INTERNATIONAL TRADE LAW
IP Protection in International Trade Law
Intellectual property is protected in international trade through one global baseline and a set of border tools that enforce it — and for a U.S. business, the two enforcement tools that matter most are ITC Section 337 cases and Customs recordation of trademarks and copyrights. Patents, trademarks, copyrights, and trade secrets are intangible, so once a product crosses a border, the practical question is not who owns the right but how it gets enforced against infringing imports.
This article explains the international baseline (TRIPS), the two main U.S. border mechanisms, and how a rights holder chooses between them.
The Global Baseline: TRIPS
The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), administered by the WTO and in force since 1995, is the foundation. TRIPS does not create a single worldwide patent or trademark. Instead, it sets minimum standards that all 166 WTO members must meet for patents, trademarks, copyrights, geographical indications, industrial designs, and trade secrets.
Two features make TRIPS matter for trade. First, it requires members to provide real enforcement — civil procedures, provisional measures, border measures against counterfeit and pirated goods, and criminal penalties for willful trademark counterfeiting and copyright piracy on a commercial scale. Second, it makes IP disputes between countries subject to WTO dispute settlement, so a member that fails to protect IP can be challenged. TRIPS sets the floor; each country builds its own enforcement system on top of it.
U.S. Border Tool #1: ITC Section 337 Investigations
The most powerful U.S. tool against infringing imports is Section 337 of the Tariff Act of 1930 (19 U.S.C. § 1337). It lets a rights holder ask the U.S. International Trade Commission (ITC) to investigate “unfair” imports — most often imports that infringe a U.S. patent, registered trademark, or copyright, though it also reaches trade-secret misappropriation and other unfair acts.
The remedy is what makes Section 337 distinctive. Rather than money damages, the ITC can issue an exclusion order directing CBP to stop the infringing goods at the border — and a general exclusion order can bar the products regardless of who is importing them. The ITC can also issue cease-and-desist orders, and violations of those orders carry civil penalties of up to $100,000 per day or twice the value of the goods. Section 337 cases are also fast by litigation standards, which is why patent and trademark owners use them alongside, or instead of, federal court suits.
The contours of Section 337 are still being shaped. In Lashify, Inc. v. International Trade Commission (Federal Circuit, March 2025), the court held that the ITC had been interpreting the statute’s “domestic industry” requirement too narrowly — a ruling that makes Section 337 relief more accessible to some U.S. rights holders.
U.S. Border Tool #2: CBP Recordation
The second tool is administrative and far cheaper: recording your federally registered trademarks and copyrights with U.S. Customs and Border Protection. Once a right is recorded in CBP’s online system, CBP officers can identify and detain, seize, or exclude counterfeit and infringing goods at ports of entry as part of routine enforcement — without the rights holder filing a lawsuit each time.
Recordation does not replace registration; you must first register the mark with the USPTO or the copyright with the Copyright Office. But it turns those registrations into active border protection. For a brand worried about counterfeits, recordation is usually the first, lowest-cost step.
| Tool | Who runs it | Best for |
|---|---|---|
| Section 337 / ITC | International Trade Commission | Stopping infringing imports fast, including patent infringement, with a border-wide exclusion order |
| CBP recordation | Customs and Border Protection | Ongoing, low-cost border interception of counterfeit trademarked or pirated goods |
For the enforcement detail behind CBP’s role, see our pieces on CBP intellectual property recordations and CBP intellectual property penalties.
Frequently Asked Questions
Does TRIPS give me worldwide IP protection? No. TRIPS sets minimum standards each WTO member must meet, but you still hold and enforce IP rights country by country. It raises the floor; it does not create a single global right.
Section 337 or federal court — which should a patent owner use? They serve different goals. Section 337 delivers a fast import-exclusion remedy through the ITC but not damages; federal court can award damages but moves slower. Many rights holders pursue both.
What does CBP recordation actually do? It lets Customs officers detain, seize, or exclude counterfeit and infringing goods at the border based on your recorded registration, without you initiating a case each time.
Do I need a registered trademark before recording with CBP? Yes. CBP recordation builds on an existing USPTO trademark registration or Copyright Office registration — it is the border-enforcement layer on top of those rights.
Worried about counterfeit or infringing imports? Reidel Law Firm helps brand owners protect their IP at the border and map their broader trade exposure. Our flat-fee import/export compliance memo gives you a written legal roadmap for your products. Get an import/export compliance memo →
