ITC Issues General Exclusion Order on Certain "Red Bull" Energy Drinks
The International Trade Commission has issued a general exclusion order in its section 337 patent-based investigation of certain energy drink products. The ITC has also terminated the investigation.
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(This investigation was instituted based on a complaint filed by Red Bull GmbH of Austria and Red Bull North America, Inc. of Santa Monica, California, which alleged violations of section 337 of the Tariff Act of 1930 based upon the importation into the U.S., the sale for importation, and the sale within the U.S. after importation of certain energy drink products that infringe U.S. Trademark Registration Nos. 3,092,197; 2,946,045; 2,994,429; and 3,479,607 and U.S. Copyright Registration No. VA0001410959.
The complainants named the following respondents: Chicago Import Inc. of Chicago, IL;
Lamont Dist. Inc., aka Lamont Distributors Inc. of Brooklyn, NY; India Imports, Inc., aka International Wholesale Club of Metairie, LA; Washington Food and Supply of D.C., Inc., aka Washington Cash & Carry of Washington, DC; Vending Plus, Inc. of Glen Burnie, MD; and Baltimore Beverage Co. of Glen Burnie, MD.)
General Exclusion Order Excludes Infringing Articles Except Under License, Etc.
According to the general exclusion order, energy drink products that (i) infringe one or more of U.S. Trademark Reg. Nos. 3,092,197; 2,946,045; 2,994,429; or 3,479,607 or any marks confusingly similar thereto or that are otherwise misleading as to source, origin, or sponsorship, or (ii) bear U.S. Copyright Reg. No. VA0001410959 or a design confusingly similar thereto or that are otherwise misleading as to source, origin, or sponsorship are excluded from entry into the U.S. for consumption, entry for consumption from a foreign-trade zone, or withdrawal from warehouse for consumption, except if imported by, under license from, or with the permission of the trademark owner, or as provided by law, until such date as the trademarks are abandoned, canceled, or rendered invalid or unenforceable.
Red Bull Must File Annual Written Statement on Validity of Trademarks
The general exclusion order states that complainants Red Bull GmbH and Red Bull North America, Inc. shall file a written statement with the ITC, made under oath, each year on the anniversary of the issuance of the order stating whether Red Bull GmbH and Red Bull North America, Inc. continue to use each of the aforesaid trademarks in commerce in the U.S. in connection with energy drink products, whether any of the aforesaid trademarks has been abandoned, canceled, or rendered invalid or unenforceable, and whether the complainants continue to satisfy the economic requirements of section 337 of the Tariff Act of 1930.
60-Day Bond is 100% of Entered Value, Not Exempt from Trademark Seizure
The general exclusion order states that the excluded energy drink products are entitled to entry into the U.S. for consumption, entry for consumption from a foreign trade zone, or withdrawal from a warehouse for consumption, under bond in the amount of 100% of the entered value of the products, from the day after the order is received by the U.S. Trade Representative until such time as the USTR notifies the ITC that the order is approved or disapproved but, in any event, not later than 60 days after the date of receipt of the order.
The order notes that this provision does not exempt infringing articles from seizures under the trademark laws enforced by U.S. Customs and Border Protection.
CBP May Require Certification that Imports are Not Subject to Order
At the discretion of CBP and pursuant to procedures it establishes, persons seeking to import energy drink products that are potentially subject to the general exclusion order may be required to certify that they are familiar with the terms of the order, that they have made appropriate inquiry, and thereupon state that, to the best of their knowledge and belief, the products being imported are not excluded from entry under the order. At its discretion, CBP may require persons who have provided such certification to furnish such records or analyses as are necessary to substantiate the certification.
(See ITT's Online Archives or 06/17/09 news, 09061755, for BP summary of ITC's initiation of this investigation.)
(Issued 09/08/10, Inv. No. 337-TA-678)
The draft FR notice and general exclusion order are available by emailing documents@brokerpower.com.