May 1, 2009 CBP Bulletin Notice on Admissibility of Certain Cube Puzzles
In the May 1, 2009 issue of the U.S. Customs and Border Protection Bulletin (CBP Bulletin) (Vol. 43, No. 18), CBP published a notice revoking two rulings and a treatment as follows:
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Revocation of ruling, revocation of treatment.CBP is revoking two rulings on the admissibility of certain cube puzzles; in addition, this notice covers any rulings on this merchandise which may exist but have not been specifically identified. CBP is also revoking any treatment it has previously accorded to substantially identical transactions.
According to CBP, the revocations are effective for merchandise entered or withdrawn from warehouse for consumption on or after June 30, 2009.
Cube puzzles. The merchandise at issue is identified as the "Magic Cube," a three-dimensional white twist cube puzzle, which features nine color patches on each of its six faces with the color on each face being the same and consists of the colors fuchsia, aqua, black, lime green, yellow and pink, and the "Intellectual Cube," a three-dimensional black twist cube puzzle which features sixteen color patches on each of its six faces with the color on each face being the same and consists of the colors red, green, blue, fuchsia, yellow and white.
CBP is issuing HQ H027746 in order to revoke HQ 477375 and HQ W480158, and determine that the "Intellectual Cube" is admissible but the "Magic Cube" is not admissible due to infringement on the design trademark of the "Rubik's Cube", rather than that both cube puzzles are admissible.
CBP makes this change as a correction due to new factual information which was not addressed in the original determinations made in rulings HQ 477375 and HQ W480158. CBP initiates this amended determination because, pursuant to 19 CFR 177.2(b)(1), such determinations require consideration of all material facts related to the transaction to be included in consideration of the determination. The existence of the ITC Exclusion Order "In the Matter of CERTAIN CUBE PUZZLES, Investigation No. 337-TA-112," USITC Publication 1334, published January 1983, is a material fact and a directly related document to the determination at hand.
The protected "Rubik's Cube" trademark is employed in a three-dimensional twist cube puzzle. The trademark certificate describes the mark as follows, "The mark consists of a black cube having nine [square] color patches on each of its six faces with the color patches on each face being the same [when the puzzle is purchased, and when the puzzle is solved] and consists of the colors red, white, blue, green, yellow and orange."
ITC Exclusion Order 337-TA-112 is accompanied by images of both the protected and infringing merchandise. The "Magic Cube" differs from the "Rubik's Cube" only in its color scheme, the design and function are otherwise the same. The "Intellectual Cube" is similar in function but its design is a 4x4x4 construction with sixteen color patches on each of its faces. The ITC Exclusion Order includes images of "representative infringing cube puzzles," and clearly provides examples of merchandise found to be infringing with variations of shades of colors that fall within the scope of the order. The "Rubik's Cube" design trademark is protected for the color patch colors of red, white, blue, green, yellow, and orange. The colors used in the ''Magic Cube'' design are red, blue, black, green, yellow and pink. ITC Exclusion Order provides images that represent a variety of shades of colors already determined to be infringing by the ITC, including some that are not identical to the specific colors on the "Rubik's Cube." The "Intellectual Cube" is determined to be outside the scope as it has a 4x4x4 construction whereas the protected design is 3x3x3.
CBP now determines that the 3x3x3 "Magic Cube" puzzle falls clearly within the scope of the ITC Exclusion Order 337-TA-112 and is subject to exclusion from entry into the United States pursuant to the order.
In addition, CBP notes that in order to comply with its enforcement obligations, CBP is required to enforce the Exclusion Order. If a party believes that an order is subject to modification or rescission due to a change in conditions of fact or law, the proper agency authorized for modification or rescission of exclusion orders is the International Trade Commission.
(See ITT's Online Archives or 01/08/09 news, (Ref:0901845), for BP summary of proposed HQ H027746.)
May 1, 2009 CBP Bulletin (Vol. 43, No. 18) available athttp://www.cbp.gov/xp/cgov/trade/legal/bulletins_decisions/bulletins_2009/