Intellectual Property Law

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If I imported a product that is trademarked in the USA, but not trademarked in China where it was exported, can I still have Customs Borders and Patrol ship back the products to China? The products are currently in Customs and they sent me a letter to forfeit the products and I may have to pay a fine, or file a petition. I imported the products not knowing it has a trademark and the manufacturer did not mention it. But the order was Free on Board, China. So the manufacturer does not want to pay anything. So my question is, should I petition and will the product be returned to the manufacturer or should I just forfeit the product. Declare value is $20,000.

Submitted: 61 days and 20 hours ago.

Category: Intellectual Property Law

Value: $18

Status: AWAITING CUSTOMER ACTION

State/Country relating to Question: California

Already Tried:
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Posted by Alex Reese 61 days and 18 hours ago.

Answer

So these product were imported from China to the US and falsely bear the mark of a US trademark/company? Practically speaking, every product is trademarked, if it has a name, then that is the trademark, regardless of whether it is a registered mark. Trademark right will generally be recognized worldwide, but in any event, a product imported into the US is subject to all US laws regardless of where it came from.

61 days and 1 hours ago.

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What if I didn't know it was trademarked, should I forfeit the merchandise and leave it as it is and lose $20,000. Or should I petition it and write a letter stating I did not know the merchandise was trademarked so they can return the merchandise? Is there any chance they will return the merchandise to China, or how do I recoup my money or merchandise since its FOB, China.

Answer

There is a chance that you can successfully petition a more favorable outcome by explaining your lack of knowledge, intent etc. but I'm somewhat unsure as to what you were not aware of....that they were not accurately markeed goods? Any product that carries a name (i.e. all products) are trademarked, so it doesn't make sense to say that you didnt know it was trademarked, but perhaps there is some other issue here.

Accepts:
Expert:	Alex Reese
Pos. Feedback:	100.0 %
Answered:	9/23/2009

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5 years experience in intellectual property law

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