Trademark Letter Rulings from Customs Service Are Expeditious, But Under-Used Tool

The Office of Regulations and Rulings (ORR) of CBP will provide a “full and careful consideration” of letter requests, in the form of written rulings on import-related questions posed by importers or interested parties on questions. This includes questions that typically relate to whether sample goods bear marks that violate the trademark rights of another party that are recorded with the CBP. See, 19 C.F.R. ”177.1-177.13. If the item in question is already pending before a specific office by reason of arrival or entry, that office will deal with any questions, although local offices always have the authority to forward requests to the headquarters in Washington, DC. (In practice, these requests are delegated to the ORR.) See, 19 C.F.R.”177.1(a)(2)(i), 177.11. Letter rulings are similarly unavailable for matters pending before most other courts, see, CBP, “Requirements for Electronic Rulings,” at www.cbp.gov/xp/cgov/trade/legal/rulings/eRulingRequirements.xml (updating and superseding 19 C.F.R. '177.7) or that relate to import transactions that have already been completed, 19 C.F.R. '177.1(a)(2)(ii).

If a matter becomes “live” while a letter ruling is pending, the requesting party must immediately advise Customs and the local field office; the local office typically suspends action until the letter ruling is issued. See, 19 C.F.R. '177.5. Rulings are considered “published” once a decision is published in the Customs Bulletin. See, 19 C.F.R. '177.1(d)(1). Within 90 days of issuing the decision, CBP is required to publish its final decisions. Trademark decisions are effective immediately unless the ruling provides otherwise. See, 19 C.F.R. '177.10.

CBP has the authority to find that a proposed import would either infringe a trademark previously recorded with CBP pursuant to the provisions of 19 C.F.R. ”133 et seq. or that a proposed import would be a counterfeit. See, HQ 459018 (Jan. 5, 1995), available at http://rulings.cbp.gov/detail.asp?ru=459018&qu=459018. The term “counterfeit” is defined as “a spurious mark that is identical with, or substantially indistinguishable from, a registered mark.” 15 U.S.C. '1127; 19 C.F.R. '133.21(a). For example, an importer acting on behalf of Cheveux Corp. asked the CBP to rule on whether any or all of five patterns were likely to infringe upon or constitute counterfeits of Burberry Limited's well-known plaid mark. HQ 471389 (Jan. 31, 2002), available at http://rulings.cbp.gov/detail.asp?ru=471389&qu=471389.

Trademark owners can also seek letter rulings confirming that branding used by third parties infringes their registered and recorded marks. See, HQ 459012 (May 2, 1995), available at http://rulings.cbp.gov/detail.asp?ru=459012&qu=459012. In that letter ruling, CBP ruled that LAICRA, LICRA, LIKRA and LYKRA were counterfeit and the terms LYCRI and LYCRO were confusingly similar to DuPont's LYCRA mark. Customs may also issue letter rulings based on unregistered trademark rights. See, U.S. v. Nippon Miniature Bearing Corp., 155 F.Supp.2d 702, 709 (C.I.T. 2001) (“Customs' determination in the form of letter ruling finding a violation of Section 43(a) was held to be a permissible exercise of its authority. No court order was required to deny entry of the merchandise pursuant to Section 43(b).”).

Once a ruling has been issued, a copy should be filed with the local Customs field office in connection with any relevant transactions. See, 19 C.F.R. '177.8(2).

Requirements for Ruling Requests

Ruling requests should contain “a complete statement of all relevant facts relating to the transaction,” to the extent known, including the name of the port and a summary of the proposed transaction (for trademark matters, focusing on the marks and goods at issue). The request must include at least photographs and/or drawings of the goods in question, and preferably a sample of the article itself. Any related documents that are relevant and necessary for the ruling ' like invoices, contracts, agreements, and so forth ' should be appended and described in the ruling request. The request must identify whether “the same transaction, or one identical to it” has been or is being considered by any Customs office, or the U.S. Court of International Trade, the U.S. Court of Appeals for the Federal Circuit or any court of appeal from those bodies. Finally, the request must be signed by the party making the request or the party's agent. See, 19 C.F.R. '177.2(a)-(c).

Letter ruling requests can contain a few more items. First, the requestor can and should provide a brief statement of its favored position. See, 19 C.F.R. '177.2(b)(6). Second, if the request includes any privileged or confidential information (not particularly likely for a trademark matter, but possible), that information must be identified and the reason for the confidentiality request must be justified by detailing the harm that could result from disclosure of the information. See, 19 C.F.R. '177.2(b)(7). Confidentiality designations only apply to the decisions issued by Customs; the letter request itself is discoverable under the Freedom of Information Act and will not be shielded on confidentiality grounds. So, those requesting letter rulings should be careful about including any trade secret or confidential matters in their requests, and try to construct any letter ruling requests so they do not disclose confidential information. From the perspective of an importer, merely requesting a non-infringement ruling might tip off a trademark owner about a potential infringement issue. Finally, the petitioner can request urgent consideration of the ruling request, 19 C.F.R. '177.2(d) (on a showing of a “clear need” for urgent action) or an oral hearing, 19 C.F.R. '177.4; either type of request can be granted or rejected at Customs' discretion.

The person requesting a ruling will be given 30 days to cure any non-conforming ruling requests. See, 19 C.F.R. '177.3. CBP can modify decisions that have been in effect for more than 60 days only by publishing notice of its proposed and final action. See, 19 C.F.R. '177.12(b)-(d). If field offices apply the ruling for inconsistent decisions, interested parties can petition to headquarters for reconsideration. See, 19 C.F.R. '177.13. (The petition process also provides for a short notice-and-comment period.) Letter rulings, like other types of informal interpretive documents published by agencies, are entitled to “respect” but not deference from courts, since they are not vetted through a notice-and-comment process. See, U.S. v. Mead Corp., 533 U.S. 218, 221 (2001). Because letter rulings are not true adversarial proceedings, they presumably do not have the res judicata effect of a full-fledged ITC ruling. See, e.g., Union Mfg. Co. Inc. v. Han Baek Trading Co. Ltd., 763 F.2d 42, 44-46 (2d Cir. 1985) (res judicata applies to ITC judgments on trademark claims).

Letter rulings are reviewed (if rarely) by the Court for International Trade. See: 28 U.S.C. '2640(d); Ross Cosmetics Distribution Centers Inc. v. U.S., 17 C.I.T. 814, 815 (1993). If the aggrieved party wants the Court of International Trade to grant pre-importation review, it should not dawdle too much from the date of receipt of an adverse letter ruling to the date of filing suit. See, CPC Intern. Inc. v. U.S., 19 C.I.T. 978, 988, 896 F.Supp. 1240 (C.I.T. 1995) (noting that a three-month delay was reasonable).

Standards Applied in Letter Rulings

Because the ORR is located in New York, it applies the Second Circuit's Polaroid factors to determine whether there is a likelihood of confusion between two marks. See, Polaroid Corp. v. Polaroid Electronics Corp., 287 F.2d 492 (2d Cir. 1961). The eight factors ' not all of which are relevant in every proceeding ' are:

1. The strength of the mark;
2. The degree of similarity between the two marks;
3. The proximity of the products;
4. The likelihood that the prior owner will bridge the gap;
5. Actual confusion;
6. The defendant's good faith in adopting its mark;
7. The quality of the defendant's product; and
8. The sophistication of buyers.

Because letter rulings are not adversarial proceedings, the CBP applies very loose standards of evidence. For example, in the Burberry ruling raised earlier in this article, the CBP noted (whether via judicial notice or due to facts asserted in Burberry's letter ruling request is not clear) that the Burberry plaid mark was “known, sold, and worn on an international scale.” HQ 471389, supra.

Strength of the Prior Mark. A federal registration on the Principal Register will be presumed to be distinctive. Given these loose evidentiary standards, a trademark owner can also typically provide substantial evidence that a mark is well known. CBP's analysis of the strength of the mark at issue tends to give due weight to well-known marks.

Similarity of the Marks. The second factor, the similarity or dissimilarity of the two marks, is usually the key factor in each CBP ruling letter. See, HQ 467216 (Jan. 4, 2000). This factor is well-suited to the ex parte review that the CBP provides because the appearance, pronunciations and meanings of the literal and pictorial elements of the mark (the “sound, sight and meaning” trilogy) are easily reviewed and compared. See, HQ 477498 (Jun. 1, 2005), available at http://rulings.cbp.gov/detail.asp?ru=477498&qu=477498.

Proximity of the Products and Likelihood of Bridging the Gap. This factor is surprisingly unimportant in most letter rulings, because trademark owners typically use the procedure to verify that a similar mark used on competitive products is either infringing or counterfeit. But where the products are substantially different, this factor can be the key to a favorable letter ruling for an importer.

Actual Confusion. This factor will strongly favor the trademark owner if present, but is usually unavailable. See, e.g., HQ 460360 (Jun. 30, 1995), available at http://rulings.cbp.gov/detail.asp?ru=460360&ac=pr.

Intent of the Later Comer. The sixth Polaroid factor, the intent of the party adopting the mark, will usually be difficult to determine on the ex parte record of letter rulings.

Sophistication of Buyers. This factor is rarely important in letter rulings.

Channels of Trade. Although not formally one of the Polaroid factors, Customs letter rulings will consider the normal channels of trade for the product in question. For example, Customs held that “it may be presumed that 'CK' belts [a registered trademark owned by Calvin Klein] may be sold in the same channels as the proposed 'GK' belts.” See, HQ471485, available at http://rulings.cbp.gov/detail.asp?ru=471485&ac=pr.

Comparison with Tests Used By Other Bodies
Deciding Similar Questions

A welter of infringement tests are applied by the different bodies that might determine whether imports are infringing. The International Trade Commission uses the Restatement Factors for its review of trademark claims under the Tariff Act of 1930. 19 U.S.C. '337. (Restatement of Torts '729 adopted in In re Coin-Operated Audio-Visual Games, 214 U.S.P.Q. 217 (ITC 1981). The Court of International Trade is content with using the Polaroid factors when reviewing Customs letter ruling decisions. See, Ross Cosmetics Distrib. Ctrs, Inc. v. U.S., 18 C.I.T. 979, 987 (1993) (review under the Administrative Procedure Act). Trademark owners or importers seeking injunctions or relief from non-importation or seizure decisions can appeal to local courts, which then use their infringement factors to review. See, e.g., U.S. v. Able Time Inc., 88 U.S.P.Q.2d 1510 (9th Cir. 2008). The Federal Circuit, the reviewing court for Court of International Trade decisions and thus for Customs letter rulings, uses the 13 Du Pont factors when considering trademark cases arising out of the U.S. Patent and Trademark Office. The Federal Circuit cites to this precedent when reviewing ITC decisions. See, In re E. I. DuPont DeNemours & Co., 476 F.2d 1357, 1361 (U.S. Ct. of Customs and Patent Apps. 1973). Because the factors applied by each relevant body are quite similar, it is unlikely that the results will vary substantially, regardless of which test is used. See, Barton Beebe, “An Empirical Study of the Multifactor Tests for Trademark Infringement,” 95 Cal. L. Rev. 1581 (2006).

Suggestions for Revisions
To the Letter Ruling
Infringement Test

Letter rulings in their current form are inexpensive, quick and streamlined, and are a great resource for trademark owners and importers with trademark-related concerns. The standards applied could be made even more consistent if CBP were to recognize several common assumptions that it already relies upon in reviewing letter ruling requests. These assumptions are already explicitly recognized in the Federal Circuit's case law on review of trademark applications. These proceedings are quite similar. CBP officials (in reviewing letter ruling requests) and Trademark Office examiners (in reviewing trademark applications) each rely on limited records, and have to make significant assumptions about the nature of the products in question, their channels of trade and their purchasers. See, e.g., Hewlett-Packard Co. v. Packard Press Inc., 281 F.3d 1261, 1268, 62 U.S.P.Q.2d 1001 (Fed. Cir. 2002) (“[A]bsent restrictions in the application and registration, goods and services are presumed to travel in the same channels of trade to the same class of purchasers.”).

These assumptions are justified for two reasons: 1) CBP relies upon a limited factual record; and 2) once imported goods can be sold to all sorts of channels of trade and to all sorts of customers, it makes sense to assume that the products will be sold through channels of trade to customers who are typical for that sort of product.

These assumptions are extremely useful and should be formalized by CBP. One way to do so would be by adopting the Federal Circuit's trademark factors and associated jurisprudence. The other approach, which might be less disruptive, would be to continue to rely on the Polaroid factors while more clearly and consistently identifying the assumptions made by CBP. By more clearly setting forth these assumptions, CBP will be able to better clarify how its decisions might differ from the application of the same Polaroid factors by a district court. Expressly stating and explaining its assumptions will also help CBP better support its decisions when evidence as to many of the Polaroid factors may be lacking. Clarity might also reduce the frequency of letter appeals.

[Editor's Note: The challenging impact of digital piracy on entertainment industry revenues has dominated industry headlines. But intellectual property infringement from the illegal sale of physical products is still a major concern. The following article takes a general intellectual-property approach to trademark infringement from the perspectives of both trademark holders and product importers, while providing much useful, technical information for entertainment industry professionals.]

United States Customs and Border Protection (CBP), part of the Department of Homeland Security, offers interested parties the right to request letter rulings ' advisory opinions about contemplated imports. CBP procedures provide trademark owners an avenue to obtain quick decisions that are “binding on all Customs Service personnel,” 19 C.F.R. '177.9(a), and that address concrete, forward-looking problems related to specific infringing or counterfeit imported products. While a CBP letter ruling does not provide for damages for breach, it is in many ways similar in effect to a ruling from the International Trade Commission (ITC), and can be obtained at a fraction of the price and in much less time. CBP letter rulings are an inexpensive, powerful, and somewhat underused weapon in the arsenal of trademark owners.

When Are Letter Rulings Available?

The Office of Regulations and Rulings (ORR) of CBP will provide a “full and careful consideration” of letter requests, in the form of written rulings on import-related questions posed by importers or interested parties on questions. This includes questions that typically relate to whether sample goods bear marks that violate the trademark rights of another party that are recorded with the CBP. See, 19 C.F.R. ”177.1-177.13. If the item in question is already pending before a specific office by reason of arrival or entry, that office will deal with any questions, although local offices always have the authority to forward requests to the headquarters in Washington, DC. (In practice, these requests are delegated to the ORR.) See, 19 C.F.R.”177.1(a)(2)(i), 177.11. Letter rulings are similarly unavailable for matters pending before most other courts, see, CBP, “Requirements for Electronic Rulings,” at www.cbp.gov/xp/cgov/trade/legal/rulings/eRulingRequirements.xml (updating and superseding 19 C.F.R. '177.7) or that relate to import transactions that have already been completed, 19 C.F.R. '177.1(a)(2)(ii).

If a matter becomes “live” while a letter ruling is pending, the requesting party must immediately advise Customs and the local field office; the local office typically suspends action until the letter ruling is issued. See, 19 C.F.R. '177.5. Rulings are considered “published” once a decision is published in the Customs Bulletin. See, 19 C.F.R. '177.1(d)(1). Within 90 days of issuing the decision, CBP is required to publish its final decisions. Trademark decisions are effective immediately unless the ruling provides otherwise. See, 19 C.F.R. '177.10.

CBP has the authority to find that a proposed import would either infringe a trademark previously recorded with CBP pursuant to the provisions of 19 C.F.R. ”133 et seq. or that a proposed import would be a counterfeit. See, HQ 459018 (Jan. 5, 1995), available at http://rulings.cbp.gov/detail.asp?ru=459018&qu=459018. The term “counterfeit” is defined as “a spurious mark that is identical with, or substantially indistinguishable from, a registered mark.” 15 U.S.C. '1127; 19 C.F.R. '133.21(a). For example, an importer acting on behalf of Cheveux Corp. asked the CBP to rule on whether any or all of five patterns were likely to infringe upon or constitute counterfeits of Burberry Limited's well-known plaid mark. HQ 471389 (Jan. 31, 2002), available at http://rulings.cbp.gov/detail.asp?ru=471389&qu=471389.

Trademark owners can also seek letter rulings confirming that branding used by third parties infringes their registered and recorded marks. See, HQ 459012 (May 2, 1995), available at http://rulings.cbp.gov/detail.asp?ru=459012&qu=459012. In that letter ruling, CBP ruled that LAICRA, LICRA, LIKRA and LYKRA were counterfeit and the terms LYCRI and LYCRO were confusingly similar to DuPont's LYCRA mark. Customs may also issue letter rulings based on unregistered trademark rights. See , U.S. v. Nippon Miniature Bearing Corp. , 155 F.Supp.2d 702, 709 (C.I.T. 2001) (“Customs' determination in the form of letter ruling finding a violation of Section 43(a) was held to be a permissible exercise of its authority. No court order was required to deny entry of the merchandise pursuant to Section 43(b).”).

Once a ruling has been issued, a copy should be filed with the local Customs field office in connection with any relevant transactions. See, 19 C.F.R. '177.8(2).

Requirements for Ruling Requests

Ruling requests should contain “a complete statement of all relevant facts relating to the transaction,” to the extent known, including the name of the port and a summary of the proposed transaction (for trademark matters, focusing on the marks and goods at issue). The request must include at least photographs and/or drawings of the goods in question, and preferably a sample of the article itself. Any related documents that are relevant and necessary for the ruling ' like invoices, contracts, agreements, and so forth ' should be appended and described in the ruling request. The request must identify whether “the same transaction, or one identical to it” has been or is being considered by any Customs office, or the U.S. Court of International Trade, the U.S. Court of Appeals for the Federal Circuit or any court of appeal from those bodies. Finally, the request must be signed by the party making the request or the party's agent. See, 19 C.F.R. '177.2(a)-(c).

Letter ruling requests can contain a few more items. First, the requestor can and should provide a brief statement of its favored position. See, 19 C.F.R. '177.2(b)(6). Second, if the request includes any privileged or confidential information (not particularly likely for a trademark matter, but possible), that information must be identified and the reason for the confidentiality request must be justified by detailing the harm that could result from disclosure of the information. See, 19 C.F.R. '177.2(b)(7). Confidentiality designations only apply to the decisions issued by Customs; the letter request itself is discoverable under the Freedom of Information Act and will not be shielded on confidentiality grounds. So, those requesting letter rulings should be careful about including any trade secret or confidential matters in their requests, and try to construct any letter ruling requests so they do not disclose confidential information. From the perspective of an importer, merely requesting a non-infringement ruling might tip off a trademark owner about a potential infringement issue. Finally, the petitioner can request urgent consideration of the ruling request, 19 C.F.R. '177.2(d) (on a showing of a “clear need” for urgent action) or an oral hearing, 19 C.F.R. '177.4; either type of request can be granted or rejected at Customs' discretion.

The person requesting a ruling will be given 30 days to cure any non-conforming ruling requests. See, 19 C.F.R. '177.3. CBP can modify decisions that have been in effect for more than 60 days only by publishing notice of its proposed and final action. See, 19 C.F.R. '177.12(b)-(d). If field offices apply the ruling for inconsistent decisions, interested parties can petition to headquarters for reconsideration. See, 19 C.F.R. '177.13. (The petition process also provides for a short notice-and-comment period.) Letter rulings, like other types of informal interpretive documents published by agencies, are entitled to “respect” but not deference from courts, since they are not vetted through a notice-and-comment process. See , U.S. v. Mead Corp. , 533 U.S. 218, 221 (2001). Because letter rulings are not true adversarial proceedings, they presumably do not have the res judicata effect of a full-fledged ITC ruling. See , e.g. , Union Mfg. Co. Inc. v. Han Baek Trading Co. Ltd. , 763 F.2d 42, 44-46 (2d Cir. 1985) ( res judicata applies to ITC judgments on trademark claims).

Letter rulings are reviewed (if rarely) by the Court for International Trade. See: 28 U.S.C. '2640(d); Ross Cosmetics Distribution Centers Inc. v. U.S. , 17 C.I.T. 814, 815 (1993). If the aggrieved party wants the Court of International Trade to grant pre-importation review, it should not dawdle too much from the date of receipt of an adverse letter ruling to the date of filing suit. See , CPC Intern. Inc. v. U.S. , 19 C.I.T. 978, 988, 896 F.Supp. 1240 (C.I.T. 1995) (noting that a three-month delay was reasonable).

Standards Applied in Letter Rulings

Because the ORR is located in New York, it applies the Second Circuit's Polaroid factors to determine whether there is a likelihood of confusion between two marks. See , Polaroid Corp. v. Polaroid Electronics Corp. , 287 F.2d 492 (2d Cir. 1961). The eight factors ' not all of which are relevant in every proceeding ' are:

1. The strength of the mark;
2. The degree of similarity between the two marks;
3. The proximity of the products;
4. The likelihood that the prior owner will bridge the gap;
5. Actual confusion;
6. The defendant's good faith in adopting its mark;
7. The quality of the defendant's product; and
8. The sophistication of buyers.

Because letter rulings are not adversarial proceedings, the CBP applies very loose standards of evidence. For example, in the Burberry ruling raised earlier in this article, the CBP noted (whether via judicial notice or due to facts asserted in Burberry's letter ruling request is not clear) that the Burberry plaid mark was “known, sold, and worn on an international scale.” HQ 471389, supra.

Strength of the Prior Mark. A federal registration on the Principal Register will be presumed to be distinctive. Given these loose evidentiary standards, a trademark owner can also typically provide substantial evidence that a mark is well known. CBP's analysis of the strength of the mark at issue tends to give due weight to well-known marks.

Similarity of the Marks. The second factor, the similarity or dissimilarity of the two marks, is usually the key factor in each CBP ruling letter. See, HQ 467216 (Jan. 4, 2000). This factor is well-suited to the ex parte review that the CBP provides because the appearance, pronunciations and meanings of the literal and pictorial elements of the mark (the “sound, sight and meaning” trilogy) are easily reviewed and compared. See, HQ 477498 (Jun. 1, 2005), available at http://rulings.cbp.gov/detail.asp?ru=477498&qu=477498.

Proximity of the Products and Likelihood of Bridging the Gap. This factor is surprisingly unimportant in most letter rulings, because trademark owners typically use the procedure to verify that a similar mark used on competitive products is either infringing or counterfeit. But where the products are substantially different, this factor can be the key to a favorable letter ruling for an importer.

Actual Confusion. This factor will strongly favor the trademark owner if present, but is usually unavailable. See, e.g., HQ 460360 (Jun. 30, 1995), available at http://rulings.cbp.gov/detail.asp?ru=460360&ac=pr.

Intent of the Later Comer. The sixth Polaroid factor, the intent of the party adopting the mark, will usually be difficult to determine on the ex parte record of letter rulings.

Sophistication of Buyers. This factor is rarely important in letter rulings.

Channels of Trade. Although not formally one of the Polaroid factors, Customs letter rulings will consider the normal channels of trade for the product in question. For example, Customs held that “it may be presumed that 'CK' belts [a registered trademark owned by Calvin Klein] may be sold in the same channels as the proposed 'GK' belts.” See, HQ471485, available at http://rulings.cbp.gov/detail.asp?ru=471485&ac=pr.

Comparison with Tests Used By Other Bodies
Deciding Similar Questions

A welter of infringement tests are applied by the different bodies that might determine whether imports are infringing. The International Trade Commission uses the Restatement Factors for its review of trademark claims under the Tariff Act of 1930. 19 U.S.C. '337. (Restatement of Torts '729 adopted in In re Coin-Operated Audio-Visual Games, 214 U.S.P.Q. 217 (ITC 1981). The Court of International Trade is content with using the Polaroid factors when reviewing Customs letter ruling decisions. See , Ross Cosmetics Distrib. Ctrs, Inc. v. U.S. , 18 C.I.T. 979, 987 (1993) (review under the Administrative Procedure Act). Trademark owners or importers seeking injunctions or relief from non-importation or seizure decisions can appeal to local courts, which then use their infringement factors to review. See , e.g. , U.S. v. Able Time Inc. , 88 U.S.P.Q.2d 1510 (9th Cir. 2008). The Federal Circuit, the reviewing court for Court of International Trade decisions and thus for Customs letter rulings, uses the 13 Du Pont factors when considering trademark cases arising out of the U.S. Patent and Trademark Office. The Federal Circuit cites to this precedent when reviewing ITC decisions. See, In re E. I. DuPont DeNemours & Co., 476 F.2d 1357, 1361 (U.S. Ct. of Customs and Patent Apps. 1973). Because the factors applied by each relevant body are quite similar, it is unlikely that the results will vary substantially, regardless of which test is used. See, Barton Beebe, “An Empirical Study of the Multifactor Tests for Trademark Infringement,” 95 Cal. L. Rev. 1581 (2006).

Suggestions for Revisions
To the Letter Ruling
Infringement Test

Letter rulings in their current form are inexpensive, quick and streamlined, and are a great resource for trademark owners and importers with trademark-related concerns. The standards applied could be made even more consistent if CBP were to recognize several common assumptions that it already relies upon in reviewing letter ruling requests. These assumptions are already explicitly recognized in the Federal Circuit's case law on review of trademark applications. These proceedings are quite similar. CBP officials (in reviewing letter ruling requests) and Trademark Office examiners (in reviewing trademark applications) each rely on limited records, and have to make significant assumptions about the nature of the products in question, their channels of trade and their purchasers. See , e.g. , Hewlett-Packard Co. v. Packard Press Inc. , 281 F.3d 1261, 1268, 62 U.S.P.Q.2d 1001 (Fed. Cir. 2002) (“[A]bsent restrictions in the application and registration, goods and services are presumed to travel in the same channels of trade to the same class of purchasers.”).

These assumptions are justified for two reasons: 1) CBP relies upon a limited factual record; and 2) once imported goods can be sold to all sorts of channels of trade and to all sorts of customers, it makes sense to assume that the products will be sold through channels of trade to customers who are typical for that sort of product.

These assumptions are extremely useful and should be formalized by CBP. One way to do so would be by adopting the Federal Circuit's trademark factors and associated jurisprudence. The other approach, which might be less disruptive, would be to continue to rely on the Polaroid factors while more clearly and consistently identifying the assumptions made by CBP. By more clearly setting forth these assumptions, CBP will be able to better clarify how its decisions might differ from the application of the same Polaroid factors by a district court. Expressly stating and explaining its assumptions will also help CBP better support its decisions when evidence as to many of the Polaroid factors may be lacking. Clarity might also reduce the frequency of letter appeals.