CBP Enforcement of Intellectual Property Trademarks

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CBP Enforcement of Intellectual Property – Trademarks

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CBP Enforcement of Intellectual Property – 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).

Counterfeit Marks

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. 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. 

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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. 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.

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Copying or Simulating Marks

In addition, 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, 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 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 forfeiture proceedings instituted.  Imported merchandise or packaging in which trademark or trade name violations are involved may be seized and forfeited. 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.

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Restricted Gray Market Articles (”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.

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.

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Lever Rule Protection

An exception 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“ 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.

Personal Use Exemption from Trademarks Restrictions

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. 

For more detailed information, please refer to the Informed Compliance Publication ‘’CBP Enforcement of Intellectual Property Rights’’ and CBP website.

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