[00:00:00] Speaker 04:
For one five dash one five zero nine, Jay blue versus United States.

[00:00:40] Speaker 03:
Good morning.

[00:00:42] Speaker 03:
My name is Elon Pollack and I represent JBLU, the appellant in this action, and may it please the court.

[00:00:51] Speaker 03:
The problem with this case is really looking at the custom statute 19 USC 1304, which provides for marking of merchandise so that the ordinary purchaser in the United States can determine whether the product is domestic or foreign.

[00:01:06] Speaker 03:
and gives them a choice whether to purchase the product on that basis.

[00:01:10] Speaker 04:
Am I missing anything?

[00:01:11] Speaker 04:
Isn't the only difference between 1, 3, 4, 4, 7, and 4, 6 the size?

[00:01:17] Speaker 04:
Is that the only difference?

[00:01:18] Speaker 04:
It's the size?

[00:01:19] Speaker 04:
Essentially.

[00:01:20] Speaker 04:
Yeah, OK.

[00:01:21] Speaker 04:
And one of them involves a trademark and the other one doesn't.

[00:01:23] Speaker 04:
And that's why if it's a trademark, we let you make it bigger and don't make you make the made in China thing quite as large.

[00:01:30] Speaker 04:
And the other one, if it's not a trademark, we make you make it a comparable size.

[00:01:33] Speaker 04:
That's the only difference, right?

[00:01:35] Speaker 03:
For the most part, yes.

[00:01:37] Speaker 03:
And then also the question is where under 46, whether the mark appears in close proximity to the non-origin designation.

[00:01:47] Speaker 04:
Well, they both say appear in close proximity.

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Oh, the other one says, or in some other conspicuous location.

[00:01:53] Speaker 03:
Oh, I see.

[00:01:54] Speaker 04:
And that's another difference.

[00:01:57] Speaker 03:
But this case really concerns, I'll just get to the heart of it, this case really concerns whether customs decision to limit the

[00:02:05] Speaker 03:
application of 13447 to trademarks where an application is filed and with the USPTO and the date of the application.

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It has no bearing on whether the consumer is going to be fooled or misled about the origin of the article.

[00:02:22] Speaker 02:
Can I ask you this question?

[00:02:23] Speaker 02:
And I realize this is not something that I think I can really find in the red brief.

[00:02:31] Speaker 02:
But why would one think

[00:02:35] Speaker 02:
that 4.6 and 4.7, if I can use that shorthand, are mutually exclusive.

[00:02:41] Speaker 02:
They don't read as mutually exclusive.

[00:02:44] Speaker 02:
Why isn't in substance what the government is doing is saying they're not mutually exclusive, but for some trademarks, we will apply only the 4.7 waxer standard and we will say,

[00:03:03] Speaker 02:
466 won't apply to some trademarks, namely those trademarks which are either registered or the subject of a still live application.

[00:03:12] Speaker 02:
And one can contemplate why one might do that.

[00:03:16] Speaker 02:
And as I say, the red brief does not make this particular argument, but it's not clear to me that the HQ letter from customs isn't understandable that way.

[00:03:30] Speaker 03:
Let me see if I can understand

[00:03:33] Speaker 03:
I guess the point is when 13446 was enacted, was amended in 1997, one of the comments that customs analyzes is the question of whether to get rid of 47, because if there's a trademark, it still implicates 46.

[00:03:50] Speaker 03:
And you're still dealing with the close proximity and conspicuousness of a particular origin mark.

[00:03:56] Speaker 03:
And there's a potential for confusion, right?

[00:03:58] Speaker 02:
46 is all about potential for confusion, right?

[00:04:01] Speaker 02:
1304 is all about confusion.

[00:04:02] Speaker 02:
And we're not talking about the statute.

[00:04:04] Speaker 02:
We're talking about the regulations right now.

[00:04:06] Speaker 03:
Yes, it's about confusion and the lack of confusion.

[00:04:10] Speaker 02:
In this case, it's particularly... So you could have confusion with trademarks.

[00:04:14] Speaker 02:
You could even have confusion with registered trademarks.

[00:04:17] Speaker 02:
Confusion about geographic origin.

[00:04:20] Speaker 02:
Why?

[00:04:20] Speaker 02:
And maybe I'm just missing something, so tell me.

[00:04:23] Speaker 02:
The government appears to accept the proposition that something is either in 4.7 or in 4.6, but never both.

[00:04:31] Speaker 02:
And I don't really understand why we're proceeding on that premise, except that the government is not pressing the other view.

[00:04:39] Speaker 02:
What's the basis for that premise?

[00:04:41] Speaker 02:
Let me see if I understand.

[00:04:43] Speaker 03:
The customs, where there's a trademark, you already know the origin of the goods by virtue of the brand, not necessarily the location that's stated in the brand, I think.

[00:04:57] Speaker 03:
And customs enacted this distinction

[00:05:01] Speaker 03:
where certain companies will take advantage of their locale in order to promote their products.

[00:05:09] Speaker 03:
And Customs is saying, fine, if that's a trademark, then we'll allow you to mark the goods conspicuously because we know no one is going to be confused about the origin or non-location, non-origin of that particular merchandise.

[00:05:24] Speaker 03:
Does that answer your question?

[00:05:25] Speaker 02:
Let me just try it once more.

[00:05:27] Speaker 02:
So Forcik says, we have a standard

[00:05:31] Speaker 02:
If you use a particular kind of geographic set of words, USA, United States, whatever, if there's a real likelihood of confusion about that consumers may get in their head the wrong idea about where these things came from, you're going to have to mark it in a particularly conspicuous way.

[00:05:51] Speaker 02:
4.7 says if you have a trademark, you have to mark in a less conspicuous way.

[00:05:59] Speaker 03:
No, they both require conspicuousness.

[00:06:02] Speaker 02:
Less conspicuous.

[00:06:03] Speaker 02:
We went through this before.

[00:06:04] Speaker 02:
Larger, smaller, nearer, further.

[00:06:07] Speaker 02:
We're talking about disparities in the way you have to mark, right?

[00:06:11] Speaker 02:
Yes.

[00:06:12] Speaker 02:
Okay.

[00:06:12] Speaker 02:
So why in the world can there not be an application of 4.6 to a registered trademark?

[00:06:22] Speaker 02:
Tell me the regulatory language that says a particular

[00:06:26] Speaker 02:
Pair of jeans with a particular set of words that include USA on them is in one category or the other, but never both.

[00:06:36] Speaker 03:
Because the regulation 47 provides for a more lenient standard if the mark is a trademark.

[00:06:47] Speaker 02:
Even if there is a likelihood of confusion.

[00:06:49] Speaker 03:
The idea of the trademark, though, is it distinguishes one's goods.

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and that no one would be confused because they know the source of the goods based on that trademark.

[00:07:01] Speaker 02:
They know who is providing the goods.

[00:07:04] Speaker 02:
They don't know where the goods are coming from.

[00:07:06] Speaker 02:
Geographic origin versus supplier origin.

[00:07:10] Speaker 04:
Would your argument possibly be the structure of the regulations?

[00:07:14] Speaker 04:
46 comes first and is the general one and 47, which comes after it, creates a bit of an exception and in fact even begins when as part of a trademark, almost like keying in on the

[00:07:24] Speaker 04:
prior section, when as part of a trademark.

[00:07:28] Speaker 04:
So here's what the one right before it says, and now when that thing before is now part of a trademark, this is what applies.

[00:07:33] Speaker 04:
Would you want to make a regulatory structure argument?

[00:07:38] Speaker 03:
My point is that customs carved out that exception

[00:07:42] Speaker 03:
when there is a trademark.

[00:07:43] Speaker 03:
I think that's really, thank you, Judge.

[00:07:46] Speaker 03:
But I think that's really what's happened here.

[00:07:47] Speaker 02:
You refer to, I think, a regulatory history.

[00:07:49] Speaker 02:
What is the sequence?

[00:07:50] Speaker 02:
4.6 came first, 4.7 came?

[00:07:52] Speaker 03:
No, they were enacted at the same time, in 1968 originally.

[00:07:56] Speaker 02:
And is there commentary in the Federal Register that says we do actually understand these to be mutually exclusive categories?

[00:08:03] Speaker 03:
Unfortunately, I didn't research any specific history for the 68 Amendment, but for 1997 I did.

[00:08:10] Speaker 03:
And in 1997, Customs said,

[00:08:12] Speaker 03:
We're not really sure why we have a 47 at this point, and we may actually promulgate a regulation to a promulgated notice to get rid of it because they're basically one and the same.

[00:08:23] Speaker 03:
If you have the trademark, we can make that distinction where there's a trademark under 46.

[00:08:28] Speaker 03:
But over the last 27 years, customs never, never enacted or proposed any general notice or rule that says we're going to change that, and it's still on the books.

[00:08:38] Speaker 03:
So you have this distinction, this dichotomy,

[00:08:41] Speaker 03:
between trademark and non-trademark marking, for lack of a better word.

[00:08:47] Speaker 03:
In our client's case, the problem really is customs decision creates an artificial rule that says, if you file for a trademark and the application is filed, we're going to give you the more lenient marking structure as opposed to a mark that's not filed with the patent and trademark office.

[00:09:09] Speaker 04:
And wait, just to be clear,

[00:09:11] Speaker 04:
That could have been enacted, right?

[00:09:13] Speaker 04:
I mean, even though you don't love it and think that there are some shortcomings of it, that could have been a decision that people would have made.

[00:09:21] Speaker 04:
We want to encourage people, if they're going to use something as a trademark, to take any confusion off the table, to register it so it's clearly known by everyone.

[00:09:30] Speaker 04:
And they could have said in this regulation for federally registered trademark.

[00:09:34] Speaker 03:
And that's the problem, because the regulation doesn't say that customs has never put out any notice to the public that says,

[00:09:40] Speaker 03:
If you apply for a trademark, we're going to give you the lesser marking standard.

[00:09:44] Speaker 03:
And in this particular case, they've created this artificial dividing line.

[00:09:50] Speaker 02:
I kind of took one point of Judge Moore's question to be, you have an argument about the regulatory language that is strong.

[00:10:03] Speaker 02:
Thank you.

[00:10:03] Speaker 02:
Trademarks are not limited to registered or applied for trademarks.

[00:10:09] Speaker 02:
Yes.

[00:10:09] Speaker 02:
You started making an argument about how a distinction between those and other trademarks, trademarks for which application has not been sought or obtained or rejected, that that's artificial.

[00:10:21] Speaker 02:
That's a more challenging argument.

[00:10:24] Speaker 02:
It's about whether the distinction could make any sense had it been adopted in the regulation.

[00:10:29] Speaker 02:
No, I'm not saying that, Your Honor.

[00:10:30] Speaker 03:
What I'm saying is that even if we accept

[00:10:33] Speaker 03:
the filing of the application to be a dividing line between we're going to accept it versus not accept it.

[00:10:39] Speaker 03:
The data filing should not be what's triggering whether a consumer is going to be confused and require a more stringent market requirement.

[00:10:48] Speaker 03:
If you're filing a trademark

[00:10:49] Speaker 02:
based on use, you're already using this mark and customs created this artificial... You may not be using it in a way which communicates that consumers will view it as a supplier origin identifier as opposed to a geographic identifier.

[00:11:04] Speaker 02:
The fact that you have used it, which is a requirement for registration, does not itself tell you what meaning consumers will take away from it, which is why it seems to me, at least superficially, again, we're now talking about the

[00:11:17] Speaker 02:
the kind of unreasonableness point, the artificiality point, the relation between 4.6 and 4.7 point.

[00:11:25] Speaker 02:
It's not, it seems to me, on its face crazy to say we need a preliminary marker of whether a set of words that includes USA or United States is being used for supplier identification as opposed to geographical origin.

[00:11:45] Speaker 02:
and a registration, an actual registration, or even a certification by an applicant for registration is some evidence that that is how it is being used.

[00:11:56] Speaker 02:
And so there's less likely to be confusion about geographic origin because people will more likely simply understand it to mean it's mine rather than yours.

[00:12:05] Speaker 02:
So it seems to me it's a little hard, definitely harder than your textual argument, to say this is a completely irrational lie.

[00:12:16] Speaker 02:
As opposed to, it's just not the line that's in the regulation.

[00:12:19] Speaker 02:
I agree with you.

[00:12:21] Speaker 04:
Maybe you should save the rest of your time for rebuttal after.

[00:12:23] Speaker 04:
And I'm going to save the rest of it.

[00:12:26] Speaker ?:
There you go.

[00:12:27] Speaker ?:
Thank you.

[00:12:27] Speaker 04:
Tell me how to say your name, please.

[00:12:28] Speaker 04:
Vanderweede.

[00:12:29] Speaker 04:
Vanderweede.

[00:12:30] Speaker 04:
Okay, Mr. Vanderweede, please proceed.

[00:12:31] Speaker 05:
Your honors, may it please the court.

[00:12:33] Speaker 05:
This court should affirm the trial court's decision that JBLU's merchandise was not properly marked in accordance with 19 CFR 13446.

[00:12:43] Speaker 05:
This court should also affirm the trial court's decision that custom's interpretation of the term trademark within the meaning of 47 as applying to those marks that are registered with a patent and trade office or have an application pending is entitled to substantial deference because the regulation itself is silent as to what evidence.

[00:13:03] Speaker 02:
Can you help me?

[00:13:05] Speaker 02:
I hope I was clear.

[00:13:06] Speaker 02:
Maybe I wasn't on this threshold question that I'm

[00:13:11] Speaker 02:
I don't think you've made this argument, but is there some reason in the text or otherwise that you take as a premise, which I think you do, that either 46 applies or 47 applies, but not both?

[00:13:29] Speaker 02:
Yes.

[00:13:30] Speaker 02:
Why is that?

[00:13:31] Speaker 05:
I think it's because 46 is specifying if a locality name could mislead or deceive.

[00:13:39] Speaker 05:
And I think 47 presumes.

[00:13:41] Speaker 05:
that if there's a trademark, a registered trademark, or an application.

[00:13:45] Speaker 02:
Let's just use the language of the regulation.

[00:13:46] Speaker 02:
It says if there's a trademark, you have to basically give a weaker form of geographical notice.

[00:13:55] Speaker 05:
Exactly.

[00:13:56] Speaker 05:
Because 46 is saying that under each name that could be confused, there has to be a permanent marking for the correct country of origin and comparable size.

[00:14:07] Speaker 05:
So that could be read if there's all over the genes in this case,

[00:14:11] Speaker 05:
if there's a confusing country of origin locality, there would have to be the correct marking next to each of those names.

[00:14:18] Speaker 05:
Whereas 47 just requires a conspicuous location.

[00:14:22] Speaker 01:
It could be just once.

[00:14:24] Speaker 05:
It could be just once.

[00:14:26] Speaker 05:
So in this instance, for those goods that came in after the application date of JBL's merchandise, close proximity was deemed OK if it was just a Made in China label inside the waistband of the pants.

[00:14:39] Speaker 05:
But for those that came in before, where there was no application or evidence that it was registered with a patent and trade office, then those genes were subject to the more strict standards.

[00:14:50] Speaker 05:
So that would have to be anywhere on the goods that there is that confusing locality name.

[00:14:56] Speaker 05:
And there is that dividing.

[00:14:58] Speaker 02:
Was there something in, I guess, I think Mr. Pollock referred to the 1968 regulatory promulgation of these two rules?

[00:15:08] Speaker 02:
Is that right?

[00:15:08] Speaker 05:
Yeah.

[00:15:09] Speaker 02:
And was there something in that promulgation that said, even though there's no language saying that 4.7, when 4.7 applies, 4.6 doesn't, that we mean that?

[00:15:21] Speaker 02:
Because there's nothing logically inconsistent, right?

[00:15:23] Speaker 02:
Because you could have a trademark that in turn has the property of being whatever 4.6 says, was it likely to mislead or?

[00:15:31] Speaker 05:
Likely to mislead, that's right.

[00:15:33] Speaker 02:
May mislead or deceive, right?

[00:15:34] Speaker 02:
So that if you could prove that as, if you, the government, customs could prove that as to a trademark, you would still apply the 4.6 standard, even though the matter was in 4.7, say it was a registered trademark.

[00:15:48] Speaker 05:
I think 4.7 assumes that there's not going to be that likelihood to mislead and deceive because there is a trademark.

[00:15:55] Speaker 02:
But that means that your argument really does depend on our saying trademark can be interpreted to be a subset of trademarks.

[00:16:04] Speaker 05:
Yes, exactly.

[00:16:06] Speaker 05:
I mean, I understand that marks under the Lanham Act can apply to both registered and unregistered, claimed or unclaimed.

[00:16:13] Speaker 05:
But that's usually in the context of an intellectual property right, in terms of benefiting the holder of that mark, a business entity.

[00:16:22] Speaker 05:
Whereas the regulations, as interpreted and enforced by customs, they're looking out for the consumer.

[00:16:28] Speaker 05:
They're trying to prevent consumer deception.

[00:16:30] Speaker 05:
It's not about the mark holder.

[00:16:32] Speaker 05:
whether somebody is going to pick up these jeans and be confused as what's the country of origin of this merchandise.

[00:16:38] Speaker 05:
And that's consistent with the marking statute.

[00:16:42] Speaker 01:
And this is something that... Is it that something that's not a registered trademark doesn't satisfy that?

[00:16:47] Speaker 01:
I mean, I don't understand why having a common law trademark somehow makes it so you should have a heightened standard for the reasons you're saying.

[00:16:56] Speaker 05:
I think it's beyond the purview of customs jurisdiction.

[00:17:00] Speaker 05:
in order to investigate whether a mark is actually being used.

[00:17:03] Speaker 05:
You know, in commerce, it's just, you know, it's looking at the goods, making sure that they're marked.

[00:17:08] Speaker 04:
My problem with your argument is it's the exact same argument that Judge Toronto shut down your opponent on, which is you're making an argument as to why it would be good to view this regulation as applying to registered trademarks.

[00:17:23] Speaker 04:
You're sort of defending a policy choice to limit it to registered trademarks, and you're explaining why.

[00:17:29] Speaker 04:
But that's not the issue.

[00:17:30] Speaker 04:
The issue in front of us is a pure regulatory interpretation issue.

[00:17:35] Speaker 04:
The common definition, the standard definition of trademark in every forum, including the intellectual property laws enacted by Congress, include common law trademarks.

[00:17:47] Speaker 00:
Yes.

[00:17:48] Speaker 04:
That is the plain and ordinary meaning of that word.

[00:17:52] Speaker 04:
Why then is there ambiguity such that if that is the plain and ordinary meaning, and you said yes a second ago,

[00:17:59] Speaker 04:
I mean, I don't see how you couldn't say yes.

[00:18:00] Speaker 04:
You'd be disingenuous not to, just so you know.

[00:18:03] Speaker 04:
But given all of the evidence, I don't know how there's any ambiguity in this regulation such that any deference to any agency decision making is warranted.

[00:18:15] Speaker 05:
Because the regulation itself does not define the term trademark for purposes of the regulation.

[00:18:20] Speaker 04:
The regulation itself doesn't say federally registered or common law trademark.

[00:18:24] Speaker 04:
It just says trademark.

[00:18:25] Speaker 04:
Exactly.

[00:18:26] Speaker 04:
plain and ordinary meaning of trademark in every dictionary, in every textbook, and in all federal legislation related to intellectual property rights includes both federal registered trademarks and common law trademarks.

[00:18:42] Speaker 04:
Don't we presume when regulations are enacted or when statutes are enacted that those who are enacting them are aware of the plain and ordinary meaning of words, especially as they are used and defined in other statutes and regulations?

[00:18:56] Speaker 05:
I would say that the plain meaning of the term trademark, as you described, does not apply in this instance, because there is that silence and ambiguity for the purpose of country of origin marking regulations, as opposed to the benefits of an intellectual property right of the holder of a mark.

[00:19:15] Speaker 05:
Part of the Lanham Act, as you described the term trademark, and those other contexts.

[00:19:20] Speaker 05:
This is a limited context, and it's about customs enforcing

[00:19:24] Speaker 05:
its obligation to enforce its own regs that are promulgated in accordance with the country of origin marking statute.

[00:19:31] Speaker 05:
So it's a trademark within that context, specifically within that context.

[00:19:35] Speaker 05:
So there is a certain amount of ambiguity because it's not defined, the term trademark, within that context.

[00:19:41] Speaker 05:
Well, the word trademark is defined.

[00:19:43] Speaker 05:
Under the Lanham Act, yes.

[00:19:45] Speaker 04:
And in every dictionary, you did not introduce a single piece of evidence of any kind extrinsic evidence

[00:19:52] Speaker 04:
that indicated anywhere that the word trademark is defined in any context as federally registered trademarks, correct?

[00:20:00] Speaker 05:
Am I misunderstanding the record?

[00:20:02] Speaker 05:
No, no, no.

[00:20:03] Speaker 05:
You're correct, Your Honor.

[00:20:04] Speaker 05:
I mean, that is correct.

[00:20:06] Speaker 04:
But dictionary definition?

[00:20:07] Speaker 04:
You would like me to, nonetheless, find a word ambiguous, despite the fact that it is defined, according to this record, in an enormous number of sources consistently as including both.

[00:20:19] Speaker 04:
But you'd like me to, nonetheless, find it's ambiguous

[00:20:22] Speaker 04:
Why?

[00:20:22] Speaker 04:
Because it's a customs reg, and I'm supposed to think customs is just generally ambiguous?

[00:20:26] Speaker 04:
I don't understand.

[00:20:28] Speaker 05:
I don't think that's the distinction, Your Honor.

[00:20:30] Speaker 04:
Well, clearly not.

[00:20:31] Speaker 04:
Because that was kind of sarcastic.

[00:20:35] Speaker 05:
I understand your point.

[00:20:38] Speaker 05:
I understand what you're saying.

[00:20:39] Speaker 05:
But even dictionary definitions do distinguish between marks that are registered and not registered.

[00:20:45] Speaker 05:
If you're bringing a suit for trademark infringement, it has to be a registered mark.

[00:20:50] Speaker 05:
If you're suing on a likelihood of confusion, in addition of one of the... But all the statutes say that.

[00:20:56] Speaker 04:
If you want to bring suit for infringement, you have to have a, quote, this is what the statute says, federally registered trademark.

[00:21:02] Speaker 04:
They don't use the word trademark interchangeably with federally registered trademark.

[00:21:07] Speaker 04:
I understand, Your Honor.

[00:21:08] Speaker 04:
You realize the problem with your argument is

[00:21:11] Speaker 04:
regulatory and statutory interpretation is really important.

[00:21:13] Speaker 04:
And I take my obligation to give deference to agencies very seriously, as does everyone on this court.

[00:21:20] Speaker 04:
But it would be really problematic if we started going down the road of saying a word that has universal common understood meaning, and every piece of evidence in the record says it means this, is nonetheless ambiguous just because the agency that wrote the statute wants to say it means something contrary to its plain and ordinary meaning.

[00:21:41] Speaker 04:
I can't do that.

[00:21:42] Speaker 04:
It has nothing to do with this case.

[00:21:43] Speaker 04:
It has to do with just the process of regulatory interpretation and how it's supposed to work.

[00:21:48] Speaker 05:
I understand your point, Your Honor.

[00:21:49] Speaker 04:
But you guys can always go back and amend this reg at any point.

[00:21:52] Speaker 05:
It's true.

[00:21:53] Speaker 04:
You can fix this.

[00:21:54] Speaker 04:
This is a problem of your making.

[00:21:55] Speaker 05:
I mean, there are the two regs.

[00:21:57] Speaker 05:
And there needs to be a method in order to distinguish the two regs.

[00:22:00] Speaker 05:
And so that's what Customs has done consistently for the past 25 years.

[00:22:05] Speaker 05:
It's a bright line test.

[00:22:06] Speaker 02:
Has the question of the application for registration come up before?

[00:22:12] Speaker 05:
In terms of what?

[00:22:13] Speaker 02:
Whether 47 applies to a set of words that the importer asserts is a trademark and doesn't have a registration for but has an application on file for?

[00:22:29] Speaker 05:
Yeah.

[00:22:30] Speaker 05:
A non-rejected application.

[00:22:34] Speaker 05:
would designate that the more relaxed requirement of 47.

[00:22:38] Speaker 05:
But has that come up before?

[00:22:39] Speaker 05:
I'm sorry.

[00:22:40] Speaker 05:
Go ahead.

[00:22:41] Speaker 05:
Has that come up in terms of customs rule?

[00:22:42] Speaker 02:
I guess I'm sort of trying to figure out, following a little bit on Judge Moore's question, as between doing something that is sort of for us institutionally quite extraordinary of saying trademark doesn't really mean trademark, and you're fixing this.

[00:22:58] Speaker 02:
I'm sort of trying to understand, is this a new problem?

[00:23:02] Speaker 02:
Or has this regulation been sitting here for a long time with a series of applications of this regulation that present this very difficulty?

[00:23:12] Speaker 05:
Well, I mean, this issue doesn't come up very often, Your Honor.

[00:23:15] Speaker 05:
I mean, some of the rulings that discuss the country of origin markings, customs rulings, really are the early 90s.

[00:23:23] Speaker 05:
So there's not been a lot of movement on this issue for a long time.

[00:23:27] Speaker 05:
during this long stretch of time from the early 90s has been consistently looking, do you have an application for a trademark, or is it a registered trademark?

[00:23:34] Speaker 05:
I understand that the concept of trademarks is bigger than how Customs restricts it in this instance, but has done so consistently for 25 years within the context of just the country of origin, marking, statute, and regulations.

[00:23:48] Speaker 05:
It's not investigating whether something is used as a trademark.

[00:23:51] Speaker 05:
Generally, it doesn't have the resources to do that, Customs does.

[00:23:55] Speaker 05:
That's for the Patent and Trade Office to weigh in on, and that's for the courts to weigh in on.

[00:23:59] Speaker 05:
But it's not for customs to weigh in on.

[00:24:01] Speaker 02:
Sounds like a pretty good statement of basis and purpose for a reformed regulation.

[00:24:10] Speaker 05:
I understand.

[00:24:10] Speaker 04:
Do you have anything else you'd like to add?

[00:24:14] Speaker 05:
I would look for the trial court's decision below.

[00:24:17] Speaker 05:
Thank you for your time.

[00:24:18] Speaker 05:
Yes.

[00:24:22] Speaker 03:
The clock is accurate.

[00:24:24] Speaker 03:
I'd like to just make a few points.

[00:24:29] Speaker 03:
And going back to your point, Your Honor, about trademark, the rulings that council refers to and that are included in the appendix as well, I think in one of the addendum, only state that the application for trademark is evidence of the trademark.

[00:24:48] Speaker 03:
It's not determinative of anything else.

[00:24:52] Speaker 03:
Customs will consider it as evidence rather than require anything more from that particular importer.

[00:25:00] Speaker 03:
So filing the application serves that singular purpose.

[00:25:06] Speaker 03:
And the rulings that they've issued over time say that routinely.

[00:25:09] Speaker 03:
And at least since 1989, customs recognizes we've not defined the term trademark.

[00:25:16] Speaker 03:
We need to fix it.

[00:25:17] Speaker 03:
We'll get around to it.

[00:25:18] Speaker 03:
They said it in rulings in the early 90s.

[00:25:21] Speaker 03:
They said it in the rulemaking in 1997, and they've said it, I believe, since then as well, and they've never done it.

[00:25:27] Speaker 03:
So to me, the word trademark is clear and unambiguous.

[00:25:31] Speaker 02:
Can I ask you two case-specific questions?

[00:25:35] Speaker 02:
One, do you guys have 350,000 pairs of jeans sitting in a warehouse for the last five years?

[00:25:39] Speaker 03:
No, Your Honor.

[00:25:40] Speaker 02:
What's the status of these entries?

[00:25:43] Speaker 03:
The status of the entries is that Customs has, I believe, liquidated the entries.

[00:25:49] Speaker 03:
They've assessed 10% marking duties for failure to mark, and they've also made hundreds of thousands of dollars of claims for liquidated damages for not marking them within the period of time.

[00:26:01] Speaker 03:
So that all hinges on this decision as well.

[00:26:06] Speaker 03:
The other point I wanted to make- My second question.

[00:26:08] Speaker 02:
Did you submit evidence to customs about the trademark status of your markings?

[00:26:16] Speaker 03:
Yes, Your Honor, we submitted the trademark applications to customs in connection with the protests that were filed with these cases.

[00:26:24] Speaker 02:
They had that information.

[00:26:25] Speaker 02:
And what do the applications say about not just that these markings were used in commerce before, but something about, if anything, about their use as a supplier identifier?

[00:26:40] Speaker 03:
Well, it identifies the owner of the mark.

[00:26:42] Speaker 03:
it identifies the mark itself, it says it's a stylized word, stylized word marking, I'm not a trademark expert, and that it's been in use since at least 2005.

[00:26:52] Speaker 01:
Now there are some genes, though, that you didn't file an application on, the Los Angeles genes?

[00:26:58] Speaker 01:
Yes, Your Honor.

[00:26:59] Speaker 01:
What did you do with respect to those?

[00:27:00] Speaker 01:
Did you submit evidence of a common law trademark on them?

[00:27:04] Speaker 01:
Did you submit evidence of a common law trademark on those?

[00:27:08] Speaker 03:
We didn't submit evidence, I believe, of a common law trademark on the CISQA Los Angeles.

[00:27:13] Speaker 03:
But all of the genes are marked identically.

[00:27:16] Speaker 03:
And in fact, if you look in the appendix, you'll see that the country of origin is

[00:27:21] Speaker 03:
at located next to the CT USA genes mark.

[00:27:26] Speaker 03:
So the question is whether the C'est Toit Los Angeles mark supersedes a different mark that's on the genes.

[00:27:33] Speaker 03:
Every pair of genes has a CT USA mark.

[00:27:37] Speaker 03:
And the country of origin marking is right above it.

[00:27:40] Speaker 03:
And if you look in the appendix, you'll see on pages, I think it's page 40, page 44, you'll see pictures of the marking on the genes.

[00:27:48] Speaker 03:
And as court knows,

[00:27:49] Speaker 03:
anybody who's ever purchased a pair of pants, the first thing they do is look at the color and then look at the size.

[00:27:56] Speaker 03:
And that country of origin marking is displayed directly over the size and other information concerning those pants.

[00:28:02] Speaker 03:
We would hope that the court would reverse the decision of the CIT.

[00:28:05] Speaker 03:
Thank you very much.

[00:28:06] Speaker 04:
Thank you, Mr. Pollack.

[00:28:07] Speaker 04:
I thank both counsel cases taken under submission.