                          Slip Op.

           UNITED STATES COURT OF INTERNATIONAL TRADE


JBLU, INC.,

     Plaintiff,
                                     Before: Nicholas Tsoucalas,
                                             Senior Judge
v.
                                     Court No. 12-00042
UNITED STATES,

     Defendant.


                             OPINION

[ Plaintiff’s motion for partial summary judgment is denied.
Defendant’s cross-motion for summary judgment is granted. ]

                                                Dated:-DQXDU\

Elon A. Pollack and Mandy A. Edwards, Stein Shostak Shostak
Pollack & O’Hara, LLP, of Los Angeles, CA, for Plaintiff.

Alexander Vanderweide, Trial Attorney, Civil Division, U.S.
Department of Justice, of New York, for defendant.   With him on
the brief were Stuart F. Delery, Assistant Attorney General, and
Amy M. Rubin, Assistant Director.   Of counsel on the brief was
Michael W. Heydrich, Office of the Assistant Chief Counsel,
International   Trade  Litigation,   U.S.  Customs  and   Border
Protection.

          Tsoucalas, Senior Judge:     This case is before the court

on cross-motions for summary judgment.    See Pl.’s Mot. for Partial

Summ. J., ECF No. 21 (“Pl.’s Br.”); Def.’s Cross-Mot. for Summ.

J., ECF No. 24 (“Def.’s Br.”).   Plaintiff JBLU, Inc., (“JBLU” or

“Plaintiff”) challenges the decision of Defendant U.S. Customs and

Border Protection (“Customs” or “Defendant”) to issue Notices to

Mark and/or Redeliver for the goods in subject entries.            See
Court No. 12-00042                                          Page 2


Summons (Feb. 7, 2012), ECF No. 1.        Plaintiff claims that the

presence of its trademarks trigger the marking requirements of

19 C.F.R. § 134.47.    Id.   Therefore, Plaintiff insists that the

subject merchandise is properly marked with the country of origin

and is not required to be re-labeled.     Id.

                             BACKGROUND

           The following facts are not in dispute. Plaintiff, JBLU,

Inc., is a California corporation registered in the County of Los

Angeles doing business as C’est Toi Jeans USA. Compl. at ¶¶ 1,4,5,

September 21, 2012, ECF No. 5.    The subject merchandise consists

of seventeen shipments of jeans, exported from China between

September 11 and October 20, 2010, and entered in the port of Los

Angeles.   Compl. at ¶¶ 6,8; Answer ¶¶ 6, 8, Feb. 25, 2013, ECF No.

10. The instant action concerns eleven of the seventeen shipments.

Compl. at ¶ 7; Answer at ¶ 7.   Subsequent to inspecting samples of

the jeans, Customs issued Notices to Mark and/or Redeliver to JBLU,

pursuant to 19 C.F.R. § 134.46, stating that the jeans were not

legally marked with the country of origin.      Compl. at ¶ 10,11;

Answer at ¶ 10,11.

           The jeans display one of the following markings which

are embroidered on the inside of the waistband: “C’est Toi Jeans

Los Angeles,” “CT Jeans USA,” and “C’est Toi Jeans USA.” Pl.’s
Court No. 12-00042                                           Page 3


Br., Photographs of Representative Jean Samples, Ex. 2 at 37-49,

July 3, 2014, ECF No. 21.    The trademark applications were filed

on October 8, 2010.    Pl.’s Br., Trademark Applications for C’est

Toi Jeans USA and CT Jeans USA filed with the U.S. Patent and

Trademark Office (“USPTO”) and Trademark Registration Certificates

for C’est Toi Jeans USA and CT Jeans USA, Ex. 4 at 59.           The

trademark applications claimed that the two marks had been used in

commerce since at least July 1, 2005.    Id. at 60.   The trademarks

were registered with the USPTO on May 31, 2011 and June 14, 2011.

Id. at 66, 74.

          JBLU filed protests on November 5, 2010 and November 22,

2010 contesting the Notices to Mark and/or Redeliver the jeans.

See HQ H137556.      In its protest, JBLU insisted that the less

stringent country of origin marking requirements of 19 C.F.R. §

134.47 should apply instead of 19 C.F.R. § 134.46, and therefore

the subject jeans were legally marked.    Id.

          Customs denied Plaintiff’s protests in part.     HQ 137556

(June 13, 2011).      Customs held that the jeans displaying the

markings “C’est Toi Jeans USA” and “CT Jeans USA” were entered

before Plaintiff submitted its trademark applications to USPTO and

therefore were not properly marked with the country of origin.

Id.   Additionally, Customs determined that the jeans displaying
Court No. 12-00042                                               Page 4


the marks entered on or after JBLU’s applications were filed with

the USPTO were legally marked.     Id.    Customs further determined

that it has not previously accepted evidence of use in commerce as

conclusive evidence of a trademark.      Id.

                 JURISDICTION and STANDARD OF REVIEW

          The Court has subject matter jurisdiction pursuant to 28

U.S.C. § 1581(a) (2012).    Summary judgment is appropriate where,

“the pleadings, depositions . . . together with the affidavits, if

any, show that there is no genuine issue as to any material fact

and that the moving party is entitled to judgment as a matter of

law.”   Anderson v. Liberty, Inc., 477 U.S. 242, 247 (1986); See

also Torrington Co. v. United States, 19 CIT 1189, 1191, 903

F.Supp. 79, 81 (1995).

          More    specifically,   when         reviewing   an   agency’s

interpretation of its regulations, the court must give substantial

deference to the agency’s interpretation, Michaels Stores, Inc. v.

United States, 766 F.3d 1388, 1391 (Fed. Cir. 2014) (citing

Torrington Co. v. United States, 156 F.3d 1361, 1363-64 (Fed. Cir.

1998)), according it “‘controlling weight unless it is plainly

erroneous or inconsistent with the regulation.’” Thomas Jefferson

Univ. v. Shalala, 512 U.S. 504, 512, (1994) (citations omitted);

accord Viraj Group v. United States, 476 F.3d 1349, 1355 (Fed.
Court No. 12-00042                                                            Page 5


Cir.   2007).       In    this    context,      “[d]eference      to    an   agency’s

interpretation of its own regulations is broader than deference to

the agency’s construction of a statute, because in the latter case

the agency is addressing Congress’s intentions, while in the former

it is addressing its own.”              Viraj, 476 F.3d at 1355 (quoting Gose

v. U.S. Postal Serv., 451 F.3d 831, 837 (Fed. Cir. 2006).

                                       DISCUSSION

              Before     the    court    are    the   following   questions:      (1)

whether the marking requirements of 19 C.F.R. § 134.46 or 19 C.F.R.

§ 134.47 apply to the subject merchandise; (2) whether any genuine

issues   of    material        fact    remain   with    regards   to     Plaintiff’s

compliance with the controlling regulation.

                    I.     Controlling Marking Regulation

              Merchandise imported into the United States shall be

marked   in     a   conspicuous         space    as    legibly,   indelibly,     and

permanently as the nature of the article will permit, to indicate

to an ultimate purchaser in the United States the English name of

the country of origin.                See 19 U.S.C. § 1304(a) (2012).             The

Customs regulations implementing the requirement and exceptions of

19 U.S.C. § 1304 are set forth in 19 C.F.R. § 134.                     Specifically,

19 C.F.R. § 134.46 provides for marking requirements when the name

of a country other than country of origin appears on merchandise:
Court No. 12-00042                                          Page 6


     In any case in which the words “United States,” or
     “American,” the letters “U.S.A.,” any variation of such
     words or letters, or the name of any city or location in
     the United States, or the name of any foreign country or
     locality other than the country or locality in which the
     article was manufactured or produced appear on an
     imported article or its container, and those words,
     letters or names may mislead or deceive the ultimate
     purchaser as to the actual country of origin of the
     article, there shall appear legibly and permanently in
     close proximity to such words, letters or name, and in
     at least a comparable size, the name of the country of
     origin preceded by “Made in,” “Product of,” or other
     words of similar meaning.

19 C.F.R. § 134.46.   Additionally, 19 C.F.R. § 134.47 provides as

follows:

     When as part of a trademark or trade name or as part of
     a souvenir marking, the name of a location in the United
     States or “United States” or “America” appear, the
     article shall be legibly, conspicuously, and permanently
     marked to indicate the name of the country of origin of
     the article preceded by “Made in,” “Product of,” or other
     similar words, in close proximity or in some other
     conspicuous location.

19 C.F.R. § 134.47.

           Plaintiff argues that because 19 C.F.R. § 134.47 and the

pertinent Customs laws and regulations are silent, “it is logical

that the definition of trademark is provided by either federal

statute or the common law.”    Pl.’s Br. at 9, 11.   Specifically,

Plaintiff argues that the definition of “trademark” is supplied by

the Lanham Act for the purposes of 19 C.F.R. § 134.47.   Id. at 2;

See 15 U.S.C. § 1127 (2012).   The Lanham Act defines trademark as:
Court No. 12-00042                                                            Page 7


      [A]ny word, name, symbol, or device, or any combination
      thereof--

      (1) used by a person, or
      (2) which a person has a bona fide intention to use in
      commerce and applies to register on the principal
      register . . . to identify and distinguish his or her
      goods,   including   a   unique   product,   from   those
      manufactured or sold by others and to indicate the source
      of the goods, even if that source is unknown.

15   U.S.C.    §   1127.      Plaintiff     insists   that    the    Lanham    Act’s

definition provides for trademarks that are actually used in

Commerce,      intended      to    be   used,   or   marks    that   are    pending

registration with the USPTO.               Pl.’s Br. at 10.          Furthermore,

Plaintiff notes that the Lanham Act’s definition of trademark is

“essentially the same as the common law definition,” and are both

intended      to   protect    unregistered      trademarks.      Id.   at     10–11.

Accordingly, Plaintiff contends that the Lanham Act should define

trademark as it pertains to 19 C.F.R. § 134.47.                Id. at 11.

              The court disagrees.          In the instant case, Plaintiff

concedes that 19 C.F.R. § 134.47 is silent as to the definition of

the term “trademark.”             See Pl.’s Br. at 12.       As such, the court

must give Customs’ interpretation of 19 C.F.R. § 134.47 substantial

deference, unless it is “plainly erroneous or inconsistent with

the regulation.’”       See Thomas Jefferson Univ. v. Shalala, 512 U.S.

504, 512, (1994) (citations omitted); accord Viraj Group v. United

States, 476 F.3d 1349, 1355 (Fed. Cir. 2007).
Court No. 12-00042                                                     Page 8


             Customs interprets the term trademark in the regulation

as including either registered trademarks or marks subject to a

pending application.        See HQ H137556 (June 13, 2011).            In its

ruling, Customs stated that it:         “has long accepted an application

filed with the [USPTO] as sufficient evidence of a trademark for

purposes of 19 C.F.R. § 134.47 because the regulation does not

specify what evidence is necessary to establish a trademark.”              HQ

H137556 (June 13, 2011).            Plaintiff makes no effort to view

Customs’ interpretation of the term at issue through the prism of

the   controlling     standard   of    review   discussed    above,   instead

Plaintiff turns to the Lanham Act offering it as a “logical”

interpretation of the term trademark within the regulation.               See

Pl.’s   Br.    at    9.    Although     Plaintiff   offers    one     possible

interpretation of the term trademark, Plaintiff was charged with

the   task    of    demonstrating     that   Customs’   interpretation    was

“plainly erroneous or inconsistent with the regulation.’”                 See

Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512, (1994)

(citations omitted); accord Viraj Group v. United States, 476 F.3d

1349, 1355 (Fed. Cir. 2007).

             Moreover, Plaintiff insists that Customs’ interpretation

of the term “trademark” is inconsistent with prior Customs rulings.

The court disagrees.      Plaintiff appears to have misinterpreted the
Court No. 12-00042                                                      Page 9


rulings    on    which    it       relies   to    support     its   contention.

Specifically, Plaintiff contends that both HQ 731707 and HQ 733617

support    its   claim   that      a   pending    trademark    application   or

registration is not necessary for purposes of country of origin

marking under 19 C.F.R. § 134.47.            Pl.’s Br. at 13-14, Ex. 12 at

145.    First in HQ 731707, Customs found that the mark “American

Trouser”    constituted        a    trademark    for   the    purpose   of   19

C.F.R. § 134.47.    HQ 731707 (July 26, 1989).          Second, in HQ 733617,

Customs found that the mark “Engineered in the USATM” was part of

a claimed trademark and thus satisfied the requirements of 19

C.F.R. § 134.47.    HQ 733617 (July 30, 1991).           Ultimately, both HQ

731707 and HQ 733617 were silent as to whether the trademarks at

issue were presented to Customs as a registered trademark, a

pending application, or an abandoned application, and thus do not

provide support for or against the Plaintiff’s argument.

            Additionally, Plaintiff claims that both HQ 734455 and

HQ 734644 stand for the proposition that registered trademarks are

not required for 19 C.F.R. § 134.47 to apply.                 Pl.’s Br. at 14–

15.    Specifically, Plaintiff insists that the rulings support the

notion that “intent to use [an] application for a trademark filed

with the USPTO is acceptable evidence of use to qualify as a

trademark under 19 C.F.R. § 134.47.”             Id. at 14.   In both of these
Court No. 12-00042                                            Page 10


rulings a pending application was before the agency, thus it is

unclear to the court how either of these rulings are inconsistent

with Customs’ interpretation of the term “trademark.”             See HQ

734455; See HQ 734644.

            Moreover, Plaintiff relies on HQ 541445 and HQ 541685 to

support its contention that when defining the term trademark, for

the purposes of country of origin, Customs looks to the Lanham

Act.      Plaintiff’s reliance is misplaced.      The instant action

involves the definition of a trademark with regards to the country

of origin marking requirements, as opposed to in HQ 541445, where

Customs    considered   whether   royalty   payments   relating    to   a

trademark are dutiable.    HQ 541445 (Oct. 13, 1977).     In addition,

HQ 541685 considered whether royalty payments for use of one’s

name, likeness and endorsement, are included in the dutiable value

of merchandise.    HQ 541685 (June 29, 1977).      Therefore, both of

these Customs rulings address intellectual property rights issues

that are unrelated to the regulation at issue in the instant case.

            Accordingly, Customs did in fact demonstrate that its

definition of “trademark” has been consistently applied in prior

headquarter rulings.     E.g., HQ 561060 (Nov. 3, 1998) (concluding

that “Customs has accepted a filed application with the U.S. Patent

and Trademark Office as sufficient evidence of a trademark for
Court No. 12-00042                                                        Page 11


purposes of 19 C.F.R. § 134.47 since the regulation does not

specify what evidence is necessary to establish a trademark.”);

accord HQ 734073 (July 10, 1991); HQ 734066 (July 15, 1991); HQ

734644 (July 1, 1992); HQ 734455 (July 1, 1992); HQ 735085 (June

4, 1993); HQ 735180 (May 17, 1994); HQ 735019 (June 28, 1998); and

HQ 561060 (November 3, 1998).

              Furthermore,       the      court     finds       that      Customs’

interpretation of 19 C.F.R. § 134.47 is consistent with the stated

purpose of the regulation and 19 U.S.C § 1304.                   The purpose of

both 19 C.F.R. § 134.46 and 19 C.F.R. § 134.47 is to prevent the

ultimate purchaser from being misled or deceived when the name of

a country or place other than the country of origin appears on

imported merchandise. See HQ H016234 (Mar. 3, 2009); see HQ 563175

(Mar. 31, 2005). Conversely, unlike the regulations at issue here,

the purpose of the Lanham Act is to protect intellectual property

rights   by    preventing      consumer   confusion      with   regards    to   the

producer of the merchandise.           See San Francisco Arts & Athletics,

Inc.   v.     U.S.   Olympic    Comm.,    483     U.S.   522,   534–35    (1987).

Accordingly, since Customs' interpretation of the regulation,

discussed above, is consistent with the regulation and its stated

purpose, it must be given controlling weight. See Auer v. Robbins,

519 U.S. 452, 461–63, 117 S. Ct. 905, 137 L. Ed. 2d 79 (1997)
Court No. 12-00042                                                    Page 12


(agency   interpretation      of    its   own   regulation   must    be   given

controlling weight unless plainly erroneous or inconsistent with

the regulation); see also White v. United States, 543 F.3d 1330,

1333–34 (Fed. Cir. 2008).

           Because Customs’ interpretation of the regulation was

not plainly erroneous or inconsistent with the regulation, the

court defers to Customs’ reading of the term trademark concluding

that trademarks are either registered or marks that are subject to

pending applications.        See id.      As Plaintiff’s markings on their

merchandise did not constitute trademarks pursuant to 19 C.F.R.

§ 134.47, the court agrees with Customs that 19 C.F.R. § 134.46

controls here.

                     II.     Issues of Material Fact

           The final question the court must address is whether any

genuine issues of material fact remain with regards to Plaintiff’s

compliance with 19 C.F.R. § 134.46.

           First, Plaintiff argues that there is a genuine issue of

material fact because Customs has not offered evidence that an

ultimate consumer would be confused or misled with regards to the

country   of   origin   of    the   jeans.       Pl.’s   Mem.   in   Reply   to

Government’s Opp’n to Pl.’s Mot. for Partial Summ. J. and in Opp’n

to Government’s Cross-Mot. for Summ. J. at 12, Oct. 20, 2014, ECF
Court No. 12-00042                                                Page 13


No. 25 (“Pl.’s Reply”).        Specifically, Plaintiff insists that the

“stricter standard of ‘close proximity’ is only triggered if a

locality term is found on the article that may mislead or deceive

the ultimate customer as to the country of origin.”          Id. (citing

HQ 561060 (Nov. 3, 1998); Country of Origin Marking, 62 Fed Reg.

44211,   44211   (Aug.   20,    1997))   (internal   footnotes   omitted).

Plaintiff contends that “because a consumer can easily find the

country of origin marking, ‘Made in China’ upon casual inspection

of the inside waistband of the jeans, a consumer will not be

confused.”    Id.

             The court disagrees.     Plaintiff fails to recognize that

by displaying text representing a locality different from the

merchandise’s country of origin, the text may “mislead or deceive

the ultimate purchaser as to the actual country of origin of the

article.”    19 C.F.R. § 134.46.      Moreover, the regulation does not

require Customs to provide evidence demonstrating that a consumer

is being misled, rather the presence of the text itself may be

sufficient to mislead the consumer, unless there appears “legibly

and permanently in close proximity to such words, letters or name,

and in at least a comparable size, the name of the country of

origin preceded by ‘Made in,’ ‘Product of,’ or other words of

similar meaning” informing the consumer of the country of origin
Court No. 12-00042                                             Page 14


of the merchandise.     19 C.F.R. § 134.46.   Additionally, Plaintiff

appears to misinterpret HQ 561060.     Pl.’s Reply at 12–13.    Unlike

here, in HQ 561060, Customs determined that pursuant to 19 C.F.R.

§ 134.47 it was “unnecessary to place an additional country of

origin marking on the hangtag containing a trademark with a non-

origin   geographical    reference.”    HQ    561060.    Contrary   to

Plaintiff’s assertion, this ruling does not stand for the premise

that “if the close proximity requirement is not triggered, then

the conspicuous location standard applies.”       19 C.F.R. § 134.46.

As discussed above, 19 C.F.R. § 134.46 outlines specific marking

requirements that an importer must follow when the name of a

country, other than country of origin, appears on merchandise.

Id.   Nowhere in the regulation is “upon casual inspection” of the

merchandise discussed as a suitable marking alternative.       See id.

           Subsequently, Plaintiff argues that the Defendant is

“not entitled to a judgment as a matter of law because Customs’

decision to require the jeans to be remarked after importation is

contrary to 19 C.F.R. § 134.32(o) because remarking would be

‘economically prohibitive.’”    Pl.’s Reply at 13.

           Merchandise may be exempted from the marking requirement

if it “cannot be marked after importation except at an expense

that would be economically prohibitive.” 19 C.F.R. § 134.32(o).
Court No. 12-00042                                                   Page 15


           Notwithstanding the fact that arguments raised for the

first time in a reply brief are not properly before this court,

United States v. Ford Motor Co., 463 F.3d 1267, 1276–77 (Fed. Cir.

2006),   and   such   arguments   are   usually   deemed   to   be   waived,

Novosteel SA v. United States, 284 F.3d 1261, 1273–74 (Fed. Cir.

2002); see Ford Motor Co., 463 F.3d at 1276–77, Plaintiff has not

provided evidence supporting its conclusory claim that remarking

the jeans would be economically prohibitive.        The court finds that

Plaintiff’s bare assertions made for the first time in its reply

brief do not constitute an issue of material fact in the instant

case.

           As discussed above, because the subject merchandise do

not display a trademark in accordance with 19 C.F.R. § 134.47, the

subject merchandise must satisfy the marking requirements of 19

C.F.R. § 134.46.      First, the jeans display the logos “C’est Toi

Jeans USA,” “CT Jeans USA,” and “C’est Toi Jeans Los Angeles” in

various styles, scripts and dimensions, on the backs of some of

the jeans, on the care label stitched into the front waistbands of

the jeans, on the hang-tags affixed to the outside of the jeans,

on the pocket linings of the jeans, and on the back waistbands of

the jeans.     See Pl.’s Br. at Ex. 2; HQ H137556.          Secondly, the

“Made in China” labels are only sewn into the front waistband of
Court No. 12-00042                                               Page 16


the jeans, several inches from the zipper, above or next to the

care label.     Id.   Thus, the country of origin is not displayed in

close proximity to each “USA” or “Los Angeles” logo on the backs

of the jeans, pocket linings, back waistbands, and hang-tags.        Id.

Finally, the “Made in China” label is in smaller print-size than

the “C’est Toi Jeans USA,” “CT Jeans USA,” and “C’est Toi Jeans

Los Angeles” logos embroidered into the back waistbands of the

jeans and displayed on the jean hang-tags.     Id.    Accordingly, the

subject merchandise is not properly marked pursuant to 19 C.F.R.

§ 134.46.   Because the markings on Plaintiff’s merchandise did not

comply with 19 C.F.R. § 134.46, the court finds that Customs

Notices to Mark and/or Redeliver were properly issued.

                               CONCLUSION

            For the foregoing reasons, the court grants Defendant’s

cross-motion for summary judgment and denies Plaintiff’s motion

for   partial    summary   judgment.     Judgment    will   be   entered

accordingly.




                                              /s/ Nicholas Tsoucalas
                                                Nicholas Tsoucalas
                                                    Senior Judge
Dated:    January 28, 2015
         New York, New York
