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HQ 477948

October 28, 2005

ENF-4-02: RR:IT:IP 477948 DSR

Mr. Merritt R. Blakeslee, Esq.

DeKieffer & Horgan

Suite 800
729 Fifteenth Street, N.W.
Washington, DC 20005

RE: Request for Binding Trademark Infringement Ruling Submitted on Behalf of Auto Meter Products, Inc.; Super Bezel configuration trademark; U.S. Patent and Trademark Office Registration No. 2,883,435 [U.S. Customs and Border Protection Recordation No. TMK 04-00961].

Dear Sir:

This is in response to your request for a binding ruling under 19 CFR § 177.1, dated March 22, 2005, and amended on July 6 and September 6, 2005. The request is submitted on behalf of Auto Meter Products, Inc. (“Auto Meter”) concerning the importation of certain merchandise alleged to bear marks that are violative of Auto Meter’s protected “Super Bezel” configuration trademark.


Auto Meter is a manufacturer of tachometers and other automotive measuring gauges. The mark at issue in this ruling request is Auto Meter’s “Super Bezel” configuration mark, which appears on various types of tachometers. It is registered with the U.S. Patent and Trademark Office and recorded with U.S. Customs and Border Protection (USPTO Reg. No. 2,883,435; CBP Recordation No. TMK 04-00961). Auto Meter has alleged that several companies are now manufacturing and importing gauges and tachometers that contain bezels that infringe upon the Super Bezel configuration trademark. Our ruling follows.


Whether the subject imported gauges and tachometers bear marks that infringe upon the protected Super Bezel configuration trademark.


Insofar as CBP’s administration of the trademark laws to protect against the importation of goods bearing counterfeit marks is concerned, section 526(e) of the Tariff Act of 1930, as amended (19 U.S.C. § 1526(e)) provides that merchandise bearing a counterfeit mark (within the meaning of section 1127 of Title 15) that is imported into the United States in violation of 15 U.S.C. § 1124 shall be seized and, in the absence of the written consent of the trademark owner, forfeited for violation of the customs laws, where the trademark in question is registered with the U.S. Patent & Trademark Office and recorded with CBP. See 19 U.S.C. § 1526(e); see also 19 CFR § 133.21(b). 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; see also 19 CFR § 133.21(a).

CBP also maintains authority to prevent the importation of goods bearing "confusingly similar" marks that, although neither identical nor substantially indistinguishable from protected marks, are violative nonetheless. 15 U.S.C. § 1114; see also 19 CFR § 133.22.

In either regard, as a general proposition, the Lanham Act provides for a claim of trademark infringement when a trademark holder can demonstrate that the use of its trademark by another is “likely to confuse" consumers as to source, origin, affiliation, or sponsorship of a product. The term “confusion” is construed liberally. That is, “likelihood of confusion" relates to any type of confusion, including confusion of source, confusion of affiliation, confusion of connection, or confusion of sponsorship. (See J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition, Section 23:8 (Rel. 9, 3/99); Lanham Act, Section 43(a)). We note that a plaintiff in a trademark infringement case need not establish that all or even most consumers are likely to be confused. Plaintiff need only prove that an appreciable number of ordinarily prudent consumers will be confused. Estee Lauder, Inc. v. The Gap, Inc., 932 F. Supp. 595 (S.D.N.Y. 1996).

In order to establish “likelihood of confusion,” courts in each of the Federal Circuits have adopted the test first laid out in Polaroid v. Polarad Electronics Corp., 287 F.2d 492 (2d Cir. 1961), cert. denied, 368 U.S. 820, 7 L. Ed. 2d 25, 82 S.Ct. 36 (1961) (See also White v. Samsung Electronics America Inc., 971 F.2d 1395, amended, rehearing denied, 989 F.2d 1512, cert. denied, 113 S.Ct. 2443 (9th Cir. 1992); E.A. Engineering, Science and Technology Corp. v. Environmental Audit, Inc., 703 F.Supp. 853 (C.D. Cal. 1989); Escerzio v. Roberts, 944 F.2d 1235, rehearing denied (6th Cir. 1991)). According to Polaroid, an analysis of factors including, but not limited to, the strength of the mark, the similarity of the marks, the proximity of the products, actual confusion and sophistication of the buyers are germane to establishing likelihood of confusion. Courts have been careful to note that no single Polaroid factor is more important than any other is, and that not all factors need be considered. Notwithstanding, in the vast majority of trademark infringement cases, “similarity of the marks” has been a factor upon which most courts have placed great emphasis. Regarding "similarity" between marks, it has been noted that "a mark should not be dissected and considered piece-meal; rather, it must be considered as a whole in determining likelihood of confusion." Franklin Mint v. Master Mfg. Co., 667 F.2d 1005, 1007 (C.C.P.A. 1981).

Turning now to the goods at issue, according to Auto Meter, the Super Bezel trademark was created in 1968 to serve as a distinctive identifier of Auto Meter’s products. It consists of a circular ring that, if it were to be placed on a flat surface, would be slightly smaller in circumference at its top edge than at its bottom edge. The overall effect is that of raised, tapered ring with a slightly convex outer surface and slightly concave inner periphery, which is intended to mimic the air intake of a jet engine. An image of the Super Bezel trademark, and images of it as it appears in commerce, follows:

Auto Meter alleges that the following companies manufacture gauges and tachometers that infringe upon the Super Bezel trademark:

Auto Gauge (Taiwan) Co. (“Auto Gauge”). Images of gauges and tachometers bearing the “Auto Gauge” name appear below.

The submitted images of the tachometers allegedly manufactured by Auto Gauge, bearing the “Option Tuning” brand name, are of insufficient detail to make an infringement determination.

2. Tenzo R d/b/a Autotech Systems and Accessories; Outback Products, Inc. d/b/a OBX Racing Sports; J & A Auto Accessories d/b/a Neutron Motorsports). Images of tachometers allegedly manufactured by Auto Gauge, but which bear the above brand names, appear below.

3. Fenghua Hearty Motormeter Co., Ltd. Images of a gauge allegedly manufactured by Fenghua Hearty Motormeter Co., Ltd., including a gauge sold under the name of Outback Products, Inc., d/b/a OBX Racing Sports, appears below.

As evidenced by the images above, each suspect bezel contains a raised, tapered ring with a convex outer periphery and concave inner periphery, presented in such a manner as to make each substantially indistinguishable from the registered and recorded Super Bezel configuration trademark owned by Auto Meter. Therefore, we find the pictured suspect bezels to be violative of the Super Bezel configuration mark.

Finally, Auto Meter has submitted images of gauges and tachometers allegedly manufactured by Auto Gauge doing business as the following entities: Race Tech Performance, Inc.; Camco Auto Sangyo Co., Ltd.; Prosport Performance, Inc.; and Motor Meter (Taiwan) Co., Ltd. However, inasmuch as the images of said bezels lack “side” views, we are unable to determine whether those goods would be violative, as one of the most salient characteristics of the protected Super Bezel design is the curved surface, which can only be viewed from the side.


Based upon our analysis, we conclude that each suspect bezel pictured above bears a mark that is counterfeit of the registered and recorded Super Bezel configuration trademark. With regard to tachometers allegedly manufactured by Auto Gauge but which bear the “Option Tuning” brand name, and gauges and tachometers allegedly manufactured by Auto Gauge doing business as Race Tech Performance, Inc., Camco Auto Sangyo Co., Ltd., Prosport Performance, Inc., and Motor Meter (Taiwan) Co., Ltd., the images submitted by Auto Meter are not of sufficient detail for this office to make an infringement determination.


George Frederick McCray, Esq.
Chief, Intellectual Property Rights Branch

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