Tag: faq

Counterfeit Goods Seized by CBP Detroit

CBP Seizure for Online Counterfeit Purchases FAQ

CBP will detain, seize, and forfeit counterfeit goods that were purchased online and shipped to the United States. CBP sometimes will also issue a penalty for counterfeit seizures. We get way too many calls on this topic, and so we are publishing some frequently asked questions on the topic in the hope that it is useful. The law that prohibits importing counterfeit goods into the United States is 19 USC 1526. You can read details about the law here: Importing Counterfeit Trademarks – Customs Seizures & Penalties; Part 1

1. Customs detained or seized my internet purchase. I think the goods are fake (not genuine, counterfeit, etc). What happens next?

If Customs seizes your items, you should receive a notice of seizure in the mail. The notice of seizure will explain what your options are. You will have 30 days to file a petition or 35 days to make an offer in compromise.

2. Am I going to jail?

Although the importation of counterfeits is a crime, criminal prosecution for innocent internet purchases is very unlikely. The more products you import, the greater the value, the greater intent you have to sell or redistribute the goods (or the greater intent CBP can infer from your purchase and/or past activity), the more likely it would be that you would be criminally prosecuted. In other words, it would be extremely rare for you to get criminally charged if you are not trafficking in counterfeit goods.

3. Am I going to get a penalty?

Possibly. CBP guideline’s state that all counterfeit imports should be penalized, but in fact, that is not what happens. It can be hard to predict who will receive a penalty. Generally, the chance for a penalty increases for:

  • Commercial purchases
  • High quantity purchases (i.e., CBP could infer from the order that it was meant for re-sale)
  • High value purchases
  • Repeat violations

The above are just a few circumstances where we have seen counterfeit penalties issued, but there are cases where penalties are issued for reasons other than the above. Sometimes it can just come down to the decision of a Customs official to refer the matter for a penalty, and other times sometimes some ports are more aggressive than others about issuing penalties (ahem, Port of Mobile).

4. How will I know if I will get a penalty?

You will not know until you get it. A penalty comes in the mail, usually first class mail (i.e., not certified or registered mail), so it’s arrival is unassuming.

5. What should I do if I get a penalty?

If you get a penalty, you should file a petition for mitigation of penalty. You generally have 60 days from the date of the penalty notice to file the petition, asking that the amount be reduced. You should have a lawyer do this.

6. How long does it take for CBP to issue a penalty for counterfeits?

It could be weeks, months, or even years after the seizure before you receive a penalty. A penalty will come in the mail, typically only first class mail (not certified). CBP has 5 years to issue a penalty. However, the more time that passes after the 6 month anniversary of receipt of the notice of seizure, your the likelihood of receiving a penalty goes down.

7. Should I respond to the notice of seizure? Should I abandon the property?

If the goods are truly counterfeit, you will not get them back without consent of the trademark holder, or some miracle. There are probably pros and cons to either choosing to abandon the property (affirmning that you are interested in the goods and that you want them to be forfeited) and just ignoring the letter. Whatever you choose, it’s wise to save the letter.

8. I think my goods are genuine. What should I do?

If you believe your goods are genuine, you should probably request samples, have the product or samples analyzed, and either file a petition or a claim. You should consult with a lawyer.

9. I don’t want the goods, but I also want to take steps to make sure I don’t get a penalty. What should I do?

There is no easy answer to this question. The violation has already happened, and there may be little you can do to avoid a penalty now. You may think that by not responding at all that the chance of receiving a penalty will decrease. You may think that by responding and forcefully denying you had any intention to import counterfeit goods the chance of receiving a penalty will decrease.

To both hypotheticals above, the answer is: maybe.

There are pros and cons, risks and benefits, to both potential courses of action. But it’s difficult to predict which will help you avoid a penalty, and which will cause the penalty to be issued. Please refer back to #3 and #4, above.

10. I received a threatening letter from the trademark holder. What should I do?

First, understand what they’re asking you to do in the letter. Then, weigh the risk of responding, vs. not responding (see #8 above, as the same considerations apply). By responding, you may be admitting guilt and making a case against you far easier. However, by not responding, you may be losing a valuable opportunity to avoid further actions against you, such as litigation.

You should also know that the law requires CBP to notify the trademark holder that they seized merchandise the bears counterfeit marks on it. These trademark holders will often (as in the case of Apple, Bluetooth, Samsung, Louis Vuitton, etc) have a law firm send out letters whenever their is a seizure, no matter the value, as a means of protecting their brand and scaring you to not import counterfeit goods, and gain intelligence on who is producing them and how they are getting into the United States, so they can try to put a stop to it.

11. Will I get arrested? Are they going to seize my bank account? Is that person knocking at my door right now the police?

Just calm down. As explained in #2 above, most people won’t get arrested. Bank accounts don’t get seized until you’ve got a judgment against you (i.e., after arrest, conviction, and trial). The person knocking at your door probably is not the police (but in case it is, assert your constitutional right to silence!)

12. What’s the worse that can happen?

The worse is not likely, at least for most situations. The worst that could happen would be that the merchandise gets forfeited, get sued by the trademark holder, you get fined by CBP, criminally charged and thrown in jail, your spouse leaves you, and your children pretend you don’t exist. But as explained above, the worse probably will not happen.

13. Should I call you and discuss my case?

Probably not, especially if your purchase is less than $1,000 and you have not received a penalty. You should calm down and read the answers to the above questions. If you are interested in a consultation, we charge for any advice that is beyond the advice that is given here. Reach out to us if you would like a quote to provide you with advice, or filing a petition, or if you receive a penalty.