Tag: intellectual property

President Trump signs proclamation imposing tariffs on imported steel and aluminum

Exclusion requests for Sec 232 and 301 tariffs

Section 232 Tariffs: Steel, Aluminum, China

President Trump has announced new tariffs this year imposed on imports from various countries under two bases; first, he imposed a 25% steel tariff and 10% aluminum tariff under section 232 of the Trade Expansion Act of 1962. This section allows the President to impose tariffs for national security reasons. We have a more extensive analysis at our page Steel & Aluminum Tariff Exclusions (Section 232)

Second, President Trump announced Section 301 tariffs against China ranging from 10% to 25%. We have a more extensive analysis at our page Section 301 Tariff Exclusions (China).

To date, the fact that these tariffs might only end-up hurting domestic industries is getting a lot of attention (there is a lot of tariff activity). There seems to be little awareness or recognition — both amongst importers and the news community as a whole — that there is very large loophole in both new tariffs: exclusions.

Exclusion Requests

The section 232 tariffs on steel and aluminum permit importers to request exclusions from certain products, on certain grounds. Initially, the official announcements and proclamations seemed to only permit exclusion requests on national security grounds, however, once the exclusion request form (steel) was published it seemed to permit exclusion requests to be filed for basically any reason (including insufficient U.S. availability, No U.S. Production, and “Other”).

Importers may be in a panic about the new tariffs; they should not. They should calmly consider requesting exclusions for the products so that the new tariffs will not apply to them, and they will not be required to pay the extra duties. Although the exclusion process can be done by anyone, as always, hiring an experienced attorney to advocate for the exclusion of the particular products will help to ensure the best result possible.

Want to discuss a possible section 232 exclusion?

If you’re interested in applying for an exclusion for section 232 or 301 tariffs, you can give us a call or complete the contact form below.

    I acknowledge and agree that no attorney-client relationship is created, intended, or implied by the sending of this message. I understand Great Lakes Customs Law reserves the right to decline representation and if it does accept representation, I will be required to sign a written fee agreement.

    New regulations allow importers to obtain seized merchandise samples from imporations of suspected counterfeit products. Here, a box of counterfeit contacts are pictured.

    Seized merchandise samples from CBP

    U.S. Customs & Border Protection amended their regulations concerning intellectual property, trademark, and copyright to give importers a greater opportunity to test the genuineness of their importations by obtaining seized merchandise samples from CBP. 19 CFR 133.21(d), effective October 19, 2015, provides as follows:

    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.”

    CBP’s written comments about this new regulation confirm that the request for seized merchandise samples goes beyond the detention into seizure and beyond by stating: “if an importer does not identify a need for a sample until after CBP seizes goods as bearing counterfeit marks the importer may request a sample at that time.” Disclosure of Information for Certain Intellectual Property Rights Enforced at the Border, 80 FR 56370, 53674.  This new regulation specifically envisions the sample leaving CBP custody (by stating CBP can demand “return” at any time or after examination and testing; further, that the merchandise could be “damaged, destroyed, or lost while in possession of the importer”).

    This new regulation totally changes the game importers face who have had merchandise seized for alleged counterfeit marks. Previously, samples or pictures of the seized merchandise were not available to the importer administratively, but only to the trademark owner. The old system left the importer at the mercy of CBP and the trademark owner, who alone could assess the authenticity of the marks. The only way to get samples was through (often impossible/impractical cooperation) from FP&F at CBP, or to file a claim to have the seizure tested before a district court judge, with all the rights to discovery that thereby attach.

    Now that samples are available, the importer can obtain samples and perform its own examination or testing and provide evidence contrary to the determination of CBP or the trademark owner. The availability of sample, in our opinion, greatly levels the playing field when it comes to challenging a seizure made by CBP, or when challenging a later penalty proceeding. The possibility of a penalty for a seizure is a great reason to request and obtain a sample as a routine practice before the products are forfeited and destroyed.

    Are you trying to get seized merchandise samples from CBP?

    The detention, seizure, and forfeiture of merchandise bearing allegedly counterfeit trademarks is a long process, and fraught with procedural missteps for anyone who is not an attorney. You need the advice of a customs lawyer, not this article (which is not legal advice).

    If you have products detained or seized because they are suspected of bearing counterfeit trademarks, can contact us for a seizure consultation by clicking the contact buttons on this page.

     

    Customs Seized 10,000 Fake Designer Handbags in Miami

    Customs seized fake handbags, for which the value would be nearly $5 million dollars if they were genuine. After the handbags are seized and determined to be counterfeit, CBP can assess a penalty against the importer of counterfeit goods, even if they believed them to be genuine. The penalty is based off the manufacturer’s suggest retail price of the counterfeit merchandise, as if it had been genuine. Therefore, there’s a very strong reason to believe that the person who imported these bags is going to be facing at least a $5 million dollar penalty. Here is an excerpt from the full story:

    Customs seizure of counterfeit handbags.
    A customs seizure of counterfeit handbags valued at nearly $5 million dollars.

    U.S. Customs and Border Protection (CBP) officers at the Miami seaport seized 10,788 high-fashion counterfeit Gucci and Coach handbags arriving in a shipment from China on July 15. Had the goods been genuine, the designer handbags would have an estimated Manufacturer’s Suggested Retail Price (MSRP) of $4,904,160.

    CBP officers initially suspected the handbags to be counterfeit since they did not appear to be of the quality consistent with the products normally authorized and manufactured by the trademark holders. CBP import specialists examined samples and confirmed the items to be counterfeit.

    You might be facing penalties from customs for importing counterfeit merchandise. We can help. Typically, we recommended preparing and filing a petition, with the assistance of legal counsel, which argues persuasively for the substantial mitigation, or when the facts and law warrant it, cancellation of the penalty in full.

    Great Lakes Customs Law has been very successful in getting these kinds of penalties reduced and, sometimes, even eliminated entirely (some history of our success is HERE). If you have had merchandise seized by customs because they allege it is counterfeit and contains trademark violations and/or have a received a notice of penalty for importing alleged counterfeits or for making an importation contrary to law, call our office at (734) 855-4999 to speak to a customs lawyer, or e-mail us through our contact page. We are able to assist petitions for customs penalties and seizures around the country, including Detroit, Chicago, Atlanta, New York, Los Angeles, Orlando and many other places. Please read these other articles:

    Florida CBP Seizes Counterfeit Sunglasses

    Customs seized counterfeit Ray-Ban sunglasses fairly recently. According to the story itself, the sunglasses could have been seized not only because they were counterfeits, but also because the import documents falsely identified them as being something else. That’s called smuggling, among other things. This importer is in for a big penalty, equivalent to the MSRP of the counterfeit goods as if they were genuine. Here is an excerpt of the full story:

    U.S. Customs and Border Protection (CBP) officers in Tampa seized over 860 counterfeit Ray-Ban sunglasses arriving in a shipment from China on July 13. Had the goods been genuine, the designer handbags [sic] would have an estimated Manufacturer’s Suggested Retail Price (MSRP) of $123,455.

    US Customs seizure of $123,455 in counterfeit sunglasses.
    US Customs seized $123,455 in counterfeit Ray-Ban sunglasses.

    CBP’s highly trained officers successfully targeted and intercepted the U.S.-bound air cargo. The description for the freight was also concealed under a different commodity.

    Initially, CBP officers suspected the sunglasses to be counterfeit since they did not appear to be of the quality consistent with the products normally manufactured by the trademark holder. CBP import specialists examined samples and determined the items to be counterfeit.

    You might be facing penalties from customs for importing counterfeit merchandise. We can help. Typically, we recommended preparing and filing a petition, with the assistance of legal counsel, which argues persuasively for the substantial mitigation, or when the facts and law warrant it, cancellation of the penalty in full.

    Great Lakes Customs Law has been very successful in getting these kinds of penalties reduced and, sometimes, even eliminated entirely (some history of our success is HERE).If you have had merchandise seized by customs because they allege it is counterfeit and contains trademark violations and/or have a received a notice of penalty for importing alleged counterfeits or for making an importation contrary to law, call our office at (734) 855-4999 to speak to a customs lawyer, or e-mail us through our contact page. We are able to assist petitions for customs penalties and seizures around the country, including Detroit, Chicago, Atlanta, New York, Los Angeles, Orlando and many other places. Please read these other articles:

    U.S. Customs Seize $541,000 in Unsafe Consumer Products

    When importing into the United States an importer must make sure to comply with the customs laws for classification, valuation, invoicing, etc. But they also must make sure that they’re products are not harmful or in violations of the myriad of other regulations enforced by CBP at the border; whether they be FDA, Department of Agriculture, or the Consumer Product Safety Commission. Recently, customs seized over half a million dollars in unsafe consumer products in a joint effort with the French government.

    The story below:

    U.S. Customs and Border Protection (CBP) and French Customs General Directorate announce the results of Operation Bathe and Beaute, a bilateral Intellectual Property Rights (IPR) enforcement operation targeting counterfeit personal care products and electric personal care devices. The joint operation, conducted from April 8 through May 4, resulted in the seizure of 76 shipments of more than 31,000 counterfeit items for a combined manufacturer’s suggested retail price of $541,000.

    “Operation Bathe and Beaute reflects our ongoing efforts to interdict illegal trade in counterfeit merchandise, which threatens the competitiveness of legitimate businesses and can jeopardize consumer health and safety,” said Assistant Commissioner Brenda Smith of CBP’s Office of International Trade.

    Box of counterfeit items valued at suggested MSRP of $541,000.
    76 shipments of more than 31,000 counterfeit items for a combined manufacturer’s suggested retail price of $541,000.

    “After the successful Core Systems operation in late 2013, this fourth joint operation between CBP and French Customs demonstrates once again how important it is to exchange information and act together to fight organized crime in a global world,” said François Richard, French Customs Attaché.

    The four week operation focused on personal care products and devices that potentially introduce dangerous chemicals and bacteria to the skin and eyes or burning or electrocution due to non-standardized wiring and ineffectual family planning protection to the consumer. Products seized during this event included make-up, condoms, hair removal devices, contact lenses, hair curlers, straighteners and skin cleansing devices.

     

    You might be facing penalties from customs for importing counterfeit merchandise. We can help. Typically, we recommended preparing and filing a petition, with the assistance of legal counsel, which argues persuasively for the substantial mitigation, or when the facts and law warrant it, cancellation of the penalty in full.

    Great Lakes Customs Law has been very successful in getting these kinds of penalties reduced and, sometimes, even eliminated entirely (some history of our success is HERE).If you have had merchandise seized by customs because they allege it is counterfeit and contains trademark violations and/or have a received a notice of penalty for importing alleged counterfeits or for making an importation contrary to law, call our office at (734) 855-4999 to speak to a customs lawyer, or e-mail us through our contact page. We are able to assist petitions for customs penalties and seizures around the country, including Detroit, Chicago, Atlanta, New York, Los Angeles, Orlando and many other places. Please read these other articles:

    CBP Seizes Counterfeit Watches with $2.7M MSRP

    Customs reported a seizure of over 11,000 counterfeit watches which, if real, would have a manufacturer’s suggest retail price of $2,791,250. The same law that permits Customs to seize the counterfeit watches also allows CBP to impose a penalty of up to the MSRP value of the counterfeit watches. In this case, that means the importer of these watches will be subject to a penalty of nearly $2.8 million dollars.

    MIAMI – U.S. Customs and Border Protection (CBP) Office of Field Operations (OFO) officers with the Miami Seaport Trade Enforcement Team (TET) seized 11,165 counterfeit watches with an MSRP value of $2,791,250.

    Counterfeit watches with an MSRP value of $2,791,250.
    CBP seized 11,165 counterfeit watches with an MSRP value of $2,791,250.

    The watches were being shipped from China and destined for Florida. CBP OFO officers discovered the watches in 123 cartons arriving in a shipment from China.

    CBP OFO officers with the Trade Enforcement Team (TET) suspected the watches were counterfeit as the items did not appear to be of the quality consistent with the watches that are normally manufactured by the trademark holder.

    Samples were submitted to CBP Import Specialists for review and determined to be counterfeit.

    “Counterfeiters are becoming increasingly sophisticated in their efforts and CBP OFO officers here at the Miami Seaport take great pride in protecting Americans from low quality and unsafe products,” said Miami Seaport Port Director Diane Sabatino. “Our CBP officers consistently demonstrate their exceptional skills at identifying counterfeit goods and work well with CBP Import Specialists to protect consumers and ensure these products do not enter the commerce of the United States.”

    You might be facing penalties from customs for importing counterfeit merchandise. We can help. Typically, we recommended preparing and filing a petition, with the assistance of legal counsel, which argues persuasively for the substantial mitigation, or when the facts and law warrant it, cancellation of the penalty in full.

    Great Lakes Customs Law has been very successful in getting these kinds of penalties reduced and, sometimes, even eliminated entirely (some history of our success is HERE).If you have had merchandise seized by customs because they allege it is counterfeit and contains trademark violations and/or have a received a notice of penalty for importing alleged counterfeits or for making an importation contrary to law, call our office at (734) 855-4999 to speak to a customs lawyer, or e-mail us through our contact page. We are able to assist petitions for customs penalties and seizures around the country, including Detroit, Chicago, Atlanta, New York, Los Angeles, Orlando and many other places. Please read these other articles:

    CBP Seizes Fake Apparel Worth $48K from Arriving Traveler

    U.S. Customs and Border Protection seized a large amount of counterfeit clothing from a traveler that was arriving from El Salvador. I guess this puts to rest my belief that it is a rare occurrence when when Customs encounters somebody who is travelling from overseas with this large of an amount of counterfeit clothing.

    Typically, counterfeit importations are just subject to seizure. In other words, the ‘penalty’ is loss of the goods through government seizure and forfeiture. However, Customs can impose monetary penalties under 19 USC 1526(f) on “any person who directs, assists … aids and abets [in] the importation of merchandise for sale or public distribution” once the property is seized.

    Customs may presume that the large quantities means that is must have been intended for sale or public distribution. Thus, this person may have exposed himself to a monetary penalty equal to the MSRP of the seized goods as if they were real. It could be that it was meant for public sale or distribution, or it could just be that all these articles were intended for personal use and the buyer just could not stop himself from getting a good deal. Here’s the story:

    U.S. Customs and Border Protection officers working at the George Bush Intercontinental Airport seized counterfeit Gucci, Burberry, Lacoste, Versace, Armani, Ferrari, Coco Chanel, Tory Burch and Michael Kors merchandise, May 13,

    Counterfeit Clothing Seized by CBP

    valued at more than $48,000.

    The seized items included shirts, hats, shoes, purses and jewelry destined for Houston.

    CBP officers conducted an inspection of a passenger arriving from El Salvador with checked bags. During the inspection, they discovered 161 brand-named articles that appeared to be counterfeit. The items did not appear to be of the quality consistent with legitimate goods as the items included unusual labeling and the markings on the clothing were not manufactured by the trademark holders.

    Counterfeit Chanel Jewelry

    “Packing hundreds of phony articles in suitcases doesn’t release passengers from their obligation to adhere to U.S. import laws and requirements,” said Houston CBP Port Director Charles Perez. “This seizure protects the trademark holder, their businesses and their employees and denies criminal organizations from reaping profits from the sale of counterfeit and illegitimate consumer goods.”

    Counterfeit Chanel jewelry was among the seized items. Watches and jewelry topped the list of seized items sorted by value in fiscal year 2014.

    CBP officers obtained digital images of the merchandise and forwarded them to the trademark owner to determine their authenticity. After verifying that the merchandise was counterfeit, CBP seized every item for infringement of intellectual property rights.

    You might be facing penalties from customs for importing counterfeit merchandise. We can help. Typically, we recommended preparing and filing a petition, with the assistance of legal counsel, which argues persuasively for the substantial mitigation, or when the facts and law warrant it, cancellation of the penalty in full.

    Great Lakes Customs Law has been very successful in getting these kinds of penalties reduced and, sometimes, even eliminated entirely (some history of our success is HERE).If you have had merchandise seized by customs because they allege it is counterfeit and contains trademark violations and/or have a received a notice of penalty for importing alleged counterfeits or for making an importation contrary to law, call our office at (734) 855-4999 to speak to a customs lawyer, or e-mail us through our contact page. We are able to assist petitions for customs penalties and seizures around the country, including Detroit, Chicago, Atlanta, New York, Los Angeles, Orlando and many other places. Please read these other articles:

    CBP Seizes Alleged Counterfeit Auto Parts in Florida

    Here’s one of those seldom thought about counterfeit merchandise seizures: counterfeit autoparts. When you think about counterfeits you usually think about currency, clothing, watches, and things like that. You don’t typically think of auto parts being something is counterfeited. But apparently they are out there, and it happens a lot, and its dangerous. Here’s the story from Customs (full version here):

    U.S. Customs and Border Protection (CBP) officers and import specialists seized more than 3,260 counterfeit automobile parts during an inspection at Port Everglades on May 8. The manufacturer’s suggested retail price of the counterfeit products is around $280,000.

    CBP, along with U.S. Immigration and Customs Enforcement’s Homeland Security Investigations (HSI), targeted the shipment as part of a joint multi-layered enforcement operation focused on interdicting illegal counterfeit automotive parts.

    The seizure included over 180 different types of vehicle parts ranging from small fuses to front ends.

    Counterfeit automotive parts are a safety risk as they are of inferior quality compared to the authentic product and their failure to perform to standard could cause safety issues resulting in catastrophic failure.

     

    You might be facing penalties from customs for importing counterfeit merchandise. We can help. Typically, we recommended preparing and filing a petition, with the assistance of legal counsel, which argues persuasively for the substantial mitigation, or when the facts and law warrant it, cancellation of the penalty in full.

    Great Lakes Customs Law has been very successful in getting these kinds of penalties reduced and, sometimes, even eliminated entirely (some history of our success is HERE).If you have had merchandise seized by customs because they allege it is counterfeit and contains trademark violations and/or have a received a notice of penalty for importing alleged counterfeits or for making an importation contrary to law, call our office at (734) 855-4999 to speak to a customs lawyer, or e-mail us through our contact page. We are able to assist petitions for customs penalties and seizures around the country, including Detroit, Chicago, Atlanta, New York, Los Angeles, Orlando and many other places. Please read these other articles:

    CBP Seizes Counterfeits from Traveler from Vietnam

    U.S. Customs and Border Protection seized a large amount of counterfeit clothing from a traveler that was arriving from Vietnam. To the best of my knowledge, it is a pretty rare occurrence when Customs encounters somebody who is traveling from overseas with a lot of counterfeit clothing.

    Typically, counterfeit importations are just subject to seizure. In other words, the ‘penalty’ is loss of the goods through government seizure and forfeiture. However, Customs can impose monetary penalties under 19 USC 1526(f) on “any person who directs, assists … aids and abets [in] the importation of merchandise for sale or public distribution” once the property is seized.

    By bringing in such a large quantity of counterfeits this person may have exposed themselves to a monetary penalty (to the tune of the MSRP of $22,000) because Customs may presume that the large quantities means that is must have been intended for sale or public distribution. It could be that it was meant for public sale or distribution, or it could just be that all these articles were intended for personal use and the buyer just got carried away with buying them. Here’s the story:

    U.S. Customs and Border Protection officers working at the Dallas Fort Worth International Airport seized 220 clothing items with a Manufacturer’s Suggested Retail Price of just over $22,000 found in a passenger’s checked luggage.

    CBP officers conducted an inspection of a passenger arriving from Vietnam with six checked bags and discovered multiple clothing items in commercial quantities that appeared to be counterfeit, violating intellectual property rights.

    The counterfeit items included 82 different Adidas products ranging from tank tops to windbreakers, 36 different Abercrombie items, 65 Chanel pieces, 12 Nike sweatshirts, 15 Ralph Lauren items, and an assortment of other name brand designers. The seized items did not appear to be of the quality consistent with legitimate goods as the items included unusual lettering and labeling and the markings on the clothing were not manufactured by the trademark holders.

    “Counterfeit items even in small quantities is an IPR violation and adversely affects unsuspecting consumers, businesses and our economy,” said Port Director Cleatus Hunt. “This type of seizure typically occurs through other commercial shipping means, however, we will take any opportunity to intercept the smuggling of counterfeit goods. This seizure in the airport environment represents our commitment to enforcing priority trade issues.”

    You might be facing penalties from customs for importing counterfeit merchandise. We can help. Typically, we recommended preparing and filing a petition, with the assistance of legal counsel, which argues persuasively for the substantial mitigation, or when the facts and law warrant it, cancellation of the penalty in full.

    Great Lakes Customs Law has been very successful in getting these kinds of penalties reduced and, sometimes, even eliminated entirely (some history of our success is HERE).If you have had merchandise seized by customs because they allege it is counterfeit and contains trademark violations and/or have a received a notice of penalty for importing alleged counterfeits or for making an importation contrary to law, call our office at (734) 855-4999 to speak to a customs lawyer, or e-mail us through our contact page. We are able to assist petitions for customs penalties and seizures around the country, including Detroit, Chicago, Atlanta, New York, Los Angeles, Orlando and many other places. Please read these other articles:

    CBP Seizes $1.2B in counterfeits in FY 2014

    In addition to currency seizures and drug seizures, U.S. Customs and Border Protection seizes counterfeit merchandise imported into the United States. CBP considers counterfeit interception to be a priority trade issue. Customs has released their annual statistics for 2014 wherein they breakdown what they seized throughout the past fiscal year. The report includes the total volume of seizures, value, and countries from which the counterfeit goods were exported. The summary from Customs is repeated below:

    U.S. Customs and Border Protection (CBP) and U.S. Immigration and Customs Enforcement’s Homeland Security Investigations (HSI) today announced the fiscal year 2014 results of an aggressive enforcement program to protect the United States from counterfeit and pirated goods. CBP and HSI are the components within the Department of Homeland Security (DHS) responsible for the enforcement of intellectual property rights (IPR).

    “Protecting intellectual property rights is a critical part of CBP’s trade enforcement mission and critical to protecting American consumers,” said Commissioner R. Gil Kerlikowske. “In 2014, strong partnerships with our federal enforcement counterparts, effective targeting of high risk shipments and frontline interceptions of cargo at America’s ports of entry produced more than 23,000 seizures of fake products worth an estimated $1.2 billion that could have cheated or threatened the health of American consumers.”

    [ . . . ]

    In fiscal year 2014, there were 23,140 intellectual property rights seizures with an estimated manufacturer’s suggested retail price or MSRP of $1.2 billion, the value of the goods had they been genuine.  In addition, 144 shipments of circumvention devices were seized for violation of the Digital Millennium Copyright Act.  CBP also enforced 44 exclusion orders in fiscal year 2014. Since 2007, CBP has identified intellectual property rights enforcement as a priority trade mission. Although IPR seizures declined slightly in 2014 from 2013, CBP recorded its third busiest year for seizures since 2005.

    [ . . . ]

    Wearing apparel and accessories continue to be the number one commodity classification based on number of seizures with 7,922 seizures or 28 percent.  Watches and jewelry are the largest commodity classification by value with an estimated MSRP of $375 million or 31 percent.

    The People’s Republic of China remains the primary source economy for counterfeit and pirated goods seized with a total value of $772 million, representing 63 percent of all IPR seizures by MSRP. Hong Kong ranks second with $310 million or 25 percent.

    Tactical interagency collaboration with the HSI-led National Intellectual Property Rights Coordination Center (IPR Center) resulted in 683 arrests, with 454 indictments and 461 convictions.

    You might be facing penalties from customs for importing counterfeit merchandise. We can help. Typically, we recommended preparing and filing a petition, with the assistance of legal counsel, which argues persuasively for the substantial mitigation, or when the facts and law warrant it, cancellation of the penalty in full.

    Great Lakes Customs Law has been very successful in getting these kinds of penalties reduced and, sometimes, even eliminated entirely (some history of our success is HERE).If you have had merchandise seized by customs because they allege it is counterfeit and contains trademark violations and/or have a received a notice of penalty for importing alleged counterfeits or for making an importation contrary to law, call our office at (734) 855-4999 to speak to a customs lawyer, or e-mail us through our contact page. We are able to assist petitions for customs penalties and seizures around the country, including Detroit, Chicago, Atlanta, New York, Los Angeles, Orlando and many other places. Please read these other articles: