Taking the Case to Counterfeiters at the Border
US Customs and Border Protection (CBP) sometimes gets a bad rap. And they actually have several BIG jobs to figure out. In addition to the one that makes national news frequently, US CPB is ALSO the primary federal agency responsible for addressing counterfeit goods at the United States border. All persons, baggage and merchandise entering the United States are subject to inspection by the CBP (19 CFR Section 162.6) and the CBP has authority to exclude, detain and seize counterfeit goods at any port of entry into the United States.
Over the past several years, the CBP has reported significant increases in the number of seizures performed per year. In 2019 and 2020, it reported the first decreases in the number of seizures since 2014; however, the overall seizure numbers remain high, with 26,503 seizures representing a monetary value of over $1.3 billion in 2020.
The CBP relies on information provided by trademark owners to identify counterfeit goods and it maintains its own searchable, online database of recorded IP rights for this purpose. Trademark owners may record their US trademark registrations with the CBP using the agency’s Intellectual Property Rights e-Recordation system.
It’s a complicated area to be sure. On identifying suspected counterfeit goods at a US port of entry, the CBP may detain the goods and, at its discretion, provide certain limited information (including the import date, the port of entry, the country of origin, the description of the goods and their quantity as provided in entry documentation and redacted images of the goods) to the trademark owner, to assist the CBP in its determination.
And if the CBP determines that the detained goods are counterfeit, the goods will then be seized and forfeited. The CBP may also impose a civil monetary penalty against the importer.
Investigations expert Tim Santoni says, “Evidence is key. As a brand owner or attorney representing a brand, it is crucial to obtain investigation through a licensed private investigator so that you can pursue legal remedies (civil or criminal). The investigation should include contact with the infringers, an evidentiary buy and a follow-up investigation to identify and profile the infringers.
Santoni adds, “When it comes to CBP they will assist in enforcement efforts if you have your trademark registered with the USPTO and you have notified CBP. Additionally, you must offer training to CBP and respond promptly when they notify you of potential infringing goods that have been seized. The letters from CBP that notify you of goods detained due to potential infringements are very useful as it tells you where the goods are coming from and who is importing them.”
We know that success or failure in cases like these always depends on having the very best, most detailed information. That’s why great attorneys and law firms across the country work with the worldwide team of Santoni Investigations who will make sure you know everything to win your case in court!
Know even more: “United States: multi-pronged approach is needed to tackle counterfeiters online” WORLD TRADEMARK REVIEW