United States Court of International Trade

Second Remand Results Sustained

In Ethan Allen Operations, Inc. et al, v. United States, Court No. 14-147, Slip Op. 16-19, (February 29, 2016) the Court considered the second remand to Commerce on whether four (4) types of wooden chests should be included in the scope of the antidumping duty order on wooden bedroom furniture.  See also Notice of Amended Final Determination of Sales at Less Than Fair Value and Antidumping Duty Order: Wooden Bedroom Furniture from the People’s Republic of China, 70 Fed. Reg. 329, 329 (Dep’t Commerce Jan. 4, 2005) (“WBF Order”). In the second remand, Commerce considered the factors codified at 19 C.F.R. § 351.225(k)(2) (“(k)(2) factors”) for three of the four chests (the Marlene, Nadine, and Serpentine chests) and determined that the chests were not within the scope of the order. Commerce also considered the 19 C.F.R. § 351.225(k)(1) (“(k)(1) factors”) and found that the Vivica chest was not within the scope of the WBF Order. The Court held that Commerce complied with the Remand Order, and therefore sustained Commerce’s findings. 

United States Court of Appeals for the Federal Circuit

“Trademarks” Included Registered and Unregistered Marks for Purposes of Customs’ Origin Marking Regulations.

Section 134.47 of the Customs Regulations, which provides a more lenient country of origin marking rule for imported goods bearing trademarks with a geographic designation, applies to both registered and common law trademarks, the Court of Appeals for the Federal Circuit ruled.

Reversing a decision of the Court of International Trade, the Federal Circuit, in JBLU, Inc. v. United States, No. 2015-1509 (March 2, 2016), canceled redelivery notices issued to an importer, and shielded it from the imposition of marking duties.

The case involves two Customs Regulations dealing with geographic designations – the first, 19 C.F.R. §134.46, provides that where the words “America”, the letters USA, or other geographic references other than the country of origin appear on a product or its packaging, and the reference may cause confusion, the name of the country of origin must be placed in “close proximity” to the geographic reference, in lettering of a comparable size.  When the geographic reference is part of a trademark, however, 19 U.S.C. §134.47 requires only that the country of origin appear in a “conspicuous” place on the article or package.

JBLU imported jeans with a trademark containing geographic designations “USA” and “Los Angeles”. The jeans were marked with country of origin in a conspicuous place, but not in “close proximity” to the marks.  When JBLU protested the redelivery notices, Customs granted the protests for jeans imported after JBLU had filed an application to register its mark in the Patent and Trademark Office, but denied it for jeans imported before trademark registration had been sought, or which bore unregistered marks. Customs’ position was that 19 C.F.R. §134.47 applies only to registered trademarks. The CIT gave deference to Customs’ rulings interpreting the regulation this way, and dismissed JBLU’s case.

The Federal Circuit reversed, holding that the term “trademark”, as understood when Section 134.47 was enacted, included both registered and common law trademarks, and the Federal Lanham Act protected both types of marks. A trademark arises from use in commerce, not from registration, the Court held.  Accordingly, the Federal Circuit reversed and remanded the case, handing importers a victory.