HQ 451754: Suspected Trademark Infringement of Various Registered, butunrecorded trademarks

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                            HQ 451754


                        November 13, 1991


TRA CO:R:IT:I 451754 TPT

CATEGORY:  Trademark

District Director of Customs
One Virginia Avenue
Wilmington, North Carolina 28401

RE:  Suspected Trademark Infringement of Various Registered, but
unrecorded trademarks

Dear Sir:

     This is in response to the district's FP&F office,
requesting advice on the issue of infringement in regard to
various registered trademarks not recorded with Customs.

ISSUE:

     Whether the caps, socks, and sweatbands bearing various
trademarks infringe trademarks which are registered with the U.S.
Patent & Trademark Office (PTO) but not recorded with U.S.
Customs?

LAW AND ANALYSIS:   

     U.S. Customs may seize merchandise which is introduced or
attempted to be introduced contrary to law under section 1595a(c)
of the Customs Laws (19 U.S.C. 1595a(c)).  In instances where the
infringed trademark is registered with the PTO, but not recorded
with Customs, Customs examines the merchandise to determine if a
the imported goods bear a counterfeit or substantially
indistinguishable mark.  See 15 U.S.C. 1127.  Trafficking in
merchandise which bears a mark that is substantially
indistinguishable from a registered trademark or a mark which is
a counterfeit of a registered trademark is a violation of section
2320 of the Criminal Laws (18 U.S.C. 2320).

     The instant matter involves eleven separate trademarks which
are registered with the PTO, but not recorded with Customs.

Trademark                     Reg. No.
Shimano & Design              1,449,808
Raleigh                       1,010,107
Ragbrai                       1,062,956
                                2


Toshiba                       1,405,380
Campagnolo                    1,184,682
Cinelli                       1,390,890                  
Suntour                       1,191,644
Cafe de Colombia              1,266,492
Tour de France                1,455,990
Brooklyn                      1,273,222
Giro                          1,541,697

     Samples forwarded to this office which bear marks that may
infringe are various caps, socks, and sweat bands.  In this case,
where the marks are registered, but not recorded with Customs,
seizure should be executed only against merchandise bearing
counterfeit or substantially indistinguishable marks.  Goods
bearing confusingly similar marks should not be seized.  

     After examining the registered marks against the marks on
the sample merchandise forwarded to this office, we conclude that
the merchandise should be seized except those bearing the words
"Giro" and "Campagnolo."

HOLDING:

     The merchandise bearing unauthorized marks as described
above is subject to seizure under 19 U.S.C. 1595a(c) for a
violation of 18 U.S.C. 2320.  We conclude that the merchandise
bearing the words "Giro" and "Campagnolo" are not subject to
seizure because the trademarks are not recorded and are not
considered to be counterfeit or substantially indistinguishable.

                              Sincerely,




                              John F. Atwood, Chief
                              Intellectual Property Rights Branch