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Protecting Intellectual Property RightsWhat are intellectual property rights that U.S. Customs enforces?U.S. Customs enforces laws relating to the protection of intellectual property rights at the border. Included in the intellectual property rights that Customs enforces are:
A trademark is defined as a word, name, symbol, device, color or combination thereof used to distinguish goods. U.S. Customs protects trademarks that are registered with the United States Patent and Trademark Office. Customs administrative enforcement entitles certification marks, service marks and collective marks to the same protection as trademarks. Registration of a trademark covers a specific class or classes of goods, for a period of ten years and is renewable. Information regarding the registration of trademarks and patents may be obtained from:
U.S. Patent and Trademark Office
Federally registered trademarks may be recorded with Customs for a fee of $190 per mark, per class of goods. Trademarks are recorded for a term of ten years to run concurrently with the underlying registration. A trade name is the name under which a company does business. Trade names are not registered with the Patent and Trademark Office but may be recorded with Customs if the name has been used to identify a trade or manufacturer for at least six months. The recordation of trade names is published in the Federal Register and the Customs Bulletin to provide notice to the public and interested parties an opportunity to oppose the recordation. Protection for a recorded trade name remains in force as long as the trade name is in use. The recordation fee is $190. A copyright protects the fixed tangible expression of an idea and gives the copyright owner the right to prevent the unauthorized use of his work. A copyright may exist in: literary works, musical works, dramatic works, pantomimes and choreographic works, pictorial, graphic and sculptural works, motion pictures and other audio visual works, sound recordings, and architectural works. A copyright is registered with the United States Copyright Office for either the life of the author plus 50 years or for 75 or 100 years depending on the authorship of the work and its creation date. United States Customs protection of copyrighted works is primarily concentrated on works which have been recorded with the agency. Information regarding registration of copyrights may be obtained from: U.S. Copyright Office
Federally registered copyrights may be recorded with Customs for a period of twenty years for a fee of $190 for each copyright recorded. A patent is issued for a novel and useful invention, which includes design, processes and plant patents. The U.S. Patent and Trademark Office issue patents for a period ranging from 14 to 20 years. Information regarding the registration of patents may be obtained from the Patent and Trademark Office. Patents may not be recorded with Customs. Does Customs enforce these rights equally?Agency policy dictates that Customs focus its border enforcement efforts on trademarks, trade names and copyrights that are recorded with Customs. Unrecorded trademarks and copyrights, while not a priority, may be enforced, if and when possible, and in such a manner that the sound administration of the Customs laws is not compromised. Customs has no authority to make patent infringement determinations but may provide limited patent border protection pursuant to an exclusion order issued by the U.S. International Trade Commission. How does Customs enforce the protection of trademarks, trade names and copyrights?Customs works in close cooperation with intellectual property rights owners. Whether on its own accord or with assistance from rights owners, Customs may initiate enforcement actions to detain or seize infringing merchandise. With the assistance of rights owners, and through the combined efforts of the many disciplines within Customs and other government agencies, Customs may obtain information leading to the initiation and commencement of an enforcement action. Customs provides a higher degree of protection to recorded trademarks and copyrights. However, where a trademark or copyright is federally registered, Customs may take action against counterfeit marks or piratical works even if the underlying trademark or copyright has not been recorded with Customs. Recordation with Customs is effective for the term of registration or the remaining period thereof. The recordation is entered into the Intellectual Property Rights module database, a centralized record keeping system, and is accessible by Customs field offices. This system is Customs primary IPR enforcement tool. However, it is the right owner’s responsibility promptly to advise Customs of any material changes made to recordations including, but not limited to, changes in ownership and control, licensees, manufacturers, contact persons and telephone numbers. Similarly, it is the right owner’s responsibility promptly to renew recordations prior to their expiration. U.S. Customs is vested with the legal authority to make infringement determinations relating to trademark, trade name and copyright infringement. U.S. Customs on its own accord may initiate enforcement actions relating to the detention or seizure of merchandise that infringes a federally registered trademark or copyright. In association with the recordation process, Customs may issue alerts to field offices regarding enforcement actions pertaining to shipments of goods that infringe trademarks, trade names and copyrights. Where goods are seized for intellectual property rights violations, a seizure notice will be issued to the importer, who may petition for administrative relief or elect to bring suit in federal district court to recover the merchandise. Goods that are seized and forfeited as bearing a mark that is a counterfeit of a registered trademark or piratical of a registered copyright are routinely destroyed, unless the right owner gives permission for other disposition, such as charitable donations. Significant monetary penalties may also be assessed for violations involving the importation of goods bearing counterfeit marks. How may an importer determine whether goods they wish to import infringe on a registered property right prior to importing those goods?As a competent authority empowered to decide substantive issues of trademark and copyright infringement, Customs issues written rulings and decisions and makes findings of fact and conclusions of law. To this end, it is in the interest of the sound administration of the Customs and related laws that persons engaging in any transaction affected by those laws fully understand the consequences of the transaction prior to its consummation. For this reason, the Customs Service gives full and careful consideration to written requests from importers and other interested parties for rulings or information setting forth, with respect to a specifically described transaction, a definitive interpretation of applicable law, or other appropriate information. Within the context of property interests in trademark and copyright, the Intellectual Property Rights Branch at Customs Headquarters will, upon written request by an importer or interested party, issue rulings on prospective importations, making determinations as to the infringement of any relevant trademarks or copyrights. The ruling letter represents the official position of the Customs Service with respect to the particular transaction and the issue of infringement and is binding on all Customs Service personnel. However, if a federal court of law issues a relevant opinion to the contrary, that decision will take precedence over Customs. Ruling requests may be directed to:
What action does Customs take with regard to the enforcement of patents?The United States Customs Service is without legal authority to determine patent infringement. However, Customs enforces exclusion orders issued by the United States International Trade Commission (ITC). ITC exclusion orders are issued, among other things, for findings of infringement of a patent. Thus, Customs has authority to exclude from entry goods infringing a patent pursuant to an ITC exclusion order. Seizure is permitted under an ITC seizure order where the owner, importer or consignee has previously attempted to import the article, the article was previously denied entry, and written notice was provided to the importer that further attempt to enter the article would result in seizure and forfeiture. Unlike the areas of trademark and copyright infringement, Customs does not have the legal authority to make patent infringement determinations. Information relating to exclusion orders may be obtained from:
How can I report a Customs related intellectual property rights violation?You may call Customs nationwide toll-free hotline: 1-800-BE ALERT, the IPR Help Desk at (562) 980-3119 x252, the National Intellectual Property Rights Coordination Center at (202) 927-0810, or the local Customs office listed under the Department of the Treasury in your telephone directory.
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