Jblu, Inc. v. United States

United States Court of Appeals
for the Federal Circuit
______________________
JBLU, INC.,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2015-1509
______________________
Appeal from the United States Court of International
Trade in No. 1:12-cv-00042-NT, Senior Judge Nicholas
Tsoucalas.
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Decided: March 2, 2016
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ELON ABRAM P OLLACK, Stein Shostak Shostak Pollack
& O’Hara, Los Angeles, CA, argued for plaintiff-appellant.
Also represented by MANDY A NN EDWARDS , MATTHEW
ROSS L EVITON.
ALEXANDER J. VANDERWEIDE, International Trade
Field Office, Commercial Litigation Branch, Civil Divi-
sion, United States Department of Justice, New York, NY,
argued for defendant-appellee. Also represented by
BENJAMIN C. MIZER, J EANNE E. D AVIDSON, AMY M. RUBIN.
______________________

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JBLU, INC. v. US 2
Before M OORE, T ARANTO, and STOLL , Circuit Judges.
MOORE, Circuit Judge.
JBLU, Inc. appeals from the United States Court of
International Trade (“trial court”) decision on summary
judgment that U.S. Customs and Border Protection
(“Customs”) correctly determined that JBLU violated
section 304 of the Tariff Act of 1930, as amended, by
importing jeans that were not properly marked with their
country of origin. We reverse and remand.
BACKGROUND
JBLU is a California corporation registered to do
business as C’est Toi Jeans USA. Between September 11
and October 20, 2010, JBLU imported into the United
States jeans manufactured in China, including over
350,000 pairs in the eleven shipments at issue. The jeans
were embroidered with “C’est Toi Jeans USA,” “CT Jeans
USA,” or “C’est Toi Jeans Los Angeles” in various fonts on
their backs, pocket linings, back waistbands, and hang-
tags. JBLU filed trademark applications with the United
States Patent and Trademark Office (“PTO”) for “C’est Toi
Jeans USA” and “CT Jeans USA” on October 8, 2010. The
applications indicated that the two marks had been used
in commerce since 2005. JBLU did not file a trademark
application for “C’est Toi Jeans Los Angeles.” It is un-
clear whether there was evidence of the use of that mark.
The imported jeans also had labels on their front waist-
bands indicating they were “Made in China” in small font.
The figure below depicts an example pair of the imported
jeans. J.A. 39.

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JBLU, INC. v. US 3
When the shipments arrived, Customs inspected
samples of the jeans and determined that JBLU violated
section 304 of the Tariff Act because the jeans did not
comport with the marking requirements of 19 C.F.R.
§ 134.46. Section 304 of the Tariff Act, as amended,
requires that imported articles be marked with their
country of origin:
Except as hereinafter provided, every article of
foreign origin (or its container . . . ) imported into
the United States shall be marked in a conspicu-
ous place as legibly, indelibly, and permanently as
the nature of the article (or container) will permit
in such manner as to indicate to an ultimate pur-
chaser in the United States the English name of
the country of origin of the article.
19 U.S.C. § 1304(a). Section 304 further provides that the
Secretary of the Treasury may by regulation, inter alia,
“[d]etermine the character of words and phrases or abbre-
viations thereof which shall be acceptable . . . and pre-
scribe any reasonable method of marking, . . . and a
conspicuous place on the article (or container) where the
marking shall appear.” Id. § 1304(a)(1).

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JBLU, INC. v. US 4
Customs promulgated regulations under this authori-
ty in 1968, including the two regulations at issue that
were renumbered in 1972 as 19 C.F.R. §§ 134.46 and
134.47. See Country of Origin Marking, 37 Fed. Reg. 2509
(Feb. 2, 1972) (renumbering the regulations as §§ 134.46
and 134.47); Country of Origin Marking, 33 Fed. Reg.
17,627-02 (Nov. 26, 1968) (adopting the regulations);
Country of Origin Marking, 33 Fed. Reg. 12,332-01
(Aug. 31, 1968) (proposing the regulations). Under
§ 134.46, when words, letters, or names referring to a
geographical location (e.g., “United States,” “American,”
“U.S.A.”) appear on an imported article or its container,
and the words, letters, or names “may mislead or deceive
the ultimate purchaser as to the actual country of origin
of the article,” the article must also be marked with its
country of origin in a manner that is legible and perma-
nent; “in close proximity to [the location] words, letters or
name”; and “in at least a comparable size.” 19 C.F.R.
§ 134.46.
Section 134.47 provides more lenient requirements for
instances where the location words, letters, or name are
“part of a trademark or trade name.” 19 C.F.R. § 134.47.
In such a case, the country of origin marking must be
legible and permanent; “conspicuous[]”; and either “in
close proximity [to the location words, letters, or name] or
in some other conspicuous location.” Id.
Customs determined that because JBLU’s jeans were
marked with “USA” and “Los Angeles,” they must also be
marked with their country of origin pursuant to § 134.46.
It determined that JBLU’s “Made in China” labels did not
meet the requirements of § 134.46 because the country of
origin markings were not in close proximity to and of at
least the same size as “USA” and “Los Angeles.” Customs
thus issued Notices to Mark and/or Redeliver to JBLU.
JBLU filed protests against the Notices, arguing that
“C’est Toi Jeans USA,” “CT Jeans USA,” and “C’est Toi
Jeans Los Angeles” were trademarks such that Customs

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JBLU, INC. v. US 5
should have applied the more lenient requirements of
§ 134.47. JBLU argued that its “Made in China” labels
met the requirements of § 134.47.
Customs agreed that JBLU’s “Made in China” labels
met the more lenient requirements of § 134.47 but deter-
mined that § 134.47 only applied to the jeans that were
marked with “C’est Toi Jeans USA” or “CT Jeans USA”
that were imported after JBLU filed its trademark appli-
cations for those marks (“the post-application jeans”). It
accepted JBLU’s protest as to those jeans. Customs
determined, however, that § 134.46 applied to the jeans
that were marked with “C’est Toi Jeans USA” or “CT
Jeans USA” and were imported before JBLU filed its
trademark applications (“the pre-application jeans”), and
to jeans that were marked with “C’est Toi Jeans Los
Angeles” (“the no-application jeans”). It determined that
JBLU’s “Made in China” labels did not meet the more
stringent requirements of § 134.46. It thus denied
JBLU’s protest as to the pre-application and no-
application jeans.
JBLU filed suit against the government at the trial
court, contesting the denial of its protest with regard to
the pre-application and no-application jeans. The parties
cross-moved for summary judgment on whether Customs
correctly determined that JBLU violated section 304 by
not properly marking those jeans. The trial court granted
the government’s motion, denied JBLU’s motion, and
dismissed the case. JBLU appeals. We have jurisdiction
under 28 U.S.C. § 1295(a)(5).
D ISCUSSION
Summary judgment is appropriate where “the movant
shows that there is no genuine dispute as to any material
fact and that the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a); see also Ct. Int’l
Trade R. 56. We review the trial court’s grant of sum-
mary judgment “for correctness as a matter of law, decid-

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JBLU, INC. v. US 6
ing de novo the proper interpretation of the governing
statute and regulations as well as whether genuine issues
of material fact exist.” Guess? Inc. v. United States, 944
F.2d 855, 857 (Fed. Cir. 1991).
If a regulation is clear on its face, no deference is giv-
en to the promulgating agency’s interpretation, and we
interpret the regulation in accordance with its unambigu-
ous meaning. Viraj Grp. v. United States, 476 F.3d 1349,
1355 (Fed. Cir. 2007). Doing otherwise would allow the
agency, “under the guise of interpreting a regulation, to
create de facto a new regulation.” Christensen v. Harris
County, 529 U.S. 576, 588 (2000). The fact that a term is
not defined by a regulation does not make it ambiguous
and entitled to deference. Executive Jet Aviation, Inc. v.
United States, 125 F.3d 1463, 1468 (Fed. Cir. 1997) (“It is
well settled that the legislature’s failure to define com-
monly-used terms does not create ambiguity, because the
words in a statute are deemed to have their ordinarily
understood meaning.” (internal quotation marks and
citations omitted)). If a regulation is ambiguous, we give
the promulgating agency’s interpretation substantial
deference “as long as [it] is neither plainly erroneous nor
inconsistent with the regulation.” Gose v. U.S. Postal
Serv., 451 F.3d 831, 836 (Fed. Cir. 2006).
The trial court decided on summary judgment that
Customs correctly determined that JBLU violated sec-
tion 304 of the Tariff Act with regard to the pre-
application and no-application jeans. It reasoned that
“C’est Toi Jeans USA,” “CT Jeans USA,” and “C’est Toi
Los Angeles” were not “trademarks” under § 134.47 and
that the more stringent requirements of § 134.46 thus
applied. The trial court determined that because § 134.47
did not expressly define “trademark,” Customs’ interpre-
tation was entitled to substantial deference unless it was
plainly erroneous or inconsistent with the regulation.

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JBLU, INC. v. US 7
The trial court determined that various decisions by
Customs showed that Customs had consistently inter-
preted “trademark” in § 134.47 as limited to trademarks
that were registered with the PTO and trademarks sub-
ject to a pending registration application. It determined
that such an interpretation was not plainly erroneous or
inconsistent with the regulation’s purpose of preventing
the ultimate purchaser from being misled or deceived
when the name of a location other than the country of
origin appears on imported merchandise.
JBLU argues that the trial court erred because an
agency’s interpretation of a regulation is entitled to
deference only if the regulation is ambiguous. It argues
that “trademark” in § 134.47 unambiguously includes
federally registered and common law trademarks. We
agree.
The record includes a dictionary definition of “trade-
mark” from the time § 134.47 was promulgated as “the
name, symbol, figure, letter, word, or mark adopted and
used by a manufacturer or merchant in order to designate
his goods and to distinguish them from any others.” T HE
RANDOM H OUSE D ICTIONARY OF THE ENGLISH L ANGUAGE
1501 (1966). The dictionary definition of record is not
limited to registered trademarks or trademarks with a
pending application. Indeed, the definition notes that “[a]
trademark is usually registered with a governmental
agency,” showing that it does not have to be. Id.
The version of the Lanham Act in effect at the time
§ 134.47 was promulgated similarly defines “trademark”
as “any word, name, symbol, or device or any combination
thereof adopted and used by a manufacturer or merchant
to identify his goods and distinguish them from those
manufactured or sold by others.” 15 U.S.C. § 1127 (1946).
This definition is echoed in the Lanham Act’s current
definition of “trademark” as “any word, name, symbol, or
any combination thereof—(1) used by a person, or

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JBLU, INC. v. US 8
(2) which a person has a bona fide intention to use in
commerce and applies to register on the principal register
established by this chapter, to identify and distinguish his
or her goods.” 15 U.S.C. § 1127 (2006). Neither definition
is limited to registered trademarks or trademarks subject
to a pending application.
These definitions are consistent with the fact that
trademark rights stem from use, not registration. See,
e.g., In re ECCS Inc., 94 F.3d 1578, 1579 (Fed. Cir. 1996);
San Juan Prods., Inc. v. San Juan Pools of Kan., Inc., 849
F.2d 468, 474 (10th Cir. 1988) (“Nor is a trademark creat-
ed by registration. . . . The Lanham Act protects unregis-
tered marks as does the common law.”). See also
McCarthy on Trademarks and Unfair Competition
§ 19:1.75 (4th ed. 2014) (“U.S. trademark law is seen as
recognizing an intellectual property created and acquired
by use. Government registration in the U.S. is essentially
recognition of a right already acquired by
use. . . . [R]egistration in the U.S. does not create the
trademark.”).
The government offers no competing dictionary or
statutory definition of “trademark.” Cf. Viraj, 476 F.3d at
1355 (finding that the term at issue was ambiguous
based, in part, on the parties’ presentation of competing
dictionary definitions). See also Oral Argument at 19:45–
20:04, available at
http://oralarguments.cafc.uscourts.gov/default.aspx?fl=20
15-1509.mp3. In fact, the government acknowledges
“[t]here is no denying that the Lanham Act or a dictionary
definition of the term ‘trademark’ provides for a broader
array of marks than those for which recognition by the
[PTO] has been formally requested.” Government Br. 11;
see also Oral Argument at 17:35–18:45. The government
instead argues that the use of the word “trademark” in
the intellectual property context does not inform its
meaning in the context of § 134.47. We are not persuad-
ed.

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JBLU, INC. v. US 9
The word “trademark” in § 134.47 unambiguously in-
cludes trademarks without a pending application. This is
consistent with the dictionary definition of record and the
Lanham Act definitions from 1946 and today. We do not
see a distinction between the clear meaning of the term in
dictionaries and in the intellectual property context and
the use of the term in § 134.47. There is nothing in the
record indicating that the plain meaning of “trademark” is
limited to registered trademarks and trademarks with
pending applications. Nor is there anything in the record
calling into question the unambiguousness of the term
“trademark.”
Like the dictionary definition, regulations in the same
chapter as § 134.47 and regulations in a different chapter
but the same title as § 134.47 use the word “trademark” to
include registered and unregistered trademarks. See, e.g.,
19 C.F.R. §§ 133.11, 133.22, 148.55, 210.12.1 When
determining the plain meaning of a regulation, a court
may look to the language of related regulations. Roberto
v. Dep’t of Navy, 440 F.3d 1341, 1350 (Fed. Cir. 2006)
(citing Reflectone, Inc. v. Dalton, 60 F.3d 1572, 1577–78
(Fed. Cir. 1995) (en banc)). The regulations here show
that when Customs intended to limit a regulation to
“registered trademarks,” it expressly did so. Customs did
not so limit “trademark” in § 134.47. We hold that the
term “trademark” in § 134.47 is clear on its face. The trial
court erred in deferring to Customs’ interpretation be-
cause “trademark” in § 134.47 unambiguously includes
unregistered trademarks that are not subject to a pending
application.
Customs determined that the “Made in China” labels
on JBLU’s jeans satisfied the requirements of § 134.47.
1 The Tariff Act itself also distinguishes between
“trademarks” and “registered trademarks.” See, e.g., 19
U.S.C. §§ 1337, 1526, 1681a.

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We thus reverse the trial court’s decision on summary
judgment and remand for further proceedings consistent
with this opinion.
REVERSED AND REMANDED
COSTS
Costs to JBLU.

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