HQ 457819: Request for Internal Advice submitted by K&K International Trading, Inc. regarding infringement of a copyrighted toy sculpture "SpaceCop" Dear Sir:

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  457819

July 27, 1994

CO:R:IT:I 457819  VEA

CATEGORY:   Intellectual Property Rights                                        
District Director
U.S. Customs Service
Los Angeles, California

RE:  Request for Internal Advice submitted by K&K International Trading, Inc. regarding 
     infringement of a copyrighted toy sculpture "SpaceCop"
 
Dear Sir:

     This is in response to your memorandum dated March 7, 1994, requesting internal
advice pursuant to 19 C.F.R. Section 177.11 of the Customs Regulations.  The request was
initiated by K&K International Trading Incorporated, who owns the copyrighted work
"SpaceCop" (Copyright Registration No. VA 443-553) recorded with U.S. Customs as COP
91-00163.

FACTS:

     On approximately October 15, 1993, your office detained articles invoiced as "item no.
St-666 Space Police Car" (entry 349-0766479-0) pursuant to 19 C.F.R. Section 133.43 of the
Customs Regulations on the suspicion that they infringed the copyrighted work "SpaceCop". 
The importer, Acme Trading Corporation, was notified of the detention and timely denied
infringement.  The copyright owner made a timely request for exclusion, but failed to submit a
bond which is also required by Section 133.43(b).  In accordance with Section 133.43(c)(3),
your office released the articles to the importer.  K&K disagrees with your decision to detain
the shipment and argues that the goods should have been seized as "clearly piratical" pursuant
to Section 133.42.    

     The copyrighted work, "SpaceCop", is a configuration of a toy car represented in a
three-dimensional form and its packaging.  The protected design appears to be a model of a
Firebird automobile and contains such features as tires which move to a horizontal position and
light-up and a lightbar on its top.  Also, eagle-like figures and the words "Police",
"SpaceCop", "Space Patrol" and "Super Speed of Light" appear on the side doors, front hood
and windshield.  The imported article is also a futuristic toy car titled "SpacePolice" which
incorporates a space and police theme, eagle-like figures and tires which move to a horizontal
position.
                              - 2 -
     
ISSUES:

(1) Whether a copyright owner may request a ruling on the issue of copyright infringement
under 19 C.F.R. Part 177 on articles which were the subject of a "completed" Customs
transaction.

(2) Whether your office acted properly in detaining a shipment of "SpacePolice" toy cars on
suspicion of copyright infringement pursuant to 19 C.F.R. Section 133.43 of the Customs
Regulations.

LAW AND ANALYSIS:

     19 C.F.R. Section 177.0 of the Customs Regulations states that "the rulings issued
under the provisions of this part will usually be prospective in application, and consequently,
will usually not relate to specific matters or situations presently or previously under
consideration by any Customs Service field office."  Also, 19 C.F.R. Section 177.1(a)(2)(ii)
states that a question arising in connection with an entry of merchandise which has been
liquidated, or in conjunction with any other completed Customs transaction may not be
the subject of a ruling request.  According to 19 C.F.R. Section 177.1(d)(3), "a "completed"
Customs transaction is one which has been acted upon by a Customs Service field office and
with respect to which that office has issued a determination which is final in nature, but is (or
was) subject to appeal, petition, protest, or other review as provided in the applicable
Customs laws and regulations."

     Under these provisions, it is clear that the copyright owner's request for a ruling 
pertains to articles which were the subject of a "completed" rather than a "prospective"
Customs transaction and therefore cannot be the subject of a ruling request under Part 177. 
The goods had already been imported into the United States.  Moreover, their release to the
importer in accordance with Section 133.43(c)(3) of the Customs Regulations constituted final
action on this transaction.
    
     19 C.F.R. Sections 133.42 and 133.43 grant the district director or Customs field
officers acting as his agent the authority to determine whether a shipment of goods should be
"seized" as clearly piratical or "detained" on the suspicion that they may infringe a copyright
recorded with U.S. Customs.  The decision to "seize" or "detain" a shipment of imported
articles is based on the district director's familiarity with the protected work, the legal
principles and procedures outlined in Customs Directive 2300-05 on Copyright Protection and
written or oral guidance obtained from the Intellectual Property Rights Branch.  Directive
2300-05 provides that the district director's decision to "seize" imported goods as "clearly
piratical" may be based on controlling decisions from Customs or a court, or evidence that
the imported articles are clear-cut copies of the protected work.  There are no previous
written decisions on this issue.          


                              - 3 -


     Based upon our comparison of the copyrighted and imported articles, we agree with
your decision to detain the shipment at issue as "possibly piratical" pursuant to Section
133.43.  The Copyright registration certificate describes the protected work as a "toy
sculpture" and "packaging".  Thus, the configuration of the toy car represented in a three-dimensional form and its packaging are the protected expressions or ideas.  The protected
design appears to be a model of a Firebird automobile and contains such features as tires
which move to a horizontal position and light-up and a lightbar on its top.  Also, eagle-like
figures and the words "Police", "SpaceCop", "Space Patrol" and "Super Speed of Light" 
appear on the side doors, front hood and windshield.

     The rear of the imported toy car has a shorter, boxy shape which resembles BMW's
325i design.  Also, the front bumper contains the trademarked BMW kidney grill design. 
We agree that the SpacePolice car incorporates features similar to those found on the
copyrighted work such as a space and police theme, eagle-like figures and tires which move
to a horizontal position.  However, in our opinion, the differences in its sculptural design
support your finding that it is not a clear-cut copy, but "may infringe" the copyrighted work.

     Finally, the administrative procedure in Section 133.43 of the Customs Regulations
provides the copyright owner with an opportunity to present arguments and supporting court
decisions on the infringement issue if it files a written demand requesting that the goods be
excluded from entry and a bond.  Pursuant to Section 133.43(c)(3), the proper course of
action was to release the goods to the importer if the copyright owner failed to comply with
the requirements in the regulations.

HOLDING:

     Imported articles which were detained and released to the importer pursuant to Section
133.43 of the Customs Regulations involve a "completed" Customs transaction and may not
be the subject of a ruling request under 19 C.F.R. Part 177.  The decision to detain the
shipment of "SpacePolice" toy cars on suspicion of infringement in accordance with Section
133.43 was the appropriate course of action in this case.

     This decision should be mailed by your office to the internal advice requestor no later
than 60 days from the date of this letter.  On that date, the Office of Regulations and Rulings
will take steps to make the decision available to Customs personnel via the Customs Rulings
Module in ACS and the public via the Diskette Subscription Service, Freedom of Information
Act and other public access channels.



                              Harvey B. Fox