Just wodering what the real laws on replicas are? Is it legal to Own? Is it legal to buy? Is it legal to sell? If it isnt illegal to own, then does rolex really have a case once the watch is in a box?
-
Tired of adverts on RWI? - Subscribe by clicking HERE and PMing Trailboss for instructions and they will magically go away!
US Customs seizure and nastygram from Rolex attorneys...
- Thread starter bartman888
- Start date
You know, when agent Mahone turns up knocking at your door it won't matter if you're right or wrong...
Just avoid eye contact and think of America... It will be over more quickly than you'd think.
Just avoid eye contact and think of America... It will be over more quickly than you'd think.
is that your masturbation poster in your bedroom mate ..............:wacko::gay::gay:You know, when agent Mahone turns up knocking at your door it won't matter if you're right or wrong...
Just avoid eye contact and think of America... It will be over more quickly than you'd think.
:biglaugh:
You wouldn't give me a poster size picture of your boyfriend in your avatar, so yes, officer Mahone might have to do. I've been buying reps just in the faint hope he'll knock at my door one day. The postman is sick of finding me in my gimp outfit every time he turns up with a package...
If you look back over the posts I have made in this thread you should be able to piece it together. I pulled the relevant statutory authority, the only thing I have not looked at is what is in the code of federal regulation, but that would only be enforcement implementation and regs. for the agencies implementing the statutory policies. There does not seem to be any issue with merely possessing, or simply being on the receiving end of a package from a criminal standpoint. You are open to civil liability though. The civil liability would include forfeiture and destruction of said property and the possibility the entity whose copyright/trademark could sue for damages. The problem with this for the gen manufacturers with reps would be meeting their burden of production and persuasion of evidence as to their actual damages. With the napster/kazaa download cases it was fairly easy to prove their damages with mathematical certitude, and there was also criminal trafficking by virtue of the files being in the stream of commerce (anything on the internet is in the stream of commerce). Somehow the gen manufacturers would have to prove a dollar amount that you damaged them to end up with a civil judgment. To become a criminal issue you must have the element of intent to traffic or actual trafficking, I.E. a commercial motive. There would be two ways to establish this. Record of an actual transaction or if you were importing say 500 pieces at once a reasonable deduction could be made as to intent to traffic in said goods. Having civil forfeiture issues is the most likely, the packages flow through an enforcement agencies hands with customs enforcement. As for civil liability for the damage to the copyright/trademark holder’s brand there are two issues. Bringing a simple lawsuit forward would cost 3-4,000 in fees just to get it filed and served. Secondly, it would be difficult for them to quantify their damages in order to receive a judgment. Finally they would also have to know that you personally had the assets to collect a judgment against (90%+ of Americans are judgment proof on this point alone). Criminal liability would not seem to be an issue being on the receiving end of a single piece for personal use. There would be two ways to have criminal issues, having a civil forfeiture at customs of enough pieces to give proof of intent to traffic. What is the magic number? We do not know it could be 2 or it could be 10 or 100. The other way to criminal liability would be to have evidence of a sale, or even a piece offered for sale. This would require the involvement of a separate law enforcement agency to investigate, subpoena records, and reach probable cause for a referral to a DA, AG, or US atty. for indictment or information to be filed. This is the state of Federal law, make what ever inferences of it you will. Out of this you should to be able to deduce what you want to know.
- 17/3/06
- 11,843
- 6
- 38
since we are only talking about the usa i will clarify this a little. in the us it is not illegal to buy or own a replicated item. it is illegal to import or sell/distribute.
other countries have different laws concerning this topic.
Exactly what I said in two succinct sentences, good job hk. The only thing I might add is it is actually questionable if there is criminal liability on importation for personal use not for distribution, civil yes....
& I explained in a few words
Succinct must be one of those words with different meanings on each side of the Atlantic
.
Main Entry: suc·cinct
Pronunciation: \(?)s?k-?si?(k)t, s?-?si?(k)t\
Function: adjective
Etymology: Middle English, from Latin succinctus having one's clothes gathered up by a belt, tightly wrapped, concise, from sub- + cinctus, past participle of cingere to gird — more at cincture
Date: 15th century
1 archaic a : being girded b : close-fitting
2 : marked by compact precise expression without wasted words <a succinct description>
Yes I see, I take it in the UK it would be akin to having your knickers in a knot? See defn. 2 for US std. usage...
- 17/3/06
- 11,843
- 6
- 38
rolex has sole importation rights to all rolex watches or parts coming into the usa. it has been litigated several times and they have won every time. when you enter this country you can ware a rolex through customs on your wrist if you declared it when you left the country. other wise you are wide open for problems.
normally they don't say anything about the watch you have on your wrist because people ware their watches while travailing. if they find the accompanying box, papers and receipt where you bought it outside the usa stuffed in your luggage they will tax you @2 times the retail value of the watch. this is why when you buy a rolex outside the country you ware it home and ship the box/papers and receipt.
- 30/3/08
- 42,586
- 13,342
- 113
Actually hk I was under the impression that you could bring in one gen Rolex for private use regardless. This applies to travellers only mind you, not mail etc.
The whole thing appears to a a gross violation of your rights anyway. How the hell can your law makers allow a foreign company to say what an American can or can not import for his own use? We did have parallel import laws here for commercial goods but we rescinded even them years ago in the interest of free trade.
Do we have another lawyer in our midst SPH?
Col.
The whole thing appears to a a gross violation of your rights anyway. How the hell can your law makers allow a foreign company to say what an American can or can not import for his own use? We did have parallel import laws here for commercial goods but we rescinded even them years ago in the interest of free trade.
Do we have another lawyer in our midst SPH?
Col.
- 17/3/06
- 11,843
- 6
- 38
"The Rolex trademark recordation with Customs indicates "Import of Goods Bearing Genuine Trademarks or Trade Names Restricted." This means that genuine Rolex products can only be imported with the permission of the trademark owner, Rolex Watch U.S.A. Inc. A private individual can hand carry one Rolex watch from a trip overseas without obtaining permission. Bring in more than one, and they will all be seized as a trademark violation. Purchasing a Rolex from overseas by mail is also a trademark violation."
Title 19 U.S.C. §§ 1526(a) and (b)
http://www.cbp.gov/xp/CustomsToday/2002/February/other/christmas.xml
like i said, you can wear one in on your wrist but i wouldn't have the papers and receipt in your luggage, it's not worth the hassle. rolex has it locked down tight and there is a ton of case law about this. whats really bad is i can't come visit you and buy one for me and my wife unless she is with me.
big business runs the usa and thats a fact.
Title 19 U.S.C. §§ 1526(a) and (b)
http://www.cbp.gov/xp/CustomsToday/2002/February/other/christmas.xml
like i said, you can wear one in on your wrist but i wouldn't have the papers and receipt in your luggage, it's not worth the hassle. rolex has it locked down tight and there is a ton of case law about this. whats really bad is i can't come visit you and buy one for me and my wife unless she is with me.
big business runs the usa and thats a fact.
- 30/3/08
- 42,586
- 13,342
- 113
I recently went through customs, returning from Canada. As luck would have it, they were bored and picked me for a search.
In a small case, I had six reps with me. (I had a Hamilton on my wrist.) Don't know if they opened the case, but nothing was said. No "Rolex" in the six, regardless.
In a small case, I had six reps with me. (I had a Hamilton on my wrist.) Don't know if they opened the case, but nothing was said. No "Rolex" in the six, regardless.
Full text of the statute below for anyone interested: Note §1526 (e)(f) when coming back to Rep. questions, and draw what conclusion you will....There are subsections here that relate to "grey market" importation of gens and reps alike. This is one piece of my earlier look at this, in conjunction with other related sections. This is one of the civil forfeiture sections. Sec (d)(2) - Someone has decided one watch is the personal use limit. So everyone one watch is all you need
, the Federal government says so... And HK sure you can pull it off, just tell the customs officer its an 80's thing, ya know wearing four watches at a time, throw in a few rubber bracelets - I'm sure it will fly...
One of the big time talk radio hosts (that is on KRMG mid-day HK) talked one time about the first real luxury items he bought himself was a Rolex somewhere on a trip. He had it on his wrist and still declared its purchase, he wanted to pay the importation duty. The customs officers could not believe it and tried to talk him into the "fact" the he left the country with it... He finally got them to take the money, after much NO REALLY....
TITLE 19. CUSTOMS DUTIES
CHAPTER 4. TARIFF ACT OF 1930
ADMINISTRATIVE PROVISIONS
ASCERTAINMENT, COLLECTION, AND RECOVERY OF DUTIES
19 USCS § 1526
§ 1526. Merchandise bearing American trademark
(a) Importation prohibited. Except as provided in subsection (d) of this section, it shall be unlawful to import into the United States any merchandise of foreign manufacture if such merchandise, or the label, sign, print, package, wrapper, or receptacle, bears a trade-mark owned by a citizen of, or by a corporation or association created or organized within, the United States, and registered in the Patent Office [Patent and Trademark Office] by a person domiciled in the United States, under the provisions of the Act entitled "An Act to authorize the registration of trade-marks used in commerce with foreign nations or among the several States or with Indian tribes, and to protect the same," approved February 20, 1905, as amended, and if a copy of the certificate of registration of such trade-mark is filed with the Secretary of the Treasury, in the manner provided in section 27 of such Act, unless written consent of the owner of such trade-mark is produced at the time of making entry.
(b) Seizure and forfeiture. Any such merchandise imported into the United States in violation of the provisions of this section shall be subject to seizure and forfeiture for violation of the customs laws.
(c) Injunction and damages. Any person dealing in any such merchandise may be enjoined from dealing therein within the United States or may be required to export or destroy such merchandise or to remove or obliterate such trade-mark and shall be liable for the same damages and profits provided for wrongful use of a trade-mark, under the provisions of such Act of February 20, 1905, as amended.
(d) Exemptions; publication in Federal Register; forfeitures; rules and regulations.
(1) The trademark provisions of this section and section 42 of the Act of July 5, 1946 citation omitted, do not apply to the importation of articles accompanying any person arriving in the United States when such articles are for his personal use and not for sale if (A) such articles are within the limits of types and quantities determined by the Secretary pursuant to paragraph (2) of this subsection, and (B) such person has not been granted an exemption under this subsection within thirty days immediately preceding his arrival.
(2) The Secretary shall determine and publish in the Federal Register lists of the types of articles and the quantities of each which shall be entitled to the exemption provided by this subsection. In determining such quantities of particular types of trade-marked articles, the Secretary shall give such consideration as he deems necessary to the numbers of such articles usually purchased at retail for personal use.
(3) If any article which has been exempted from the restrictions on importation of the trade-mark laws under this subsection is sold within one year after the date of importation, such article, or its value (to be recovered from the importer), is subject to forfeiture. A sale pursuant to a judicial order or in liquidation of the estate of a decedent is not subject to the provisions of this paragraph.
(4) The Secretary may prescribe such rules and regulations as may be necessary to carry out the provisions of this subsection.
(e) Merchandise bearing counterfeit mark; seizure and forfeiture; disposition of seized goods. Any such merchandise bearing a counterfeit mark (within the meaning of section 45 of the Act of July 5, 1946 (commonly referred to as the Lanham Act ,...) citation omitted imported into the United States in violation of the provisions of section 42 of the Act of July 5, 1946 ... citation omitted, shall be seized and, in the absence of the written consent of the trademark owner, forfeited for violations of the customs laws. Upon seizure of such merchandise, the Secretary shall notify the owner of the trademark, and shall, after forfeiture, destroy the merchandise. Alternatively, if the merchandise is not unsafe or a hazard to health, and the Secretary has the consent of the trademark owner, the Secretary may obliterate the trademark where feasible and dispose of the goods seized--
(1) by delivery to such Federal, State, and local government agencies as in the opinion of the Secretary have a need for such merchandise,
(2) by gift to such eleemosynary institutions as in the opinion of the Secretary have a need for such merchandise, or
(3) more than 90 days after the date of forfeiture, by sale by the Customs Service at public auction under such regulations as the Secretary prescribes, except that before making any such sale the Secretary shall determine that no Federal, State, or local government agency or eleemosynary institution has established a need for such merchandise under paragraph (1) or (2).
(f) Civil penalties.
(1) Any person who directs, assists financially or otherwise, or aids and abets the importation of merchandise for sale or public distribution that is seized under subsection (e) shall be subject to a civil fine.
(2) For the first such seizure, the fine shall be not more than the value that the merchandise would have had if it were genuine, according to the manufacturer's suggested retail price, determined under regulations promulgated by the Secretary.
(3) For the second seizure and thereafter, the fine shall be not more than twice the value that the merchandise would have had if it were genuine, as determined under regulations promulgated by the Secretary.
(4) The imposition of a fine under this subsection shall be within the discretion of the Customs Service, and shall be in addition to any other civil or criminal penalty or other remedy authorized by law.
I would think with rolex winning every time they were challenged, a precident was set that they would never have a judgement against them so the law as it is written is really irrelevent to what looks like a "binding precident" that was set years ago. Then again i never completed school to become a barrister and chose to foolishly stay in the radio business. I will say that most of us radio personalities will never be able to buy more than a replica. That mid-day guy SCH mentioned must be syndicated. Once your voice hits the bird, the money rolls in. For the rest of us, theres a21j's making a whirring noise as we type.
I may have read a little about this kinda stuff in a class or two or ten here or there - All analysis begins with statutory authority - then to case law - although there are a lot of areas where there is no statutory authority and you are back to case law to try to figure out what the deal is. If you have an operational statute, the case law interprets the statutory language - and a little thing called stare decisis kicks in and courts are very hesitant to overturn previous rulings - but even then nothing is ever set in stone in case law....By the way DACFAN if you had the choice between law school and being an on air personality you made the right choice....
So, for instance, because of common law stare decisis rolex would always win a case in the states hands down even though they just lost in Deutschland against ebay, or would any "creative' interpretation of case law make a difference? Does Germany have the same structure or do their courts lean toward civil law. I guess what I am asking is since they have never lost a case in the US, it is doubtful they would, correct? I'm not even sure what I just wrote makes any sense......I need to stop snorting ritalin.....
