Counterfeit goods enter the United States each year in mass, posing health risks and undermining brand value. Recording your products with U.S. Customs and Border Protection (CBP) can offer valuable protection if they are vulnerable to foreign counterfeiting.

CBP cannot seize or destroy counterfeit goods at the border without a registered trademark and recordation. Recordation is the process of publicly documenting ownership to help CBP enforce U.S. intellectual property rights. In 2024, CBP seized more than 32.3 million infringing items, valued at approximately $5.4 billion. The most frequently seized category of goods were handbags/wallets, pharmaceuticals and apparel. Jewelry and watches, however, have the highest manufacturer’s suggested retail price (MSRP).

Recordation offers additional benefits, such as establishing a record of ownership and priority if two applicants claim the same intellectual property rights or if there are disputes over ownership in a sale or transfer. Subject to some limitations, recorded trademarks are also eligible for gray market protection, i.e., the importation of genuine products into the U.S. through unauthorized channels, to exploit international price differences without the consent of the U.S. distributor. Another benefit of recordation is to provide constructive notice to the public, a legal fiction which prevents third parties from using lack of notice as a defense. It applies if the recordation document specifically identifies the recorded work and if the document appears in the copyright public records system under the title or registration number of the work.

One downside of recordation, however, is that the information submitted on the recordation forms will be publicly available in person at the U.S. Copyright Office or online. Publicly disclosing personal details, such as personal or corporation names and the date of execution, can attract malicious individuals who access additional information from other sources for purposes of harassment and extortion, for example.

Recordation is available for trademarks, copyrights and pending copyrights. To record a trademark, it must be federally registered for use on goods and published in the principal register, rather than the supplemental register. (The supplemental register applies to descriptive marks that may later acquire distinctiveness, making them eligible for the principal register.) To record a copyright, it must be registered with the U.S. Copyright Office or have a pending registration.

The first step is checking the searchable database of e-Recordations to confirm that your trademark or copyright hasn’t already been recorded. If it has not, you can apply for recordation through CBP’s Intellectual Property Rights Recordation system. You will be prompted to submit your registration number, the personal information of the rights owner, the place of manufacture, the individuals authorized to use the trademark or licensed to use the copyright and the identity of any parent company or subsidiary authorized to use the trademark or the copyright.

Recordation must be renewed when your trademark is renewed, although there is a 90-day window to renew after the record expires. For more information on trademark registration, see our Trademark FAQs.

Once your mark is registered and recorded with CBP, it’s important to actively monitor the marketplace for counterfeits, not only to protect your brand but also to preserve your trademark rights, which can be deemed abandoned if not defended. Marketplaces like Amazon, eBay and Facebook are key sites to monitor. For instance, some bad actors buy counterfeit products on TEMU and then resell them for a profit. Identifying the individual behind the counterfeit can be challenging due to multiple fake names and accounts. Amazon’s policies do not require its sellers to be authorized, although rights holders can file “John Doe” lawsuits, and, in successful cases, access funds held in the reseller’s escrow account. Moreover, Amazon’s counterfeit crimes unit has pursued 24,000 infringers through litigation and referral to law enforcement and eBay has its VeRO program to monitor and protect IP.

CBP also allows parties to submit allegations of malicious infringing activity on its website. If there are time-sensitive health and safety issues relating to infringing goods, CBP has a call line at 1-800-BE-ALERT.

Reverse passing off is another trademark issue relevant to protecting your IP at the border. It occurs when someone appropriates another’s product and falsely claims it as their own. Unlike counterfeiting, which involves taking advantage of the goodwill associated with a mark, reverse passing off entails deriving a benefit from the original creator’s labor or creativity without attribution. However, with a recordation, CBP may be able to seize and destroy these goods.

Lutzker & Lutzker is available to strategize and protect your IP, including registering copyrights and trademarks, using correct designations on products, websites and advertising and maintaining trademark registrations. We can also help you gain valuable protection with CBP recordation.