CBP Grants Lever-Rule Protection for Gray Market Canned Sardines
In the January 25, 2012 issue of the U.S. Customs and Border Protection Bulletin (Vol. 46, No. 5), CBP issued a notice announcing that it has granted "Lever-Rule" protection1 to Liberty Gold Food Co., Inc.'s "Ligo" trademark for canned sardines that are intended for sale in the U.S.
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(CBP previously announced that it received an application from Liberty Gold Food Co., Inc. seeking "Lever-Rule" protection against the importation of products that bear the federally registered and recorded Ligo trademark (CBP Recordation No. TMK 11-00150) but are intended for sale in countries outside the U.S., and are therefore physically and materially different from Ligo products intended for sale in the U.S. See ITT's Online Archives 11071108 for summary.)
Gray Market Sardines Differ Physically and Materially
CBP has determined that the gray market canned sardines differ physically and materially from their correlating canned sardines authorized for sale in the U.S. with respect to the following product characteristics: different nutritional, volumetric, and product information.
Importation of Gray Market Versions Are Restricted
As a result, importation of the Ligo canned sardines packaged and/or formulated for sale in other countries are restricted, unless the labeling requirements of 19 CFR 133.23(b) have been satisfied.
(19 CFR 133.23(b) states that goods determined by CBP to be physically and materially different that bear a genuine mark applied under the authority of the U.S. owner, a parent or subsidiary of the U.S. owner, or a party otherwise subject to common ownership or control with the U.S. owner (gray market goods) shall not be detained where the merchandise or its packaging bears a conspicuous and legible label designed to remain on the product until the first point of sale to a retail consumer in the U.S. stating that: “This product is not a product authorized by the U.S. trademark owner for importation and is physically and materially different from the authorized product.”
The label must be in close proximity to the trademark as it appears in its most prominent location on the article itself or the retail package or container. Other information designed to dispel consumer confusion may also be added.
According 19 CFR 133.23(c), restricted gray market goods imported into the U.S. not so labeled, where the U.S. owner has received Lever-Rule protection for their products, shall be denied entry and subject to detention as provided in 19 CFR Part 133.25.)
1Pursuant to a March 1999 court decision (Lever Brothers Co. v. U.S.), 19 CFR was amended to prevent the importation of gray market goods which are "physically and materially different" from similar goods authorized for importation into the U.S. absent clear notice to the consumer.
CBP Contact -- Suzanne Kane (202) 325-0119