Importing Rolex Into The United States

[unclesallie]

(Copy of posted thread re-posted for Reference)

Here's the regulation from the "horse's mouth":

S. Department of Homeland Security Washington, DC 20229
U.S. Customs and Border Protection

HQ H071620
November 20, 2009 ENF-4-02-OT:RR:BSTC:IPR HQ H071620 DAC
CATEGORY: Trademark Mr. Peter A. Quinter Becker & Poliakoff Emerald Lake Corporate Park 3111 Stirling Road Fort Lauderdale, Florida 33312-6525 RE: Restricted Merchandise; Trademark, Gray Market Importations Restricted: Rolex trademarked merchandise, Rolex watches; USPTO Reg. No. 101,819, and CBP Recordation No. TMK 05-00269. 19 C.F.R. §§ 133.23, 133.25. 19 C.F.R. § 148.55. 19 C.F.R. § 143.22. 19 C.F.R. § 113.62. Dear Mr. Quinter:


This letter is in response to your letter dated July 23, 2009, requesting a ruling on the number of genuine Rolex watches an individual United States resident may import into the United States. The request has been submitted by you, on behalf of your client, who is an individual United States resident natural person. No samples of Rolex merchandise, or Rolex watches were submitted along with you request. FACTS
The Rolex trademark is registered with the U.S. Patent Trademark Office as USPTO Registration No. 101,819, and recorded with Customs and Border Protection as CBP Recordation No. TMK 05-00269. The mark is currently eligible for gray market protection.
ISSUE
The request is for a ruling on the number of genuine Rolex watches that an individual, who is a natural person and a United States resident, may import into the United States. LAW AND ANALYSIS
The Rolex mark recorded with CBP receives "gray market" protection. As such, genuine Rolex watches bearing the registered and recorded "Rolex" trademark constitute restricted gray market articles. One with access to the internet may reference the Intellectual Property Rights Search (IPRS) webpage located at: http://iprs.cbp.gov/ and enter the word "Rolex" in the "Keyword" box and conduct a search which yields the CBP Recordation for Rolex, CBP Rec. No. TMK 05-00269. If one clicks on the entry under the second column, which is labeled "Title Product", on the word "Rolex", the CBP Recordation opens up to another screen and displays more details. The CBP Recordation for "Rolex", is referred to as TMK 05-00269, and on the fifth line of the detail screen the recordation currently displays: "Gray Market Importations Restricted YES". In this particular instance, with respect to this particular trademark, CBP provides Rolex Watch U.S.A. Inc. gray market protection for the registered and recorded "Rolex" trademark.
The CBP regulations for trademarks that receive gray market importations restricted protections from CBP are located at 19 C.F.R. § 133.23. The regulations at § 133.23(c) are explicit with respect to the CBP procedures for merchandise subject to gray market restrictions. The relevant CBP regulations located at 19 C.F.R. § 133.23(c) provide as follows.

19 C.F.R. § 133.23(c).

(c) Denial of entry. All restricted gray market goods imported into the United States shall be denied entry and subject to detention as provided in §133.25,… 19 C.F.R. § 133.23(c). (emphasis retained.) (emphasis added.)
In accordance with the published CBP regulations, specifically 19 C.F.R. § 133.23(c), all merchandise subject to gray market importations restricted shall be denied entry and subject to detention as provided in 19 C.F.R. § 133.25. Thus, pursuant to CBP regulations, all such merchandise shall be denied entry, to include all merchandise bearing genuine "Rolex" trademarks that is not being imported by the recordant. Therefore, CBP Port Directors may deny entry and detain every genuine Rolex watch bearing a Rolex trademark that is brought into the United States in any manner, by any form of transportation, which is not being imported by the actual recordant of the trademark, Rolex Watch U.S.A. Inc. CBP maintains the authority to exercise these procedures with respect to your specific inquiry as well. 19 U.S.C. § 1526(a),(b). 19 C.F.R. §§ 133.23, 133.25. See, United States v. Eighty-Three Rolex Watches, 992 F. 2d 508 (5th Cir. 1993).
Relief from denial of entry and detention of merchandise subject to gray market importations restricted may be obtained by compliance with the CBP regulations located at 19 C.F.R. §§ 133.23(d), 133.22(c). The provisions of 19 C.F.R. § 133.23(d)(1)-(3) are not here relevant. The relevant CBP regulations set forth at 19 C.F.R. § 133.22(c) provide as follows.

19 C.F.R. § 133.22(c).

(c) Relief from detention of articles bearing copying or simulating trademarks. Articles subject to the restrictions of this section shall be detained for 30 days from the date on which the goods are presented for Customs examination, to permit the importer to establish that any of the following circumstances are applicable:

(1) The objectionable mark is removed or obliterated as a condition to entry in such a manner as to be illegible and incapable of being reconstituted, for example by:

(i) Grinding off imprinted trademarks wherever they appear; (ii) Removing and disposing of plates bearing a trademark or trade name; (2) The merchandise is imported by the recordant of the trademark or trade name or his designate; (3) The recordant gives written consent to an importation of articles otherwise subject to the restrictions set forth in paragraph (b) of this section or §133.23(c) of this subpart, and such consent is furnished to appropriate Customs officials; (4) The articles of foreign manufacture bear a recorded trademark and the one-item personal exemption is claimed and allowed under § 148.55 of this chapter.

19 C.F.R. § 133.22(c). (emphasis retained.) (emphasis added.)
The relief provisions stated in 19 C.F.R. § 133.22(c) are available to the arriving traveler-importer, and must be established by the arriving traveler-importer within 30 days from the date the merchandise is presented for Customs examination, which is the arrival date of the United States resident traveler-importer for such genuine "Rolex" watches. The relief provision located at 19 C.F.R. § 133.22(c)(3) requires the traveling importer present to CBP the written consent to the importation from the recordant. If a traveling importer is planning a trip to acquire genuine "Rolex" watches outside the United States, the written consent of the recordant could be obtained prior to departure from the United States and such written consent could accompany the traveling importer along with the subject merchandise, upon arrival in the United States.
However, the relief provision located at 19 C.F.R. § 133.22(c)(4) explicitly provides that relief also exists pursuant to the exemption provided for in 19 C.F.R. § 148.55. The CBP regulations located at 19 C.F.R. § 148.55 provide for an exemption for a quantity of one genuine "Rolex" watch. However, with respect to genuine "Rolex" watches in a quantity in excess of one genuine "Rolex" watch accompanying an arriving traveler-importer, subsection § 148.55(c) would require the traveler-importer to present to CBP the written consent to the importation from the recordant. Such written consent from the recordant is required since no quantity in excess of one has been published in the Federal Register for genuine "Rolex" watches. 19 C.F.R. § 148.55(c).
The exemption provided for at 19 C.F.R. § 148.55 explicitly requires the merchandise to accompany the person arriving within the United States. Therefore, transportation or shipment by any means that is not accompanying the traveler-importer arriving in the United States does not permit application of the exemption. Moreover, for genuine "Rolex" watches, the unplanned, accidental, or inadvertent transportation or shipment by any means that is not accompanying the traveler-importer arriving in the United States, does not permit application of the exemption pursuant to 19 C.F.R. § 148.55. With respect to the specific subject merchandise, genuine "Rolex" watches, such merchandise transported or shipped by any means not accompanying the traveler-importer is subject to gray market importations restricted protections enforced by CBP, and subject to denial of entry and detention pursuant to 19 C.F.R. §§ 133.23(c), 133.25.

Generally, all merchandise imported into the United States is subject to all the statutory and regulatory requirements for entry and duty. At this time it is important to emphasize that the CBP regulations located at 19 C.F.R. § 143.22 provide that CBP and CBP Port Directors and their agents may require formal entry at any time for any merchandise regardless of other regulatory provisions. In such case(s) when formal entry is required by the Port Director or such agent, and with respect to the importation of the subject merchandise, genuine "Rolex" watches, we emphasize that such formal entry, shall comply with 19 C.F.R. Part 113, especially 19 C.F.R. § 113.62. The CBP regulations located at 19 C.F.R. § 143.22 provide as follows.

19 C.F.R. § 143.22. Formal entry may be required.

The port director may require a formal consumption or appraisement entry for any merchandise if deemed necessary for: (a) Import admissibility enforcement purposes, (b) revenue protection, or (c) the efficient conduct of Customs business. Individual shipments for the same consignee, when such shipments are valued at $2,000 or less, may be consolidated on one such entry. 19 C.F.R. § 143.22. (emphasis added.) HOLDING Based on the current CBP regulations and the current status of the registered and recorded "Rolex" trademark, CBP Recordation No. TMK 05-00269, that provides gray market importations restricted protections by CBP for the "Rolex" trademark, the United States resident traveler-importer may bring one accompanying genuine "Rolex" watch into the United States, subject to all of the statutory and regulatory requirements for entry and duty. Any and all genuine "Rolex" watch(es) in excess of the quantity of one per traveler-importer shall be denied entry and detained in accordance with 19 C.F.R. §§ 133.23, 133.25. Relief from detention of the subject merchandise may be obtained if any of the provisions of 19 C.F.R. §§ 133.23(d), or 133.22(c) are established by the traveler-importer within 30 days of arrival. If relief is obtained in accordance with 19 C.F.R. § 148.55, then such relief shall be limited to the quantity of one genuine "Rolex" watch and such relief shall not be granted to any person who has taken advantage of the exemption for the same type of article within the 30-day period immediately prior to such person’s arrival in the United States.
In the future, any further correspondence regarding this matter should be directed to: U.S. Customs and Border Protection, Regulations and Rulings, Intellectual Property Rights and Restricted Merchandise Branch, 799 Ninth Street N.W. – 5th Floor, Washington, D.C. 20229-1179. In order to facilitate proper administration, please include the reference number HQ H071620 and 19 C.F.R. §§ 133.23, 148.55, in your correspondence. Sincerely,
Charles Steuart Chief, Intellectual Property Rights Branch