Lens-Fitted Film Packages; ITC Investigation No. 337-TA-406

HQ 470154 January 26, 2001 ENF 4-02 RR:IT:IP 470154 CRS CATEGORY: 19 U.S.C. § 1337; Unfair Competition Peter A. Quinter, Esq. Becker & Poliakoff, P.A. P.O. Box 9057 Ft. Lauderdale, FL 33310-9057 RE: Lens-Fitted Film Packages; ITC Investigation No. 337-TA-406 Dear Mr. Quinter: This is in reply to your letter of September 19, 2000, on behalf of your client, Sky Light Industrial Ltd,, in which you requested a ruling as to whether certain cameras, model nos. TSF 2000, CT104 and K100, are excluded from entry into the United States pursuant to the General Exclusion Order issued by the U.S. International Trade Commission in Investigation No. 337-TA-406. Sample cameras were included with the ruling request. FACTS: Pursuant to the above-referenced exclusion order, the ITC determined that there was a violation of 19 U.S.C. § 1337 in regard to certain lens-fitted film packages (LFFPs), also known as one-time use cameras, single use cameras, and disposable cameras, that infringed claims under one or more of fifteen patents owned by Fuji Photo Film Co., Inc, including claims 14 and 15 of U.S. Letters Patent 4,855,774 (the “'774 patent”). Certain Lens-Fitted Film Packages, Inv. No. 337-TA-406, General Exclusion Order at 1-2. In its Opinion, the ITC described LFFPs as follows: The products at issue in this investigation are inexpensive, disposable, single use-cameras, technically referred to as “lens-fitted film packages” or “LFFPs.” LFFPs are generally constructed of a shell made of a plastic material such as polystyrene. They are equipped with a button-activated shutter, a lens, a viewfinder, a film advance mechanism, and optional flash units and buttons. An outer cardboard cover, containing printed information such as branding and instructions, encases the shell. LFFPs are preloaded with film and a film cartridge. When pictures are taken, the exposed film winds into the film cartridge. After taking pictures, a typical consumer brings the entire LFFP to a film processor to have the film developed and receives back only negatives and prints, not the LFFP shell and its contents. Certain Lens-Fitted Film Packages, Inv. No. 337-TA-406 (June 2, 1999), Commission Opinion at 2. See also, Id., Final Initial and Recommended Determinations, Additional Findings, no. 1 at 214. The sample cameras are equipped with a lens, a viewfinder, a film advance mechanism, and a flash unit. The body of the cameras is made of plastic. The camera body consists of a front and back, hinged on one side with a slide-lock mechanism on the other. This mechanism enables the user to open and re-load the camera with relative ease. When a photograph is taken, the film winds into the film cartridge. When the last photograph is taken, the film must be manually rewound into the film cartridge before the cartridge can be removed. Photographs of the sample cameras are displayed below. K100 TSF 2000 CT104 As can be seen in the middle photograph above, the TSF 2000 bears the name “Moët” on the front of the camera. No information has been presented in connection with the use of the name. We note that the trademark Moët is registered (reg. no. 854,800) with the U.S. Patent and Trademark Office (PTO) for champagne wines in international class 033. ISSUE: The issue presented is whether the sample cameras are lens-fitted film packages within the scope of the ITC’s general exclusion order in Inv. No. 337-TA-406, such that they are excluded from entry for consumption into the United States. LAW AND ANALYSIS: Section 337 of the Tariff Act of 1930, as amended (19 U.S.C. § 1337), prohibits, inter alia, the importation, the sale for importation, or the sale within the United States after importation by the owner, importer, or consignee of articles that infringe a valid and enforceable U.S. patent. 19 U.S.C. § 1337(a)(1)(B)(i). The ITC has authority to investigate alleged violations of section 337. If the ITC determines that there has been a violation of section 337, it shall, subject to certain potential exceptions, direct that the articles concerned be excluded from entry into the U.S. and, accordingly, notify the Secretary of the Treasury who shall, through its proper officers, refuse such entry. 19 U.S.C. § 1337. See also, 19 C.F.R. § 12.39. In Investigation No. 337-TA-406, the ITC determined that certain LFFPs infringed claims under one or more of fifteen patents owned by Fuji Photo Film Co., Inc., including claims 14 and 15 of U.S. Letters Patent 4,855,774. The ITC therefore ordered that LFFPs that infringed any of the patents be excluded from entry for consumption into the U.S., and notified Customs accordingly. General Exclusion Order, Certain Lens-Fitted Film Packages, Inv. No. 337-TA-406 (June 2, 1999), at 2. The general exclusion order covers LFFPs, i.e., relatively inexpensive products also known as disposable cameras, single use-cameras and one-time use cameras. LFFPs are generally constructed of a plastic material such as polystyrene, and are equipped with a button-activated shutter, lens, viewfinder, film advance mechanism, and optional flash units and buttons. The outer shell of the LFFP is encased in a cardboard cover or jacket containing printed information such as branding and operating instructions. When an exposure is made, the exposed film winds into the film cartridge. Once a roll of film has been exposed, the consumer typically brings the entire LFFP to a film processor to have the film developed and receives back only negatives and prints, but not the LFFP shell and its contents. Id. at 2; see also, Commission Opinion, Certain Lens-Fitted Film Packages, Inv. No. 337-TA-406 (June 2, 1999), at 2. The sample cameras have a plastic body, are preloaded with film and are equipped with a lens, a viewfinder, a film advance mechanism, and a flash unit. Inasmuch as the sample cameras have hinged backs and slide-clock mechanisms that enable them to be opened and reloaded, they are not one-time use, single-use or disposable cameras. Moreover, once a photograph is taken, the film winds into the film cartridge. When the last photograph is taken, the film must be manually rewound into the film cartridge before the cartridge can be removed. Accordingly, it is our position that the three sample cameras are not lens-fitted film packages within the scope of the ITC’s general exclusion order. Finally, we note that no information was submitted in connection with the use of the word “Moët” on the sample TSF 2000 camera. Moët is a trademark owned by Schieffelin & Co. and registered with the PTO for goods of international class 033. In this regard, while this decision makes no findings in respect of trademark infringement, please be advised that merchandise imported into the United States bearing a counterfeit trademark will be seized and, absent the written consent of the trademark owner, forfeited for violation of the customs laws. E.g., 19 C.F.R. § 133.21. HOLDING: The sample cameras are not within the scope of the ITC’s general exclusion order in Inv. No. 337-TA-406 and may be entered for consumption into the United States. Sincerely, Joanne Roman Stump, Chief Intellectual Property Rights Branch