July 21, 2004 CBP Bulletin Notices on Non-Electric, Metal Bicycle Bells and Grant of "Lever-Rule" Protection
In the July 21, 2004 issue of the U.S. Customs and Border Protection Bulletin (CBPBulletin) (Vol. 38, No. 30), CBP issued notices: (a) proposing to modify a classification ruling on non-electric, metal bicycle bells, and (b) announcing its grant of "Lever-Rule" protection for blood glucose monitoring devices. CBP states that it is also proposing to revoke any treatment it has previously accorded to substantially identical transactions that are contrary to its position in the proposed modification notice.
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CBP states that any party who has received a contrary ruling or decision on the merchandise that is subject to the proposed ruling, or any party involved with a substantially identical transaction, should advise CBP by August 20, 2004, the date that written comments on the proposed ruling are due. Furthermore, CBP states that an importer's failure to advise CBP of such rulings, decisions, or substantially identical transactions may raise issues of reasonable care on the part of the importer or its agent for importations subsequent to the effective date of the final decision in this notice.
CBP also states that its proposed modification notice covers any rulings on the subject merchandise that may exist but have not been specifically identified.
Proposed Modification of Classification Ruling
Non-electric, metal bicycle bells. According to CBP, the bells at issue are non-electric, base metal housing bicycle accessories that operate by twisting the top portion to produce a ring sound.
CBP is proposing to issue HQ 967097 in order to modify NY I89597 and reclassify the bells under HTS 8306.10.0000 which provides, among other things, for "nonelectric bells, gongs and the like, and parts thereof, of base metal" rather than under HTS 8714.99.8000 which provides for "other parts and accessories of vehicles of headings 8711 to 8713."
According to CBP, Explanatory Note (EN) 87.14 states that HTS 8714 covers parts and accessories of a kind used withnon-motorized cycles, provided that they fulfill certain conditions. One of these conditions is that the expressions "parts" and "parts and accessories" do not apply to articles of HTS 8306, pursuant to Note 2, Section XVII. CBP further states that EN 83.06, Note A states that the group covers non-electric bells and gongs of base metal and includes, among other things, bells for bicycles.
Therefore, CBP finds that Note 2, Section XVII precludes classification of the bells in HTS 8714, and that the bells should be classified under HTS 8306.10.0000 which provides by name for bells, gongs, and the like.
proposed: 8306.10.0000, 5.8%; current: 8714.99.8000, 10%.
Grant of "Lever-Rule" Protection for Blood Glucose Monitoring Devices
CBP states that it has granted "Lever-Rule" protection to Johnson & Johnson for its blood glucose monitoring devices that bear the ONE TOUCH ULTRA trademark. CBP explains that the protection has been granted against versions of the monitoring devices that are sold in the European Union (EU) and Norway.
According to CBP, the version of the subject device sold in the EU and Norway differs from the version sold in the U.S. in the following physical and material ways: retail configuration, carton design, and the text used on product packaging.
As a result, CBP states that importation of the subject gray market versions of the devices intended for sale in the EU and Norway are restricted, unless the labeling requirements of 19 CFR 133.23(b) are satisfied. These labeling requirements state, among other things, that such merchandise or its packaging must bear a conspicuous and legible label designed to remain on the product until the first point of sale to a retail consumer in the U.S. stating that: "This product is not a product authorized by the U.S. trademark owner for importation and is physically and materially different from the authorized product."
(In its notice announcing receipt of Johnson & Johnson's application for "Lever-Rule" protection, CBP had stated that the company was seeking protection for two trademarks. The first was a Johnson & Johnson blood glucose monitoring apparatus intended for sale in Canada and bearing the trademark "FASTTAKE," while the second were Johnson & Johnson blood glucose monitoring devices, parts, and accessories therefore intended for sale in Canada, Europe, the United Kingdom, and Ireland and bearing the trademark "ONE TOUCH ULTRA." U.S. government sources were uncertain as to why one trademark was dropped. See ITT's Online Archives or 12/24/03 news, 03122445, for BP summary.)
July 21, 2004 CBP Bulletin (Vol. 38, No. 30) available at http://www.cbp.gov/xp/cgov/toolbox/legal/bulletins_decisions/bulletins_2004/vol38_07212004_no30/