Brand Protection at the Border

Partnering with U.S. Customs is a key component to brand owners’ anti-counterfeiting strategy.

By Clark Silcox

For brand owners faced with counterfeit products made overseas, building a relationship with U.S. Customs and Border Protection (CBP) to prevent importation of fake products is critical to the brand protection battle. Federal law empowers CBP officials to inspect and stop suspicious shipments and then to seize the shipments if they are determined to be counterfeit.

Customs seizures of product infringing intellectual property rights have been rising. On Oct. 14, 2008, CBP announced that the fiscal year ending Sept. 30, 2008, set a record for seizures, and data from CBP’s 2008 mid-year review indicated that electrical articles represented the fourth-leading category of seized items during the first six months of 2008, after footwear, apparel and handbags, representing nearly 10 percent of total seizures.

Following a successful strategy developed by UL over the past 12 years to train port officials about how to tell the difference between a genuine product and the counterfeit version, National Electrical Manufacturers Association members have been individually visiting with key ports to train CBP staff. Collectively, NEMA has visited ports along the West Coast; Florida; Newark, N.J.; and New York. Members also take advantage of meetings with ports organized through the International Anti¬Counterfeiting Coalition and the Department of Homeland Security.

The training sessions and materials disseminated are confidential but include key facts about the product that counterfeiters have yet to discover, information about where genuine product comes from and where it does not come from, information identifying the importers of genuine product, and through which select ports genuine product is brought into the country. One message that NEMA delivers for a number of its products that have been victim to counterfeiting: The genuine product designed for North America is made in this hemisphere, and CBP should be suspicious when it arrives on a boat from another hemisphere. A second message is the demonstration that the counterfeit imports are substandard and pose a threat to U.S. consumers. As a result of this effort and the similar efforts of certification mark owners, such as Underwriters Laboratories and Canadian Standards Association Interna-tional, CBP has targeted imported electrical products for inspection at the border.

Industry customs training efforts are not limited to the United States. In 2007, NEMA and its members, in collaboration with ANCE, spon-sored training sessions with Mexican customs, and NEMA and several members participated in a training session with China Customs in Shanghai. Several months after the Shanghai session, China Customs seized 1.6 million counterfeit batteries bearing the well-known mark of a NEMA member who had participated in the session.

SILCOX is general counsel for NEMA. He can be reached at Cla_Silcox@nema.org.