Friday, February 06, 2015

Quoth the Blogger, "Skidmore?"

Continuing my effort to catch up with the Court of International Trade and one decision of the Federal Circuit, we now come upon JBLU, Inc. v. US, a recent decision of the Court of International Trade.

The issue in this case is whether wearing apparel from China bearing the brand-name "C'est Toi Jeans Los Angeles," "CT Jeans USA," and "C'est Toi Jeans USA" were properly the subject of a Notice to Mark or Redeliver for failure to have adequate country of origin marking. Customs and Border Protection maintains that the use of "Los Angeles" and "USA" on the labels requires the there be in close proximity and in comparable size a a country of origin marking preceded by "Made in," "Product of," or another similar phrase. This requirement comes from 19 CFR 134.46,

The importer maintains that section 134.46 does not apply because the geographical designations are part of a trademark or trade name. That argument comes from 19 CFR 134.47.

The nub of the issue comes down to whether Customs' definition of "trademark" for purposes of interpreting the regulation is correct. Customs applies the trademark regulation only to registered trademarks or where there is a pending application to register a trademark. The importer claims the regulation applies to trademarks under federal law as well as common law trademarks, which are unregistered but used in commerce. A federally registered trademark is denominated with the (R) symbol while a common law trademark sometimes gets marked with the letters TM.

To cut to the chase, the Court upheld Customs' interpretation and found that to the extent there was no pending application to register the trademarks at the time of some of the entries, the Notice to Mark or Redeliver was a valid exercise of CBP authority as to those entries.

I do have a question to raise respectfully. According to the Court of International Trade, in the absence of a definition of "trademark" in the regulation, the Court must "give Customs' interpretation of 19 C.F.R. [sec] 134.47 substantial deference, unless it is 'plainly erroneous or inconsistent with the regulation.'" For that proposition, the Court cites Supreme Court precedent and a Federal Circuit case involving a review of a dumping determination.

In the context of the de novo review of the denial of a protest, would it have been appropriate for the Court to also or instead apply Skidmore deference to CBP's determination? In that event, the Court would have to decide whether CBP's decision has the power to persuade the Court.

The decision notes that Customs' position is consistent with prior rulings and with the purpose of the marking law. Thus, I think the Court is basically saying that Customs' legal interpretation is persuasive and passes muster even under the somewhat looser Skidmore standard. That means the result is the same no matter how the Court cuts it. So all I am talking about is the label put on what the Court did.

With apologies to Edgar Allen Poe.

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