JBLU, Inc. v. United States

Slip Op.
UNITED STATES COURT OF INTERNATIONAL TRADE
JBLU, INC.,
Plaintiff,
v.
UNITED STATES,
Defendant.
Before: 	Nicholas Tsoucalas,
Senior Judge
Court No. 12-00042
OPINION
[ 	Plaintiff’s 	motion 	for 	partial 	summary 	judgment 	is 	denied.
Defendant’s cross-motion for summary judgment is granted. ]
Dated:-DQXDU\
Elon A. Pollack and Mandy A. Edwards, Stein Shostak Shostak
Pollack & O’Hara, LLP, of Los Angeles, CA, for Plaintiff.
Alexander 	Vanderweide, 	Trial 	Attorney, 	Civil 	Division, 	U.S.
Department 	of 	Justice, 	of 	New 	York, 	for 	defendant. 	With 	him 	on
the 	brief 	were 	Stuart 	F. 	Delery, 	Assistant 	Attorney 	General, 	and
Amy 	M. 	Rubin, 	Assistant 	Director. 	Of 	counsel 	on 	the 	brief 	was
Michael 	W. 	Heydrich, 	Office 	of 	the 	Assistant 	Chief 	Counsel,
International 	Trade 	Litigation, 	U.S. 	Customs 	and 	Border
Protection.
Tsoucalas, Senior Judge: 	This case is before the court
on cross-motions for summary judgment. 	See Pl.’s Mot. for Partial
Summ. 	J., 	ECF 	No. 	21 	(“Pl.’s 	Br.”); 	Def.’s 	Cross-Mot. 	for 	Summ.
J., 	ECF 	No. 	24 	(“Def.’s 	Br.”). 	Plaintiff 	JBLU, 	Inc., 	(“JBLU” 	or
“Plaintiff”) challenges the decision of Defendant U.S. Customs and
Border 	Protection 	(“Customs” 	or 	“Defendant”) 	to 	issue 	Notices 	to
Mark 	and/or 	Redeliver 	for 	the 	goods 	in 	subject 	entries. 	See
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Summons 	(Feb. 	7, 	2012), 	ECF 	No. 	1. 	Plaintiff 	claims 	that 	the
presence 	of 	its 	trademarks 	trigger 	the 	marking 	requirements 	of
19 	C.F.R. 	§ 	134.47. 	Id. 	Therefore, 	Plaintiff 	insists 	that 	the
subject merchandise is properly marked with the country of origin
and is not required to be re-labeled. 	Id.
BACKGROUND
The following facts are not in dispute. 	Plaintiff, JBLU,
Inc., is a California corporation registered in the County of Los
Angeles doing business as C’est Toi Jeans USA. 	Compl. at ¶¶ 1,4,5,
September 	21, 	2012, 	ECF 	No. 	5. 	The 	subject 	merchandise 	consists
of 	seventeen 	shipments 	of 	jeans, 	exported 	from 	China 	between
September 11 and October 20, 2010, and entered in the port of Los
Angeles. 	Compl. at ¶¶ 6,8; Answer ¶¶ 6, 8, Feb. 25, 2013, ECF No.
10. 	The instant action concerns eleven of the seventeen shipments.
Compl. at ¶ 7; Answer at ¶ 7. 	Subsequent to inspecting samples of
the jeans, Customs issued Notices to Mark and/or Redeliver to JBLU,
pursuant 	to 	19 	C.F.R. 	§ 	134.46, 	stating 	that 	the 	jeans 	were 	not
legally 	marked 	with 	the 	country 	of 	origin. 	Compl. 	at 	¶ 	10,11;
Answer at ¶ 10,11.
The 	jeans 	display 	one 	of 	the 	following 	markings 	which
are 	embroidered 	on 	the 	inside 	of 	the 	waistband: 	“C’est 	Toi 	Jeans
Los 	Angeles,” 	“CT 	Jeans 	USA,” 	and 	“C’est 	Toi 	Jeans 	USA.” 	Pl.’s
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Br., 	Photographs 	of 	Representative 	Jean 	Samples, 	Ex. 	2 	at 	37-49,
July 	3, 	2014, 	ECF 	No. 	21. 	The 	trademark 	applications 	were 	filed
on 	October 	8, 	2010. 	Pl.’s 	Br., 	Trademark 	Applications 	for 	C’est
Toi 	Jeans 	USA 	and 	CT 	Jeans 	USA 	filed 	with 	the 	U.S. 	Patent 	and
Trademark Office (“USPTO”) and Trademark Registration Certificates
for 	C’est 	Toi 	Jeans 	USA 	and 	CT 	Jeans 	USA, 	Ex. 	4 	at 	59. 	The
trademark applications claimed that the two marks had been used in
commerce since at least July 1, 2005. 	Id. at 60. 	The trademarks
were registered with the USPTO on May 31, 2011 and June 14, 2011.
Id. at 66, 74.
JBLU filed protests on November 5, 2010 and November 22,
2010 	contesting 	the 	Notices 	to 	Mark 	and/or 	Redeliver 	the 	jeans.
See 	HQ 	H137556. 	In 	its 	protest, 	JBLU 	insisted 	that 	the 	less
stringent 	country 	of 	origin 	marking 	requirements 	of 	19 	C.F.R. 	§
134.47 	should 	apply 	instead 	of 	19 	C.F.R. 	§ 	134.46, 	and 	therefore
the subject jeans were legally marked. 	Id.
Customs denied Plaintiff’s protests in part. 	HQ 137556
(June 	13, 	2011). 	Customs 	held 	that 	the 	jeans 	displaying 	the
markings 	“C’est 	Toi 	Jeans 	USA” 	and 	“CT 	Jeans 	USA” 	were 	entered
before Plaintiff submitted its trademark applications to USPTO and
therefore 	were 	not 	properly 	marked 	with 	the 	country 	of 	origin.
Id. 	Additionally, 	Customs 	determined 	that 	the 	jeans 	displaying
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the marks entered on or after JBLU’s applications were filed with
the 	USPTO 	were 	legally 	marked. 	Id. 	Customs 	further 	determined
that it has not previously accepted evidence of use in commerce as
conclusive evidence of a trademark. 	Id.
JURISDICTION and STANDARD OF REVIEW
The Court has subject matter jurisdiction pursuant to 28
U.S.C. 	§ 	1581(a) 	(2012). 	Summary 	judgment 	is 	appropriate 	where,
“the pleadings, depositions . . . together with the affidavits, if
any, 	show 	that 	there 	is 	no 	genuine 	issue 	as 	to 	any 	material 	fact
and 	that 	the 	moving 	party 	is 	entitled 	to 	judgment 	as 	a 	matter 	of
law.” 	Anderson 	v. 	Liberty, 	Inc., 	477 	U.S. 	242, 	247 	(1986); 	See
also 	Torrington 	Co. 	v. 	United 	States, 	19 	CIT 	1189, 	1191, 	903
F.Supp. 79, 81 (1995).
More 	specifically, 	when 	reviewing 	an 	agency’s
interpretation of its regulations, the court must give substantial
deference to the agency’s interpretation, Michaels Stores, Inc. v.
United 	States, 	766 	F.3d 	1388, 	1391 	(Fed. 	Cir. 	2014) 	(citing
Torrington Co. v. United States, 156 F.3d 1361, 1363-64 (Fed. Cir.
1998)), 	according 	it 	“‘controlling 	weight 	unless 	it 	is 	plainly
erroneous or inconsistent with the regulation.’” Thomas Jefferson
Univ. 	v. 	Shalala, 	512 	U.S. 	504, 	512, 	(1994) 	(citations 	omitted);
accord 	Viraj 	Group 	v. 	United 	States, 	476 	F.3d 	1349, 	1355 	(Fed.
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Cir. 	2007). 	In 	this 	context, 	“[d]eference 	to 	an 	agency’s
interpretation of its own regulations is broader than deference to
the agency’s construction of a statute, because in the latter case
the agency is addressing Congress’s intentions, while in the former
it is addressing its own.” 	Viraj, 476 F.3d at 1355 (quoting Gose
v. U.S. Postal Serv., 451 F.3d 831, 837 (Fed. Cir. 2006).
DISCUSSION
Before 	the 	court 	are 	the 	following 	questions: 	(1)
whether the marking requirements of 19 C.F.R. § 134.46 or 19 C.F.R.
§ 134.47 apply to the subject merchandise; (2) whether any genuine
issues 	of 	material 	fact 	remain 	with 	regards 	to 	Plaintiff’s
compliance with the controlling regulation.
I. 	Controlling Marking Regulation
Merchandise 	imported 	into 	the 	United 	States 	shall 	be
marked 	in 	a 	conspicuous 	space 	as 	legibly, 	indelibly, 	and
permanently as the nature of the article will permit, to indicate
to an ultimate purchaser in the United States the English name of
the 	country 	of 	origin. 	See 	19 	U.S.C. 	§ 	1304(a) 	(2012). 	The
Customs regulations implementing the requirement and exceptions of
19 U.S.C. § 1304 are set forth in 19 C.F.R. § 134. 	Specifically,
19 C.F.R. § 134.46 provides for marking requirements when the name
of a country other than country of origin appears on merchandise:
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In 	any 	case 	in 	which 	the 	words 	“United 	States,” 	or
“American,” the letters “U.S.A.,” any variation of such
words or letters, or the name of any city or location in
the United States, or the name of any foreign country or
locality other than the country or locality in which the
article 	was 	manufactured 	or 	produced 	appear 	on 	an
imported 	article 	or 	its 	container, 	and 	those 	words,
letters 	or 	names 	may 	mislead 	or 	deceive 	the 	ultimate
purchaser 	as 	to 	the 	actual 	country 	of 	origin 	of 	the
article, 	there 	shall 	appear 	legibly 	and 	permanently 	in
close 	proximity 	to 	such 	words, 	letters 	or 	name, 	and 	in
at 	least 	a 	comparable 	size, 	the 	name 	of 	the 	country 	of
origin 	preceded 	by 	“Made 	in,” 	“Product 	of,” 	or 	other
words of similar meaning.
19 C.F.R. § 134.46. 	Additionally, 19 C.F.R. § 134.47 provides as
follows:
When as part of a trademark or trade name or as part of
a souvenir marking, the name of a location in the United
States 	or 	“United 	States” 	or 	“America” 	appear, 	the
article shall be legibly, conspicuously, and permanently
marked to indicate the name of the country of origin of
the article preceded by “Made in,” “Product of,” or other
similar 	words, 	in 	close 	proximity 	or 	in 	some 	other
conspicuous location.
19 C.F.R. § 134.47.
Plaintiff argues that because 19 C.F.R. § 134.47 and the
pertinent Customs laws and regulations are silent, “it is logical
that 	the 	definition 	of 	trademark 	is 	provided 	by 	either 	federal
statute 	or 	the 	common 	law.” 	Pl.’s 	Br. 	at 	9, 	11. 	Specifically,
Plaintiff argues that the definition of “trademark” is supplied by
the Lanham Act for the purposes of 19 C.F.R. § 134.47. 	Id. at 2;
See 15 U.S.C. § 1127 (2012). 	The Lanham Act defines trademark as:
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[A]ny word, name, symbol, or device, or any combination
thereof--
(1) used by a person, or
(2) 	which 	a 	person 	has 	a 	bona 	fide 	intention 	to 	use 	in
commerce 	and 	applies 	to 	register 	on 	the 	principal
register 	. 	. 	. 	to 	identify 	and 	distinguish 	his 	or 	her
goods, 	including 	a 	unique 	product, 	from 	those
manufactured or sold by others and to indicate the source
of the goods, even if that source is unknown.
15 	U.S.C. 	§ 	1127. 	Plaintiff 	insists 	that 	the 	Lanham 	Act’s
definition 	provides 	for 	trademarks 	that 	are 	actually 	used 	in
Commerce, 	intended 	to 	be 	used, 	or 	marks 	that 	are 	pending
registration 	with 	the 	USPTO. 	Pl.’s 	Br. 	at 	10. 	Furthermore,
Plaintiff 	notes 	that 	the 	Lanham 	Act’s 	definition 	of 	trademark 	is
“essentially the same as the common law definition,” and are both
intended 	to 	protect 	unregistered 	trademarks. 	Id. 	at 	10–11.
Accordingly, Plaintiff contends that the Lanham Act should define
trademark as it pertains to 19 C.F.R. § 134.47. 	Id. at 11.
The 	court 	disagrees. 	In 	the 	instant 	case, 	Plaintiff
concedes that 19 C.F.R. § 134.47 is silent as to the definition of
the 	term 	“trademark.” 	See 	Pl.’s 	Br. 	at 	12. 	As 	such, 	the 	court
must give Customs’ interpretation of 19 C.F.R. § 134.47 substantial
deference, 	unless 	it 	is 	“plainly 	erroneous 	or 	inconsistent 	with
the regulation.’” 	See Thomas Jefferson Univ. v. Shalala, 512 U.S.
504, 512, (1994) (citations omitted); accord Viraj Group v. United
States, 476 F.3d 1349, 1355 (Fed. Cir. 2007).
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Customs interprets the term trademark in the regulation
as 	including 	either 	registered 	trademarks 	or 	marks 	subject 	to 	a
pending 	application. 	See 	HQ 	H137556 	(June 	13, 	2011). 	In 	its
ruling, Customs stated that it: 	“has long accepted an application
filed 	with 	the 	[USPTO] 	as 	sufficient 	evidence 	of 	a 	trademark 	for
purposes 	of 	19 	C.F.R. 	§ 	134.47 	because 	the 	regulation 	does 	not
specify what evidence is necessary to establish a trademark.” 	HQ
H137556 	(June 	13, 	2011). 	Plaintiff 	makes 	no 	effort 	to 	view
Customs’ interpretation of the term at issue through the prism of
the 	controlling 	standard 	of 	review 	discussed 	above, 	instead
Plaintiff 	turns 	to 	the 	Lanham 	Act 	offering 	it 	as 	a 	“logical”
interpretation 	of 	the 	term 	trademark 	within 	the 	regulation. 	See
Pl.’s 	Br. 	at 	9. 	Although 	Plaintiff 	offers 	one 	possible
interpretation 	of 	the 	term 	trademark, 	Plaintiff 	was 	charged 	with
the 	task 	of 	demonstrating 	that 	Customs’ 	interpretation 	was
“plainly 	erroneous 	or 	inconsistent 	with 	the 	regulation.’” 	See
Thomas 	Jefferson 	Univ. 	v. 	Shalala, 	512 	U.S. 	504, 	512, 	(1994)
(citations omitted); accord Viraj Group v. United States, 476 F.3d
1349, 1355 (Fed. Cir. 2007).
Moreover, Plaintiff insists that Customs’ interpretation
of the term “trademark” is inconsistent with prior Customs rulings.
The court disagrees. 	Plaintiff appears to have misinterpreted the
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rulings 	on 	which 	it 	relies 	to 	support 	its 	contention.
Specifically, Plaintiff contends that both HQ 731707 and HQ 733617
support 	its 	claim 	that 	a 	pending 	trademark 	application 	or
registration 	is 	not 	necessary 	for 	purposes 	of 	country 	of 	origin
marking 	under 	19 	C.F.R. 	§ 	134.47. 	Pl.’s 	Br. 	at 	13-14, 	Ex. 	12 	at
145. 	First 	in 	HQ 	731707, 	Customs 	found 	that 	the 	mark 	“American
Trouser” 	constituted 	a 	trademark 	for 	the 	purpose 	of 	19
C.F.R. § 134.47. 	HQ 731707 (July 26, 1989). 	Second, in HQ 733617,
Customs 	found 	that 	the 	mark 	“Engineered 	in 	the 	USA TM” 	was 	part 	of
a 	claimed 	trademark 	and 	thus 	satisfied 	the 	requirements 	of 	19
C.F.R. § 134.47. 	HQ 733617 (July 30, 1991). 	Ultimately, both HQ
731707 	and 	HQ 	733617 	were 	silent 	as 	to 	whether 	the 	trademarks 	at
issue 	were 	presented 	to 	Customs 	as 	a 	registered 	trademark, 	a
pending application, or an abandoned application, and thus do not
provide support for or against the Plaintiff’s argument.
Additionally, 	Plaintiff 	claims 	that 	both 	HQ 	734455 	and
HQ 734644 stand for the proposition that registered trademarks are
not 	required 	for 	19 	C.F.R. 	§ 	134.47 	to 	apply. 	Pl.’s 	Br. 	at 	14–
15. 	Specifically, Plaintiff insists that the rulings support the
notion that “intent to use [an] application for a trademark filed
with 	the 	USPTO 	is 	acceptable 	evidence 	of 	use 	to 	qualify 	as 	a
trademark under 19 C.F.R. § 134.47.” 	Id. at 14. 	In both of these
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rulings 	a 	pending 	application 	was 	before 	the 	agency, 	thus 	it 	is
unclear to the court how either of these rulings are inconsistent
with 	Customs’ 	interpretation 	of 	the 	term 	“trademark.” 	See 	HQ
734455; See HQ 734644.
Moreover, Plaintiff relies on HQ 541445 and HQ 541685 to
support its contention that when defining the term trademark, for
the 	purposes 	of 	country 	of 	origin, 	Customs 	looks 	to 	the 	Lanham
Act. 	Plaintiff’s 	reliance 	is 	misplaced. 	The 	instant 	action
involves the definition of a trademark with regards to the country
of origin marking requirements, as opposed to in HQ 541445, where
Customs 	considered 	whether 	royalty 	payments 	relating 	to 	a
trademark are dutiable. 	HQ 541445 (Oct. 13, 1977). 	In addition,
HQ 	541685 	considered 	whether 	royalty 	payments 	for 	use 	of 	one’s
name, likeness and endorsement, are included in the dutiable value
of 	merchandise. 	HQ 	541685 	(June 	29, 	1977). 	Therefore, 	both 	of
these Customs rulings address intellectual property rights issues
that are unrelated to the regulation at issue in the instant case.
Accordingly, 	Customs 	did 	in 	fact 	demonstrate 	that 	its
definition 	of 	“trademark” 	has 	been 	consistently 	applied 	in 	prior
headquarter 	rulings. 	E.g., 	HQ 	561060 	(Nov. 	3, 	1998) 	(concluding
that “Customs has accepted a filed application with the U.S. Patent
and 	Trademark 	Office 	as 	sufficient 	evidence 	of 	a 	trademark 	for
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purposes 	of 	19 	C.F.R. 	§ 	134.47 	since 	the 	regulation 	does 	not
specify 	what 	evidence 	is 	necessary 	to 	establish 	a 	trademark.”);
accord 	HQ 	734073 	(July 	10, 	1991); 	HQ 	734066 	(July 	15, 	1991); 	HQ
734644 	(July 	1, 	1992); 	HQ 	734455 	(July 	1, 	1992); 	HQ 	735085 	(June
4, 1993); HQ 735180 (May 17, 1994); HQ 735019 (June 28, 1998); and
HQ 561060 (November 3, 1998).
Furthermore, 	the 	court 	finds 	that 	Customs’
interpretation of 19 C.F.R. § 134.47 is consistent with the stated
purpose 	of 	the 	regulation 	and 	19 	U.S.C 	§ 	1304. 	The 	purpose 	of
both 	19 	C.F.R. 	§ 	134.46 	and 	19 	C.F.R. 	§ 	134.47 	is 	to 	prevent 	the
ultimate purchaser from being misled or deceived when the name of
a 	country 	or 	place 	other 	than 	the 	country 	of 	origin 	appears 	on
imported merchandise. 	See HQ H016234 (Mar. 3, 2009); see HQ 563175
(Mar. 31, 2005). 	Conversely, unlike the regulations at issue here,
the purpose of the Lanham Act is to protect intellectual property
rights 	by 	preventing 	consumer 	confusion 	with 	regards 	to 	the
producer of the merchandise. 	See San Francisco Arts & Athletics,
Inc. 	v. 	U.S. 	Olympic 	Comm., 	483 	U.S. 	522, 	534–35 	(1987).
Accordingly, 	since 	Customs' 	interpretation 	of 	the 	regulation,
discussed above, is consistent with the regulation and its stated
purpose, it must be given controlling weight. 	See Auer v. Robbins,
519 	U.S. 	452, 	461–63, 	117 	S. 	Ct. 	905, 	137 	L. 	Ed. 	2d 	79 	(1997)
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(agency 	interpretation 	of 	its 	own 	regulation 	must 	be 	given
controlling 	weight 	unless 	plainly 	erroneous 	or 	inconsistent 	with
the 	regulation); 	see 	also 	White 	v. 	United 	States, 	543 	F.3d 	1330,
1333–34 (Fed. Cir. 2008).
Because 	Customs’ 	interpretation 	of 	the 	regulation 	was
not 	plainly 	erroneous 	or 	inconsistent 	with 	the 	regulation, 	the
court defers to Customs’ reading of the term trademark concluding
that trademarks are either registered or marks that are subject to
pending 	applications. 	See 	id. 	As 	Plaintiff’s 	markings 	on 	their
merchandise 	did 	not 	constitute 	trademarks 	pursuant 	to 	19 	C.F.R.
§ 	134.47, 	the 	court 	agrees 	with 	Customs 	that 	19 	C.F.R. 	§ 	134.46
controls here.
II. 	Issues of Material Fact
The final question the court must address is whether any
genuine issues of material fact remain with regards to Plaintiff’s
compliance with 19 C.F.R. § 134.46.
First, Plaintiff argues that there is a genuine issue of
material 	fact 	because 	Customs 	has 	not 	offered 	evidence 	that 	an
ultimate consumer would be confused or misled with regards to the
country 	of 	origin 	of 	the 	jeans. 	Pl.’s 	Mem. 	in 	Reply 	to
Government’s Opp’n to Pl.’s Mot. for Partial Summ. J. and in Opp’n
to Government’s Cross-Mot. for Summ. J. at 12, Oct. 20, 2014, ECF
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No. 25 (“Pl.’s Reply”). 	Specifically, Plaintiff insists that the
“stricter 	standard 	of 	‘close 	proximity’ 	is 	only 	triggered 	if 	a
locality term is found on the article that may mislead or deceive
the 	ultimate 	customer 	as 	to 	the 	country 	of 	origin.” 	Id. 	(citing
HQ 	561060 	(Nov. 	3, 	1998); 	Country 	of 	Origin 	Marking, 	62 	Fed 	Reg.
44211, 	44211 	(Aug. 	20, 	1997)) 	(internal 	footnotes 	omitted).
Plaintiff 	contends 	that 	“because 	a 	consumer 	can 	easily 	find 	the
country of origin marking, ‘Made in China’ upon casual inspection
of 	the 	inside 	waistband 	of 	the 	jeans, 	a 	consumer 	will 	not 	be
confused.” 	Id.
The court disagrees. 	Plaintiff fails to recognize that
by 	displaying 	text 	representing 	a 	locality 	different 	from 	the
merchandise’s country of origin, the text may “mislead or deceive
the 	ultimate 	purchaser 	as 	to 	the 	actual 	country 	of 	origin 	of 	the
article.” 	19 C.F.R. § 134.46. 	Moreover, the regulation does not
require Customs to provide evidence demonstrating that a consumer
is 	being 	misled, 	rather 	the 	presence 	of 	the 	text 	itself 	may 	be
sufficient to mislead the consumer, unless there appears “legibly
and permanently in close proximity to such words, letters or name,
and 	in 	at 	least 	a 	comparable 	size, 	the 	name 	of 	the 	country 	of
origin 	preceded 	by 	‘Made 	in,’ 	‘Product 	of,’ 	or 	other 	words 	of
similar 	meaning” 	informing 	the 	consumer 	of 	the 	country 	of 	origin
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Court No. 12-00042 	Page 14
of the merchandise. 	19 C.F.R. § 134.46. 	Additionally, Plaintiff
appears to misinterpret HQ 561060. 	Pl.’s Reply at 12–13. 	Unlike
here, in HQ 561060, Customs determined that pursuant to 19 C.F.R.
§ 	134.47 	it 	was 	“unnecessary 	to 	place 	an 	additional 	country 	of
origin 	marking 	on 	the 	hangtag 	containing 	a 	trademark 	with 	a 	non-
origin 	geographical 	reference.” 	HQ 	561060. 	Contrary 	to
Plaintiff’s assertion, this ruling does not stand for the premise
that 	“if 	the 	close 	proximity 	requirement 	is 	not 	triggered, 	then
the 	conspicuous 	location 	standard 	applies.” 	19 	C.F.R. 	§ 	134.46.
As 	discussed 	above, 	19 	C.F.R. 	§ 	134.46 	outlines 	specific 	marking
requirements 	that 	an 	importer 	must 	follow 	when 	the 	name 	of 	a
country, 	other 	than 	country 	of 	origin, 	appears 	on 	merchandise.
Id. 	Nowhere in the regulation is “upon casual inspection” of the
merchandise discussed as a suitable marking alternative. 	See id.
Subsequently, 	Plaintiff 	argues 	that 	the 	Defendant 	is
“not 	entitled 	to 	a 	judgment 	as 	a 	matter 	of 	law 	because 	Customs’
decision to require the jeans to be remarked after importation is
contrary 	to 	19 	C.F.R. 	§ 	134.32(o) 	because 	remarking 	would 	be
‘economically prohibitive.’” 	Pl.’s Reply at 13.
Merchandise may be exempted from the marking requirement
if 	it 	“cannot 	be 	marked 	after 	importation 	except 	at 	an 	expense
that would be economically prohibitive.” 19 C.F.R. § 134.32(o).
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Court No. 12-00042 	Page 15
Notwithstanding 	the 	fact 	that 	arguments 	raised 	for 	the
first 	time 	in 	a 	reply 	brief 	are 	not 	properly 	before 	this 	court,
United States v. Ford Motor Co., 463 F.3d 1267, 1276–77 (Fed. Cir.
2006), 	and 	such 	arguments 	are 	usually 	deemed 	to 	be 	waived,
Novosteel 	SA 	v. 	United 	States, 	284 	F.3d 	1261, 	1273–74 	(Fed. 	Cir.
2002); see Ford Motor Co., 463 F.3d at 1276–77, Plaintiff has not
provided 	evidence 	supporting 	its 	conclusory 	claim 	that 	remarking
the jeans would be economically prohibitive. 	The court finds that
Plaintiff’s 	bare 	assertions 	made 	for 	the 	first 	time 	in 	its 	reply
brief 	do 	not 	constitute 	an 	issue 	of 	material 	fact 	in 	the 	instant
case.
As 	discussed 	above, 	because 	the 	subject 	merchandise 	do
not display a trademark in accordance with 19 C.F.R. § 134.47, the
subject 	merchandise 	must 	satisfy 	the 	marking 	requirements 	of 	19
C.F.R. 	§ 	134.46. 	First, 	the 	jeans 	display 	the 	logos 	“C’est 	Toi
Jeans 	USA,” 	“CT 	Jeans 	USA,” 	and 	“C’est 	Toi 	Jeans 	Los 	Angeles” 	in
various 	styles, 	scripts 	and 	dimensions, 	on 	the 	backs 	of 	some 	of
the jeans, on the care label stitched into the front waistbands of
the 	jeans, 	on 	the 	hang-tags 	affixed 	to 	the 	outside 	of 	the 	jeans,
on the pocket linings of the jeans, and on the back waistbands of
the 	jeans. 	See 	Pl.’s 	Br. 	at 	Ex. 	2; 	HQ 	H137556. 	Secondly, 	the
“Made 	in 	China” 	labels 	are 	only 	sewn 	into 	the 	front 	waistband 	of
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Court No. 12-00042 	Page 16
the 	jeans, 	several 	inches 	from 	the 	zipper, 	above 	or 	next 	to 	the
care label. 	Id. 	Thus, the country of origin is not displayed in
close 	proximity 	to 	each 	“USA” 	or 	“Los 	Angeles” 	logo 	on 	the 	backs
of the jeans, pocket linings, back waistbands, and hang-tags. 	Id.
Finally, 	the 	“Made 	in 	China” 	label 	is 	in 	smaller 	print-size 	than
the 	“C’est 	Toi 	Jeans 	USA,” 	“CT 	Jeans 	USA,” 	and 	“C’est 	Toi 	Jeans
Los 	Angeles” 	logos 	embroidered 	into 	the 	back 	waistbands 	of 	the
jeans and displayed on the jean hang-tags. 	Id. 	Accordingly, the
subject 	merchandise 	is 	not 	properly 	marked 	pursuant 	to 	19 	C.F.R.
§ 134.46. 	Because the markings on Plaintiff’s merchandise did not
comply 	with 	19 	C.F.R. 	§ 	134.46, 	the 	court 	finds 	that 	Customs
Notices to Mark and/or Redeliver were properly issued.
CONCLUSION
For the foregoing reasons, the court grants Defendant’s
cross-motion 	for 	summary 	judgment 	and 	denies 	Plaintiff’s 	motion
for 	partial 	summary 	judgment. 	Judgment 	will 	be 	entered
accordingly.
/s/ Nicholas Tsoucalas
Nicholas Tsoucalas
Senior Judge
Dated:
New York, New York
January 28, 2015
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