Border Measures, an Extension of Intellectual Property Protection

Some copies are stopped before they reach the counter: the ones customs halts at the border. Border measures are that checkpoint. They allow customs operations to be suspended when goods violate intellectual property rights, and they are one of the most direct tools for a holder who sees their trademark counterfeited.

What border measures are

They are a legal mechanism meant to protect the intellectual property rights of any natural or legal person against goods that infringe them. In practice, they suspend import, export, transit, or free-trade-zone operations when the goods are pirated, or when they are identified with a counterfeit trademark or one confusingly similar to a registered one. The goal is twofold: to keep those goods from crossing the border to be sold inside the country, and to keep them from leaving to be exported.

What goods can be detained

Detention reaches two fronts. On one side, products identified without authorization with a duly registered trademark, or with a sign so similar that it confuses the consumer. On the other, copies made without the consent of the holder of copyright or related rights, including the packaging. In both cases these are goods that exploit someone else’s right in order to sell.

Who applies them and who requests them

Customs authorities are the ones that carry out the measure. In Colombia, that authority is the DIAN. The procedure can start in two ways: at the request of the right holder, who asks for the intervention, or ex officio, when customs itself detects a suspicious shipment. Having a registered trademark is what gives the holder the basis to act and request the suspension.

How the procedure works

The holder files a request describing, in general terms, the facts and the goods of the alleged infringement. With the goods suspended, the holder or a designated person can examine them to confirm the infringement. The suspension is temporary: it is a preventive hold, not a decision on the merits. That is why the holder must start the legal infringement action within the term set by law. If they do not pursue it in time, the measure is lifted and the goods are released.

This route complements other defenses available to the holder, such as trademark infringement actions and unfair competition actions, which attack the conduct once the goods are already on the market.

What you need to act

For the measure to succeed, it helps to arrive with your house in order: the right in force (the registered trademark or ownership of the work), a clear description of the suspicious goods, and the advice to sustain the legal action that follows the detention. If you believe your rights are being harmed by counterfeit goods, at SPI Américas we guide you to activate the measure and defend your trademark at the border.