§ 133.21 - Articles suspected of bearing counterfeit marks.

§ 133.21 Articles suspected of bearing counterfeit marks.

Cross Reference

Link to an amendment published at 89 FR 52374, June 24, 2024.

(a) Counterfeit mark defined. A “counterfeit mark” is a spurious mark that is identical with, or substantially indistinguishable from, a mark registered on the Principal Register of the U.S. Patent and Trademark Office.

(b) Detention, notice, and disclosure of information —

(1) Detention period. CBP may detain any article of domestic or foreign manufacture imported into the United States that bears a mark suspected by CBP of being a counterfeit version of a mark that is registered with the U.S. Patent and Trademark Office and is recorded with CBP pursuant to subpart A of this part. The detention will be for a period of up to 30 days from the date on which the merchandise is presented for examination. In accordance with 19 U.S.C. 1499(c), if, after the detention period, the article is not released, the article will be deemed excluded for the purposes of 19 U.S.C. 1514(a)(4).

(2) Notice of detention to importer and disclosure to owner of the recorded mark —

(i) Notice and seven business day response period. Within five business days from the date of a decision to detain suspect merchandise, CBP will notify the importer in writing of the detention as set forth in § 151.16(c) of this chapter and 19 U.S.C. 1499. CBP will also inform the importer that for purposes of assisting CBP in determining whether the detained merchandise bears counterfeit marks:

(A) CBP may have previously disclosed to the owner of the recorded mark, prior to issuance of the notice of detention, limited importation information concerning the detained merchandise, as described in paragraph (b)(4) of this section, and, in any event, such information will may be released to the owner of the recorded mark, if available, no later than the date of issuance of the notice of detention; and

(B) CBP may disclose to the owner of the recorded mark information that appears on the detained merchandise and/or its retail packaging, including unredacted photographs, images, or samples, as described in paragraph (b)(3) of this section, unless the importer presents information within seven business days of the notification establishing that the detained merchandise does not bear a counterfeit mark.

(ii) Failure of importer to respond or insufficient response to notice. Where the importer does not provide information within the seven business day response period, or the information provided is insufficient for CBP to determine that the merchandise does not bear a counterfeit mark, CBP may will proceed with the disclosure of information as described in paragraph (b)(3) of this section to the owner of the recorded mark if CBP concludes that the disclosure would assist CBP in its determination, and will so provided that the disclosure would not compromise an ongoing law enforcement investigation or national security. CBP will notify the importer in case of any such disclosure.

(3) Disclosure to owner of the recorded mark of information appearing on detained merchandise and/or its retail packaging, including unredacted photographs, images or samples. When making a disclosure to the owner of the mark under paragraph (b)(2)(ii) of this section, CBP may CBP will disclose information appearing on the merchandise and/or its retail packaging (including labels) , and images (including photographs) of the merchandise and/or its retail packaging in its condition as presented for examination (i.e., an unredacted condition) if CBP concludes that the disclosure of information to the owner of the recorded mark as described in paragraph (b)(2)(ii) of this section would assist CBP in its determination, and provided that disclosure would not compromise an ongoing law enforcement investigation or national security. CBP may also provide a sample of the merchandise and/or its retail packaging in its condition as presented for examination to the owner of the recorded mark. The release of a sample will be in accordance with, and subject to, the bond and return requirements of paragraph (c) of this section. The disclosure may include any serial numbers, dates of manufacture, lot codes, batch numbers, universal product codes, or other identifying marks markings appearing on the merchandise or its retail packaging (including labels), in alphanumeric or other formats.

(4) Disclosure to owner of the recorded mark of limited importation information. From the time merchandise is presented for examination, CBP may disclose to the owner of the recorded mark limited importation information in order to obtain assistance in determining whether an imported article bears a counterfeit mark. Where CBP does not disclose this information to the owner of the mark prior to CBP may release the information prior to the issuance of the notice of detention, it will do so concurrently with the issuance of the notice of detention, unless or, if the information is unavailable , in which case CBP will at the time the notice of detention is issued, CBP may release the information as soon as possible after issuance of the notice of detention. The limited importation information CBP will may disclose to the owner of the recorded mark consists of:

(i) The date of importation;

(ii) The port of entry;

(iii) The description of the merchandise, for merchandise not yet detained, from the paper or electronic equivalent of the entry (as defined in § 142.3(a)(1) or (b) of this chapter), the CBP Form 7512, cargo manifest, advance electronic information or other entry document as appropriate, or, for detained merchandise, from the notice of detention;

(iv) The quantity, for merchandise not yet detained, as declared on the paper or electronic equivalent of the entry (as defined in § 142.3(a)(1) or (b) of this chapter), the CBP Form 7512, cargo manifest, advance electronic information, or other entry document as appropriate, or, for detained merchandise, from the notice of detention; and

(v) The country of origin of the merchandise.

(5) Disclosure to owner of the recorded mark of redacted photographs, images and samples. Notwithstanding the notice and seven business day response procedure of paragraph (b)(2) of this section, CBP may, in order to obtain assistance in determining whether an imported article bears a counterfeit mark and at any time after presentation of the merchandise for examination, provide to the owner of the recorded mark photographs, images, or a sample of the suspect merchandise or its retail packaging (including labels), provided that identifying information has been removed, obliterated, or otherwise obscured. Identifying information includes, but is not limited to, serial numbers, dates of manufacture, lot codes, batch numbers, universal product codes, the name or address of the manufacturer, exporter, or importer of the merchandise, or any mark markings that could reveal the name or address of the manufacturer, exporter, or importer of the merchandise, in alphanumeric or other formats. CBP may release to the owner of the mark a sample under this paragraph (b)(5) when the owner of the recorded mark furnishes to CBP a bond in the form and an amount specified by CBP , conditioned to indemnify the importer or owner of the imported article against any loss or damage resulting from the furnishing of the sample by CBP to the owner of the markand containing the conditions set forth in § 113.70(a) of this chapter. CBP may demand the return of the sample at any time. The owner of the recorded mark must return the sample to CBP upon demand or at the conclusion of any examination, testing, or similar procedure performed on the sample. In the event that the sample is damaged, destroyed, or lost while in the possession of the owner of the recorded mark, the owner must, in lieu of return of the sample, certify to CBP that: “The sample described as [insert description] and provided pursuant to 19 CFR 133.21(b)(5) was (damaged/destroyed/lost) during examination, testing, or other use.”

(c) Conditions of disclosure to owner of the recorded mark of information appearing on detained merchandise and/or its retail packaging, including unredacted photographs, images and samples —

(1) Disclosure for limited purpose of assisting CBP in counterfeit mark determinations. In order to obtain assistance in determining whether an imported article bears a counterfeit mark, CBP may disclose to the owner of the recorded mark, prior to seizure, information appearing on the merchandise and/or its retail packaging (including labels), unredacted photographs or images of the merchandise and/or its retail packaging in its condition as presented for examination, or an unredacted sample of the imported merchandise and/or its retail packaging in its condition as presented for examination, in accordance with paragraphs (b)(2)(ii) and (3) of this section. Upon release of such information, photographs, images, or samples, CBP will notify the owner of the recorded mark that some or all of the information being released may be subject to the protections of the Trade Secrets Act, and that CBP is only disclosing the information to the owner of the recorded mark for the purpose of assisting CBP in determining whether the merchandise bears a counterfeit mark.

(2) Bond. CBP may release to the owner of the mark a sample under paragraphs paragraph (b)(2)(ii) and (3) of this section when the owner of the recorded mark furnishes to CBP a bond in the form and an amount specified by CBP , conditioned to indemnify the importer or owner of the imported article against any loss or damage resulting from the furnishing of the sample by CBP to the owner of the markand containing the conditions set forth in § 113.70(a) of this chapter. CBP may demand the return of the sample at any time. The owner of the recorded mark must return the sample to CBP upon demand or at the conclusion of any examination, testing, or similar procedure performed on the sample. In the event that the sample is damaged, destroyed, or lost while in the possession of the owner of the recorded mark, the owner must, in lieu of return of the sample, certify to CBP that: “The sample described as [insert description] and provided pursuant to 19 CFR 133.21(c) was (damaged/destroyed/lost) during examination, testing, or other use.”

(d) Disclosure to importer of unredacted photographs, images, and samples. CBP will disclose to the importer unredacted photographs, images, or an unredacted sample of imported merchandise suspected of bearing a counterfeit mark at any time after the merchandise is presented to CBP for examination. CBP may demand the return of the sample at any time. The importer must return the sample to CBP upon demand or at the conclusion of any examination, testing, or similar procedure performed on the sample. In the event that the sample is damaged, destroyed, or lost while in the possession of the importer, the importer must, in lieu of return of the sample, certify to CBP that: “The sample described as [insert description] and provided pursuant to 19 CFR 133.21(d) was (damaged/destroyed/lost) during examination, testing, or other use.”

(e) Seizure and disclosure to owner of the recorded mark of comprehensive importation information. Upon a determination by CBP, made any time after the merchandise has been presented for examination, that an article of domestic or foreign manufacture imported into the United States bears a counterfeit mark, CBP will seize such merchandise and, in the absence of the written consent of the owner of the recorded mark, forfeit the seized merchandise in accordance with the customs laws. When merchandise is seized under this section, CBP will disclose to the owner of the recorded mark the following comprehensive importation information, if available, within 30 business days from the date of the notice of the seizure:

(1) The date of importation;

(2) The port of entry;

(3) The description of the merchandise from the notice of seizure;

(4) The quantity as set forth in the notice of seizure;

(5) The country of origin of the merchandise;

(6) The name and address of the manufacturer;

(7) The name and address of the exporter; and

(8) The name and address of the importer.

(f) Disclosure to owner of the recorded mark, following seizure, of unredacted photographs, images, and samples. At any time following a seizure of merchandise bearing a counterfeit mark under this section, and upon receipt of a proper request from the owner of the recorded mark, CBP may provide, if available, photographs, images, or a sample of the seized merchandise and its retail packaging, in its condition as presented for examination, to the owner of the recorded mark. To obtain CBP may release a sample under this paragraph , (f) when the owner of the recorded mark must furnish furnishes to CBP a bond in the form and an amount specified by CBP , conditioned to indemnify the importer or owner of the imported article against any loss or damage resulting from the furnishing of the sample by CBP to the owner of the markand containing the conditions set forth in § 113.70(b) of this chapter. CBP may demand the return of the sample at any time. The owner of the recorded mark must return the sample to CBP upon demand or at the conclusion of the examination, testing, or other use in , such as pursuit of a related private civil remedy for infringement, whichever occurs sooner. In the event that the sample is damaged, destroyed, or lost while in the possession of the owner of the recorded mark, the owner must, in lieu of return of the sample, certify to CBP that: “The sample described as [insert description] and provided pursuant to 19 CFR 133.21(f) was (damaged/destroyed/lost) during examination, testing, or other use.”

(g) Consent of the mark owner; failure to make appropriate disposition. The owner of the recorded mark, within thirty days from notification of seizure, may provide written consent to the importer allowing the importation of the seized merchandise in its condition as imported or its exportation, entry after obliteration of the mark, or other appropriate disposition. Otherwise, the merchandise will be disposed of in accordance with § 133.52 of this part, subject to the importer's right to petition for relief from forfeiture under the provisions of part 171 of this chapter.

[CBP Dec. 12-10, 77 FR 24379, Apr. 24, 2012, as amended by CBP Dec. 15-12, 80 FR 56379, Sept. 18, 2015; CBP Dec. 24-03, 89 FR 52374, June 24, 2024]