U.S. Customs and Protection of Intellectual Property Rights


What is an intellectual property right?

Broadly defined, it is the exclusive ownership of an original product of the thought processes. The Federal Government registers four broad categories of intellectual property:

  1. Patents
  2. Trademarks
  3. Copyrights, and
  4. Mask Works

In addition, Federal law gives some recognition to trade names, which need not be registered.

How do these categories differ?

PATENT is issued to protect novel and useful inventions. Examples might be anything from a new type of kitchen gadget, to a machine to make semiconductors, to a new process for manufacturing spaghetti, to a new medicine, to a new type of hybrid vegetable which is the result of genetic engineering. Patents are issued by the U.S. Patent and Trademark Office, Department of Commerce, usually for a term of 20 years and are not renewable, except by special legislation.

A TRADEMARK is a design, slogan, or brand name, used to identify products or services as coming from a particular source. Some familiar examples include "Coca Cola," "Xerox," "Sony," "IBM," and the Izod brand's "alligator design." Once a trademark has been used in interstate commerce or other commerce regulated by Congress for the requisite time, it can be registered with the Patent and Trademark Office for a renewable term of 10 years and thus protected for as long as it remains in use. (if a bona fide intention to use the mark is shown, registration can be applied for, but it must be in use before registration is granted.)

A COPYRIGHT protects original creations of "authorship," such as books, music, original paintings, sound recordings, motion pictures, sculptures, and computer programs. Copyrights may be registered with the Copyright Office, Library of Congress, for a non-renewable term consisting of the life of the author plus 50 years. Works made for hire (created for an employer) are copyrightable by the employer for a term of 75 years from publication or 100 years from their creation, whichever comes first.

A MASK WORK is, in essence, the design of an electrical circuit, the pattern of which is transferred and fixed in a semiconductor chip during the manufacturing process. Mask works may be registered with the Copyright Office for a non- renewable term of 10 years.

A TRADE NAME is a business name used by a manufacturer, merchant, or other party to identify its business or occupation. A trade name can be the name of a partnership, company, or other organization. While trademarks identify the source of a product, and service marks identify the source of a service, trade names simply identify the producers themselves.

How do I register a claim to an intellectual property right?

Write to the appropriate agency for specific information. For patents and trademarks write:

Patent and Trademarks Office
U.S. Department of Commerce
Washington, D.C. 20231

For copyrights and mask works, write:

U.S. Copyright Office
Library of Congress
Washington, D.C. 20559

NOTE: If you want Customs to help protect any intellectual property for which the Federal Government provides registration and in which you have an interest, it is imperative that it first be registered with the proper agency.

How can Customs help protect my intellectual property?

The action which the Customs Service can take to help protect intellectual property depends on the type of intellectual property involved.

Customs has no authority to prevent the importation of goods which violate a PATENT unless directed to do so by an exclusion order issued by the U.S. International Trade Commission (ITC) under the provisions of section 337 of the Tariff Act of 1930, as amended. An exclusion order directs the Secretary of the Treasury to deny entry to imports in violation of the order. The Customs Service acts for Treasury in enforcing these orders.

The ITC can also issue exclusion orders against goods imported by the use of many other unfair trade practices, such as violation of TRADEMARK, COPYRIGHT, and MASK WORK registrations (and the violation of TRADE SECRETS, which are not otherwise protected by Federal law).

The ITC can direct Customs to seize imports from repetitive violators of an exclusion order.

Details on the procedures to be followed in obtaining an exclusion order can be obtained from the:

U.S. International Trade Commission
Washington, D.C. 20436

While Customs cannot enforce a PATENT on its own authority, it can assist patent owners in attempting to determine if imports of infringing goods are taking place. Customs will survey imports and advise the patent owner of the names and addresses of importers whose goods appear to infringe the patent.

Customs charges a fee for this service, which may be of 2, 4, or 6 months' duration. Patent owners often use the results of Customs patent surveys as evidence for the ITC to begin exclusion order proceedings. The information may also be used in developing a patent infringement lawsuit.

Owners of registered TRADEMARKS, of registered COPYRIGHTS, and of TRADE NAMES can record these rights with the Customs Service. Recordation is relatively inexpensive, and subjects imports of violative items to seizure and forfeiture as prescribed by the Customs Regulations.

The only protection Customs can give a MASK WORK is by means of an ITC exclusion order or court order directing denial of entry of violative items.

Specific information concerning patent surveys and trademark, trade name, and copyright recordation can be obtained from the:

Intellectual Property Rights Branch
U.S. Customs Service
Washington, D.C. 20229

How can I report a Customs-related intellectual property rights violation?

You can either call Customs' nationwide toll-free hotline - 1-800-BE ALERT - or contact the local U.S. Customs office listed under Department of the Treasury in your phone directory.

IMPORTANT - Help Customs Help You:

To effectively enforce intellectual property rights, the Customs Service relies heavily on the cooperation of the owners of these rights. If your intellectual property is the subject of an ITC exclusion order or of a Customs recordation, you must help us to help you. It has long been Customs' experience that industrial intelligence gathered by parties-in-interest is a powerful tool in aiding us to properly muster our resources to detect and deter violative importations. To merely rely on the fact of recordation or the existence of an ITC exclusion order is not enough. You are in the marketplace; tell us what you find there so that we can focus our enforcement efforts on today's real threats.

DEPARTMENT OF THE TREASURY U.S. CUSTOMS SERVICE

Revised April 1995.................Customs Pub. No. 549