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HQ 475073





January 12, 2004

ENF-4-2 RR:ITIP: 475073 GG

CATEGORY: RESTRICTED MERCHANDISE INTELLECTUAL PROPERTY RIGHTS

Mr. Michael G. Hodes, Esq.
Hodes, Keating & Pilon
39 South La Salle Street, Suite 1020
Chicago, Illinois 60603

RE: Ruling Request Regarding Pacific Cigar Company Logo’s Likeness to the Great Seal of the United States

Dear Sir:

This is in response to your request for a binding ruling under 19 CFR § 177, dated November 3, 2003, on behalf of Pacific Cigar Company, concerning the admissibility of certain merchandise bearing a label consisting of a “company logo” which incorporates an image similar to that of the Great Seal of the United States. Samples of the merchandise were submitted with your inquiry.

FACTS:

Pacific Cigar Company (“Pacific Cigar”) of Lemont, Illinois is an importer and distributor of hand-rolled long-filler cigars. The merchandise in question consists of packaging for cigars namely cigar bands, cigar tubes and cigar boxes, imported from the Philippines and the Dominican Republic. The subject merchandise bears a mark consisting of a circular design featuring stars in which an image of the Great Seal of the United States appears inside the circle of stars and the wording “PACIFIC CIGAR” or “PACIFIC CIGARS” appear outside the circle.

In its letter, counsel states that its client, Pacific Cigar “recently entered into an agreement with the United States to refrain from importing goods bearing the ‘Seal of the President of the United States.’” Further, counsel states that “recently, Pacific Cigar believes that its freight has been unnecessarily detained over confusion between the characteristics of the ‘Great Seal and the Presidential Seal.’” As such, you seek a ruling approving Pacific Cigar’s use of the Great Seal of the United States in order to facilitate the entry of its goods.

ISSUE:

The issue presented is whether the subject merchandise bears a mark that incorporates a likeness of the Great Seal of the United States.

LAW AND ANALYSIS:

In the instant case, the question before us deviates somewhat from the more traditional cases involving the U.S. Customs and Border Protection (CBP) trademark infringement, in that the subject question involves application of certain provisions of 18 U.S.C. § 713 (Crimes and Criminal Procedure, Chapter 33, Emblems, Insignia, and Names, Use of Likeness of the great Seal of the United States). That is, CBP here is providing a ruling not on the basis of whether one trademark is counterfeit or confusingly similar to another, but rather, on those provisions of Title 18 which address “use of likeness of the Great Seal of the United States.” Regardless, the question presented is whether the particular “company logo” design at issue constitutes a violation of law under Title 18, U.S. Code.

Section 713 of Title 18 addresses the use of likeness of the Great Seal of the United States. In pertinent part, 18 U.S.C. § 713(a) provides:

Whoever knowingly displays any printed or other likeness of the great seal of the United States, or of the seals of the President or the Vice President of the United States, or the seal of the United States Senate, or the seal of the United States House of Representatives, or the seal of the United States Congress, or any facsimile thereof, in, or in connection with, any advertisement, poster, circular, book, pamphlet, or other publication, public meeting, play, motion picture, telecast, or other production, or on any building, monument, or stationery, for the purpose of conveying, or in a manner reasonably calculated to convey, a false impression of sponsorship or approval by the Government of the United States or by any department, agency, or instrumentality thereof, shall be fined under this title or imprisoned not more than six months, or both.

The mark in question comprising the company logo consists of a circle of stars, and according to counsel, Pacific Cigar “has incorporated into its logo an image of the obverse side of the Great Seal.” An image of the Pacific Cigar logo/mark (hereinafter “Pacific Cigar Seal”) as it appears on the sample merchandise, as well as an image of the Great Seal of the United States are displayed below.

Counsel first claims that the Pacific Cigar Seal is unlike the Great Seal of the United States, in that the Pacific Cigar Seal varies in color scheme, and “on many uses, Pacific Cigar’s Seal lacks specificity of detail, such as the number of tail feathers on the eagle, the number of arrows in its left talon, the legibility of the phrase “e pluribus unum” across the banner, etc.”

As can be seen in the images above, however, the Pacific Cigar Seal is nearly identical to the Great Seal of the United States. In fact, upon close scrutiny of the samples provided by counsel, it is evident that the suspect Pacific Cigar Seal contains nearly all of the specificity and details found in the Great Seal of the United States, to wit: nine tail feathers, thirteen stars in the crest above the eagle, thirteen stripes in the shield or escutcheon upon the eagle’s breast, thirteen arrows in the eagle’s left claw, thirteen olives and leaves in the eagle’s right claw, and the motto “E Pluribus Unum” clearly emblazoned across the scroll carried by the eagle in its beak. Accordingly, it is quite clear that the Pacific Cigar Seal uses a likeness of the Great Seal of the United States.

Next, counsel interprets section 713(a) of Title 18 to mean that any other use of the Great Seal that does not convey a false impression of approval or sponsorship is lawful under the statute. As such, counsel contends that Pacific Cigar’s use of likeness of the Great Seal of the United States is not in contravention of section 713(a) of Title 18, because the Pacific Cigar logo does not use the Great Seal of the United States to convey a false impression of sponsorship or approval by the Government of the United States. In support of this argument, counsel maintains that the wording “Pacific Cigars” is “prominently displayed around, or in close proximity of, the image of the seal,” and that the “words ‘sponsored by,’ ‘approved by,’ or similar words which could be interpreted as conveying government sponsorship or approval do not appear anywhere in the company logos or displays.” Therefore, counsel suggests that the Pacific Cigar Seal does not convey a false impression of approval or sponsorship by the government.

This argument, however, is without merit since it is the Great Seal component of the subject mark that gives the logo its essential character, and is the most prominent and dominant feature of the mark. The fact that the words “sponsored by” or “approved by” do not appear on or near the mark or the absence of similar wording on the mark does not obviate the impression of government sponsorship or approval. Moreover, because the dominant feature of the logo is the Great Seal of the United States, the addition of the wording “Pacific Cigars” in the logo does not diminish the overall impression of the Great Seal of the United States, which conveys government approval or sponsorship. See Adams v. First Federal Credit Control, Inc., 1992 U.S. Dist. LEXIS 8306 (N.D. Ohio May 21, 1992) (word “sandwiched” between two copies of icon similar to Great Seal of United States does not weaken consumer perception of affiliation with federal government).

Counsel also cites legislative history to support a claim that Pacific Cigar’s use of the Great Seal on its merchandise reflects the company’s “pride and esteem” for the United States. Notwithstanding the merits of this claim however, the sample provided bears no country of origin marking despite the fact that the merchandise is imported from the Philippines and the Dominican Republic. This, in and of itself would subject the goods to seizure and forfeiture pursuant to 19 U.S.C. § 1595a(c)(2)(E) for a violation of 19 U.S.C. § 1304. While this issue is beyond the scope of the instant determination, we find it noteworthy and a significant consideration.

Lastly, counsel cites to 15 U.S.C. § 1052(b) for the proposition that the underlying statutory intent for prohibiting trademark registration of the flag, coat of arms or other insignia of the United States, is to allow the public to “freely use these symbols of our country.”

In pertinent part, 15 U.S.C. § 1052(b) provides:

No trademark by which the goods of the applicant may be distinguished from the goods of others shall be refused registration on the principal register on account of its nature unless it-- (b) Consists of or comprises the flag or coat of arms or other insignia of the United States, or of any State or municipality, or of any foreign nation, or any simulation thereof.

Section 2(b) of the Trademark Act, 15 U.S.C. § 1052(b), bars the registration of marks that consist of or comprise (whether consisting solely of, or having incorporated in them) the flag, coat of arms, or other insignia of the United States, or any simulation of such symbols. Trademark Manual of Examining Procedure (“TMEP”) § 1204. The law is clear that flags and coats of arms are specific designs formally adopted to serve as emblems of governmental authority. In re United States Dept. of the Interior, 142 USPQ 506 (TTAB 1964). Therefore, marks that consist or comprise any simulation of the flag, coat of arms, or other insignia of the United States, of any state or municipality, or of any foreign nation are rendered unregistrable under section 1052(b) of the Trademark Act.

HOLDING:

In light of the foregoing analysis, we find that the subject merchandise bears a mark that is identical to the Great Seal of the United States, in violation of 18 U.S.C. § 713(a), and would be subject to seizure and forfeiture pursuant to 19 U.S.C. § 1595a(c)(2)(B).

Sincerely,

George Frederick McCray, Esq.
Chief, Intellectual Property Rights Branch

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