Schedule A or Section 337: Which IP Enforcement Route Makes Sense in 2026?

Brand owners who want to stop counterfeit goods from reaching American consumers have two main weapons in their federal arsenal: Schedule A cases in district court, and Section 337 investigations before the U.S. International Trade Commission. Both can be effective. Neither is right for every situation. And right now, for reasons worth understanding, the relative appeal of the two routes is shifting.

Schedule A cases have been the dominant tool for the past decade, particularly in the Northern District of Illinois, which became the favored venue for this type of litigation. But judicial pushback on Schedule A tactics is creating real uncertainty about the long-term durability of that model. Meanwhile, the International Trade Commission is having what may be its best enforcement environment in years. A recent Federal Circuit decision relaxed the domestic industry requirement, the Trump administration has signaled support for strong Section 337 enforcement, and the ITC's remedy, a U.S. Customs and Border Protection exclusion order, does something that a Schedule A judgment cannot: it stops infringing imports at the border, and it stops them across the board, not just from the specific sellers named in a complaint.

Brand owners navigating this landscape in 2026 need to understand what each tool actually does, what each actually costs, and what the strategic situation looks like when courts are increasingly skeptical of one and the government is increasingly supportive of the other.

What Schedule A Does Well

Schedule A cases are fast, relatively inexpensive on the front end, and capable of reaching dozens or hundreds of defendants at once (except in patent cases where the America Invents Act bars such joinder). The model works because online marketplace counterfeiters are typically anonymous, numerous, and overseas. Filing one complaint with hundreds of "Schedule A" defendants, obtaining an ex parte temporary restraining order, and using that TRO to freeze defendants' Amazon accounts and PayPal funds has, for years, been an effective way to disrupt infringing operations quickly and generate settlement leverage.

The speed and reach are genuine advantages. A brand owner who discovers twenty counterfeit sellers on Amazon this week can file a Schedule A complaint next week, have a TRO by the end of the month, and have frozen funds shortly thereafter. The asset freeze serves as the primary mechanism for obtaining any meaningful recovery from defendants who have no U.S. presence and would otherwise be judgment-proof.

For many brand owners, particularly those facing a surge of look-alike products on Amazon, Etsy, or Walmart from offshore sellers, Schedule A has functioned as a reasonable first-response tool. The problem is with what it cannot do and, increasingly, with how courts are treating the cases themselves.

What Schedule A Cannot Do

Schedule A judgments bind the specific defendants named in the complaint. They do not stop the next wave of sellers.

This is the fundamental structural limitation of the Schedule A model: even after a brand owner obtains a default judgment and a permanent injunction against 200 sellers, nothing in that judgment prevents those same sellers, or different sellers in the same counterfeiting network, from opening new storefronts, re-listing the same infringing products under different seller names, and continuing operations. The online marketplace ecosystem is extraordinarily fluid. Counterfeit sellers who have their Amazon account frozen today can open a new one tomorrow under a different name. Repeat victories in Schedule A cases create a persistent whack-a-mole dynamic.

Beyond the structural limitation, the procedural concerns have become significant. Judges in the Northern District of Illinois are now adopting standing orders that require plaintiffs to justify ex parte TRO applications with more specificity, to provide actual evidence of the need for secrecy rather than boilerplate assertions, and to narrow the scope of asset freezes to the specific products at issue rather than the defendant's entire account. Judge Steven Seeger's December 2023 opinion rejecting a 310-defendant TRO application from Zorro Productions was an early signal that the era of rubber-stamp ex parte relief was ending. Judges Kness, Coleman, Perry, and others have all indicated various aspects of the Schedule A model are concerning to them.

What Section 337 Does Well

A Section 337 investigation at the ITC operates on a different theory entirely. Rather than targeting individual sellers by name, Section 337 targets the infringing products themselves. If the ITC finds a violation, it can issue a general exclusion order directing U.S. Customs and Border Protection to block any imported goods that infringe the complainant's IP rights, not just goods from the named respondents, but goods from any source worldwide.

The practical significance of that remedy cannot be overstated. A general exclusion order operates prospectively and broadly. It closes the border to an entire category of infringing product, regardless of who the seller is, what storefront they use, or whether they were even a party to the original investigation. For a brand owner dealing with a counterfeiting problem that is fundamentally a supply chain issue, goods manufactured overseas and imported in bulk, Section 337 addresses the problem at the source in a way that district court litigation cannot.

The ITC also moves faster than district court on the merits. After an investigation is instituted, the parties conduct discovery, and the matter proceeds to an evidentiary hearing before an administrative law judge. That hearing typically occurs nine to twelve months after institution. For reference, a district court case going to trial on the merits might take two to four years or longer, particularly in a busy district. But, then again, most Schedule A cases settle or default. So, this may be less of a concern.

The Federal Circuit's March 2025 decision in the Lashify case relaxed the "domestic industry" requirement, which had historically been a barrier to smaller complainants who could not easily demonstrate a significant U.S. manufacturing or licensing operation. The relaxed standard opens Section 337 to a broader range of brand owners than the prior case law supported.

The Real Tradeoffs

Section 337 is not a quick asset freeze. It does not produce settlement leverage in the first month of a case. The cost of an ITC investigation, attorney fees, expert witnesses, discovery across respondents who may be represented by sophisticated counsel, can run into the six-figures or more, depending on the complexity of the case. Section 337 requires that the brand owner can sustain that cost and can wait for an outcome that arrives in a year, not a month.

Schedule A, by contrast, requires relatively modest upfront investment and can generate early settlement revenue that offsets litigation costs in whole or part. For brand owners with a high volume of routine counterfeiting cases, where the individual defendants are unsophisticated, the products are straightforward, and the primary goal is disruption rather than long-term exclusion, Schedule A remains a viable tool, provided the plaintiff is willing to comply with evolving judicial standing orders and does not overreach on asset freezes.

The honest analysis is that the two tools are complementary for brand owners with significant counterfeiting problems and the resources to pursue both strategies. Schedule A for immediate disruption and settlement recovery; Section 337 for border-level exclusion that prevents the next generation of infringing products from reaching the market at all.

What the 2026 Environment Looks Like

Two developments make Section 337 particularly worth considering right now.

First, the political environment is favorable. The Trump administration has expressed strong support for aggressive Section 337 enforcement as a tool for protecting American IP rights against foreign manufacturers. That support translates into an ITC that is receptive to meritorious complaints and a Customs enforcement environment that takes exclusion orders seriously. The ITC's 2025 year in review noted contrasting outcomes but characterized the overall enforcement trajectory as pointed toward an active 2026.

Second, the judicial environment in the Northern District of Illinois is not what it was three years ago. Standing orders now govern many Schedule A cases. Judges are scrutinizing TRO applications on the merits, questioning joinder of unrelated defendants, and — in at least some cases — awarding attorney fees against plaintiffs who overreach. For brand owners whose Schedule A strategy depended on frictionless ex parte relief, the calculus has changed.

For counterfeiting problems that are fundamentally importation problems — goods manufactured in China or elsewhere and shipped directly to Amazon fulfillment centers — Section 337 may now be the more durable choice, even accounting for its cost and pace. The relief is broader, the precedent it creates is more useful, and it does not depend on the continued willingness of district court judges to sign hundreds of TROs per year.

A Practical Framework

Brand owners trying to decide between the two paths in 2026 should ask several threshold questions. Does the infringing product enter the United States through importation, or is it primarily a domestic counterfeiting problem? If importation is the core issue, Section 337's border exclusion remedy is directly responsive. Is the brand owner's primary goal rapid disruption and settlement, or long-term market protection? The former favors Schedule A; the latter favors Section 337. Can the brand owner satisfy the domestic industry requirement after the Lashify relaxation? If so, the door to Section 337 is wider than it used to be. And is the brand owner prepared to face increased judicial scrutiny of its Schedule A tactics, including standing orders that require more specific justification for ex parte relief?

The answer to the last question is increasingly shaping which clients we recommend for which path. Schedule A is still available, and for the right counterfeiting profile it still works. But for brand owners who need a solution that outlasts any specific group of defendants, Section 337 deserves serious consideration in 2026 in a way that it may not have a few years ago.

Jonathan L.A. Phillips handles intellectual property enforcement matters for trademark and copyright holders. Jonathan Phillips can be contacted HERE.