Best Practices in Working with U.S. Customs and Border Protection to Help Enforce Your Intellectual Property Rights at the Border
U.S. Customs and Border Protection (“CBP”) is the first line of defense against counterfeit and piratical goods entering the U.S. stream of commerce from abroad. CBP maintains a robust intellectual property (“IP”) enforcement program and deploys substantial resources to interdict IP-violative goods, which can threaten the health and safety of U.S. consumers, as well as the competitiveness of American businesses.
CBP enforces federally registered trademarks and copyrights that are recorded through the e-Recordation program, utilizes automated risk-management systems to analyze and target imported IP infringing goods, and has the legal authority to detain, seize, forfeit, and ultimately destroy IP infringing merchandise entering the U.S.
As members of the trade community, you can play a pivotal role in furthering CBP’s trade mission by becoming educated and engaged in IP border enforcement. Trademark and copyright owners can collaborate and partner with CBP and other government agencies to become key players in the IP enforcement ecosystem.
These seven principles of engagement are all that it takes to join CBP in the fight against IP theft:
- Be Recorded
Record your federally registered trademarks and copyrights with CBP through the e-Recordation program to receive border enforcement. CBP consults the e-Recordation database when reviewing imported products for suspected counterfeit or infringing marks and piratical copies. Provided the trademark or copyright that is being infringed is recorded, CBP will have the authority to detain, seize, forfeit, and in most circumstances destroy the infringing article.
The recordation application is available at: https://iprr.cbp.gov/. CBP charges an administrative fee of $190 per International Class of goods for trademarks, and $190 per copyright. The term of the trademark runs concurrently with the underlying U.S. Patent and Trademark Office registration, and 20 years per copyright.
A list of frequently asked questions regarding recordation is available at: https://iprr.cbp.gov/Content/Docs/instruction.pdf. For additional information on the e-Recordation program not answered by the FAQs, see 19 CFR Part 133 for all applicable federal regulations. For assistance with your recordation application, or any questions not addressed by the resources listed above, please contact the intellectual property recordation team at: IPRRQuestions@cbp.dhs.gov
- Be Current
Periodically review and update the information in your recordation to ensure CBP is using the most accurate and complete information available to protect your registered trademark and/or copyright at the border. The most important piece of information in the recordation is the point of contact (“POC”). We recommend that you designate a POC that has knowledge of the brand and is able to differentiate genuine products from illegitimate products based on a review of digital images. You can update or supplement your recordations at any time by making a request to IPRRQuestions@cbp.dhs.gov on company letterhead, indicating all recordation numbers for which the change is requested.
- Be Thorough
Submit a Product Identification Guide (“Product ID Guide”) that introduces your brand and describes your products to assist CBP in making authenticity determinations at the border. Submit your Product ID Guide to CBP through IPRHelpDesk@cbp.dhs.gov. The most useful guides contain a detailed explanation of how to authenticate merchandise and differentiate genuine merchandise from illegitimate merchandise, as CBP is focused on the physical characteristics of the product itself as opposed to the identity of the parties associated with the importation. CBP is required to safeguard and protect your trade secret and business confidential information from disclosure pursuant to the Trade Secrets Act (18 U.S.C. §1905) and will not share the content of Product ID Guides outside of the Department of Homeland Security.
- Be Engaged
Introduce CBP personnel to your brand and products by delivering a live, virtual Product Identification webinar to explain your Product ID Guide and answer any questions concerning authentication techniques. To schedule a Product Identification webinar, contact IPRHelpDesk@cbp.dhs.gov. For more information visit: https://www.cbp.gov/trade/priority-issues/ipr/webinar.
You may also sign-up to provide a live, in-person Product Training Session for CBP Officers and Import Specialists who will be inspecting suspect shipments and identifying potential IP infringements by contacting email@example.com. Details on exactly what information needs to be contained in your training request is available in Federal Register Notice 83 FR 7064.
The attorney-advisors in the Intellectual Property Enforcement (“IPE”) Branch routinely provide instruction to rights holders regarding recordation and how to best help CBP enforce recorded IP rights at the border. To request a training, delivered by an attorney-advisor in the IPE Branch, please contact HQIPRBranch@cbp.dhs.gov.
- Be Responsive
When CBP personnel need assistance establishing whether imported merchandise is authentic or otherwise authorized to bear the recorded trademark or copyright, they will reach out to the POC for the relevant recordation(s). Please respond to CBP’s request for assistance within 24 hours, indicating that more time is needed for the review, if necessary. If CBP sends digital images, please provide a list of the physical characteristics of the imported product that led to your conclusion the merchandise is or is not authentic or authorized to bear the protected trademark or copyright, being as specific and descriptive as possible. When reviewing images of imported merchandise for authenticity, make a good faith effort to reach a determination before requesting additional images or information from CBP.
- Be Informed
When CBP personnel consults with right holders to determine if imported merchandise is authentic or otherwise authorized to bear the protected trademark or copyright, they are bound to protect certain confidential information regarding the suspected infringing merchandise and its importation. Familiarize yourself with CBP regulations concerning pre-seizure disclosure, which are available at: 19 CFR Part 133. Be aware of these limitations and do not request information you are not entitled to.
- Be Proactive
Report parties suspected of importing merchandise that violates your IP, and other actionable intelligence regarding suspected IP violations, through CBP e-Allegations portal: https://eallegations.cbp.gov/Home/Index2. CBP has no authority to take action against online listings of infringing products. To report online listings of infringing products, visit the National IPR Center Reporting Tool: https://www.iprcenter.gov/referral/view.