PGP Mediation Blog by Phyllis G. Pollack
“Christmas is not a time nor a season, but a state of mind. To cherish peace and goodwill, to be plenteous in mercy, is to have the real spirit of Christmas.” — Calvin Coolidge
I start this blog with this quote because the Christmas season tends to change our perspective on life. It is a season of goodwill towards our fellow persons and of hope. It is a time for reflection and to realize once again that not everyone sees the world the same way as we do. And just because they do not, it does not mean that they are uninformed or biased; they just see the world through a different lens, no less valid than our own.
The importance of perspective arises out of a case my husband just argued before the Federal Circuit Court of Appeals in Washington, D. C. He is a Customs lawyer and so represents importers who have had their goods detained/seized et cetera by Customs and Border Protection (CBP or Customs).
The case involved the importation of disposable butane gas cannisters. As with most products, these gas cannisters displayed an Underwriters’ Laboratories (UL) certification. The manufacturer obtained this certification in 2001 and placed it on its products. Its previous shipments were labelled differently although always containing the same code or control number indicating certification by UL. On the shipment at issue, while each cannister was labelled “premium”, each cannister also had the same control number indicating it was certified by UL as on all previous shipments. Thus, the product at issue was identical in every respect to all previous shipments except for the label “Premium” appeared on each cannister.
While CBP has a list of products certified by UL, the list did not contain the word “Premium” in connection with these gas cannisters. So, it requested that the gas cannisters be returned to Customs after they were released into the commerce of the United States. However, Customs could impose a penalty if and when that redelivery did not occur.
CBP initially asked UL whether its certification mark on these gas cannisters was genuine. Initially, UL indicated that the certification mark was not genuine but, after further review, found that the gas cannisters were indeed the same as what it had certified but with a different label. Yet, UL refused to give retroactive effect so that the UL certification on that particular importation was still “counterfeit” though if imported today, it would be genuine.
So- the issue before the appellate court was simple: is the word “premium” merely a label connoting a little bit of puffery and advertising or is it a new and different product or model making the UL certification counterfeit or spurious and a false mark on the gas cannisters?
During oral argument, the court asked counsel whether CBP should have the burden of looking beyond its list of goods certified by UL to determine through its own comparison whether the model is the same or different than what it on its list. The court asked, “Isn’t this placing an unreasonable burden on Customs?”
Another one of the judges queried shouldn’t UL be allowed to decide whether its own mark “UL” is real or counterfeit on any given product? Should the court usurp the province of UL on this matter and disagree with UL on the use of its own mark?
But, the court also queried that isn’t this just a label change: that is, the same model as before but a new label placed on it?
No one knows how the appellate court will decide: whether “premium” is merely a label that is puffery and advertising or constitutes a whole new and different model thereby causing the UL certification to be counterfeit as a false and spurious representation that the “model” has indeed been certified by UL.
It is all a matter of perspective. Neither side may be completely right and neither side may be completely wrong: Something that often occurs in mediation or even at trial. The same set of facts can be viewed in many ways leading to many different conclusions. No doubt, the appellate court (like many juries) will attempt to weave a narrative that makes sense to it. To take a little bit from one side and a little bit from the other to come out with a third side of the “story.”
At this time of year, we must indeed, remember that it is all a matter of perspective; no one is completely right, no one is completely wrong. It is simply a matter of the different way in which we view it.
…. Just something to think about.
“This is my wish for you: peace of mind, prosperity through the year, happiness that multiplies, health for you and yours, fun around every corner, energy to chase your dreams, joy to fill your holidays!” — D.M. Dellinger
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