Beefing up border security

Container InspectorBy Rachel Blue

With a presidential election looming, we’re hearing a lot about “border security” in the news. Most of us know that U.S. Customs and Border Protection (“U.S. Customs”) is charged with keeping out illegal immigrants, but did you know that the agency also plays an important role in keeping out counterfeit and infringing goods?

Counterfeiting is big business. The International AntiCounterfeiting Coalition estimates that the value of cross-border counterfeit and pirated goods is more than $1.77 trillion dollars, much of which supports other illegal activities and terrorism. While knock-offs of expensive handbags and sunglasses account for some of that enormous number, fake pharmaceuticals, foods, engine parts, lubricants, heavy equipment, and tech devices flood into the United States as well, bearing familiar trademarks and offered at prices that are – literally – too good to be true.

If you’re a U.S. manufacturer and hold a patent or trademark registration, there are some steps you can take to guard against this influx of fake goods. U.S. Customs allows you to register your patents and trademarks with the agency, and it encourages owners to provide identifying information about the goods. When suspicious goods come through, the registrations are cross checked, and if the goods bear an infringing trademark or appear to infringe on a patent, U.S. Customs will contact the registrant for further information and instruction. You’re thinking, “Oh, please, they don’t really open those containers … right?” Wrong.

In response to the 9/11 terrorist attacks, U.S. Customs instituted its “CSI” (Container Security Initiative) to address the threat posed by the potential for terrorists to use maritime containers to deliver weapons. This security regime greatly increased the number of containers that are opened and inspected by U.S. Customs, which benefits legitimate IP owners who have taken that extra step to register with the agency. The registration process is a relatively simple one. The owner of the patents or trademarks files an application with U.S. Customs that identifies the U.S. registration numbers, describes the goods, offers a list of legitimate importers (e.g. an authorized licensee in another country), and pays the registration fee ($190/class of goods). The registration is entered into the U.S. Customs database and checked when containers are opened at ports of entry into the United States. U.S. Customs even encourages IP owners to provide agents at entry ports with additional identifying information.

If U.S. Customs finds what they suspect are infringing items, the goods are detained and the IP owner is contacted and may be sent a sample of the goods. If the infringement is confirmed, the goods either can be denied entry, allowed in under certain conditions (e.g. the removal of the trademark), or seized for forfeiture and destruction. This is a very powerful weapon in your arsenal, whether you make handbags or hammers. Not only do these registrations help protect your brand, they can serve to protect consumers from potentially harmful products, cut off the supply of funds to criminals, and actually help secure U.S. borders.

If you are interested in adding this layer of protection to your IP portfolio, please contact us.

Please be aware that this publication does not contain legal advice. The views expressed in the article are provided for informational and discussion purposes and do not necessarily reflect the views of the author or of McAfee & Taft A Professional Corporation.