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Archived updates for Sunday, January 21, 2007

U.S. Import Exclusion Basics

The first step in obtaining import exclusion protection for trademarks, tradenames, and copyrights in the U.S. is to record registrations with the Customs and Border Protection service ("CBP"). Import exclusion protection for patented items, on the other hand, may be obtained only after the U.S. International Trade Commission has completed a "Section 337" investigation and recorded its own "exclusion order" with CBP. CBP then places these records in an electronic database in order to "actively monitor shipments and prevent the importation or exportation of infringing goods."

CBP recently introduced an Intellectual Property Rights e-Recordation (IPRR) system to aid in adding information to the database. The electronic IPRR system requires a separate application for each recordation sought, and applications will be processed in the order in which they are received. The recordation fee for copyrights is $190 per registration while the recordation fee for trademarks is $190 per International Class of goods. The CBP's sample trademark recordation application shows the various documents must be provided under 19 CFR 133.3 for trademarks, while the sample copyright recordation application shows the information that must be provided under 19 CFR 133.33 for copyrights. Tradename recordations are made by submitting an e-mail message to iprr.questions@dhs.gov containing the information provided for in 19 CFR 133.11 et seq.

As noted on the CBP website, their "enforcement is accomplished through the cooperative efforts of our trained enforcement officers, other government agencies, and the trade community." In fact, as of April 2006, there were over 19,000 records in the database. Consequently, as discussed in a Customs publication (which is currently withdrawn and under revision) the CBP has in the past asked that

Trademark and copyright owners who have recorded with Customs and are aware of suspected infringers may provide the following information along with their recordation application or at any time thereafter:

  • the name and business address of the importer and/or consignee of the allegedly infringing articles;
  • a sufficiently detailed description of the suspect goods to make them
    readily recognizable by Customs, including a sample of the infringing article or
    a photographic or other likeness reproduced on paper;
  • the country of origin of the shipment and any countries through which the suspect goods are transhipped;
  • the country or countries of manufacture of the allegedly infringing merchandise;
  • the name and principal business address of each foreign person or business entity involved in the manufacture and/or distribution of suspect article;
  • the mode of transportation and the identity of the transporters of the allegedly infringing good;
  • the ports where it is anticipated the suspect articles will be presented to Customs;
  • the anticipated date of presentation to Customs;
  • the Harmonized Tariff Schedule designation of the suspect goods; and
  • any additional evidence relating to the importation of the suspect goods.
With regard to what information Customs will provide an IPR owner, this publication also states:

Pursuant to the Customs regulations, trademark and copyright owners will be provided certain information where merchandise is detained or seized as infringing a tradename or registered copyright or trademark. Where merchandise is detained as bearing a confusingly similar mark, as a gray market good or as possibly piratical of a registered and recorded copyright, the intellectual property owner will be provided the following information, if available, within 30 business days of the date of the detention:

  • date of importation
  • port of entry
  • description of merchandise
  • quantity involved and
  • country of origin of the merchandise

At any time following presentation of the merchandise for Customs examination but prior to seizure, Customs may provide a sample of the merchandise to the intellectual property right owner. The intellectual property right owner is required to file a bond with Customs in order to receive a sample.

Where merchandise is seized as bearing a counterfeit mark or is seized as clearly piratical of a registered copyright, Customs will disclose to the intellectual property right owner the following information, if available, within 30 business days of the date of the seizure notice:

  • date of importation
  • port of entry
  • description of merchandise
  • quantity involved
  • name and address of manufacturer
  • country of origin of merchandise
  • name and address of exporter and
  • name and address of importer

At any time following seizure of the merchandise, Customs may also provide a sample of the merchandise to the intellectual property right owner. To obtain a sample, the intellectual property right owner must furnish Customs a bond in the form and amount specified by the port director, but not less than $100, conditioned to hold harmless the United States, its officers and employees, and the importer or owner of the imported merchandise harmless from any loss or damage resulting from the furnishing of a sample by Customs to the intellectual property right owner.

The CBP's IPR Branch is staffed with attorneys who I have found to be quite helpful in the past.
Please feel free to contact me if I can get you any additional information.
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