Customs and Border Protection’s Role in IP Enforcement

Americans often associate the U.S. Customs and Border Protection (CBP) with armed patrols, drug busts, and counterterrorism operations. Rarely do they picture CBP as an enforcer of intellectual property (IP) rights.

In a recent working paper, law professor Jorge L. Contreras brings to light CBP’s overlooked role in protecting IP rights. He argues that, contrary to what some think, CBP has the expertise to evaluate complex technologies and legal claims.

In 2003, CBP was created within the U.S. Department of Homeland Security, bringing together the U.S. Customs Service and related agencies. CBP’s IP enforcement takes three forms: blocking infringing imports through its statutory authority; carrying out federal judicial injunctions in IP cases; and enforcing exclusion orders issued by the U.S. International Trade Commission (ITC).

Contreras, the James T. Jensen Endowed Professor for Transactional Law at the University of Utah S.J. Quinney College of Law, explains that the bulk of CBP’s IP enforcement occurs under its statutory authority in U.S. copyright and trademark matters. In 2024 alone, the agency seized more than 32 million infringing items valued at $5.4 billion—including 5 million handbags and wallets, 3.7 million counterfeit pharmaceutical products, and 1 million articles of clothing.

CBP’s statutory authority over U.S. copyrights arises from the Copyright Act, which empowers the agency to seize infringing imports, Contreras notes. The Tariff Act and the Lanham Act also authorize CBP to seize goods that infringe registered U.S. trademarks.

Similarly, Contreras observes that CBP has the authority to seize goods that infringe U.S. trade names and semiconductor mask work rights, although such cases are rare.

Once CBP seizes a good, importers may contest the action by demonstrating that the good does not infringe the relevant IP right. The importer may also file an administrative petition with CBP or pursue a claim that may later become a civil forfeiture action in federal court.

Contreras remarks that after CBP takes ownership of a forfeited good, it is often destroyed or auctioned. Non-counterfeit goods, such as items that possess confusingly similar marks, may be auctioned after the “infringing material” is removed. Counterfeit goods, however, are destroyed unless the trademark or copyright owner consents to their use or sale.

In addition to its statutory authority to seize goods that violate IP rights, CBP can enforce injunctions issued by federal courts in IP cases. Contreras explains that these injunctions play a limited role in CBP’s IP enforcement, since the agency already has a streamlined process for protecting U.S. trademarks and copyrights. For this reason, injunctions usually arise only when the agency lacks statutory authority, such as with unregistered trademarks or trade dress.

CBP’s third and final enforcement mechanism—the enforcement of ITC exclusion orders—is especially significant for protecting U.S. patent rights, Contreras observes. When the ITC determines that an imported good infringes U.S. IP rights, it can direct CBP to block those goods from entering the country. Unlike goods that infringe U.S. trademarks and copyrights, which can be seized by CBP through its statutory authority, a holder of a patent must obtain an ITC exclusion order before CBP can act. Between 2022 and 2023, 98 percent of ITC investigations involved claims of patent infringement.

Contreras explains that Congress granted CBP statutory authority over trademarks and copyrights, but not patents, because patent disputes require a greater degree of technical expertise. “It is easier to detect a counterfeit Gucci handbag or Harry Potter DVD than an infringing logic circuit buried within a computer chip,” Contreras observes.

When CBP enforces ITC exclusion orders, Contreras notes that the agency must look at the patent claim language and compare it to the imported goods. In practice, this means CBP is undertaking “essentially the same” technical infringement analysis, suggests Contreras.

To enforce ITC exclusion orders, CBP invites patent holders to train officers, relies on staff to determine whether goods fall within the scope of ITC exclusion orders, and employs experts and patent attorneys to assist with infringement claims. Contreras explains these practices showcase the agency’s expertise in evaluating complex technologies.

Contreras argues that CBP has the expertise to evaluate complex technologies, as demonstrated by its enforcement of ITC exclusion orders. Combined with its statutory authority and enforcement of judicial injunctions, the agency also has the capacity to evaluate legal claims. Contreras concludes that CBP plays a vital yet often overlooked role in enforcing U.S. IP rights.