CBP Receives Lever-Rule Application on Gray Market Downy Products
In the January 25, 2012 issue of the U.S. Customs and Border Protection Bulletin (Vol. 46, No. 5), CBP issued a notice announcing its receipt of a "Lever-Rule" application from Proctor & Gamble for the federally registered and recorded "Downy" trademark.
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Seek Protection Against Imports of Products Bearing Downy Trademark
Proctor & Gamble is seeking Lever-Rule protection against the importations of products that bear the Downy trademark but are intended for sale in countries outside the U.S., and are therefore physically and materially different from Downy products intended for sale in the U.S. (gray market products).
CBP to Determine if Downy Products Are Materially Different
In the event that CBP determines the Downy products under consideration are physically and materially different from the Downy products authorized for sale in the U.S., CBP will publish a notice in the CBP Bulletin, pursuant to 19 CFR 133.2(f), indicating that the above-referenced trademark is entitled to Lever-rule protection with respect to those physically and materially different (gray market) Downy products.
(In light of the 1993 court decision in Lever Bros. Co. v. U.S., CBP issued a final rule (T.D. 99-21) in February 1999 that, upon application by the U.S. trademark owner, restricts the importation of certain gray market articles that bear genuine trademarks identical to or substantially indistinguishable from those appearing on articles authorized by the U.S. trademark owner for importation or sale in the U.S., and that thereby create a likelihood of consumer confusion, in circumstances where the gray market articles and those bearing the authorized U.S. trademark are physically and materially different. See ITT’s Online Archives 99022325 for summary of T.D. 99-21.)
CBP Contact -- Tatiana Salnik (202) 325-0351