CBP Grants Lever-Rule Protection for Eveready Battery Products

March 21, 2012 by Elizabeth Parker|Customs and Ports

In the March 14, 2012 issue of the U.S. Customs and Border Protection Bulletin (Vol. 46, No. 12), CBP issued a notice announcing that it has granted "Lever-Rule" protection¹ to Eveready Battery Company, Inc.'s battery products bearing trademarks related to Energizer, Energizer Bunny Design, among others.

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(See ITT's Online Archives 10123024 for summary of CBP receiving a Lever-Rule application from Eveready Battery for its battery products.)

Lever-Rule Protection Granted to 12 Trademarks for Eveready Battery Products

CBP has granted Lever-rule protection for Eveready Battery Company's Battery products bearing the following 12 trademarks:

Energizer (CBP Recordation No. TMK 01-00374)
Energizer Bunny Design (CBP Recordation No. TMK 01-00618)
Energizer and Design (CBP Recordation No. TMK 10-00550)
Energizer and Design (CBP Recordation No. TMK 10-00542)
Energizer (CBP Recordation No. TMK 10-00557)
Double Band Battery Design (CBP Recordation No. TMK 10-00541)
Keep Going (CBP Recordation No. TMK 10-00534)
Galaxy Logo (CBP Recordation No. TMK 10-00543)
Galaxy Design Card (CBP Recordation No. TMK 10-00536)
Design (Galaxy Battery) (CBP Recordation No. TMK 10-00535)
Energizer & Galaxy Design Card (CBP Recordation No. TMK 10-00548)
Energizer Max (CBP Recordation No. TMK 10-00552)

Gray Market Battery Products Differ Physically and Materially

CBP has determined that the above-referenced gray market Eveready Battery Company battery products differ physically and materially from the Eveready battery products authorized for sale in the U.S. in one or more of the following respects:

packaging lacks significant warnings recommended by the American National Standards Institute guidelines;
packaging bears different artwork and contains foreign languages;
packaging bears a guarantee clause not valid in the U.S.;
packaging lacks a copyright registration notice;
packaging bears expiration dates;
packaging bears different barcodes;
packaging does not list the name of product distributor; and
packaging bears additional foreign certification designations.

Importation of Gray Market Versions Is Restricted

As a result, importation of the listed gray market Eveready Battery Company battery products is restricted, unless the labeling requirements of 19 CFR 133.23(b) have been satisfied.

(19 CFR 133.23(b) states that goods determined by CBP to be physically and materially different that bear a genuine mark applied under the authority of the U.S. owner, a parent or subsidiary of the U.S. owner, or a party otherwise subject to common ownership or control with the U.S. owner (gray market goods) shall not be detained where the merchandise or its packaging bears a conspicuous and legible label designed to remain on the product until the first point of sale to a retail consumer in the U.S. stating that: “This product is not a product authorized by the U.S. trademark owner for importation and is physically and materially different from the authorized product.”

The label must be in close proximity to the trademark as it appears in its most prominent location on the article itself or the retail package or container. Other information designed to dispel consumer confusion may also be added.

According 19 CFR 133.23(c), restricted gray market goods imported into the U.S. not so labeled, where the U.S. owner has received Lever-Rule protection for their products, shall be denied entry and subject to detention as provided in 19 CFR Part 133.25.)

¹Pursuant to a March 1999 court decision (Lever Brothers Co. v. U.S.), 19 CFR was amended to prevent the importation of gray market goods which are "physically and materially different" from similar goods authorized for importation into the U.S. absent clear notice to the consumer.

CBP Contact -- Alaina van Horn (202) 325-0083