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HQ 472344

July 16, 2002

TMK-1 RR:IT:IP 472344 PBP


Mr. Paul Hammond
Dentt Distributing
4171 Marquis Way
Salt Lake City, Utah 84124

RE: Enlighten Brand Brick Toys

Dear Mr. Hammond:

This is in reply to your letter dated March 20, 2002, in which you requested a ruling as to the admissibility of certain toy products.


Dentt Distributing submitted several catalogue sheets and a representative sample “brick” toy “Enlighten® Brick NO 0045” identified in the aforementioned catalogue sheets as “C2884.” Generally, “brick” toys are used to create art, or models of objects such as towns, vehicles, buildings, trains, boats, bridges, people, robots, aircraft, etc. The sample toy, manufactured by Zhongyue Industry Co., Ltd., Zhongyue Building, Fengxin 2nd. Rd., Cheng Hai, China, consists of a plastic "brick" and “minifigure” construction system used to create a model of a medieval castle which utilizes a stud and tube coupling system whereby “bricks” and other components attach to each other and a base by means of cylindrical projections that snap into sockets of other pieces.

Kirkbi AG Corporation (Kirkbi) has registered its trademark for a product design with the U.S. Patent and Trademark Office (PTO) (Reg. No. 2,273,314) in international class 028 which covers, inter alia, construction toys, toy figures, and toy vehicles. The trademark is also recorded with Customs (Record. No. TMK 02-00052). As described in the PTO trademark registration, “[t]he mark consists of a cylindrical surface feature and is not the configuration of entire product or packaging.” The configuration constituting the registered and recorded trademark features cylinders raised from the surface of components used to create art and construct models which components include, inter alia, “bricks” and “minifigures.”

Images of the sample toy, its packaging, and Kirkbi’s registered and recorded trademark are displayed below.


The issue presented is whether the sample toy infringes Kirkbi AG Corporation’s design trademark which is registered with the PTO (Reg. No. 2,273,314) and recorded with Customs (Record. No. TMK 02-00052).


Customs’ IPR border enforcement scheme recognizes two types of trademark infringement including “counterfeit trademark” and “copying or simulating trademark.” 19 CFR §133.21, 19 CFR §133.22. The Customs Regulations employ the Lanham Act definition of counterfeit trademark, ”a spurious mark which is identical with, or substantially indistinguishable from, a registered mark.” 15 U.S.C. §1127. Under the Lanham Act, in order for a trademark to be considered infringing it must be likely to cause confusion, or to cause mistake, or to deceive. 15 U.S.C. §1114. The difference between a mark counterfeit of a trademark and a mark that copies or simulates a trademark (i.e. one that Customs considers “confusingly similar”) is the degree of similarity between the marks. Merchandise bearing a mark counterfeit of a registered and recorded trademark may be seized and forfeited pursuant to 19 U.S.C. §1526(e).

The dispositive issue, then, is whether the sample toy employs a mark identical with or substantially indistinguishable from a federally registered trademark such that it is likely to cause confusion, or mistake, or to deceive a consumer as to its source, origin, affiliation or sponsorship.

A query of the PTO database indicates that the trademark “Enlighten” is not registered in the U.S. for toys. The sample submitted consists of a model of a medieval castle with components that fit together using a stud and tube coupling system. Visual examination of these components establishes that they utilize raised cylinders on their top surfaces which fit into corresponding sockets on their bottom surfaces. Assuming that Kirkbi has not authorized Zhongyue to use this trademark, the use of a design mark consisting of a cylindrical surface feature of a product which Kirkbi has registered with the PTO and recorded with Customs constitutes a spurious mark identical with Kirkbi’s registered and recorded trademark.

Inasmuch as we have determined that the “Brick” toy infringes the trademark referenced above, we do not address whether this product infringes any other federally registered intellectual property rights.

Additionally we note that because no samples were submitted of the twenty-six other toy products illustrated in catalogue sheets submitted with your ruling request, we can offer no formal opinion as to the admissibility of those articles. However, it appears that these products incorporate the same stud and tube coupling system which relies on the trademarked cylindrical surface design discussed above, and likely would be considered as bearing a mark counterfeit of Kirkbi’s registered and recorded trademark upon importation into the U.S.


In conformity with the foregoing, the “Brick” toy you propose to import, namely, “Enlighten® Brick No. 0045” bears a mark counterfeit of Kirkbi AG Corporation’s product configuration trademark (PTO Reg. No. 2,273,314; Customs Record. No. TMK 02-00052) and is subject to seizure and subsequent forfeiture under 19.U.S.C. §1526(e). In addition, please be aware that anyone attempting to import such products may be liable for a civil fine under 19 U.S.C. §1526(f).


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