Customs Seizure of Goods In-Transit – Part Two: Interpretation of Importation

In our previous blog (see below), we concluded that whether Customs has the authority to seize in-transit goods depends on the statutory interpretation of “import,” “importation” or “imported.”

First, let us look at precedents. Courts have consistently held that under the tariff law, importation means the bringing of goods within the jurisdictional limits of the United States with intent to unlade.  Am. Customs Brokerage Co., Inc. v. U. S., Cust. Ct. 245, 253-54 (Cust. Ct. 1974) (internal citations omitted). The Am. Customs Brokerage Co. Court cited Treasury Ruling T.D. 37376, reported in 33 T.D. 292. According to the Treasury Ruling, merchandise is not imported if it comes into the United States temporarily, but it will be treated as imported if it is brought into the United States permanently.  Whether the merchandise is brought into the United States permanently, is ultimately a question of intent. Such intention must be determined on the basis of circumstances.  Am. Customs Brokerage Co., Inc. Cust. Ct. at 254 (Cust. Ct. 1974). Accordingly, genuine in-transit goods that are transported under bond should not be considered as imported permanently into the United States.

Second, there is a longstanding principle of presumption against extraterritoriality unless Congress has affirmative intention, which is clearly “expressed to give a statute extraterritorial effect.” Morrison v. Nat’l Australia Bank Ltd., 561 U.S. 247, 255 (2010). The Supreme Court has ruled on the issue of “presumption against extraterritoriality” in the field of patent law. The Court has consistently refused to read the term “import” or “export” broadly which may afford protections to patent holders that should have been sought in other countries. See Deepsouth Packing Co. v. Laitram Corp., 406 U.S. 518, 531 (1972) (“Our patent system makes no claim to extraterritorial effect”; our legislation “do[es] not, and [was] not intended to, operate beyond the limits of the United States, and we correspondingly reject the claims of others to such control over our markets.”)(quoting Brown, 19 How. at 195, 15 L.Ed. 595)); Microsoft Corp. v. AT & T Corp., 550 U.S. 437, 454-55 (2007) (“The presumption that United States law governs domestically but does not rule the world applies with particular force in patent law. The traditional understanding that our patent law ‘operate[s] only domestically and do[es] not extend to foreign activities,’ is embedded in the Patent Act itself, which provides that a patent confers exclusive rights in an invention within the United States.”).

What about trademark law? If using the same reasoning, then the Lanham Act only provides exclusive right to use of trademark in commerce – U.S. Commerce, therefore, the presumption is that the Lanham Act does not have extraterritorial effect. See 15 U.S.C. § 1114. Unfortunately, the Supreme Court has not precisely ruled on this issue.

What about the Tariff Act? The Federal Circuit in TianRui Group Co. Ltd. v. International Trade Com’n, states that the presumption against extraterritoriality does not govern the International Trade Commission’s (ITC) investigation under 19 U.S.C 1337. TianRui Grp. Co. v. Int’l Trade Comm’n, 661 F.3d 1322 (Fed. Cir. 2011).  In that case the ITC found that TianRui, the Chinese company, misappropriated Amsted’s, an American company, trade secret in producing cast steel railway wheels. ITC issued a limited exclusion order, preventing the importation of certain TianRui products into the U.S. A split panel of the Court of Appeals for the Federal Circuit affirmed. The statute at issue was 19 U.S.C. 1337(a)(1)(A) which provides that it shall be unlawful to import articles into the United States or the sale of such articles by unfair methods of competition or unfair acts if the threat or effect of such importation or sale is to destroy or substantially injure an industry in the United States. The Chinese manufacturer’s argument was that the misconduct occurred overseas thus should not be considered by ITC in its investigation because Congress did not intend the statute to apply outside the territory of the United States. The Court held that the presumption against extraterritoriality does not govern this case for three reasons. First, Section 337 is expressly directed at unfair methods of competition and unfair acts “in the importation of articles” into the United States. As such, “this is surely not a statute in which Congress had only ‘domestic concerns in mind.’” Second, the Commission has not applied section 337 to sanction purely extraterritorial conduct; the foreign “unfair” activity at issue is relevant only to the extent that it results in the importation of goods into this country causing domestic injury. Third, the legislative history of section 337 supports the Commission’s interpretation of the statute as permitting the Commission to consider conduct that occurs abroad. In sum, what constitutes importation was not at issue in TianRui – the railway wheels were imported into the U.S. to compete with U.S. manufacturer’s products in the U.S. market. However, we can glean Congressional intent from the discussion of legislative history of Section 337 – Congress had “domestic concerns in mind.”

Interestingly, Section 337 of the Tariff Act also prevents the importation of counterfeit trademarked goods. See 19 USC 1337(a)(1)(C) (providing that it shall be unlawful to import into the United States, to sell for importation, or  to sell within the United States after importation of articles that infringe a valid and enforceable United States trademark). If the importation in 19 USC 1337(a)(1)(A) concerns importation that cause domestic injury, the importation in 19 USC 1337(a)(1)(C) must concern importation of counterfeit trademarked goods that have “domestic” effects. Therefore, it appears that transshipment of goods shall not be considered as an importation of goods because no harm is caused to U.S. trademark owners in the U.S. market.

Do the importation in 19 USC 1526(e) and the importation in 19 USC 1337(a) have the same meaning? We will explore this topic in a forthcoming blog post.