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HQ 460963

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March 11, 1996

COP-1 RR:IT:IP 460962 KWM

CATEGORY: COPYRIGHT

Ms. Barbara Dennis
Visionary
3867 S. Valley View, Unit #1
Las Vegas, NV 89103

RE: Opera glasses; Copyright; Patent; Mechanical Drawing

Dear Ms. Dennis:

This is in response to your letter on behalf of L-Zos Optics regarding the possible importation of certain "microbinoculars" believed to be manufactured in and imported from Russia.

FACTS:

L-Zos Optics, a Detroit, Michigan company, owns certain Russian mechanical drawings which describe a "microbinocular 2.5 x 17.5." According to the L-Zos letter, the mechanical drawings are "like a patent in the U.S." Also according to the letter, ownership of the Russian drawings affords the owner the right to authorize production of the microbinoculars in Russia. Although the Russian documentation was not included, you state that it is available on request.

In your letter you assert that third party Russian companies, not the owners of the drawings, are producing "knock-off" microbinoculars in violation of the owner's Russian rights to authorize such production. You ask the assistance of U.S. Customs in preventing the importation of such microbinoculars and in confiscating any such articles which are attempted to be imported into the United States.

ISSUE:

Are the microbinoculars described in your letter subject to the importation prohibitions enforced by the U.S. Customs Service?

LAW AND ANALYSIS:

Under current U.S. law, the Customs Service has authority to examine, detain and/or seize certain goods imported in violation of those laws. In particular, Customs may determine that certain imported goods violate U.S copyrights and U.S trademarks, and detain and/or seize those goods. However, the law also requires a valid U.S registration with the appropriate federal agency, either the Copyright Office or the Patent and Trademark Office, before Customs may act. The Customs Service further provides a recordation service by which valid copyright and trademark registrations may be placed on file with the Service as prima facie evidence of the intellectual property claim.

U.S. patent claims are also enforced by the Customs Service after the issuance of an Exclusion Order by the International Trade Commission. An Exclusion Order may be issued as the result of an administrative legal process during which the International Trade Commission determines that goods in violation of the patent claims are being imported contrary to the rights of the U.S. patent holder.

In this case, it does not appear that L-Zos currently owns or claims a U.S. copyright, trademark or patent. The Customs Service does not have the authority to enforce intellectual property rights owned in a foreign country. Therefore, Customs is unable to provide the protection you request.

If L-Zos has or obtains a U.S copyright or trademark covering the goods in question, you may provide proof of such claim to this office, according to the requirements in the federal regulations, and Customs will enforce such rights as exist under the claim(s). We have enclosed a copy of the Customs Service pamphlet How to Obtain Copyright, Trademark and Patent Protection from the Untied States Customs Service which explains the Customs recordation process. You may also wish to contact the International Trade Commission Office of Trade Remedy Assistance, at (202) 205-2200, for information on the administrative proceedings regarding patent enforcement.

HOLDING:

The microbinoculars believed to manufactured in violation of certain Russian rights arising from mechanical drawings owned under Russian law, as described above, may not be excluded or seized by the Customs Service according to the laws administered by the Service.

Sincerely,

John F. Atwood, Chief
Intellectual Property Rights Branch

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