterfeit mark.

Within five days from the date of the decision to detain the suspect merchandise, CBP
will notify the importer in writing of the detention. 19 CFR § 133.21(b)(1). The notice will
inform the importer that a disclosure of information concerning the detained
merchandise may be made to the owner of the mark to assist CBP in determining
whether any marks are counterfeit, unless the importer presents information within
seven days of the notification (excluding weekends and holidays) establishing to CBP’s
satisfaction that the detained merchandise does not bear a counterfeit mark.19 CFR §
133.21(b)(1). CBP may disclose information appearing on the merchandise and/or its
retail packaging, images (including photographs) of the merchandise and/or its retail
packaging in its condition as presented for examination, or a sample of the merchandise
and/or its retail packaging in its condition as presented for examination. CBP will
release to the owner of the mark a sample when the owner furnishes CBP a bond in the
form and amount specified by the port director, to hold the United States its officers and
employees, and the importer, harmless from any loss or damage resulting from
furnishing of the sample. 19 CFR §§ 133.21(b)(1), 133.21(c).

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Where the importer does not timely provide information or the information provided is
insufficient for CBP to determine that the merchandise does bear a counterfeit mark,
CBP may proceed with the disclosure to the owner of the mark and will so notify the
importer. Disclosure may include any serial numbers, dates of manufacture, lot codes,
batch numbers, universal product codes, or other identifying marks appearing on the
merchandise or its retail packaging, in alphanumeric or other formats. 19 CFR §
133.21(b)(1).

From the time merchandise is presented for examination until the time a notice of
detention is issued, CBP may disclose to the owner of the mark any of the following
information in order to obtain assistance in determining whether an imported article
bears a counterfeit mark. Once a notice of detention is issued, CBP will disclose to the
owner of the mark the following information, if available, within thirty days of the date of
detention:

 Date of importation
 Port of Entry
 Description of Merchandise
 Quantity
 Country of Origin

19 CFR § 133.21(b)(2).

Notwithstanding the notice and seven-day response procedure described above, CBP
may, at any time after presentation of the merchandise for examination but prior to the
issuance of a detention notice, provide to the owner of the mark images or a sample of
the detained merchandise or its retail packaging, provided that identifying information
has been removed, obliterated, or otherwise obscured. Identifying information includes,
but is not limited to, serial numbers, dates of manufacture, lot codes, batch numbers,
universal product codes, the name or address of the manufacturer, exporter, or importer
of the merchandise, in alphanumeric or other formats. CBP will release to the owner of
the mark a sample when the owner furnishes CBP a bond in the form and amount
specified by the port director, to hold the United States its officers and employees, and
the importer, harmless from any loss or damage resulting from furnishing of the sample.
19 CFR §§ 133.21(b)(3).

Where merchandise is seized because it bears a mark that is counterfeit of a recorded
trademark, CBP shall provide the right owner the following information, if available,
within 30 business days (excluding weekends and holidays) of the date of the seizure:

 Date of importation
 Port of Entry
 Description of Merchandise
 Quantity
 Country of Origin

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
Name and address of manufacturer
 Name and address of exporter
 Name and address of importer

19 CFR § 133.21(d).

Any time following seizure of the merchandise, CBP may provide a sample of the
suspect merchandise to the right owner for examination, testing, or other use in pursuit
of a related private civil remedy. If a request for sample is made, the right owner must
provide CBP with a bond in the form and amount specified by the port director, to hold
the United States its officers and employees, and the importer, harmless from any loss
or damage resulting from furnishing of the sample. 19 CFR § 133.21(e).

B. Copying or Simulating Marks

Where merchandise is detained for bearing a mark confusingly similar to a recorded
trademark, CBP may disclose to the owner of the mark the following information prior to
issuing a detention notice. However, once a detention notice is issued, CBP shall
disclose to the right owner the following information, if available, within 30 business
days (excluding weekends and holidays) of the date of detention:

 Date of Importation
 Port of Entry
 Description of Merchandise
 Quantity
 Country of Origin

19 CFR § 133.25.

Any time after presentation of the merchandise for CBP examination, but prior to
seizure, CBP may provide a sample to the owner of the mark for examination or testing.
If a request for a sample is made, the mark owner must provide CBP with a bond in the
form and mount specified by the port director, conditioned to hold the United States its
officers and employees, and the importer, harmless from any loss or damage resulting
from furnishing of the sample. 19 C.F.R. § 133.25(c). Prior to release of the sample,
CBP shall remove or obliterate any information indicating the name and/or address of
the manufacturer, exporter, and/or importer.

C. Clearly Piratical Works

Where merchandise is seized because it is piratical of a work protected by a recorded
copyright, CBP shall provide the right owner the following information, if available, within
30 business days (excluding weekends and holidays) of the date of the seizure:

 Date of importation
 Port of Entry

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
Description of Merchandise
 Quantity
 Country of Origin
 Name and address of manufacturer
 Name and address of exporter
 Name and address of importer

19 CFR § 133.42(d).

Any time following seizure of the merchandise, CBP may provide a sample of the
suspect merchandise to the right owner for examination, testing, or other use in pursuit
of a related private civil remedy. If a request for sample is made, the right owner must
provide CBP with a bond in the form and amount specified by the port director, to hold
the United States its officers and employees, and the importer, harmless from any loss
or damage resulting from furnishing of the sample. 19 CFR § 133.42(e).

D. Possibly Piratical Works

Where merchandise is detained because it is piratical of a work protected by a recorded
copyright, CBP may disclose to the copyright owner the following information prior to
issuing a detention notice. However, once a detention notice is issued, CBP shall
disclose to the copyright owner the following information, if available, within 30 business
days (excluding weekends and holidays) of the date of detention:

 Date of Importation
 Port of Entry
 Description of Merchandise
 Quantity
 Country of Origin

19 CFR § 133.43(b).

Any time after presentation of the merchandise for CBP examination, but prior to
seizure, CBP may provide a sample to the copyright owner for examination or testing. If
a request for sample is made, the right owner must provide CBP with a bond in the form
and amount specified by the port director, conditioned to hold the United States its
officers and employees, and the importer, harmless from any loss or damage resulting
from furnishing of the sample. Prior to release of the sample, CBP shall remove or
obliterate any information indicating the name and/or address of the manufacturer,
exporter, and/or importer. 19 CFR § 133.43(c).

VI. Remedies Following the Seizure of Merchandise

Upon receiving a seizure notice, an importer may choose to do one of the following:

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 Request administrative forfeiture proceedings as provided under 19 U.S.C. §
1607 and 19 CFR § 162.45;

 File a claim and cost bond requesting that CBP immediately refer the case to the
United States Attorney for court action;

 File a petition for administrative relief with the Port Director of CBP pursuant to
19 U.S.C. § 1618 and 19 CFR § 171.11; or

 Tender an offer in compromise to the Commissioner of Customs through the
Fines, Penalties, and Forfeitures at the port of seizure pursuant to 19 U.S.C. §
1617 and 19 CFR § 161.5.

VII. Penalties

In accordance with 19 CFR § 133.27, CBP, as authorized by 19 U.S.C. § 1526(f), may
impose a civil fine relative to seizures effected for merchandise bearing counterfeit marks
pursuant to 19 U.S. § 1526(e). For the first seizure of such merchandise, the fine shall be
no more than the domestic value the merchandise would have had if it were genuine,
based upon the manufacturer’s suggested retail price (MSRP) at the time of seizure. For
second and subsequent violations, the fine shall not be more than twice such value.
Additional information concerning civil monetary fines and mitigation guidelines for
trademark violations, as well as, a chart outlining the parameters for levying such fines
are set forth in the ICP entitled Mitigation Guidelines: Fines, Penalties, Forfeitures and
Liquidated Damages
http://www.cbp.gov/sites/default/files/documents/icp069_3.pdf

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ADDITIONAL INFORMATION

The Internet

The home page of U.S. Customs and Border Protection on the Internet’s World Wide
Web, provides the trade community with current, relevant information regarding CBP
operations and items of special interest. The site posts information -- which includes
proposed regulations, news releases, publications and notices, etc. -- that can be
searched, read on-line, printed or downloaded to your personal computer. The web site
was established as a trade-friendly mechanism to assist the importing and exporting
community. The web site also links to the home pages of many other agencies whose
importing or exporting regulations that U.S. Customs and Border Protection helps to
enforce. The web site also contains a wealth of information of interest to a broader
public than the trade community. For instance, the “Know Before You Go” publication
and traveler awareness campaign is designed to help educate international travelers.

The web address of U.S. Customs and Border Protection is http://www.cbp.gov

Customs Regulations

The current edition of Customs and Border Protection Regulations of the United States
is a loose-leaf, subscription publication available from the Superintendent of
Documents, U.S. Government Printing Office, Washington, DC 20402; telephone (202)
512-1800. A bound edition of Title 19, Code of Federal Regulations is also available for
sale from the same address. All proposed and final regulations are published in the
Federal Register, which is published daily by the Office of the Federal Register, National
Archives and Records Administration, and distributed by the Superintendent of
Documents. Information about on-line access to the Federal Register may be obtained
by calling (202) 512-1530 between 7 a.m. and 5 p.m. Eastern time. These notices are
also published in the weekly Customs Bulletin described below.

Customs Bulletin

The Customs Bulletin and Decisions (“Customs Bulletin”) is a weekly publication that
contains decisions, rulings, regulatory proposals, notices and other information of
interest to the trade community. It also contains decisions issued by the U.S. Court of
International Trade, as well as customs-related decisions of the U.S. Court of Appeals
for the Federal Circuit. Each year, the Government Printing Office publishes bound
volumes of the Customs Bulletin. Subscriptions may be purchased from the
Superintendent of Documents at the address and phone number listed above.

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Importing into the United States

This publication provides an overview of the importing process and contains general
information about import requirements. The current edition of Importing Into the United
States contains much new and revised material brought about pursuant to the Customs
Modernization Act (“Mod Act”). The Mod Act has fundamentally altered the relationship
between importers and U.S. Customs and Border Protection by shifting to the importer
the legal responsibility for declaring the value, classification, and rate of duty applicable
to entered merchandise.

The current edition contains a section entitled "Informed Compliance." A key component
of informed compliance is the shared responsibility between U.S. Customs and Border
Protection and the import community, wherein CBP communicates its requirements to
the importer, and the importer, in turn, uses reasonable care to assure that CBP is
provided accurate and timely data pertaining to his or her importation.

Single copies may be obtained from local offices of U.S. Customs and Border
Protection, or from the Office of Public Affairs, U.S. Customs and Border Protection,
1300 Pennsylvania Avenue NW, Washington, DC 20229. An on-line version is
available at the CBP web site. Importing into the United States is also available for
sale, in single copies or bulk orders, from the Superintendent of Documents by calling
(202) 512-1800, or by mail from the Superintendent of Documents, U.S. Government
Printing Office, P.O. Box 979050, St. Louis, MO 63197-9000.

Informed Compliance Publications

U.S. Customs and Border Protection has prepared a number of Informed Compliance
publications in the “What Every Member of the Trade Community Should Know
About:...” series. Check the Internet web site http://www.cbp.gov
for current
publications.

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Value Publications

Customs Valuation under the Trade Agreements Act of 1979 is a 96-page book
containing a detailed narrative description of the customs valuation system, the customs
valuation title of the Trade Agreements Act (§402 of the Tariff Act of 1930, as amended
by the Trade Agreements Act of 1979 (19 U.S.C. §1401a)), the Statement of
Administrative Action which was sent to the U.S. Congress in conjunction with the TAA,
regulations (19 C.F.R. §§152.000-152.108) implementing the valuation system (a few
sections of the regulations have been amended subsequent to the publication of the
book) and questions and answers concerning the valuation system.

Customs Valuation Encyclopedia (with updates) is comprised of relevant statutory
provisions, CBP Regulations implementing the statute, portions of the Customs
Valuation Code, judicial precedent, and administrative rulings involving application of
valuation law. A copy may be purchased for a nominal charge from the Superintendent
of Documents, Government Printing Office, P.O. Box 371954, Pittsburgh, PA 15250-
7054. This publication is also available on the Internet web site of U.S. Customs and
Border Protection.

The information provided in this publication is for general information
purposes only. Recognizing that many complicated factors may be
involved in customs issues, an importer may wish to obtain a ruling under
CBP Regulations, 19 C.F.R. Part 177, or obtain advice from an expert
(such as a licensed Customs Broker, attorney or consultant) who
specializes in customs matters. Reliance solely on the general
information in this pamphlet may not be considered reasonable care.

Additional information may also be obtained from U.S. Customs and Border Protection
ports of entry. Please consult your telephone directory for an office near you. The
listing will be found under U.S. Government, Department of Homeland Security.

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“Your Comments are Important”

The Small Business and Regulatory Enforcement Ombudsman and 10 regional
Fairness Boards were established to receive comments from small businesses about
Federal agency enforcement activities and rate each agency’s responsiveness to small
business. If you wish to comment on the enforcement actions of U.S. Customs and
Border Protection, call 1-888-REG-FAIR (1-888-734-3247).

REPORT SMUGGLING 1-800-BE-ALERT

Visit our Internet w
eb site: http://www.cbp.gov