CBP: Final rule for enforcing trademarks at borders

CBP trademark enforcement

U.S. Customs and Border Protection (CBP) today released for publication in the Federal Register a final rule concerning disclosure of information for certain intellectual property rights enforced at the border. Today’s release finalizes an interim rule from April 2012.

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CBP’s final rule includes changes to provisions in the Code of Federal Regulations (19 CFR part 133) regarding the detention of suspect merchandise and the disclosure of information to trademark or trade name owners, during detention of goods bearing potentially counterfeit trademarks and after seizure of goods bearing counterfeit trademarks.

The final rule [PDF 260 KB] will be published in the Federal Register on Friday, September 18, 2015, and will be effective 30 days from that date, so as to provide time to the trade community to make adjustments to their business practices. 


Under the final rule, CBP is authorized to detain any article of domestic or foreign manufacture imported into the United States that bears a trademark suspected by CBP of being a counterfeit version. The detention is allowed for a period of up to 30 days from the date when the merchandise is presented for examination.

At the same time, CBP must notify the importer, in writing, of the detention within five business days from the date of the decision to detain suspect merchandise. The importer then has seven business days to provide information in response to CBP’s written request. If the response is not provided or if the response is insufficient, CBP will have authority to disclose to a trademark or other mark owner information appearing on merchandise or its retail packaging that otherwise is protected by the Trade Secrets Act, including: labels, images (including photographs) of the merchandise, sample of the merchandise, serial numbers, dates of manufacture, lot codes, batch numbers, universal product codes, or other identifying marks appearing on the merchandise or its retail packaging, in alphanumeric or other formats.

The disclosure of information by CBP will not be limited to the expiration of the seven-day period. Under the new final rule, CBP will have authority to do three things from the date the notice is provided to the importer and before the expiration of the seven-day response period. 

  • CBP will be allowed to disclose to the trademark owner “limited importation information" prior to the expiration of the seven-day period. The limited importation information will consist of the following data elements:  (1) the date of importation; (2) the port of entry; (3) the description of the merchandise; (4) the quantity; and (5) the country of origin.
  • CBP will be allowed to provide the owner of the trademark with photographs, images, or a sample of the suspect merchandise or its retail packaging (including labels), provided that all identifying information has been removed, obliterated, or otherwise obscured. The release of a sample will be conditioned upon posting of the bond by the trademark owner with an expectation that the trademark owner will return the sample on completion of the examination. 
  • CBP will have discretion to release un-redacted photographs or images of the merchandise and/or its retail packaging as presented for examination, or an un-redacted sample, provided that CBP stipulates that some or all of the information released may be subject to the protections of the Trade Secrets Act and that CBP is only disclosing this information for the purpose of assisting in a determination whether the merchandise bears a counterfeit trademark.  
The final rule requires CBP to release to the importer an un-redacted sample or image of the suspect merchandise or its retail packaging any time after presentation of the suspect goods for examination.  If determined by CBP that the merchandise bears a counterfeit trademark, CBP will seize the merchandise and release more comprehensive import information to the trademark owner within 30 business days from the date of the notice of the seizure.
For more information, contact a professional with KPMG’s Trade & Customs practice:
Douglas Zuvich | +1 (312) 665-1022 | dzuvich@kpmg.com

Andrew Siciliano | +1 (631) 425-6057 | asiciliano@kpmg.com

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