Tuesday, June 12, 2012

New CBP Regulation for Suspected Counterfeit Merchandise

Peter Quinter
Finally, after years of debate, on April 24, 2012, CBP amended its regulations regarding the detention and seizure of suspected imported counterfeit merchandise.   In my opinion, it provides a good balance between the rights of legitimate importers, and the the need for CBP to examine, detain, and seize merchandise that violates the trademark rights of companies that have registered their trademarks with the U.S. Patent and Trademark Office and then recorded those trademarks with CBP.  The interim rule is entitled "Disclosure of Information for Certain Intellectual Property Rights Enforced at the Border," and amends 19 CFR Parts 133 and 151.

In summary, here are the important changes:

  1. Merchandise may be detained by CBP for up to 30 days from the date the merchandise is presented for examination to CBP.
  2. The U.S. importer will receive written notification from CBP within 5 days of the detention of the merchandise by CBP.
  3. The U.S. importer then has 7 days to establish to CBP's satisfaction that the detained merchandise is not counterfeit.
  4. CBP may provide to the trademark owner, at any time, written notice of the date of importation, the port of entry, the description of the merchandise, the quantity, and the country of origin. CBP may also release an actual sample of the detained merchandise and its retail packaging to the trademark owner upon receipt of a bond.
  5. Only after seizure of imported merchandise will CBP provide the trademark owner the name and address of the foreign manufacturer, the foreign exporter, and the U.S. importer. 
  6. The trademark owner may provide written consent to the importer within 30 days of the issuance of a notice of seizure by CBP to allow for the entry of the merchandise into the United States, or allow for its exportation from the United States, in its current condition, or after obliteration of the counterfeit trademarks.
Read here for the full interim rule.  The above procedure is one that I have long lobbied the Intellectual Property Rights Branch of CBP to implement.  The question now is whether the CBP Officers around the United States will really follow this new change to provide the formal and accurate Notice of Detention to the U.S. importer within the required 5 day time period from the date of the decision to detain.  Stay tuned.

For comments, click below, or for more information, please contact me at:

Peter Quinter, Shareholder
Customs and International Trade Law Group
GrayRobinson, P.A.
Mobile phone (954) 270-1864

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