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

batteries lot
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.

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

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.

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.

Counterfeit COVID test kits, medication and facemasks seized by CBP.

According to a U.S. Customs and Border Protection (CBP) media release, CBP officers in Baltimore and Pittsburgh seized shipments of unapproved or counterfeit COVID-19 medications, facemasks and testing kits.

The seizure included more than 58,000 face masks with designs violating trademarks of several designer consumer brands, professional sports teams, car manufacturers and cartoon characters. See below for a sampling of the various designs violating protected marks.

In addition to the facemasks, CBP officers also seized products claiming to be medication for COVID infected persons and more than 130 test kits not on the Emergency Use Authorization (EUA) list. Due to the non-compliance with FDA rules, the goods were seized and deemed inadmissible.

If you have had your good seized by Customs for violating FDA rules, contact seizure attorney David Hsu by phone/text anytime at 832-896-6288 or by email at attorney.dave@yahoo.com.

Images of seized test kits, source: CBP.gov

$2 million in counterfeit goods seized by CBP.

Counterfeit goods, source: CBP.gov

CBP officers in Louisville, Kentucky seized shipments from Dubai and Hong Kong containing over $2.0 million in counterfeit goods. The shipment from Dubai was labeled “men’s clocks” and upon inspection contained luxury watches from “Piguet”, “Hublot”, “Richard Mille” and “Cartier. The CBP import specialist determined the goods were counterfeit.

The second shipment from Hong Kong was labeled as “pedometers” – but in reality contained 180 “LV” watches and 65 “Oakley” sunglasses. Customs estimate the total seizure of the goods, if authentic, was worth $2,360,540.

The customs media release didn’t mention this – but if you have a shipment of goods destined for the US and detained by Customs, the typical 5-day rule of Customs to hold your goods does not apply. In general, seizures based on suspected counterfeit or IP violations do not have to abide by the 5-day rule and you may be looking at 2-4 weeks before your goods are seized or released.

If you have had your good seized by Customs for suspicion of being counterfeit – contact customs seizure attorney David Hsu by phone/text anytime at 832-896-6288 or by email at attorney.dave@yahoo.com.

Syringes with unapproved drugs seized by FDA.

Seized syringes: source: CBP.gov

According to a U.S. Customs and Border Protection media release – officers seized a shipment of pre-filled syringes containing 200 Sodium Hyaluronate from Seoul, South Korea. Sodium Hyaluronate is used to treat osteoarthritis and seized for violation of the Food, Drug and Cosmetic Act (FDCA) prohibiting the importation of any food, drug, device, tobacco product, or cosmetic that is adulterated or misbranded.

The FDA Office of Criminal Investigation seized the shipment that would be worth $10,666 if authentic. Typical FDA seizures are due to unapproved prescriptions containing manufactured using incorrect or harmful ingredients.

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

$46,000 in unreported currency seized.

Image of seized currency, source: CBP.gov

According to a U.S. Customs and Border Protection (CBP) media release, officers at the Brownsville and Matamoros International Bridge Port of Entry seized over $46,000 in unreported currency.

The inspection occurred when travelers were leaving the US to Mexico. During a routine inspection, CBP officers discovered $46,000 in currency and also seized the vehicle. According to the media release – the traveler with the unreported currency was referred to Homeland Security Investigations (HSI).

Author’s note – typically customs seizure of unreported currency are not referred out to HSI. If your currency seizure was referred to HSI, then Customs believes there is a criminal element to your seizure.

What’s the rule about traveling in and out of the country with currency?
It is legal to carry more than $10,000, but it is a federal offense not to declare currency or other monetary instruments when entering or exiting the US (and even if you have a layover in a US airport with no intention of entering the US).

What happens if Customs suspects I am carrying more than $10,000 in currency?
They will stop you and the party you are traveling with prior to boarding the plane. You will be given an opportunity to declare all currency and monetary instruments. You will be given a Fincen 105 form to sign. You must accurately state all the money you have. Once you sign the Fincen 105 form, CBP will search your belongings.

I received a “Notice of Seizure” and my currency was seized by CBP at the airport. What do I do?
If you receive a “Notice of Seizure” sent Certified Mail Return Receipt Requested, then you must respond or risk forfeiting all the seized funds. Typically you have 30 days from the date of the letter to respond to the seizure.

If you get a notice of seizure or if your currency was seized by Customs, contact David Hsu by phone/text at 832-896-6288 or by email at attorney.dave@yahoo.com.

$1.1 million in counterfeit goods seized in Kentucky.

Counterfeit goods seized, source: CBP.gov

According to a U.S. Customs and Border Protection (CBP) media release, CBP officers in Louisville seized five shipments containing counterfeit goods, if authentic would be worth more than $1.1 million.

On that day, CBP seized multiple shipments, with 5 separate shipments containing: 30 “Louis Vuitton” toes, 4 “Dior” handbags, 2 “Gucci” handbags, 200 “YSL” purses and another 366 “LV” bags. The last shipment contained a box with Louis Vuitton wallets.

When Customs detains goods for suspicion of counterfeit goods, CBP will submit photos or send samples to the trademark or other intellectual property rights holder. Almost 100% of the time the trademark holder will notify Customs the importer of record does not have a right to import the covered goods. If so, then Customs will seize the goods and send a “Notice of Sezizure” to the importer of record.

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

CBP seizes counterfeit Air Pods and Apple watches.

Seized counterfeit Apple watches, source: CBP.gov

U.S. Customs and Border Protection Officers in Chicago inspected and seized seven boxes from Hong Kong containing 423 smart watches and 200 earphones. With suspected intellectual property seizures, CBP will send photos or samples of the items to the Electronics Center of Excellence and Expertise (Electronics CEE). The CEE will then verify with the property rights holder if the importer was authorized to use the word mark. 100% of the time the property rights holder will reply the importer of record is not authorized to import the goods and the entire shipment will be seized.

In addition to registering the “Apple”, “iPhone” with Customs, companies can also protect the shape, design, form and function of the items. For example, the photo above shows the same shape and design of an Apple Watch. CBP estimates the value of the shipment, if authentic would be approximately $204,168.

What happens after a seizure?
If you are an importer, after a seizure, CBP will send you a “Notice of Seizure”. You will then have 30 days to respond to the Notice of Seizure, if you do not – then Customs will begin forfeiture of your goods.

Contact David Hsu by phone/text at 832-896-6288 or by email at attorney.dave@yahoo.com if you have received a seizure notice to discuss your options.