good morning they please the court my name's ilan pollock i represent by c c s the appellant in this matter for this case we read we believe that the court below should be reversed because of a finding of fact it's inconsistent with the facts of record the case really stems ripa revolves around four different concepts one of which is brand one is model one is product as a nation and one is product getting about a page four of the court's opinion a low that leaves appendix a page for the court agrees with the parties that the product is the premium brand about two pages later the  a finding that the product is now a model as opposed to a brand model doesn't appear anywhere in the car lation sheet that's produced by underwriters laboratories we get that becomes the focus for the court's decision that this is a new products new model and hence it required approval before it was important that's simply not the case o j c which is the trick which is the producer and supplier of  the premium brand product applied for a license with you well in one million two thousand and one and that license allowed them to bring in a product that they designated as a megawatt the mega one product the still the same its life of its registered trademark to the canisters that were being imported the only dispute really is whether the brand name supplied by the multiplicity under ready the original license changes anything our position has been all along that there's no change it's still d the mega one canister nothing has changed at all because it's still the mega one canister the authorization to import this product with the us listing on it meets  part review of the ul records the only authorized model on that date was butane gas canister model number us tank on february th five new model nomenclature as were added to the private labeling would like to have known what the basis for that statement is because in the absence of an explanation it's just it's of an empty statement with no contradiction whatsoever and not supported by the other under extension five when it talks about the product covered and describes the model as the mega one of the mega one you well each and every page of their record stating from two thousand and one through two thousand and sixteen say the same thing the only d on paper in our papers is that emma pierce who is the responsible official at ul was guessing where she never looked at the record because the record is very clear that the product designation covered by the license is m its mega one product to the premium products that were brought into the country include the make a one designation actually doesn't say that it has the control number on it which is forty seven pm so i asked because it's my creating a reasonable burden on customs because you're asking customs even though all it has is a list of products that have been designated and it was designated in may go one that was approved your asking customs to somehow what do its own actual comparison to ascertain whether there are any differences between the product being imported and the product which was approved as opposed to simply relying on the designation either on the paperwork or on the product itself and that's exactly the point of the protest and thirty maybe the detention period that occurs after the goods comment remember this merchandise was released to the importer and it was only after customs issued the redelivery notice that the importer responded through  through its protests to say this is an authorized product yes here are the license starcom it isn't customs obligation to and shouldn't be to have to look at these two products and beyond simply how they are designated to ascertain whether they have any just correct and characteristics and therefore aren't exactly the same letter you seem to want to place that burden on customs customs has a list of what has been approved by ul for designation and this what premium wasn't on the list because it doesn't have any make a one designation to it and when customs went to ul and said hey is this improved are we missing something they said no it's not but i just i'm baffled by how  m appears states clearly then make up the label as of action against you well for the manner in which they responded if you believe they were improper in their response but i don't see how this court arguing that customs area if you want to argue that ul breached its license with you by stopping these goods that importation then that's you're free to do that like but that can't be part of this  with you for good reason is that for doing talking about two separate events one is a claim that we have the i c c yes or would you see may have against you well but also remember the government seized property in one part of the property accurate she says that this was one of the reasons why we were complaining about the lack of discovery because on the one hand she's saying that the label that appears in appendix forty five is approved not for the premium brand with snot there's no brand there this is what's required to be there and you will confirm that it's required to be there you had an online there's an online directory that difficult to access these days i think since this case came up and the online directory didn't have the happened was that our clients submitted up an online application on day one in the next day it was they had it there's no additional certification there's no dish no testing there's no nothing they just simply added the names i understand the trade cords position they were saying the trade court was saying that this is really more you will domain that gets to decide which products which brands get to have their you will certification mark and and so it's not up to the importer to decide i want to i want to use a different brand name for this product and so now i'm just going to order it with a brand new brand names given i understand what the court was saying but that's an accurate because it only applies if there's a change in the product there has to be it does look at the concern here is that we can't it can't tolerate allowing importers licensees whatever from choosing to unilaterally elect to slap that you will mark on its products and decide for itself oh this is just a superficial difference between the previously approved usage of you will is marked by you well and so therefore i can just keep on rule that language that the court cites only applies if there's an addition or deletion or revision to the product and here there's been no changes to the product that's why ul has as a an exception to its contract that says if it's a change in the product designation there's no requirement in fact you could import the product with no name on it and you still would be authorized you don't have to have a name as customs going to get through that big if the point is they would go to  would say that is this forty seven c n n authorized product then they come back and say yes it's o j season it's for the mega want that's exactly the point because the trademark rights come from the contract with the and with you well not based on the multiple list these marketing tool and that's that's really what this is about when the court oh they messed up all the terms did you well have specific terms for how to interpret their contracts that product product is a nation honor but what's critical is that the contract states that you now must make that determination here it alternately did there wasn't a difference between the premium model and the underlying product but in the next case there could be a difference and what is important here is that that determination came after the time of importation so at the time of him protection customers didn't know it wasn't clear if the premium brand it was the same as the underlying basic butane yes so then there is a product as ignition for the importer you can have different models that argues on the same basic product so the the basic product has never changed we all agree to that but the models change and under the terms of the contract i c c s has to make a request to ul each time it wants to use a different model in this case the goods issue had a premium model on it and when you have received a request i mean use a premium model i mean i'm just trying to understand what we're talking about customs is used to seeing something that's a u s butane correct and then with this shipment of butane gas canisters it didn't see us getting there it's all yes we we now know that this was simply swapping the words out and you are ultimately agreed that the premium model was the same basic product as the vast butane model but what is important in this case is we didn't know that at the time of importation customs didn't know that and ul hadn't made that determination so the use of the us mark on the premium brands at the time of importation falsely implied that to seize the goods because they couldn't be redelivered but true turned your honour's previous point you hold doesn't consider the branding of these products merely puffery it isn't mysterious how to handle this replayed out very clearly in the terms of the party's contracts and that was what the trial court correctly analyzed here at the contracts require and i'm referring to the service terms which are at appendix two  that i c c s make a request in writing whenever it wants to add a different product does it nation in this case a different model to its multiple listing and i c c s has to have argument is that this wasn't a different model this was the same model just had a different label on it so is it what what happens under those circumstances i disagree with that assertion ul in fact uses the word model we can look to the mark verification report which is at appendix four a one where you all states that the premium brand was a different model and that model was not approved at the time with importation and if we look to the service term and so would your position be it's not for customs to try to go behind the mark holder to figure out whether or not it's really the same model with all the exact same features when it does have a different name brand that customs gave us not one but two opportunities to confirm whether or not i c c s was authorized to use its mark on the goods at issue at the time of importation the st time was after i c c s protested customs request for redelivery prior to two denying that protest customs reached out to the trademark owner as is contemplated in the relevant legal framework to ask whether or not the market issue with the mark at issue w counterfeit and at that time you all said yes it is and our authorization is not retroactive then and once again in this litigation we actually ask the trial court for more time in answering i c c unequivocally it would not grant retroactive authorization it has a strict zero tolerance policy to uphold its record asian and to uphold the integrity of its brand and it stated on both occasions that it does not authorize any retroactive use of its mark and and that goes back to the point that i was making earlier this is not merely puffery this is not something that you all take slightly this is central to what you all does when it puts it its name its certification mark on a product that indicates that you al has certified and approved but it was the same product as this really th butane gas canisters and while it ultimately determined that the premium brand was consistent with the product that it had certified and tested it hadn't made that determination at the time of their protg sion and the contra the entire purpose of the multiple listing agreement and the service terms that are at issue is to determine which brands which models i c c s can use the you all certifications on is no different model our customs followed the legal requirements with which here ultimately leave it to the trademark holder to determine the disposition of products that customs determines owner to see if the owner will consent to the release of these goods that is the that the legal framework that we're operating in i guess for the trade court to have gone the other way here it would have had to essentially overturn what you well indicated when you well said that this is a false serious usage of its own mark on these important good yes honor and then therefore the trade court would have had to say well the trademark owner telling me i did that it didn't authorize the usage of its trademark but i disagree with the trademark owner's position on s is the party that decides the scope of a license he's right to use its markets and here there is no dispute that at the time of the importation i c c yes was not authorized to use you as mark on the goods at issue and as the trial court correctly determined while we can have inferred that in this case the premium brand was a superficial doesn't nation that the underlying product didn't differ the contract terms that govern the relationship between i c c yes and you i'll leave that determination to you out and you al had not had the opportunity to make that determination prior to the time of importation the use of their mark on the premium s did not comply with the terms of the contract you all stated very clearly in the contract that it must request in writing but this activity took place before anybody had said that there was some flaw  the interaction with us whatever that was it your honor is correct and that may go to whether or not there was harm in this case but making that determination isn't necessary in order to determine that the goods at issue had a counterfeit mark at the time of make sure that it's the same product which i assume they were told but i don't understand their reaction but we have whatever they did with now we look at customs response and nobody certification mark on a brand of product that it wasn't authorized to use it on and that i could be clear about the facts if you will did call it a counterfeit mark correct because they responded by saying this is not authorized to have  more than a pretty much i think is the definition of what a counterfeit use would be exactly your honor you well said this at the time that customs contacted them when i was looking into the protest prior to denying the protest and you also said the exact same thing in this litigation and when we gave i c c s time to once again reach out to you al and see if they would retroactively approve the use of its mark it wouldn't be counterfeit for i c c s to use you all certification mark on premium brand products today but it was at the time with importation because it hadn't followed the steps for adding that brand to its multiple listing as this contemplated by the contracts that issue and think thank you thank you product remained the same the label the branding is what only thing that's different ul approved the product in fact the language that the government quoted right now says use of names and marks the master list services sh magna one brand still the meg one product that was approved the product is ignition approved by you well back in two thousand and one nothing changed the government to continue to state that these are different models they're support the statement that this is a new model just to clarify when in your prior import when they came in and customs that they would be the word us butane right but i'm just trying to understand the words mega wine us butane premium how are these words be are they being used as the names that you would prefer to underline good marking in the same sized lettering so there may have been a problem putting us on that on that canister so to me as a customs practitioner i know that i would recommend to the client to take us off because it could trigger relabeling of every of every canister so different problem but that is something i like to point out counsel notes that ultimately you will agreed that the product was authorized when they changed the it was not authorized prior to their well your honor i would disagree on the following basis two reasons number one under the customs regulations one thousand us and one thousand c f r one hundred and thirty three i think it's either twenty two or twenty three there's a stem from the use by o j c on the of the ul logo on it's original magna one product nothing changed and all the trademark rights if you look at the actual labeling it says ul listed that's all it is is the canisters ul listed and it gives the control number that supplied by you well it's still the same nothing changed i don't think it's to answer to respond to what was a judgment i don't think it's conditions of her own contract because as i just pointed out o t c was authorized to put that mark on that product since two thousand and one and nothing changed we request that the court reverse