Who’s at fault – the importer or the manufacturer who used “Samsung” batteries in the toys?

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Photo by mohamed Abdelgaffar on Pexels.com

I receive at least one call a week from importers who have had their goods seized by Customs for trademark violations, and one very common seizure is for “Samsung” batteries (or any other brand name) contained within toys such as hoverboards or RC vehicles.

As you are aware, Customs and Border Protection (CBP) is the hall monitor of the multiple government agencies and CBP is tasked with the enforcement of all rules and regulations established by the various agencies – for example, CBP enforces trademarks, enforces FDA import alerts, enforces US Fish and Wildlife restrictions on shark fins and all of the tens of thousands of rules from every agency.

In regards to trademarks, CBP must enforce trademarks if the intellectual property holder registered the trademark with Customs. Unfortunately for importers, Samsung has registered many trademarks and anything found to contain the “Samsung” trademark is easy picking for Customs to detain.

Typically, CBP has the ability to detain goods for 5 days – and longer if the detention is because the goods are suspected of violating intellectual property rights.

Once CBP detains a shipment – they notify the importer of record (IOR) or customs broker the shipment has been detained and will be released pending proof the IOR has authorization from the trademark holder to import the trademarked goods.

Unfortunately, 10 out of 10 times the trademark holder will respond to Customs the IOR does not have authority to import the trademarked good. Once that happens, CBP will officially seize the goods and issue a Notice of Seizure to the IOR by certified mail, return receipt requested.

The importer of record then has 30 days to respond to the seizure. According to the Election of Proceedings form on the last page of the seizure notice, there are 4 options – (1) file a petition, (2) forfeit the goods, (3) refer to court action or offer in compromise.

Going back to the original question – who is at fault for the seizure, the manufacturer that used “Samsung” batteries or the importer of record? And as you can guess from the above – CBP will ultimately find the Importer of Record responsible for trademark violations. While this answer seems unfair, it makes sense as CBP has no authority outside of the United States and no mechanism to go after the manufacturer. The only party CBP can find liable is the importer of record.

If you have had your good seized for any reason – contact seizure attorney David Hsu by phone/text at 832-896-6288 or by email at attorney.dave@yahoo.com.

550 pounds of counterfeit Apple and Samsung products seized.

Seized Apple products, source: CBP.gov

According to a mid-December U.S. Customs and Border Protection (CBP) media release, CBP officers in Cincinnati seized multiple boxes of counterfeit goods totaling 550 pounds. The seized shipment from Hong Kong arrived in multiple shipments and included electronic accessories such as cables, earbuds, chargers with counterfeit logos from brands such as Apple and Samsung. CBP estimated the MSRP (if authentic) of the goods was $49,666.00 – a very specific amount typically used when there is a quantity of counterfeit goods seized.

This is the first time in recent memory CBP has described a shipment of counterfeit goods by weight. My guess is the number of earbuds, cables, chargers and adapters (lighting to headphone jack?) were packaged in small boxes or clamshell packaging. Separating each earbud case, each box of cable and each charger would likely have taken too much time to separate and count.

The media release includes the typical CBP paragraph warning counterfeit goods and the sale of contribute to criminal activity, forced labor, human trafficking and cause a risk to consumers due to the products not meeting quality standards.

If you have had your goods seized by Customs, contact David Hsu by phone/text at 832-896-6288 or by email at attorney.dave@yahoo.com to discuss your options.

COVID and Counterfeits.

As the year ends, the 2020 COVID lockdowns has resulted in increased seizure by U.S. Customs and Border Protection (CBP) of face masks, un approved testing kits, unlabeled medicine, non-FDA approved treatments, etc.

COVID-19 Test Kit
Image of non-FDA approved COVID-19 test kits, source CBP.gov

In the past month, CBP has seized:

  1. 6,080 counterfeit 3M masks in Cincinnati labeled as “3M Disposable Respirators Model 8210”. The shipment from Hong Kong was scrutinized by CBP because the country of origin marking on the outside of the box was labeled as “Made in the USA”. CBP officers determined the 3M masks were counterfeit and seized the goods before they were to be sent to Kingston, Jamaica.
  2. CBP officers in San Diego seized a shipment containing 251 non-FDA approved COVID-19 test kits from Mexico. The shipment caught the attention of CBP because the kits were manifested as plastic cards. Over 251 test kits divided among two packages were seized and likely to be destroyed.
  3. In another shipment, CBP officers in El Paso seized more than 100,000 counterfeit 3M N95 surgical masks for use by hospital workers. If authentic, the N95 surgical masks carried an MSRP of $600,480.

If you have had your COVID-related goods seized by Customs, contact customs seizure attorney David Hsu by phone/text at 832-896-6288 or by email at attorney.dave@yahoo.com.

ICE HSI special agents determined the masks were counterfeit after working with the National Intellectual Property Rights Coordination Center and 3M Company.

“The seizure of these counterfeit surgical masks not only ensures the health and safety of our frontline health care workers by preventing them from receiving inferior personal protective equipment, it also protects the integrity of the American economy.  We will continue to aggressively investigate, arrest and prosecute criminal counterfeiters who show a total disregard for human life and take advantage of a relentless world pandemic for economic gain.” said Erik P. Breitzke, acting special agent in charge of ICE HSI El Paso.

“HSI and CBP will continue to collaborate to prevent unauthorized and counterfeit products from getting to U.S. consumers to protect the health and safety of the American public and the American economy,” said Ysleta Port Director Arnoldo Gomez. “This large seizure of counterfeit surgical masks, destined for frontline medical workers, demonstrates the great collaborative effort between CBP and HSI. Counterfeit surgical masks pose a great risk to our medical community, and any individual who may use them.” 

This shipment is in violation of Importation, Removal and Contrary to Law (19 U.S.C. 1595a(c)(2)(A)) and the Federal Food, Drug and Cosmetic Act. ICE HSI El Paso is investigating the seizure with assistance from CBP.

ICE HSI launched Operation Stolen Promise in April 2020 to protect U.S. consumers from the increasing and evolving threat posed by the pandemic. The operation involves various federal agencies, including CBP, the U.S. Department of Justice, U.S. Postal Inspection Service, U.S. Food and Drug Administration, the Internal Revenue Service, and multiple private sector partners, including Pfizer, 3M, Amazon and others.

Operation Stolen Promise combines ICE HSI’s expertise in global trade, financial fraud, international operations and cybercrime to investigate financial fraud schemes, the importation of prohibited pharmaceuticals and medical supplies, offending e-commerce schemes, and any other illicit criminal activities associated with the COVID-19 virus that may compromise legitimate trade, financial systems and/or endangers the public. 

For more information or to report COVID

Counterfeit sports memorabilia seized by Customs.

Image of seized jerseys, source: CBP.gov

U.S. Customs and Border Protection Officers in Cincinnati seized 200 counterfeit sports jerseys bearing the autograph of various athletes – including Jason Witten, Dwayne Haskins, Rod Carew and Minkah Fitzpatrick. If authentic, the value of the jerseys would have been worth over $42,000. This shipment was sent from the Philippines to Nashville, Tennessee.

“Counterfeiters only care about making a profit,” said Cincinnati Port Director Richard Gillespie. “They don’t care about the effect their fake product has on you, your family, or your job. Our officers are well-trained to find seizures like these, to continue our mission of protecting the American public and the American economy”

In Fiscal Year 2020, CBP seized 26,503 shipments of counterfeit goods worth nearly $1.3 billion had the goods been genuine. Most of these seizures were of apparel and accessories, but fake medical supplies played a significant role as well. Since the beginning of the COVID-19 pandemic, CBP has seized more than 13.5 million counterfeit face masks, and more than 177,000 unapproved COVID-19 test kits.

CBP encourages consumers to be aware of counterfeit and pirated goods when shopping this holiday season, particularly when purchasing online. CBP has also established an educational initiative to raise consumer awareness about the consequences and dangers associated with purchasing counterfeit and pirated goods online or in stores. More information about that initiative is available at http://www.cbp.gov/fakegoodsrealdangers.

San Ysidro CBP officers seize $1 million in currency bound for Mexico.

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Photo by John Guccione http://www.advergroup.com on Pexels.com

According to a U.S. Customs and Border Protection media release – on December 9th, CBP officers stopped a vehicle traveling to Mexico for further inspection. During the inspection by the CBP canine team, the dog alerted CBP to the driver’s side quarter panel of the car.

Further inspection by CBP officers found many wrapped packages containing unreported US currency in the quarter panels, under the rear seat of the third row and the cargo area.

The media release doesn’t go into further details other than writing the cash was seized.

Typically, US media releases would mention the case was referred to Homeland Security Investigations – the criminal investigation arm of the Department of Homeland Security.

If you have had your currency seized by Customs, call David Hsu now at 832-896-6288 or email attorney.dave@yahoo.com for immediate help. You typically only have 30 days to respond to a currency seizure.

Withhold Release Order issued for Xinjiang Production and Construction Corps.

white flowers in tilt shift lenswhite flowers in tilt shift lens

The U.S. Department of Homeland Security announced today that U.S. Customs and Border Protection (CBP) at the over 400 ports of entry into the US will detain all shipments from Xinjiang Production and Construction Corps (XPCC).

The Withhold Release Order (WRO) was issued for XPCC based on information that reasonably indicates XPCC uses forced and convict labor in their cotton and cotton products.

The recent WRO is the sixth issued by CBP against goods manufactured by forced labor in China’s Xinjiang Uyghur Autonomous Region. Under a WRO, importers have two options,

Federal statute 19 U.S.C. 1307 prohibits the importation of merchandise mined, manufactured, or produced, wholly or in part, by forced labor, including convict labor, forced child labor, and indentured labor. This WRO will require detention at all U.S. ports of entry of all cotton products produced by the XPCC and any similar products that the XPCC produces. Importers of detained shipments have two options – export the shipment or demonstrate the merchandise was not producd with forced labor.

If you have had your shipment detained for a violation of an active WRO – contact trade attorney David Hsu by phone or email at 832-896-6288 or attorney.dave@yahoo.com.

Over $9 million worth of counterfeit designer goods seized in Texas.

CBP officers examining 1 of the 148 boxes, source: CBP.gov

Dallas CBP officers at the Dallas/Fort Worth port of entry seized a shipment of counterfeit designer merchandise for China and destined for an address in McKinney, Texas.

CBP claims in their media release their “experience” led them to a perform an examination on the shipment contained in 148 boxes.

CBP’s “experience” is more “common sense” – if your shipment is from China and mentions clothing, watches, shoes, phones, electronics – Customs will take a second look and assume everything with a brand is counterfeit.

Within the 148 boxes, Customs officials found goods bearing trademarks from Chanel, Gucci, Louis Vuitton, Yeezy among others. Customs look at the quality of the item and the poor packaging to determine the likelihood a good is counterfeit.

Besides visual confirmation a good is likely counterfeit, Customs may also send images or samples of the goods to the trademark holders to verify authenticity – and 10 out of 10 times the trademark holder will say the goods are counterfeit.

If you have had your goods detained or seized, contact seizure attorney David Hsu by phone/text at 832-896-288 or by email to: attorney.dave@yahoo.com.

CBP finds Asian Gypsy Moths (AGM) in Portland.

AGM egg mass, source: CBP.gov

U.S. Customs and Border Protection (CBP) agriculture specialists in Portland, Oregon found three Asian gypsy moth egg masses in mid-October. The egg masses typically contain hundreds of eggs that will hatch. The issue is AGM are an invasive species that are highly mobile – being capable of flying up to 25 miles and eat the leaves of more than 500 different species of trees.

The AGM egg masses were found on a foreign flag merchant vessel coming from an area known to be a high risk for AGM. CBP will typically remove the egg mass and then the entire vessel was treated with a pesticide. After fumigation, CBP will then re-inspect the vessel and approve whether or not to process the cargo.

If you have had your shipment detained by Customs for AGM or other pests found in wood packaging materials contact David Hsu immediately. Time is of the essence in WPM/pest cases as CBP will ask the importer or shipper to re-export immediately. Contact David Hsu by phone/text immediately at 832-896-6288 or by email at attorney.dave@yahoo.com, dh@gjatradelaw.com.

Louisville CBP seized over $109M in counterfeits in 2020.

Image of seized goods, source: CBP.gov

According to a U.S. Customs and Border Protection (CBP) media release, in the fiscal year ending September 30th, CBP officers in Louisville seized over $109 million worth of counterfeit goods.

The $109 million in seized goods was accumulated during the 741 counterfeit seizures made among 343 shipments with 46% of the counterfeit goods being imported in Hong Kong. The media release also said seized goods included jewelry, footwear, bags, wallets and electronics.

If you or anyone you know has had their goods detained by Customs, contact seizure attorney David Hsu by phone/text at 832-896-6288 or by email at attorney.dave@yahoo.com.

Operation Mega Flex – $8 million in counterfeit watches seized.

Counterfeit watches, sources: CBP.gov

According to a U.S. Customs and Border Protection (CBP) media release. CBP officers in Ohio seized 11 counterfeit Richard Mille watches from Hong Kong with the ultimate end user in New Orleans. See image above of the seized watches.

The seizures in Ohio and the other intellectual property rights violations seizures are part of CBP’s efforts to stop unfair Chinese trade practices and protect US businesses. This operation is known as “Operation Mega Flex and has resulted in 4,200 seizures of goods in the past 15 months”.

If you have had your goods seized by Customs, contact David Hsu by phone/text at 832-896-6288 or by email at attorney.dave@yahoo.com.