Material Difference

A Federal Circuit Court in In re Lever Bros held that an imported product which is “materially and physically different” from the domestic version of that product infringes upon domestic trademark rights. In response to that decision, CBP has adopted a regulation which provides U.S. trademark owners with “Lever Rule” protection against third party imports of “materially and physically different” merchandise. This process provides an opportunity for public comment and an option to provide notice to the public to preserve the ability to distribute genuine, but different products. However, over time, federal courts, the International Trade Commission and CBP have entertained, and often adopted, positions which lower the threshold for product differences sufficient to constitute trademark infringement.