U.S. Customs is authorized to make its own independent infringement determinations in the areas of copyrights, trademarks and trade names. With respect to copyrights, Customs is authorized to detain imports that are merely believed to infringe the rights of a U.S. copyright owner. Customs ordinarily makes such detentions based on allegations by U.S. copyright owners of possible infringement. Imports may be detained at the port until after Customs makes a decision concerning the validity of the infringement claim. Significantly, such imports are detained before Customs makes a decision concerning infringement and may remain in the custody of Customs for many months pending a final infringement decision.
Customs also has authority to detain imports that are merely alleged to infringe U.S. trademarks or trade names before there has been any formal infringement finding. Under existing regulations, however, Customs does not make its own independent infringement determinations with respect to patents or semiconductor mask works. Because of the complexity of infringement issues relating to patents and mask works, Customs historically has deferred to the institutional expertise of the U.S. International Trade Commission (ITC) and the courts to make patent and mask work infringement findings. In the case of both patents and mask works, Customs simply enforces exclusion remedies that have been issued by a court or the ITC at the conclusion of a formal infringement case.
Customs has developed an online database that links each U.S. port with the intellectual property records that are maintained at Customs headquarters in Washington. Because each local Customs district director has authority to take action against imports that may infringe protected intellectual property rights, this development provides a greater degree of national uniformity with respect to overall U.S. border enforcement efforts. Such a policy is required to avoid a situation where a work would be "cleared" at one port, but "believed to be an infringing copy" at another. Also, because intellectual property rights become eligible for Customs protection only after they are registered with Customs headquarters in Washington (or an ITC or court order is issued at the close of an infringement case), there is a need for uniform notification of the ports concerning the status of works eligible for Customs protection.
