An Unlikely Ally in the Fight Against Intellectual Property Infringement: Customs & Border Patrol

One of the largest scourges in the intellectual property world is counterfeit goods.  Counterfeiting is a form of infringement whereby a third party unlawfully uses another party’s intellectual property to sell their own product and pockets the profits. Infringement takes many forms, from bootleg movies to fake Louis Vuitton handbags to counterfeit Ray-Ban sunglasses to pseudo-Viagra. Much of this infringement originates from outside the US.

No matter where outside of the U.S. it is created, however, each infringing product must come into the U.S. through one of 328 ports of entry, all of which are under the control of U.S. Customs and Border Patrol (CBP). Thus, CBP is the first line of defense for finding and seizing contraband that is being shipped into the United States. CBP wisely recognizes that contraband includes not only narcotics and other illegal items, but a seemingly unending supply of counterfeit goods.

In 2005, CBP established a program called Intellectual Property Rights e-Recordation (IPRR) in which intellectual property owners can electronically record their intellectual property with CBP to make it easier for CBP to identify counterfeit items. Thus, a trademark owner can record their U.S. Patent & Trademark Office registration number or copyright registration number in IPRR and provide an image of the trademark or copyrighted work that then becomes accessible to agents at all 328 ports of entry. Should CBP encounter counterfeit versions of a product, it is authorized to seize and destroy these counterfeit goods without having to establish personal jurisdiction over the goods or prove that there was an intent to infringe.

While recordation of intellectual property through IPRR is not required, it increases the chances that CBP can recognize the intellectual property and counterfeit versions. There is a fee to register the intellectual property, but for companies with very successful products, it can be an invaluable tool to stop counterfeit products from even entering the United States. Companies that register their marks or copyrighted works with CBP are encouraged to also file a product identification guide that can be used by agents on the spot to make a determination of whether goods are legitimate.  

Recordation also can serve as a deterrent to would-be counterfeiters since they will know that the particular trademark or copyrighted item is now available to be used for comparison with a few keystrokes at any of the ports of entry into the U.S.  

All indicators point to an increase in counterfeit activity, particularly coming from China, which makes the CBP’s program all the more important. In fiscal year 2015, CBP seized 28,865 shipments of counterfeit goods, which represented a 25% increase from the year before. The “cost” of these shipments if they had been sold at retail prices would have been $1.35 billion.

Another reason CBP works so hard to ferret out these products is that they can pose a health hazard to Americans, particularly through faulty or contaminated counterfeit medicines or food products. Counterfeit goods also represent a large source of funding for terrorist groups and organized crime. Shutting down those revenue streams before they can get started is immensely important.

If you have concerns about possible infringement of your intellectual property, including through importation of counterfeit versions, contact us today. Our extensive knowledge and understanding of intellectual property laws and business realities can help get you the best outcome possible. Set up an appointment today to get started.

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