Eleanor Finch
Importing goods into the USA requires careful adherence to intellectual property laws, and importers must ensure they obtain the necessary permissions and adhere to import regulations. The use of a trademark on a product, whether by labeling or other means, is considered trademark use if it is likely to cause confusion among the public about the origin of the goods. This includes not only direct consumers but also distributors, retailers, and those who may come into contact with the product. Trademark owners can bring a private action of trademark infringement against the importer or bring a proceeding before the International Trade Commission if Customs declines to act. In the case of re-importation of goods, the court must balance the rights of trademark owners with facilitating international trade, suggesting that the application of trademark law needs to be flexible and in line with economic realities.
| Characteristics | Values |
|---|---|
| What constitutes trademark use? | The use of a trademark on a product, whether by labeling or other means, is considered trademark use if it is likely to cause confusion among the public about the origin of the goods. |
| Who can import trademarked goods? | Any business or individual can import trademarked goods as long as they comply with intellectual property laws and customs regulations. |
| Is permission from the trademark owner required? | Yes, getting permission from the trademark owner is an essential step in the importing process. This permission, when granted, results in a licensing agreement. |
| What if permission is not obtained? | If permission is not obtained, Customs and Border Protection (CBP) may seize the imported goods. Trademark owners can also bring a private action of trademark infringement against the importer or initiate a proceeding before the International Trade Commission. |
| What is the role of CBP? | CBP plays a role in monitoring the importation of goods into the United States and can help prevent the importation of counterfeit goods. Holders of valid trademarks can register their marks with CBP to trigger enforcement measures aimed at stopping the importation of infringing merchandise. |
| What is the Madrid Protocol? | The Madrid Protocol simplifies the process of registering trademarks in multiple countries. If a trademark is registered under the Madrid Protocol, importers do not need to navigate individual trademark registration processes in each country. |
| What is the nominative fair use doctrine? | This doctrine applies if a defendant uses a trademark owner's trademark to identify the plaintiff's goods or services rather than their own. The defendant must demonstrate that the use is limited and does not suggest the plaintiff's sponsorship or endorsement. |
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What You'll Learn
Importing trademarked goods to the USA
Importing trademarked goods into the USA is a complex process that requires careful navigation of legal intricacies to avoid accidentally breaking intellectual property rights laws. It is essential to understand the rules and regulations to ensure successful and legal importing.
Any business or individual can import trademarked goods into the USA, but they must comply with intellectual property laws and customs regulations. Importers play a crucial role in promoting the exchange of trademarked goods, often acting as intermediaries between producers and consumers. The first step in the importing process is to obtain permission to use a trademark, which can be complex. It is crucial to identify the trademark owner and get their permission, which will result in a licensing agreement. This agreement ensures that both parties benefit from the proposed use of the trademark.
When importing trademarked goods, it is important to understand the difference between registered and unregistered trademarks. Both types of trademarks are used to identify and distinguish goods or services of one seller or provider from those of others. However, the legal protections and enforcement mechanisms for each can differ significantly. Registered trademarks have the presumption of validity, shifting the burden of proof to the defendant in a lawsuit, and entitle the holder to certain damages if they prevail in court. Additionally, registered trademarks can be cross-registered with U.S. Customs and Border Protection (CBP), which works to prevent the importation of counterfeit goods into the United States.
It is worth noting that CBP registration is not a foolproof method of stopping international counterfeiting and importation. CBP does not inspect every shipment container entering the country, and they will not take action if the trademark relates to a service rather than a physical product. Nevertheless, CBP registration can be a valuable tool in preventing the importation of infringing merchandise.
In conclusion, importing trademarked goods into the USA requires careful adherence to intellectual property laws and customs regulations. Importers must obtain the necessary permissions and ensure they understand the legal protections afforded to registered and unregistered trademarks. Non-compliance can result in severe penalties, including seizure of goods by CBP and trademark infringement lawsuits.
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Permission to use a trademark
Trademark permission, also called licensing, allows individuals or businesses to use a trademark with the owner's approval. It is important to note that trademarks are territorial and must be filed in each country where protection is sought. In the United States, trademark registration grants the owner the exclusive right to use the trademark across the country and prevents others from using it without permission.
If you want to use someone else's trademark in the US, you must ask the trademark owner for permission. The owner could be a company or an individual, and if multiple people own the rights, all of them must agree to the trademark's use. Once permission is granted, a licensing agreement is negotiated, which includes the specific terms of any commercial and non-commercial use. This usually comes at a cost, such as a flat fee or a profit-sharing agreement. However, some companies may allow the use of their trademarked logos and symbols for free.
It is important to understand when permission is required, as certain uses do not require prior consent. These include comparative advertising, news reporting, parodies, criticisms, and presenting information that educates, informs, or expresses an opinion. This is known as the fair use doctrine, which allows the use of a trademark without permission for limited purposes under the constitutional right to free speech.
To prevent the importation of counterfeit goods into the United States, trademark owners can register their marks with U.S. Customs and Border Protection (CBP). While this triggers basic enforcement measures, it is not a guarantee, as the CBP does not check every shipment container.
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Trademarks and international protection
There is no "global trademark" that can protect your trademark in every country. Treaties have been signed to make it easier for trademark owners to extend protection to other countries, but the world's trademark systems are largely separate and maintained on a country-by-country basis.
The closest thing to a global trademark is the Madrid Protocol system, which allows trademark rights to be extended through the World Intellectual Property Office or 'WIPO''s clearing house for trademarks in Geneva, Switzerland. This provides an "international certificate of registration", but it does not protect your trademark in all countries, or even all countries that have signed the Madrid Protocol treaty. Instead, you must extend your trademark specifically into the countries you select, paying a fee for each extension.
The alternative to the Madrid Protocol is to file a trademark application with the trademark office of each country in which you are seeking protection. This can be done in non-Madrid Protocol countries, such as most countries in Africa, South America, and the Middle East, by filing directly in these countries' respective intellectual property offices via local counsel.
In the United States, trademark protection can be obtained by registering with the US Patent and Trademark Office (USPTO). This does not protect your trademark in foreign countries, but it does allow you to sue infringers in US courts and register your mark with US Customs and Border Protection (CBP) to prevent the importation of counterfeit goods into the US.
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US Customs and Border Protection
CBP's e-Recordation Program allows trademark and copyright owners to enforce their intellectual property rights at US borders. The program enables CBP to enforce registered trademarks and copyrights at all US ports of entry. To take advantage of this program, IPR owners should review CBP regulations (19 C.F.R. Part 133) and relevant publications outlining procedures for working with CBP to protect their IPR.
Articles imported into the US that are not marked with the English name of their country of origin are subject to additional duties unless they are properly marked, exported, or destroyed under CBP supervision. The only exception to this rule is if the article was produced more than 20 years before its importation into the US. Furthermore, any person who removes, destroys, or alters the country of origin marking on an imported article may be subject to prosecution and criminal penalties.
Certain articles are exempt from being marked with their country of origin. These include bona fide gifts from persons in foreign countries (provided the aggregate value of articles received by one person on one day does not exceed $100 retail value), goods of a NAFTA country that are original works of art, and certain spice and tea products.
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Trademark infringement
In the United States, trademark law is primarily enforced through private lawsuits, with trademark owners filing civil actions in state or federal court to restrict infringing use. To support a trademark infringement claim in court, a plaintiff must prove that they own a valid mark, that their rights to the mark are senior to the defendant's, and that the defendant's mark is likely to cause confusion. Registration of a trademark can make a lawsuit more likely to succeed, as it creates a presumption of validity and grants the trademark owner certain damages if they prevail in court. Additionally, registered marks can be cross-registered with U.S. Customs and Border Protection (CBP) to prevent the importation of counterfeit goods bearing the registered mark. However, CBP registration is not a foolproof method of stopping international counterfeiting and importation, as they do not inspect every shipment and cannot help with trademarks related to services rather than physical products.
While registering a trademark with the U.S. Patent and Trademark Office (USPTO) provides protection within the United States, it does not extend to foreign countries. Trademarks are territorial and must be filed in each country where protection is sought. However, if a trademark application is pending before the USPTO or a registration has been issued, the owner may seek registration in any of the countries that have joined the Madrid Protocol by filing an "international application" with the World Property Intellectual Organization (WIPO).
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Frequently asked questions
If Customs declines to act, trademark owners can bring a private action of trademark infringement against the importer or bring a proceeding before the International Trade Commission. If infringement is found, the remedial action is submitted to the President, who has 60 days to veto the action.
In general, any business or individual can import trademarked goods, provided they comply with intellectual property laws and customs regulations. Getting permission from the trademark owner is an essential step in the importing process. This permission, when granted, results in a licensing agreement.
Holders of valid trademarks can register their marks with the CBP on the Intellectual Property Rights e-Recordation Website. This registration will trigger certain basic enforcement measures by the CBP with the goal of stopping the importation of infringing merchandise using the registered mark.
