Customs Recordals and Criminal Referrals

CBP recordation and criminal referral are among the most underutilized tools in brand enforcement. Both tools are often overlooked by brand owners who focus exclusively on civil litigation — to their detriment.

CBP Recordation

U.S. Customs and Border Protection has authority under the Tariff Act of 1930 to exclude from entry goods that infringe recorded trademarks or copyrights. Brand owners can record registered trademarks and copyrights with CBP through the agency's e-Recordation system.

Once a mark is recorded, CBP officers can detain, seize, and ultimately forfeit or destroy goods bearing counterfeit versions of the recorded mark. For other types of trademark infringement, CBP may detain suspect goods and investigate whether they violate recorded rights before allowing or denying entry.

Recordation is not passive — it activates a process by which CBP officers compare imported goods against recorded rights and can act on their own authority. The practical effect is that CBP becomes an extension of a brand owner's enforcement program, operating at every port of entry. Brand owners with active import enforcement concerns should treat CBP recordation as a baseline step, not an advanced tactic.

ITC Section 337 Proceedings

The International Trade Commission provides a separate — and more powerful — border enforcement mechanism through Section 337 proceedings. A Section 337 investigation can result in a general exclusion order, which bars importation of infringing goods regardless of the source, or a limited exclusion order directed at specific respondents. Section 337 is available for a broad range of IP rights, including utility and design patents, trademarks, and trade secrets.

Section 337 proceedings move on an accelerated schedule relative to district court litigation — investigations are typically completed within twelve to sixteen months — and the exclusion order remedy is enforced by CBP at the border automatically. For brand owners facing significant import infringement, Section 337 is often the most effective available remedy.

Criminal Referrals

Counterfeiting is a federal crime under the Trademark Counterfeiting Act, 18 U.S.C. § 2320. Trafficking in goods bearing a counterfeit mark is punishable by substantial fines and imprisonment, with enhanced penalties for repeat offenders and for counterfeiting that involves a risk of physical harm — such as counterfeit automotive parts, medical devices, or consumer safety products.

Brand owners can refer counterfeiting activity to federal law enforcement — the FBI, Homeland Security Investigations (HSI), and the National Intellectual Property Rights Coordination Center (NIPRCC) are the primary federal agencies — as well as to state and local law enforcement in appropriate cases. Criminal prosecution removes infringers from the market in a way that civil litigation cannot, and the collateral consequences of a criminal conviction are a meaningful deterrent.

Effective criminal referrals require documentation: evidence of the counterfeit goods, identification of the infringing party, and a clear explanation of the IP rights at issue. Brand owners who maintain organized IP portfolios and have conducted test purchases or other investigative work are better positioned to support a criminal referral that law enforcement will act on.

Coordinated Enforcement

CBP recordation, ITC proceedings, and criminal referrals are most effective when coordinated with civil enforcement. A brand owner that has simultaneously obtained a district court injunction, recorded its marks with CBP, and referred a significant counterfeiter for criminal investigation has deployed the full spectrum of available remedies and created maximum pressure on the infringing operation.

In Practice

Common Enforcement Scenarios

Border enforcement issues often arise when:

• Counterfeit goods are entering the United States through import channels
• Overseas manufacturers supply infringing goods to domestic distributors
• Copycat products appear in wholesale or gray-market distribution channels
• Repeated shipments of infringing goods are detected at ports of entry
• Organized counterfeit operations are supplying multiple retail or online sellers

In these situations, border enforcement tools can significantly reduce the flow of infringing goods into the market.

When to Consider Escalated Enforcement

Escalated enforcement strategies may be appropriate when:

• The counterfeit goods present potential safety risks
• Counterfeit goods are entering the United States at significant scale
• Importers repeatedly attempt to evade border enforcement
• The infringing activity appears organized or coordinated
• Civil enforcement alone has failed to deter the conduct

Combining civil enforcement with border measures and criminal referrals can significantly increase pressure on infringing operations.