LEVER BROTHERS COMPANY, PETITIONER V. UNITED STATES OF AMERICA, ET
AL.

   No. 86-1439

   In the Supreme Court of the United States

   October Term, 1986

   On petition for a writ of certiorari to the United States Court of
Appeals for the District of Columbia Circuit

   Memorandum for the federal respondents in opposition

   Petitioner seeks review of a district court decision denying
petitioner's request for a preliminary injunction requiring the United
States to exclude certain imported products bearing trademarks
identical to U.S. trademarks.  Petitioner contends that it is entitled
to the injunction on the ground that a Treasury Department regulation
(19 C.F.R. 133.21) that permits the importation of these goods is
invalid.  This Court should deny the petition because the court of
appeals has not reviewed the district court judgment and has stayed
further proceedings pending resolution of three cases before this
Court that present a similar challenge to the regulation.  /1/

   1. Section 526 of the Hawley-Smoot Tariff Act of 1930 prohibits the
unauthorized importation of "any merchandise of foreign manufacture if
such merchandise * * * bears a trademark owned by a citizen of, or by
a corporation or association created or organized within, the United
States, and registered in the Patent and Trademark Office by a person
domiciled in the United States * * * ." 19 U.S.C. 1526, Section 42 of
the Lanham Act forbids the importation of goods that "copy or
simulate" U.S. trademarks.  15 U.S.C. 1124.  For over 50 years, the
Department of the Treasury has interpreted Section 526 and Section 42
to permit entry of foreign merchandise bearing a trademark identical
to a U.S. registered trademark when there is a substantial identity
between the foreign manufacturer and the U.S. trademark owner.  The
Treasury Department's present Customs Service regulation permits such
parallel importation when (1) the foreign and U.S. trademarks are
owned by the same person;  (2) the foreign and U.S. trademark owners
are subject to common ownership or control;  or (3) the trademark was
applied under authorization of the U.S. trademark owner.  19 C.F.R.
133.21.

   Unilever N.V., a Dutch corporation, owns a number of subsidiaries
throughout the world that manufacture and distribute various household
products.  One of these subsidiaries -- Unilever United States, Inc.
-- owns petitioner, an American corporation that sells its goods in
the American market.  Petitioner brought suit against the United
States, the Secretary of the Treasury, and the Commissioner of
Customs, challenging the Treasury Department's longstanding Customs
Service regulation.  It urged that the regulation is inconsistent with
both Section 526 and Section 42 and sought a preliminary injunction
requiring the Customs Service to prevent parallel importation of
products manufactured by its foreign affiliates.

   The district court denied petitioner's motion for a preliminary
injunction (Pet. App. 1a-9a).  It reasoned that the Customs Service
regulation "constitutes a reasonable exercise of the Customs Service
enforcement discretion" (id. at 5a).  The court also concluded that
Congress's repeated acquiesence in the Treasury Department's
interpretation of Section 526 made change in this area "'a matter for
the legislative or executive branch and not the judiciary'" (Pet. App.
6a (quoting Olympus Corp. v. United States, 792 F.2d 315, 321 (2d Cir.
1986), petition for cert. pending, No 86-757)).  Finally, it noted
that a preliminary injunction should not issue while this Court is
considering the merits of the underlying dispute in a group of similar
cases (Pet. App. 6a-7a).  The court then rejected petitioner's
contention that the regulation is inconsistent with the Lanham Act,
stating that Section 42 applies only to "merchandise bearing
counterfeit or spurious trademarks that 'copy or simulate' genuine
trademarks" (Pet. App. 8a).

   Petitioner filed a notice of appeal in the court of appeals and a
petition for a writ of certiorari in this Court.  The court of appeals
subsequently rejected petitioner's motion for an injunction pending
appeal, and sua sponte, ordered petitioner's appeal stayed pending
this Court's decision on the validity of the Customs Service
regulation.  /2/

   2. Lever Brothers asks this Court to take the extraordinary action
of issuing a writ of certiorari before the court of appeals has
reviewed the district court's decision.  This Court's Rules state that
a petition for a writ of certiorari before judgment "will be granted
only upon a showing that the case is of such imperative public
importance as to justify the deviation from normal appellate practice
and to require immediate settlement in this Court." Sup. Ct. R. 18.
See, e.g., Dames & Moore v. Regan, 453 U.S. 654, 668 (1981);  United
States v. Nixon, 418 U.S. 683, 686-687 (1974);  United States v.
United Mine Workers, 330 U.S. 258, 269 (1947).  Plainly, the district
court's denial of petitioner's request for a preliminary injunction
does not present such a case.  There are no extraordinary
circumstances here justifying a departure from the normal appellate
procedure.

   This Court will decide in due course whether the Customs Service
regulation is consistent with Section 526.  The Court has granted
three related petitions, arising from the D.C. Circuit's decision in
Coalition to Preserve the Integrity of American Trademarks v. United
States, 790 F.2d 903 (1986), that present this issue.  See K mart
Corp. v. Cartier, Inc., No 86-495;  47th Street Photo, Inc. v.
Coalition to Preserve the Integrity of American Trademarks, No.
86-624;  United States v. Coalition to Preserve the Integrity of
American Trademarks, No. 86-625.  The court of appeals has already
indicated that it will reveiw petitioner's request for relief under
Section 526 in accordance with this Court's decision in those cases.
Thus, there is no reason for this Court to hold the petition pending
their resolution.

   Petitioner suggests that this Court should grant its petition
because the cases now pending before the Court do not "afford this
Court an opportunity to explore fully the trademark interests
implicated by Section 42 of the Lanham Act" (Pet. 13 (footnote
omitted)).  The court of appeals' decision in those cases, however,
did not reach the question whether the Customs Service regulation is
inconsistent with Section 42 (see 790 F.2d at 907);  thus, that issue
is not pending before this Court.  The only two courts that have
considered the issue have concluded that the Customs Service's
regulation is consistent with Section 42.  See Olympus Corp., 792 F.2d
at 321-322;  Coalition to Preserve the Integrity of American
Trademarks v. United States, 598 F. Supp. 844, 847-848 (D.D.C. 1984),
rev'd on other grounds, 790 F.2d 903 (D.C. Cir. 1986).  Thus, there is
no conflict among the circuits on the question and there is plainly no
warrant for this Court to review the issue at this time.  Petitioner
will have ample opportunity to obtain review of that question from the
court of appeals and, thereafter, an opportunity to seek further
review from this Court if it so desires.

   It is therefore respectfully submitted that the petition for a writ
of certiorari should be denied.

   Charles Fried

      Solicitor General

   MAY 1987

   /1/ See K mart Corp. v. Cartier, Inc., No. 86-495;  47th Street
Photo, Inc. v. Coalition to Preserve the Integrity of American
Trademarks, No. 86-624;  United States v. Coalition to Preserve the
Integrity of American Trademarks, No. 86-625 (petitions granted and
cases consolidated on December 8, 1986).

   /2/ The court of appeals' order is reprinted as an Addendum to this
memorandum.

   Appendix