US Defends CBP's Answer on 1 Question on Customs Broker License Test

CBP reasonably denied customs broker test taker Shuzhen Zhong credit for two questions on the customs broker license exam, the U.S. argued in a June 17 reply brief at the Court of International Trade. In the brief, DOJ discussed the two questions at issue, defending CBP's rulings on the classification of glazed ceramic mosaic cubes and how to obtain relief from CBP's detention of a shipment of 1,000 handbags bearing a mark that copies but is not identical to a registered and recorded mark (Shuzhen Zhong v. United States, CIT #22-00041).

The lawsuit was filed without an attorney to review six questions on the test. The scope of the suit was narrowed to two questions, though a recent letter from Zhong seemingly further limits the case to just one question. That question concerns the detained handbags.

In particular, the question asks what to do when CBP finds that a client's shipment of 1,000 handbags have a mark suspected of infringing a trademark associated with a well-known designer during an examination. "The designer’s mark is registered on the Principal Register of the U.S. Patent and Trademark Office and recorded with CBP. The suspect mark is not identical with or substantially indistinguishable from the registered and recorded mark; rather, CBP determines that it copies or simulates the registered and recorded mark and, consequently, detains the handbags. Which of the following options is available to the importer to obtain relief from detention within 30 days?"

CBP identified answer A as being the correct choice. The answer says that "The importer may remove or obliterate the suspect marks from the handbags in such a manner that they are incapable of being reconstituted."

Zhong chose B, which says that "The importer may label the merchandise with the following statement: 'This product is not a product authorized by the United States trademark owner for importation and is physically and materially different from the authorized product.'" The plaintiff suggests that "copies" means the same thing as "identical," so the question is too unclear to have a perfect answer.

The U.S. disagreed, arguing that the phrases "identical with or substantially indistinguishable from" and "copies or simulates" come straight out of the Code of Federal Regulations. "That the word 'copy' might be synonymous with the word 'identical' in some other context did not relieve Ms. Zhong of her obligation to understand how Customs regulations use those words in this context," the brief said.