Intellectual Property

Customs and Border Protection is responsible for preventing merchandise that infringes U.S. copyrights, trademarks, and other intellectual property rights from entering the country. Customs is also responsible for the enforcement of exclusion ordered issued by the International Trade Commission in Section 337 cases, which generally focus on the enforcement of patent rights.

Trademark Issues

Importers of branded merchandise should be aware that the law prohibits the importation of merchandise bearing a U.S. trademark without the permission of the trademark owner. Thus, importers should be prepared to show authorization from the rights holder. Absent permission, Customs can seize the infringing goods. While Customs can seize any infringing goods, its primary focus is on the interdiction of counterfeit goods. Counterfeit goods are products that bear a mark that copies or simulates a registered trademark. Because counterfeiting is illegal activity, the counterfeited products are often of inferior quality and may pose a risk to health and safety.


Customs also has the power to exclude "piratical" copies of products covered by copyright such as books, music, videos, software, and video games. A piratical copy is one that is produced without the authorization of the copyright holder. Because products imported into the U.S. often include a copyrightable elements (e.g., written instructions, packaging artwork, etc.), copyrights may be a viable alternative to trademark enforcement for companies seeking to prevent the entry of "knock-off products."

Gray Market Goods

It is often possible to find desirable products on sale outside the United States at discounted prices. This creates the possibility that goods will be imported through unauthorized channels. Such goods are called "gray market" or "parallel imports." Because these are genuine products, gray market goods are admissible provided they are not materially different from the products offered for sale in the U.S. As a result, parallel importers must be careful to recognize the differences between their imports and the products authorized for sale in the U.S. Differences such as foreign language labeling, packaging, and formulation may provide a sufficient basis for Customs to exclude the merchandise. Further, companies can seek so-called "Lever Brother Protection" from parallel imports. When granted, Lever Brother Protection requires that parallel imports be labeled as such prior to release.


Customs and Border Protection focuses its enforcement efforts on trademarks, copyrights, and trade dress recorded via its electronic system. Recordation is a relatively simple and inexpensive step that provides significant benefits. Recordation publishes the claim for protection to Customs personnel throughout the country and alerts them to the possibility that infringing merchandise is being presented for entry. Recordation should be part of a rights holder's larger strategy of working with Customs to protect its investment in intellectual property.

Section 337

Determining whether a product infringes upon a U.S. patent is often requires the application of complex legal and technical knowledge. Because of the complexity of the issues, the enforcement of patent rights at the border is entrusted to the U.S. International Trade Commission, which has staff attorneys and Administrative Law Judges dedicated to reviewing claims made before the agency. If infringement is found, the ITC can order that the merchandise be excluded from the United States. It falls to Customs and Border Protection to enforce those orders.

Our Role

Barnes/Richardson lawyers have assisted clients with all aspects of the border enforcement of intellectual property law including:

                    Recording trademarks
                    Recording copyrights
                    Developing brand protection materials for training Customs personnel
                    Responding to CBP seizure notices
                    Seeking rulings from CBP to confirm compliance with 337 exclusion orders

Should you have questions or concerns regarding the importation or exclusion of merchandise subject to intellectual property protection, please contact a Barnes/Richardson lawyer.
Apr. 20, 2023
Seagate's $300 million Export and Foreign Direct Products Rule Violation
Apr. 10, 2023
UFLPA Best Business Practices
Apr. 10, 2023
As Exemplified by Microsoft's Sanctions and Export Controls – You can't Pass off Compliance to Third Parties
Feb. 24, 2023
The CHIPS Act and a Long-term Vision for America's Technological Leadership
Nov. 29, 2022
China PNTR Removal Recommendation
Jul. 13, 2021
USITC Investigating Skechers and Hobby Lobby for Importing Fake Crocs
May 4, 2021
Member of Congress Press for Section 301 Exclusions
Mar. 23, 2021
ITC Limited Exclusion Order in LG Battery Dispute Awaits Presidential Action
January 15, 2020
US-China Reach "Phase One" Agreement
Dec. 10, 2019
House Announces USMCA Agreement
July 8, 2019
USTR Issues More Section 301 Exclusions
May 30, 2019
Revisiting First Sale as a Basis for Declaring Customs Value as a Strategy to Reduce Duty Obligations under Section 301
February 25, 2019
President Trump Delays Deadline for 301 Tariff Increase
October 2, 2018
USTR Releases Fact Sheets about USMC Trade Agreement
September 25
China Imposes Another Round of Retaliatory Tariffs
June 22, 2018
USTR Announces Tariffs on Retaliatory Section 301 Tariffs on Chinese Products
April 4, 2018
USTR Publishes Proposed List of Products Subject to Section 301 Tariffs
March 22, 2018
USTR Office Publishes Section 301 Report on Chinese IP, Data Transfer Policies and Practices
August 22, 2017
USTR Initiates Section 301 Investigation of Chinese IP Policy
March 6, 2015
USTR Releases Report on Notorious Markets
September 19, 2014
Subcommittee on Commerce, Manufacturing, and Trade's Meeting on Internet Protectionism
March 10, 2014
White House Releases 2014 Trade Agenda
October 01, 2013
Government Shutdown Impacts International Trade Agencies
March 5, 2013
President Obama Emphasizes Multilateral Trade Talks in 2013 Trade Agenda
February 13, 2013
President Obama Announces Launch of Transatlantic Trade and Investment Partnership Negotiations
December 6, 2012
House Passes the Patent Law Treaties Implementation Act of 2012
June 27, 2012
Williamson Named ITC Chairman
April 24, 2012
CBP to Share Information with IPR Holders in Counterfeiting Investigations
March 6, 2012
CBP Announces FY 2012 Trade Enforcement Priorities
February 28, 2012
President Obama Signs Executive Order Establishing Interagency Trade Enforcement Center
February 23, 2012
House Ways and Means Committee to Hold Hearing on Trade Agenda
December 7, 2011
USTR Seeks Comments on Canada, Japan, and Mexico's Intent to Join TPP Negotiations, Undertakes 10th Round of TPP Negotiations