United States International Trade Commision Rulings And Harmonized Tariff Schedule

faqs.org  Rulings By Number  Rulings By Category  Tariff Numbers

faqs.org > Rulings and Tariffs Home > Rulings By Number > 1993 HQ Rulings > HQ 0557044 - HQ 0733753 > HQ 0732102

Previous Ruling Next Ruling

---

HQ 732102

April 13, 1989

TMK-3 CO:R:C:V 732102 A

CATEGORY: TRADEMARKS

Robert E. Wagner, Esq.
Wallenstein, Wagner & Hattis, Ltd.
100 South Wacker Drive
Chicago, Illinois 60606

RE: Yamaha; trademark; gray market goods; related companies; subsidiary

Dear Mr. Wagner:

Your letter dated January 30, 1989, on behalf of Yamaha Corporation of America, asks for reconsideration of the "reissuance" of an exclusion order of October 21, 1988 (No. 88- 452), which grants exclusion of counterfeit and confusingly similar goods rather than genuine goods as excluded in the order of August 18, 1989 (No. 88-342).

Our notice No. 88-342, which was prepared to reflect a corporate name change, erroneously indicated that trademark protection was available for genuine goods as well as against copies or simulations or counterfeits. That indication was done inadvertently since nothing in the file warranted the drastic change from the previous status which did not protect against "gray market" goods. Accordingly, Customs Issuance No. 88-452 does not reflect any considered opinion but merely an "erratum."

You suggest that an American subsidiary of a Japanese corporation should receive import protection against genuine trademarked goods because Article X of the 1953 Treaty of Friendship, Commerce and Navigation between the United States and Japan (TIAS 2863 Apr. 2, 1953) provides that Japanese companies are accorded the same status as domestic corporations and thus would be entitled to the benefits of section 526 of the Tariff Act. That is a novel theory to us, and we are unaware that it has been litigated or even raised in the many lawsuits culminating in the "COPIAT" decision last summer (108 S. Ct. 1811).

Rather than specifically providing Japanese companies all the rights of domestic corporations, Article X accords them "national treatment." Since a U.S. national is subject to Customs interpretation of section 526, as to companies under common ownership or control (19 CFR 133.21(c)(1),(2)), a Japanese subisidiary in the United States is similarly subject. This position is consistent with that expressed by the Court in NEC v. CAL CIRCUIT ABCO, 810 F. 2d 1506, 1511, that "This country's trademark law does not offer NEC-Japan a vehicle for establishing a worldwide scheme simply through the expedient of setting up an American subsidiary with nominal title to its mark.

Accordingly, Issuance 88-452 must remain as issued.

Sincerely,

Marvin M. Amernick

Previous Ruling Next Ruling