The Nexus of Intellectual Property and International Trade

Issues can crop up at the nexus of IP and Trade law.

Registration of Trademarks with CBP. A trademark holder can register its mark with Customs. Customs will then enforce the mark. This is useful for enforcement of trademarks against pirated goods as well as gray market goods which differ materially from authorized U.S. products.

ITC Exclusion Orders. When a patent or trademark owner prevails in a Section 337 action, the ITC will normally issue an exclusion order to CBP. That order requires CBP to exclude any goods that the ITC finds to be infringing.  Exclusion at the port level can be administratively appealed to CBP's Intellectual Property Rights Branch in Washington, D.C.

Sale for Importation Jurisdiction. Under the general patent infringement statute (35 U.S.C. 271) enforced by the Courts, it is unlawful to import an infringing item. Section 337 reaches one step further back in the chain of commerce and makes any foreign "sale for importation" of an infringing good into the U.S. unlawful.  This allows a U.S. rights holder to assert a claim against a foreign infringer who distributes to a large number of disparate importers before the infringing goods are brought to the United States.