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HQ 475468





March 9, 2004

ENF 4-2 RR:IT:IP 475468 GG

CATEGORY: RESTRICTED MERCHANDISE INTELLECTUAL PROPERTY RIGHTS

Michael G. Hodes, Esq.
Hodes, Keating & Pilon
39 South La Salle Street, Suite 1020
Chicago, Illinois 60603

RE: Request for Reconsideration of Ruling HQ 475073 Regarding Pacific Cigar Company Logo’s Likeness to the Great Seal of the United States; Ruling HQ 475073 Affirmed.

Dear Sir:

This is in response to your request for reconsideration dated January 23, 2004, on behalf of your client Pacific Cigar Company. You seek expedited reconsideration of the binding ruling, HQ 475073, issued on January 12, 2004. The ruling concerned the admissibility of certain merchandise bearing a label consisting of a “company logo” incorporating an image similar to that of the Great Seal of the United States. Samples of the merchandise were submitted with the initial inquiry.

FACTS:

Pacific Cigar Company (“Pacific Cigar”) of Lemont, Illinois is an importer and distributor of hand-rolled long-filler cigars. The merchandise in question consists of packaging for cigars namely cigar bands, cigar tubes and cigar boxes, imported from the Philippines and the Dominican Republic. The subject merchandise bears a mark consisting of a circular design featuring stars in which an image of the Great Seal of the United States appears inside the circle of stars and the wording “PACIFIC CIGAR” or “PACIFIC CIGARS” appear outside the circle.

In the initial ruling request dated November 3, 2003, counsel for Pacific Cigar, sought a ruling from U.S. Customs and Border Protection [CBP] approving Pacific Cigar’s use of the Great Seal of the United States (“Great Seal”) in order to facilitate the entry of its goods. The issue addressed in ruling HQ 475073, was whether the subject merchandise bore a mark that incorporated a likeness of the Great Seal. In that ruling, it was determined that the subject merchandise bore a mark that was identical to the Great Seal, in violation of 18 U.S.C. § 713(a), and would be subject to seizure and forfeiture pursuant to 19 U.S.C. § 1595a(c)(2)(B) if imported.

In the request for reconsideration, counsel disagrees with our finding that the subject logo is identical to the Great Seal. Further, counsel avers that 18 U.S.C. § 713(a) “unambiguously allows for the use of the Great Seal in a commercial context.” Counsel compares the language of 18 U.S.C. § 713(a) with that of 18 U.S.C. § 713(b) for the contention that Section 713(b) specifically prohibits the use of the Presidential Seal on articles of commerce.

Counsel sets forth the following arguments: 1) Pacific Cigar’s use of the Great Seal does not fall within the purview of 18 U.S.C. § 713(a), because, (a) “[t]he statute is silent on the use of the Great Seal as a product label on goods or merchandise sold in commerce, (b) the statute does not prohibit “the display of the seal on cigars, cigar boxes and similar articles,” (c) the subject merchandise does not “resemble any of the exemplars described in Section 713(a);” and 2) “Congress did not intend to prohibit the use of the Great Seal as product labeling.”

On February 12, 2004, counsel submitted additional information to supplement its request for reconsideration, consisting of legislative history in support of its argument pertaining to legislative intent in the statutory construction of Section 713(a) of Title 18. In the supplemental request, counsel argues that “Congress did not intend to prohibit the use of the Great Seal on manufactured goods or articles of commerce.” Rather, counsel claims that the legislative intent was to allow use of the Great Seal by the citizenry on articles of commerce.

ISSUES:

1. Whether the importer’s logo incorporating the Great Seal falls within the purview of 18 U.S.C. § 713.

2. Whether the display of the Great Seal on the subject logo conveys a false impression of sponsorship or approval by the Government of the United States, in violation of the statute.

3. Whether the statute is ambiguous, necessitating consideration of legislative history.

LAW AND ANALYSIS:

It is undisputed that the Pacific Cigar logo has incorporated an image of the obverse side of the Great Seal of the United States

See counsel’s initial request for ruling dated November 3, 2003, page 3, where counsel clearly states that “[t]he company has incorporated into its logo an image of the obverse side of the Great Seal.”. Insofar as counsel disagrees with the finding in ruling HQ 475073, that the company logo is identical to the Great Seal, counsel has failed to provide new arguments or evidence to support its position. As such, there is no question as to whether the company logo incorporates an image of the Great Seal of the United States. Therefore, this response to the request for reconsideration will only consider the new arguments presented by counsel, to the extent that new issues have been raised.

ISSUE I: Whether the importer’s logo incorporating the Great Seal falls within the purview of 18 U.S.C. § 713.

Section 713(a) of the statute provides, in pertinent part:

“Whoever knowingly displays any printed or other likeness of the great seal of the United States, or any facsimile thereof, in, or in connection with, any advertisement, poster, circular, book, pamphlet, or other publication, public meeting, play, motion picture, telecast, or other production, or on any building, monument, or stationery, for the purpose of conveying, or in a manner reasonably calculated to convey, a false impression of sponsorship or approval by the Government of the United States or by any department, agency, or instrumentality thereof, shall be fined under this title or imprisoned not more than six months, or both.”

Counsel asserts that “the statute appears to be directed towards public displays, advertising, or events intended to attract or involve large groups of people, perhaps ultimately for commercial or political purposes.” However, counsel adopts a narrow reading of the statute, and contends that the Pacific Cigar Seal does not come within the purview of 18 U.S.C. § 713(a). Specifically, counsel focuses on the fact that the statute does not explicitly mention Pacific Cigar’s products and labels. In support of this contention, counsel avers that the “statute is silent on the use of the Great Seal as a product label on goods or merchandise sold in commerce.” Further, counsel contends that “the statute says nothing about the display of the seal on cigars, cigar boxes and similar articles.” To that end, counsel asserts that Pacific Cigar’s merchandise does not resemble any of the examples of prohibitive articles described in the statute. Concerning counsel’s argument regarding product labeling, we have considered same and have determined that such labeling is tantamount to advertising.

In support of our conclusion, we rely on Black’s Law Dictionary which defines “advertise” as follows:

To advise, announce, apprise, command, give notice of, inform, make, know, publish. To call a matter to the public attention by any means whatsoever. Any oral, written, or graphic statement made by the seller in any manner in connection with the solicitation of business and includes, without limitation because of enumeration, statements and representations made in a newspaper or other publication or on radio or television or contained in any notice, handbill, sign, catalog, or letter, or printed on or contained in any tag or label attached to or accompanying any merchandise. As distinguished from other forms of communication means to call a matter to the public attention.

Black's Law Dictionary (6th ed. 1990)(emphasis added).

This definition would apply to the labels and packaging of a product such as the Pacific Cigar merchandise. Moreover, courts have held that “[m]ost, if not all, labeling is advertising.” United States v. Research Laboratories, Inc., 126 F.2d 42 (9th Cir. 1942); see also United States v. Kordel, 164 F.2d 913 (7th Cir. 1947) (labeling and advertising are not mutually exclusive, and the same matter may serve both purposes). Courts have also held that a product’s label as well as packaging could be considered advertising. Adolfo House Distributing Corp. v. Travelers Property & Casualty Insurance Co., 165 F.Supp. 2d 1332 (S.D. Fla. 2001); see also Fidelity & Guaranty Insurance Co. v. Kocolene Marking Corp., 2002 U.S. Dist. LEXIS 8518 (S.D. Ind. 2002) citing Flodine v. State Farm Ins. Co., 2001 U.S. Dist. LEXIS 2204 (N.D. Ill. 2001) (attaching tags to products to be distributed and displayed in stores was advertising).

In the instant case, the Pacific Cigar Seal is used on product labels, thus serving as an advertisement for the product. As such, the product labeling clearly falls within the purview of the statute in that such labeling amounts to advertising. The mere fact that the statute does not explicitly enumerate the use of the Great Seal on “cigars, cigar boxes and similar articles” is immaterial and does not render the statute inapplicable. Nor does it remove the Pacific Cigar Seal from the scope and reach of the statute.

Turning to counsel’s reference to Section 713(b) of Title 18 in his request for reconsideration, we note that notwithstanding the foregoing analysis, we also find that the items in question are violative of 18 U.S.C. § 713(b). Section 713(b) provides, in pertinent part:

Whoever, except as authorized under regulations promulgated by the President and published in the Federal Register, knowingly manufactures, reproduces, sells, or purchases for resale, either separately or appended to any article manufactured or sold, any likeness of the seals of the President or Vice President, or any substantial part thereof, except for manufacture or sale of the article for the official use of the Government of the United States, shall be fined under this title or imprisoned not more than six months, or both.

18 U.S.C. § 713(b)(emphasis added).

As set forth above, Section 713(b) prohibits unauthorized use of any likeness of the seal of the President, “or any substantial part thereof.” Images of the Presidential Seal and the Pacific Cigar Seal are displayed below.

As can be seen in the images above, the Pacific Cigar Seal clearly appropriates a substantial part of the Presidential Seal, to wit: the eagle with outstretched wings, its head turned to the right, clutching thirteen arrows in its left claw, thirteen olives and leaves in the eagle’s right claw, thirteen tail feathers, and the motto “E Pluribus Unum” emblazoned across the scroll carried by the eagle in its beak.

Therefore, the Pacific Cigar company logo also constitutes a violation of subsection (b) of Title 18 U.S.C. § 713. ISSUE II: Whether the display of the Great Seal on the subject logo conveys a false impression of sponsorship or approval by the Government of the United States, in violation of the statute.

Counsel suggests that the determination of whether the Pacific Cigar Seal is in violation of the statutory provisions of 18 U.S.C. § 713 should be made with a view of the context of use. According to counsel, Pacific Cigars links “the Great Seal to its products to appeal to the pride and esteem” associated with the Great Seal, and the display of the Great Seal as incorporated in the Pacific Cigar logo operates as the appeal for the consumer. That is, it is suggested that consumers are more likely to be attracted to the Pacific Cigar product because it displays the Great Seal of the United States. However, such appeal has a clear potential to mislead purchasers and convey a false impression of government sponsorship or approval.

Undoubtedly, purchasers would be drawn to Pacific Cigar’s products based on the appeal evoked by the Great Seal as displayed on the product. However, owing to the degree to which the Great Seal conveys the impression of government authority, sponsorship or connection, it is likely that the instant use of the Great Seal would reasonably lead consumers to conclude a connection with the government, and would convey a false impression of sponsorship or approval by the Government of the United States.

ISSUE III: Whether the statute is ambiguous on its face, necessitating the consideration of legislative history.

Counsel introduces legislative history in the form of Senate Report 91-1508 (Public Law 91-651) to support the contention that the legislative intent of the statute was to allow public use of the Great Seal in a commercial context.

The rule for determining when and how to apply an act’s legislative history has been settled by the Supreme Court. See, e.g., Blanchard v. Bergeron, 489 U.S. 87, 99 (1989); Green v. Bock Laundry Mach. Co., 490 U.S. 504, 509-11 (1989); Public Citizen v. U.S. Dept. of Justice, 491 U.S. 440, 453-54 (1989). In interpreting a statute, the language of the statute itself is first examined. See Demarest v. Manspeaker, 498 U.S. 184, 187 (1991); Consumer Prod. Safety Comm’n v. GTE Sylvania Inc., 447 U.S. 102, 108 (1980).

The question hinges on whether the language of the statute is ambiguous. Generally, if the language is unambiguous, there is no need to refer to legislative history. HUD v. Rucker, 535 U.S. 125, 132 (2002); United States v. Gonzales, 520 U.S. 1, 6 (1997). See also, International Business Machines Corp. v. U.S., 201 F.3d 1367 (Fed. Cir. 2000) (if the language of a statute is clear, then it controls and no further consideration is necessary).

In the case under consideration, the statute prohibits the display of the likeness of the Great Seal if such display conveys a false impression of sponsorship or approval by the Government of the United States. Here, the statute is quite clear and unambiguous. To the extent that the statute is not ambiguous, we need not delve into legislative history. Because the language of the statute is clear, and pursuant to the authorities cited above, no further consideration is necessary.

Notwithstanding the fact that an analysis of legislative history is not required in this instance, a review of the summary for Senate Report 91-1508 confirms the proposition that the statute prohibits the commercial use of the Great Seal. In point of fact, according to the Senate Report, one purpose of the bill was to “protect the great seal of the U.S. and the Presidential and Vice-Presidential seals against misrepresentation, misuse, and commercial exploitation” 70 CIS S 52353 (emphasis added).

In interpreting the legislative history in the case at hand, counsel contends that the “view of the House is reflected in the current legislation with a scheme that regulates the use of the Great Seal (as well as other government emblems) on advertising and the like, where a possibility that a false impression of government approval or sponsorship of the publicly displayed activity will be conveyed.”

As counsel points out, “when the law was initially enacted in 1966, it resembled the current version of Section 713(a).” At that time, the statute only provided protection for the Great Seal. Our reading of the legislative history indicates that the bill, H.R. 14645, was introduced to afford similar protection for the Presidential and Vice-Presidential seals, and to protect all three against commercial exploitation.

Counsel contends, however, that the legislative history of the amendments to the bill supports the notion that Congress intended to allow use of the Great Seal on articles of commerce. We find no such support. While the committee report does indicate that “the average citizen regards the Great Seal as the emblem of his country and holds it in much the same pride and esteem as he does the flag,” it clearly prohibits the commercial exploitation of the Great Seal. We believe the use of the Great Seal on articles of commerce, such as with the Pacific Cigar products, would constitute the sort of commercial exploitation which would be contrary to legislative intent. Such commercial use is vastly different than use by the “average citizen” as an emblem representing pride and esteem, as contemplated in the committee report.

HOLDING:

In accordance with the foregoing, we find that the ruling HQ 475073, dated January 12, 2004 was proper and not in error. Accordingly, that ruling stands as issued and is affirmed.

Sincerely,

George Frederick McCray, Esq.

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