Section 337 at the ITC: The Fastest Border Remedy in Trademark and Trade Dress
By Casey Scott McKay ·
A brand facing dozens of interchangeable foreign sellers has a problem federal court cannot solve: every judgment runs against a defendant who can be replaced in a week. Section 337 of the Tariff Act solves it by operating on goods rather than on people. This article explains how an International Trade Commission investigation works, why a general exclusion order is the only remedy in American law that reaches infringing imports regardless of who ships them, and what a complainant must prove to get one. It works through the domestic industry requirement that has no analogue in district court litigation, the difference between the statutory intellectual property provisions and the general unfair-acts provision that still requires proof of injury, and the sixteen-to-eighteen-month schedule that is faster than almost any district court. It covers the Federal Circuit decisions that define the boundaries - Kyocera on downstream products, ClearCorrect on what counts as an article, Suprema on post-importation infringement - and closes with the honest accounting of cost that determines whether this forum makes sense.
IP and Technology > Trademarks | Article | Published 28 July 2025 - Updated 16 September 2025 | Casey Scott McKay - marksy.us
Summary. A brand facing dozens of interchangeable foreign sellers has a problem federal court cannot solve: every judgment runs against a defendant who can be replaced in a week. Section 337 of the Tariff Act, 19 U.S.C. § 1337, solves it by operating on goods rather than on people. This article explains how an International Trade Commission investigation works, why a general exclusion order is the only remedy in American law that reaches infringing imports regardless of who ships them, and what a complainant must prove to get one. It works through the domestic industry requirement that has no analogue in district court litigation, the difference between the statutory intellectual property provisions and the general unfair-acts provision that still requires proof of injury, and the sixteen-to-eighteen-month schedule that is faster than almost any district court. It covers the Federal Circuit decisions that define the boundaries — Kyocera on downstream products, ClearCorrect on what counts as an article, Suprema on post-importation infringement — and closes with the honest accounting of cost that determines whether this forum makes sense.
Keywords: section 337 · 19 usc 1337 · international trade commission · limited exclusion order · general exclusion order · cease and desist order · domestic industry requirement · economic prong · technical prong · in rem remedy · kyocera downstream products · clearcorrect articles · suprema induced infringement · presidential review · cbp enforcement exclusion order · 28 usc 1659 stay · statutory ip provisions · unregistered trade dress injury · target date
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