United States Court of International Trade

20-30

Before the Court in Jiangsu Zhongji Lamination Materials Co., (HK) Ltd. et. al. v. United States et. al., Slip Op. 20-30, Court No. 18-00091 (March 9, 2020) were Commerce’s remand results in an action brought to challenge the selection of surrogate values for exports in a nonmarket economy in an antidumping duty investigation of aluminum foil from China. The Court had previously sustained most of Commerce’s determinations, but had granted Commerce’s request to remand for recalculation of the irrevocable value-added tax (“VAT”) adjustment. Plaintiffs requested the Court narrowly sustain the resulting VAT recalculation but argued that other statements by Commerce regarding if the agency had accurately interpreted the statute and whether the irrecoverable VAT adjustment was itself unlawful in the remand results went beyond the scope of the court’s order.

“The prescribed avenue for challenging remand results requires that a party first file comments on the draft results at the administrative level, setting forth the party’s objections.” Id. at 7. The Court said the issue Plaintiffs wished to address was not legally before it because “Plaintiffs had not properly raised their challenge … in the administrative proceedings below” or in the remand proceedings. Id. at 7. Thus, the Court interpreted “Commerce’s statement merely as an explanation of its position on its current practice” and sustained the results Id.

United States Court of Appeals for the Federal Circuit

GOODS NOT APPROVED BY CERTIFICATION MARK OWNER LAWFULLY EXCLUDED BY CUSTOMS AS “COUNTERFEIT”, FEDERAL CIRCUIT RULES

Imported goods bearing a certification mark, but not authorized by the certification mark owner at the time of entry, are “counterfeit” and subject to exclusion and redelivery by Customs, according to the United States Court of Appeals for the Federal Circuit.

In ICCS Corporation v. United States, No. 2019-1561, the appellate court upheld a decision of the United States Court of International Trade holding that Customs had lawfully issued to ICCS a notice to redeliver merchandise that violated 19 U.S.C. § 1526(e) by displaying a counterfeit certification mark.

ICCS imported 56,616 butane gas canisters bearing the label “PREMIUM” on the outside of the canisters. The canisters displayed the registered certification mark owned by Underwriters Laboratories, Inc. (UL). The importer had previously obtained UL approval to place the certification mark on imports of certain butane gas canisters labeled “MEGA-1”. Under the terms of a Service Agreement with UL, the importer, ICCS, was authorized to display UL’s certification mark on any models of butane canister that were the same physical product as the MEGA-1 canister, but only after UL verified that differences between the model in question and the MEGA-1 “basic product” were merely superficial. While the PREMIUM butane canisters were identical to those previously approved by UL, the importer failed to get UL’s approval before using the new label. Subsequent to importation, the importer applied for, and was granted, the requested approval.

Affirming the CIT, the Federal Circuit held that Customs properly treated the certification mark as “counterfeit.” The Court found that the UL mark on the imported goods was “spurious” and therefore “counterfeit” within the meaning of the Lanham Act, 15 U.S.C. § 1127. The Court noted that under the relevant agreements, ICCS had no rights to use the certification mark except as specifically granted by UL. UL indicated that it did not apply registrations or approvals retroactively. Hence, the appellate court upheld the CIT’s finding that ICCS lacked UL’s “express authorization to display UL’s certification mark on the PREMIUM model on the date of importation”. The Court held that Customs is obligated to exclude goods bearing a certification mark unless the trademark owner’s written consent is obtained at the time of making entry. Since UL withheld consent, Customs was authorized to request redelivery of the goods as counterfeit (and subsequently seize those units that were redelivered). The Court rejected the importer’s argument that Customs was effectively delegating enforcement of the import ban on trademarks to the certification mark holder.