Border Force Seized My Imported Container as Counterfeit & Brand’s Lawyers Are Involved. Am I Going to Be Prosecuted?

Does Border Force Detaining My Goods Mean I Will Be Prosecuted?

No. Detention is a customs enforcement step, not a prosecution decision. 

Border Force may hold a shipment while the suspected trade mark infringement is examined. Criminal proceedings require a separate assessment of the evidence and the relevant offence.

The first step is to establish whether your container has been detained or formally seized, as the procedures and available options may differ.

What detention means and what comes next

Border Force is responsible for controlling goods entering the United Kingdom. It holds ex officio powers to detain shipments suspected to contain counterfeit goods. 

When goods are detained at the border, a formal notification procedure is set in motion. Border Force notifies the importer, or their customs agent, of the detention and the suspected intellectual property infringement. 

Where the brand owner has registered under an Application for Action, Border Force also notifies the rights holder at the same time.

Detention and formal seizure are not the same thing. Detention places the goods on hold pending a decision.

Formal seizure transfers legal control of the goods to Border Force and has different procedural consequences. 

Checking which term appears on your paperwork is not a technicality: it determines which procedure applies and what your options are.

How to read your paperwork and identify your deadline

Once notified of a detention relating to counterfeit importation, the importer has 10 working days from the date of notification to lodge a written objection. 

If no objection is lodged within that period, the importer is treated as having consented to the destruction of the goods. If you do not want the goods destroyed and wish to challenge the detention, you can request a further extension of up to 10 additional working days to begin court proceedings. 

These deadlines are strict. Confirm the exact date shown on your notification document and calculate your deadline immediately.

Civil correspondence from the brand’s lawyers may arrive around the same time and may contain its own response deadline. That is a separate matter from the Border Force procedure, though both require attention and coordination.

Why Border Force detention is not the same as a prosecution decision

Border Force can prevent suspected counterfeit goods from entering the market, but detention alone does not establish that you committed a criminal offence.

A prosecution may follow if the evidence supports an offence under the Trade Marks Act 1994 or other relevant legislation.

However, goods can be detained or destroyed through customs procedures without criminal charges being brought against the importer.

The brand’s involvement may indicate that the goods are disputed, but it does not establish your guilt.

Who Can Investigate or Prosecute Alleged Counterfeit Imports?

Several bodies have the power to investigate or prosecute counterfeit importation, and they can act independently or together. 

Understanding who is involved and what their role is helps you assess what you are actually facing.

Trading Standards and local enforcement

Trading Standards authorities investigate offences involving counterfeit goods and other breaches of consumer protection legislation.

They may obtain business records, inspect goods, interview suspects under caution and bring prosecutions where the relevant legal requirements are satisfied.

A Trading Standards investigation could therefore follow the detention of your shipment, particularly where the goods were intended for commercial sale.

However, involvement by Trading Standards does not mean that charges will necessarily follow.

The police, PIPCU and the Crown Prosecution Service

Police may investigate suspected intellectual property crime, particularly where allegations involve organised counterfeiting or substantial commercial activity.

The Police Intellectual Property Crime Unit (PIPCU) deals with serious and organised intellectual property crime and may work alongside other enforcement bodies.

Where police investigate, the Crown Prosecution Service (CPS) may make charging decisions and conduct criminal proceedings.

For more complex cases, specialist prosecution teams may become involved.

The authorities involved will depend on the circumstances and scale of the suspected offending.

Private prosecution by the rights holder

A brand can also bring a private criminal prosecution where the law permits.

This means the rights holder may initiate criminal proceedings without waiting for Trading Standards or the CPS to prosecute.

However, a private prosecution must still satisfy the legal requirements of the offence, and the prosecution must prove its case.

The CPS has powers to take over private prosecutions and may continue or discontinue them following its assessment.

A letter threatening private prosecution is therefore a matter to take seriously, but it is not itself a criminal charge.

What the brand’s lawyers being involved actually means

The brand’s lawyers may be involved because the rights holder believes your goods infringe its trade mark.

They might be reviewing the shipment, participating in the Border Force procedure or preparing a civil claim seeking compensation or restrictions on further sales.

They may also be gathering evidence or considering a private prosecution.

Their involvement does not mean a court has determined that the goods are counterfeit or that you knew about any infringement.

Before responding, establish what the lawyers are asking you to do and whether the correspondence concerns civil proceedings, potential criminal allegations or both.

What if My Overseas Supplier Certified the Goods as Genuine?

A supplier certificate of authenticity may be useful evidence in a counterfeit importation case, but it is not an automatic defence and must not be treated as one.

The section 92 offence and what the prosecution must prove

The Trade Marks Act 1994 makes certain unauthorised uses of registered trade marks criminal offences.

These include selling or distributing goods bearing a sign identical to, or likely to be mistaken for, a registered trade mark. The legislation also covers possession or control of such goods in the course of business with a view to specified commercial dealings.

The prosecution must establish the relevant conduct and other legal requirements, including the necessary commercial purpose or intention to cause loss.

Importing goods is not, by itself, sufficient to establish every element of this offence.

The prosecution does not generally have to prove that you knew the goods infringed a registered trade mark. However, the legislation provides a defence where you held a belief based on reasonable grounds.

The section 92(5) defence and its legal standard

Under the Trade Marks Act 1994, you may have a defence if you believed, on reasonable grounds, that the use of the trade mark did not amount to infringement.

This requires more than simply stating that you thought the products were genuine.

The court considers whether you genuinely held that belief and whether there were reasonable grounds for it.

For example, the supplier’s reputation, the price paid, the documents provided and the checks you made before purchasing the goods may all be relevant.

The burden of establishing this particular defence rests on the defendant, on the balance of probabilities.

Whether the defence is available depends on the evidence surrounding your transaction.

What other records may support your position?

Commercial invoices, purchase agreements, shipping documents and communications with the supplier may help establish what you knew when ordering the goods.

Records of checks you made before purchasing, previous transactions and discussions about authenticity may also be useful.

Keep the original versions of all documents, including those written in another language. Your solicitor can arrange translation where necessary.

Do not alter or discard records simply because they appear unfavourable. The complete documentary history may be important to your defence.

Can the Brand Bring a Civil Claim While I Face a Criminal Investigation?

Yes. Civil proceedings and a criminal investigation can run at the same time, and the two tracks interact in ways that make early coordination necessary.

Civil trade mark infringement and what the brand can claim

Independently of any criminal investigation into counterfeit importation, the brand can bring a civil claim for trade mark infringement under the Trade Marks Act 1994. 

Depending on the circumstances, the brand may seek an injunction preventing further infringement, damages or an account of profits.

The court may also order delivery up, removal of infringing signs or destruction of goods where the legal conditions are met.

The brand may seek an interim injunction before the final hearing if it can establish the requirements for that order.

Civil liability does not depend on a criminal conviction.

You could therefore face a civil claim even if no criminal charges are brought.

How civil and criminal proceedings interact

Statements made or documents disclosed in response to a civil letter before action, or in response to civil disclosure requests, can potentially be used or disclosed in criminal proceedings. 

Without coordinated legal advice, an importer could inadvertently make admissions or disclose documents that undermine a criminal defence. 

A civil settlement is not automatically treated as an admission for criminal purposes, provided the settlement is carefully worded and negotiated with that risk in mind.

A civil judgment finding infringement is not the same as a criminal conviction, and a civil settlement does not resolve any criminal liability arising from counterfeit importation. 

The two proceedings are independent, though the evidence and facts overlap.

Why coordinating your responses matters from the outset

If you are dealing with both the brand’s lawyers and enforcement authorities, your responses should be considered together.

Providing inconsistent explanations or making admissions without understanding their implications may create difficulties later.

A solicitor familiar with criminal defence and intellectual property disputes can help assess the civil claim alongside any possible prosecution.

This is particularly important where correspondence requires an urgent response or contains proposals for settlement.

What Records Should I Preserve and What Deadlines Should I Check?

Preserve all customs paperwork, supplier communications and original documents immediately, and confirm your response deadline from the date of your notification.

Documents to identify and preserve now

The documents you should identify and secure without delay include the customs entry and import declaration, the bill of lading or airway bill, the packing list, the commercial invoice, any supplier certificate of authenticity, all prior correspondence with the supplier and any records of due diligence checks or authentication steps you took before or during the transaction. 

If any documents are in a foreign language, retain the original version for translation. 

Do not alter, annotate or discard any document, even one that appears unfavourable, as selective destruction of records can itself become a significant issue in criminal proceedings related to counterfeit importation.

Deadlines arising from the detention or seizure notice

The 10-working-day deadline from the date of the Border Force notification is the most urgent procedural deadline in any counterfeit importation case. 

Failing to lodge a written objection within that period is treated as consent to destruction. 

If you need more time to begin court proceedings, a further extension of up to 10 working days can be requested.

These are not negotiable or extendable beyond the permitted period: missing them removes important options.

Deadlines in correspondence from the brand’s lawyers

Civil letters before action from the brand’s lawyers typically set their own response deadlines. These are not statutory deadlines, but ignoring them can accelerate civil proceedings and may be used to characterise your conduct as uncooperative in any subsequent litigation. 

They require a considered and carefully worded response, not an urgent unadvised reply.

Why acting before the deadlines expire matters

Instructing a solicitor before any deadline expires, and before responding to any correspondence from the brand or any investigator, is the most important practical step available to you now. 

Early advice allows deadlines to be identified, documents to be preserved correctly, and any response to be coordinated across both the civil and criminal tracks. 

Acting after a deadline has passed, or after an unadvised response has been sent, narrows the options available and can create problems that are difficult to remedy.

What Penalties Could I Face if Convicted?

A conviction for a criminal trade mark offence can lead to imprisonment, a fine or both.

The outcome depends on the offence, the scale of the activity and the circumstances established by the evidence.

Criminal penalties on summary conviction and on indictment

The main criminal trade mark offences under the Trade Marks Act 1994 are triable either way, meaning they can be heard in the magistrates’ court or Crown Court.

In the Crown Court, the maximum sentence is ten years’ imprisonment, an unlimited fine or both.

In the magistrates’ court, the available sentencing powers are lower, although imprisonment and a fine remain possible.

The maximum penalty does not represent the usual sentence.

Courts follow the relevant Sentencing Council guideline, taking account of the defendant’s culpability, the harm caused or risked and any aggravating or mitigating factors.

The seriousness of the offending, the scale of the operation and your individual involvement may all affect the sentence.

Forfeiture and destruction of goods

A court may order the forfeiture of goods associated with a criminal trade mark offence where the legal requirements are satisfied.

This is separate from the Border Force procedure that may result in detained goods being destroyed.

Goods can therefore be destroyed through the customs process without a criminal conviction.

If criminal proceedings follow, the court may also consider forfeiture of relevant goods or materials.

The available powers depend on the proceedings and the status of the goods.

Confiscation of proceeds under the Proceeds of Crime Act 2002

A conviction may also lead to confiscation proceedings under the Proceeds of Crime Act 2002.

Where the statutory conditions are met, the court can assess the financial benefit obtained from criminal conduct and the amount recoverable from the defendant.

A confiscation order is separate from a fine or custodial sentence.

The amount is not necessarily limited to the profit made on the particular shipment, because the applicable assessment depends on the circumstances and statutory rules.

This can create substantial financial consequences in cases involving commercial counterfeit goods.

Speak to Our Fraud and Financial Crime Team

If Border Force has detained or seized your imported container and the brand’s lawyers have contacted you, a solicitor can review the notices, explain the applicable deadlines and assess whether you face civil proceedings, criminal investigation or both.

Our fraud and financial crime solicitors can examine the supplier documents, advise on the available legal arguments and help you respond to the rights holder and enforcement authorities.

Speak to a Solicitor or Send an Online Enquiry to discuss your position.