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:

1. 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/.  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

2. 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.

3. 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. 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.

4. 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.

5. 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. 

6. 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.

7. Be Engaged

Training at Ports of Entry

The purpose of product identification trainings is for the right holder to educate CBP about its specific products and to familiarize CBP employees with the characteristics of its genuine products such that CBP employees are able to distinguish between authentic and inauthentic products. All requests to conduct in-person training must be submitted to IPRtrainingforCBP@cbp.dhs.gov.  

CBP will vet every presentation to determine whether to accept or decline a request for training. The presentation should not include legal conclusions, such as determinations that something is “counterfeit” or “infringing.” Do not include any information that could be construed as legal advice which may include, but is not limited to, standards relevant to detention, probable cause, seizure, or knowledge. Questions related to CBP’s intellectual property enforcement may be directed to the Intellectual Property Enforcement (IPE) Branch, Regulations and Rulings, Office of Trade at HQIPRBranch@cbp.dhs.gov. 

To the extent you would like to prevent any further disclosure of training materials outside of the U.S. Department of Homeland Security and/or U.S. Government, please mark your presentation “business confidential.” To avoid implicating the Government’s marking of sensitive information, any disclosure label referencing terms such as “law enforcement use,” or similar terminology denoting sensitivity, may result in rejection of the request to provide training.  

Please note that CBP may accept or decline training from right holders at its discretion.   

All proposals for conducting in-person training should contain the following information and materials: 

1. Name, address, telephone number, and email address of the entity proposing the training;  
2. Type of business in which the entity is engaged; 
3. Topic for the proposed training; 
4. Outline of proposed curriculum and instructional materials; 
5. Name, address, telephone number, email address, and qualifications of the proposed private sector instructor(s) (including previous experience in conducting training on the proposed topic); 
6. Name of the ports or locations at which the training is proposed to be given (which may be conducted at a location provided by the entity proposing the training), as applicable, and the intended audience in CBP and/or ICE; 
7. Proposed dates for the training; 
8. Length of the training; and 
9. Any previous history of trade related training provided to CBP and/or ICE. 

Webinar 

Recordation holders can deliver live online training to CBP personnel that introduces their brand and describes their intellectual property right(s).  Request for delivering a webinar must be submitted to IPRtrainingforCBP@cbp.dhs.gov. 

Your presentation should include: 

1. A copy of the following disclaimer statement after the title page of the presentation; 
   • The opinions expressed herein are those of the right owner and do not necessarily reflect the position of U.S. Customs and Border Protection (CBP). Decisions as to whether or not merchandise should be detained or seized for infringing protected intellectual property rights are to be made in accordance with established procedures by CBP personnel at the appropriate management level of the concerned field office and in accordance with national policy. CBP personnel who have questions arising from this document should contact the Intellectual Property Enforcement Branch of Regulations and Rulings (IPE), at HQIPRBranch@cbp.dhs.gov 
2. A list of trademark and copyright registrations that have been recorded with CBP; 
   • For ease of reference, please include the relevant TMK and COP reference numbers for each recordation, images of all trademarks and copyrighted works, as appropriate, and descriptions of the right if it is not immediately obvious from viewing the image. Do not include unrecorded rights. CBP only enforces patent rights through exclusion orders. If there is an exclusion order applicable to the patent, it may be noted in the presentation. Otherwise, patent rights should not be discussed in the presentation. 
3. Photographs of authentic products and packaging; 
   • Include photographs of both current and former authentic products and packaging, along with written indications of when various products and packaging were released and/or ceased production. If there are any unique features of the products that distinguish them from third party products and might not be obvious from a cursory review, include photographs and explanations of those features. 
4. Photographs and written explanations of authenticity indicators; and 
   • The information in the presentation should be limited to indicators of authenticity or inauthenticity that are present on the products or their packaging. It is often helpful to include photographs of inauthentic products in order to demonstrate the differences between authentic and inauthentic products. However, do not include trade allegations, for example, do not reference suspected bad actors. Parties suspected of importing merchandise with trademark and/or copyright violations should instead be reported through CBP’s e‐Allegations portal along with any supporting actionable intelligence: https://eallegations.cbp.gov/Home/Index2. In addition, do not include information relevant to any matters involving your products that remain pending with CBP. 
5. Tips for working with the right holder Point of Contact. 
   • Each CBP recordation includes a Point of Contact (“POC”) that CBP will reach out to for assistance with authenticity determinations. Ensure that the POC listed in any CBP recordation is up to date and include the POC contact information on the last slide of the presentation. If there are particular images that would assist the POC to make an authenticity determination, such as a serial number on the inside of a seam, please include this information in the presentation.