*1 CARTIER, INC., K MART CORP. et al. v. 7, March 1988* Argued 1987 Decided
No. 86-495. October Photo, 86-624, Inc. v. to Pre * Together with No. Street Coalition 4.7th al., 86-625, Integrity Trademarks et serve the American No. United Integrity et al. v. to Preserve the American Trade States Coalition al., et also on certiorari to the same court. marks *2 White, Court, Brennan, J., in which Mar- opinion of the delivered the JJ., Scalia, J., Blackmun, Stevens, joined. filed a dissent- shall, J., O’Connor, J., opinion, joined, in which C. Rehnquist, ing post, J., in part took no the consideration Kennedy, p. 191. or decision of the case. Solicitor General Cohen the cause for
Deputy argued peti- in him tioners No. 86-625. With on the briefs were Solici- Fried, Willard, tor Assistant General General Attorney Dep- P. Minear, Assistant General uty Attorney Spears, Jeffrey Cohen, M. and Robert V. Zener. Robert David W. Steele ar- in the cause for Nos. 86-495 and gued petitioners 86-624. him on the With briefs for No. 86-495 petitioner were Robert E. Hebda and James C. Tuttle. Nathan Lewin and Jamie S. Gorelick filed briefs for petitioner No. 86-624. H. Allen William cause for argued respondents. With *3 ' (cid:127) him A. brief were D. Eugene Ludwig and Scott † Gilbert.
†Briefs urging of amici curiae reversal were filed for the State of by Washington Eikenberry, Attorney General, Kenneth O. and John G. Hennen, Attorney General; Senior Assistant for the American Free Trade Kurzman, by Ullman, Stephen Trost; Robert Association and R. Steven S., Inc., by for the Silbergeld; Consumers Union U. Alan Mark for Darby Marrow; Supply by Dental al. Robert Co. et V. for the National As Catalog by sociation of Showroom Kelly Merchandisers Richard B. Mohen; P. Retailing by Thomas for the National Mass Institute William Verdisco; Progress D. Coston and Robert Trading by J. Co. Wil Sondericker, Gaines, Hoegle, liam F. Robert L. and Frank W. Jr. urging Briefs of amici curiae affirmance Cyana- were filed for American by Kirby; mid Co. et al. David Ladd and Thomas W. for the American Association, Property Inc., by Smith; Intellectual Law Neil A. for Dura- Bierman, Varón, by Jay Gill; cell Inc. James N. N. and Sheila McDonald by Devlin; for Lever Brothers Co. Robert P. for the Motor Vehicle Manu- States, Inc., by Crabtree; facturers Association of the United William H. by Driscoll; for the United States Trademark Association Marie V. Corp. by for Yamaha Wagner International et al. Robert E. and Robert E. Browne. Bretschneider, Wegner, Barry Dinan, Harold C. E. R. Donald Charles Schill, Corp.
F. and Albert P. Halluin filed a brief for Cetus as amicus curiae. opinion of the Court. delivered the Brennan
Justice foreign-manufactured good good “gray-market” bear- is a A imported ing with- trademark, which is United States a valid This trademark owner. States consent of United out the has presents a federal district court whether the issues action Secretary challenge Trea- to hear a gray- permitting sury’s regulation of certain (1987), § goods, if whether the and, so, market 526(a) § interpretation agency regulation is a reasonable (1930 Act), 741, as 46 Stat. Tariff Act of 1930 of the Tariff §1526. 19 U. S. C. amended,
I importing prohibits Act the 1930 Tariff Section foreign man- merchandise of States “into the United a trademark . . . bears if such merchandise ufacture by corporation or association of, a citizen owned reg- organized States, and within, the United created by person Trademark Office in the Patent and istered con- , . . . unless written in the United States domiciled produced at the such trademark is the owner of sent of 1526(a).1 entry.” making 19 U. S. C. time 1526(a), codified, is as follows: 526(a), 19 U. S. C. full text of 1 The “(a) prohibited Importation *4 (d) exception added this section [an in of “Except provided subsection use], unlawful personal it shall be articles for importation of in 1978 for the if foreign manufacture any merchandise of import into the United States to recepta- label, print, package, wrapper, or merchandise, sign, or the such of, by corporation or associa- by citizen owned cle, a trademark bears States, registered in the within, and the United organized tion created or in the United by person domiciled Office and Trademark Patent 15, copy and if a 81 to 109 of title provisions of sections under Secretary of trademark is filed with of such registration certificate title unless 106 of said provided manner section Treasury, in the time of produced at the trademark is the owner of such consent of written entry.” making
The Customs Service regulation implements does not prohibit importation gray-market goods where manufacturer with the foreign United States affiliated trademark owner or has received owner’s authorization to use its trademark. The regulation provides generally articles a trademark “[f]oreign-made bearing identical with one and aby owned recorded citizen of the United States or a or association created or corporation organized within the United are States to seizure and forfeiture subject as prohib- 133.21(b) (1987).2 ited importations.” But the regulation provides The part: Customs Service in relevant “§ importations bearing Restrictions on of articles recorded trademarks and trade names.
“(b) Foreign-made bearing Identical trademark. articles a trademark by identical with one owned and recorded a citizen of the United States or a corporation organized or association created or within the United States subject prohibited are importations. seizure and forfeiture as “(c) applicable. para- Restrictions The restrictions set forth (a) (b) graphs apply imported and of this section do not articles when: “(1) foreign Both the and the U. S. trademark or trade name are owned person entity; the same or business “(2) foreign The and domestic trademark par- or trade name owners are subsidiary companies subject ent and or are otherwise to common owner- (see 133.2(d) ship §§ [defining or control ownership “common and common 133.12(d) [providing and application control”] to record trademark report identity must abroad]); affiliate that uses same trade name “(3) foreign The articles of manufacture bear a recorded trademark or applied owner; trade name under authorization of the U. S. “(4) objectionable The mark is removed prior importa- or obliterated illegible incapable tion in a manner as to be reconstituted, such of being example by: “(i) imprinted Grinding they off appear; trademarks wherever “(ii) Removing disposing plates bearing name; trademark or trade “(5) imported by The merchandise is the reeordant of the trademark or designate; trade or his name “(6) gives The reeordant written consent to an of articles subject (a) (b) to the paragraphs otherwise restrictions set forth in section, this and such consent is appropriate officials; furnished to Customs *5 from the exception a “common-control” furnishes regulation manufac- goods entry gray-market ban, permitting or its affiliate: trademark owner by tured abroad applicable. “(c) Restrictions not . . . The restrictions when: articles to imported do not apply “(1) trademark and U. S. foreign Both the or business person the same name are owned trade entity; [or] or trade trademark
“(2) and domestic The foreign or are subsidiary companies and are parent name owners . . .” or control. ownership to common subject otherwise an further provides regulation Service The Customs permits which exception, “authorized-use” where goods gray-market a re-
“(3) manufacture bear of foreign articles [t]he authori- under applied or trade name corded trademark 133.21(c) . . . .” 19 CFR the U. S. owner zation of (1987). Ameri- Integrity to Preserve Coalition
Respondent trademark of United States Trademarks, association can (all re- collectively three its members and two of owners, COPIAT) Dis- in the United States suit brought to as ferred a dec- Columbia, both seeking District of for the trict Court and an is invalid regulation Service laration that the Customs COPIAT Specifically, its enforcement.3 injunction against excep- authorized-use that the common-control asserted Act, 1930 Tariff both tions are inconsistent § 1124, C. Act, U. S. Trade-Mark §42 of the Lanham marks that of goods bearing the importation prohibits Petitioners trademarks. States United or simulate” “copy trademark and “(7) a recorded foreign manufacture bear articles of The chap- § 148.55 of this under and allowed exemption is claimed personal (1987). ter.” CFR Treasury, Secretary the United sued COPIAT of Customs. the Commissioner
182
Inc., intervened
Photo,
and 47th Street
Corporation
K mart
defendants.
dismiss on
Photo’s motion to
47th Street
rejecting
After
Trade had exclu
International
the Court of
the ground
District Court
case,
upheld
over
jurisdiction
sive
598 F.
challenges.
both
against
regulation
Service
Customs
affirmed the Dis
(1984). The
of Appeals
Court
844
Supp.
the merits.
but reversed on
ruling
Court’s jurisdictional
trict
(hereinafter
(1986)
II contends that we lack 47th Street Photo Only petitioner Both the federal- general this litigation. over jurisdiction § and the specific provi- 28 U. S. C. question provision, under Act of re- actions “arising sion regarding alone, trade-marks,” 1338(a), would, standing to . . . lating courts with over this action.4 jurisdiction the district vest divested of how- jurisdiction, Court would be The District one of several specific grants if this action fell within ever, claim, spe invoked a Act COPIAT also For the Lanham Trade-Mark jurisdiction conferring to the district courts over provision of that Act cific § 1121. arising the Act. 15 U. S. C. all claims under Trade. International to the Court of jurisdiction exclusive claim that of its support two theories propounds Petitioner Trade. in the Court of International lies exclusive jurisdiction both. reject We
A “em- imposes is that theory first Petitioner’s 1581(i)(3), of 28 U. S. C. the meaning within barg[o]” Trade exclusive of International grants *7 federal laws out of arising the Government suits against over restrictions other quantitative or “embargoes that provide than the reasons other merchandise for of importation on . . .”5 The Court safety health or . of the public protection that “Section theory ground rejected of Appeals out 1581(i)(3) arising embargoes extends to quotas only traditionally measures that have the sort of of trade policy, automobiles, limited shoes, textiles, the importation 907. We COPIAT, 2d, 790 F. at supra, at the like.” § is not an “em- the Court of Appeals with agree reasoning. conclusion on different reach that but bargo,” 5 provides: here, 1581 28 U. S. C. As relevant Interna- “(i) upon the jurisdiction conferred In to the addition (a)-(h) excep- subject to the this section and tional Trade subsections section, of International (j) this the Court in subsection tion set forth any action commenced jurisdiction of civil exclusive Trade shall have officers, any arises out of agencies, or its against its the United providing for— law of the United States “(1) tonnage; imports or revenue from
“(2) importation of merchandise tariffs, duties, fees, taxes on the or other revenue; raising of for reasons other than the “(3) quantitative restrictions on embargoes or other public health or protection for reasons other than merchandise safety; or “(4) referred respect to the matters enforcement with administration and (a)-(h) (1) (3) of this paragraphs and subsections of this subsection — section. jurisdiction of not have
“(j) The Court of International Trade shall Act of 1930.” arising 305 of the Tariff civil action under section 184
(1) embargo “[government prohibiting An order is commer trade individuals or businesses of other nations.” cial (5th 1979). Dictionary policy “[a] 468 ed. It Black’s Law prevents goods entering a nation” and which “may imposed product country.” be or on individual Dictionary Berenyi, The Modern American Business 103 J. (1982). embargoes, sure, To be like those that the Court of implement Appeals policy. enumerated, often trade But (even assuming foreign-manufactured that the exclusion of bearing fairly goods trademarks be United States cannot said policy) implement policy trade is not the sole, trade nor purpose by embargoes. perhaps primary, even the served typically imposes embargoes protect The Government § 381(adulterated, public g., 21 health, see, e. U. S. C. mis drugs, cosmetics); unapproved safety, branded, foods, (motor g., e. see, U. S. C. vehicles that do not con safety standards); morality, g., see, form to federal e. (obscene pictures, lottery tickets, U. S. C. and articles abortion), causing relating *8 for unlawful or to further interests 2370(a) § foreign g., (embargo e. 22 affairs, see, U. S. C. §§ Cuba); g., enforcement, law e. 15 see, U. S. C. (switchblade knives); ecology, g., see, 1241-1244 or e. skins). (1987)(fur-seal
§ or sea-otter Congress have no evidence that We discovered intended to ordinary meaning “embargoes” constrain the of the word “embargoes grounded policy.” mean that are in trade To the contrary, Congress quite had so it intended, would have been unnecessary expressly to exclude from the Court of Interna- jurisdiction, embargoes did, tional Trade’s “protection public safety,” are for the of the health or § 1581(i)(3), prohibit importation or that U. S. C. of cer- §1581(j) (excluding arising articles,” tain “immoral see suits prohibits importation out of U. S. C. of a articles”). panoply of “immoral
(2) analysis, Appeals’ Although reject we of we agree does not its conclusion that nevertheless sug- embargo. above-quoted impose definitions an As meaning ordinary meaning “embargo,” gest, and the statutory adopted language Congress apparently in the govern- “embargoes quantitative restrictions,” is a or other mentally imposed quantitative restriction —of zero—on the importation merchandise. embargo importation prohibition an if rather than
An is not quantity reflecting governmental on the a restriction merely provides particular product a enter, a that will op- private party might, at its own which a mechanism restricting quantity in aid tion, enlist Government’s right. Suppose, imports private a order to enforce producer grants foreign example, a domestic distribu- rights provision that a abroad, and tor exclusive distribution prohibited,” captioned “Importation bars the contract, competing foreign If for domestic sales. distributor brazenly imports foreign nevertheless into distributor may manufacturer invoke the United the domestic including monetary any of a number of contract remedies— private right. injunctive A relief court—to enforce its injunction technically, “[g]overnment order is, court-issued prohibiting no more trade.” Yet one could commercial “Importation private party’s enforcement of its deem the damages “embargo” prohibition” for its breach than deem ta[x] dut[y], fe[e] other “tarif[f], 1581(i)(2). party, private The C. merchandise,” S.U. by deciding whether and how to exer- Government, not the any particu- right, quantity private determines the cise its *9 imported. product can lar that be 526(a)’s “Importation prohibition” the same is of Section private type. law, like contract confers law, Trademark rights grants rights, It the ofexclusion. whichare themselves 186 rights, which is the a such one of owner bundle of
trademark foreign-made right aid to bar to the Customs Service’s enlist Cong. goods bearing Rec. 3871 that trademark. See (§526(a) (1929) (remarks “undoubtedly George) had of Sen. bearing origin a in an exclude merchandise not effort to its protecting purpose of the of the interest trade-mark, but gone trade-mark who had to trouble owner of the the registering (1922)(remarks it”); Cong. Rec. Sen. 526(a) Sutherland) (§ designed “protec[t] property rights purchased have trade-marks of American citizens who 526(a) foreigners”). in- the court-issued Thus, from —like prohibition”— enforcing “Importation junction a contractual embargo. govern- very not set It does a is mentally different entry quantitative of, limit determined foreign trafficking any particular product: The in, owner import usu- content, can to its heart’s and will the trademark any importer ally content; and other do so until the market is may particular foreign-manufactured import trade- also acquires good if marked ad it the trademark own- infinitum, import. consent to Nor does the Government have er’s 526(a)’s prohibition. nature the extent or the control over authority to that all The trademark owner has sole decide bearing products will, its will enter or that none trademark entity may import them, under what con- and to decide what suppose purpose. no reason ditions, and for what There is “em- would have intended to distort term ordinary meaning encompass provision bargo” beyond its particular merely grants private trademark owners entirely property right enforcement is the own- —whose control—to exclude intrabrand ers’, Government’s, competition from abroad.6 (if unique) importation pro is an unusual not a breed Section all puts hands and
hibition that it takes control out Government’s parties. only importation prohibitions private in the The other hands of conceivably parties might even mentioned Justice Scalia that description prohibitions against are the match *10 § conclusion that falls within the Justice Scalia’s “ordinary meaning” “embargo,” post, at from 196, follows of gov- extraordinary any the definition of term rather govern- “import regulation of a that takes ernmental form imports, regardless prohibition . . its of. ultimate mental on added). (emphasis purpose,” post, As the court- at 195 prohibition every gov- illustrates, not enforced contractual importation prohibition embargo. To is an hold ernmental yield applications “embargo” of the term otherwise would example, prohibitory say For unnatural, are to the least. providing “importation regulations that the into nature of except by prohibited” milk of and cream is the United States 12.7(a) (1987) § (emphasis added), permitholder, 19 CFR permit importation shall not and that “Customs officers tagged in not accordance with milk or cream 12.7(b) added), regulations,” (emphasis [applicable] would requirements embargoes licensing tagging into convert dairy tagged products. improperly Simi- on unlicensed products inspected larly, requirement that certain meat be magically embargo prior would become an to tainted) (but necessarily uninspected meat when Con- products gress . . shall not be uses a formulation like “meat. custody prior inspection,” to released Customs from added). import regulations sampling (emphasis This dem- departure ordinary onstrates that Justice Scalia’s meaning, it, much more than our adherence to would “leave 526(a)] lawyerly post, [§ invention,” currents of drift at 196.
(3) Contrary petitioner’s our adherence to the contentions, ordinary meaning “embargo” all is not at inconsistent purposes 1980, Act Courts Pub. L. the Customs jurisdictional provi- which enacted the 96-417, 1727, Stat. trademarks, copyrights, see goods infringe see 15 U. S. C. §§ 601-603. S. C. U. remedy intended, foremost, first sion. jurisdiction between the Cus- the division of over confusion Trade) (now International the Court of toms *11 uniformity judicial . . and to “ensure . courts district decisionmakingprocess.” p. Rep. 96-1235, H. R. No. See (1980). Congress to the Court of Inter- did not commit But every against jurisdiction suit exclusive Trade’s national regula- challenging and customs-related laws Government expressed Congress so it could have wished to do Had tions. clearly simply by, example, and for much more such an intent jurisdiction specialized conveying . . . court “exclusive to the directly against [Government] af- all civil actions over (1978), Cong., fecting imports,” 2d Sess. 2857, 95th S. against [Government] which arise actions “all civil over directly import and which arise under transactions specified [or trade one of several Act of 1930 Tariff (1979); Cong., see also 96th 1st Sess. statutes],” S. (1980). Cong., 2d 6394, 96th Sess. H. R. implemented rejecting a cate have such
In bills that would opted approach, Congress gorical that achieved for a scheme uniformity clarity by delineating pre goals and the desired particular cisely matters over which customs-related jurisdic Trade have exclusive would of International Congress granted example, the Court for Thus, tion. relating jurisdiction exclusive over suits Trade International or other taxes on the duties, fees, “tariffs, they “raising if are for the of revenue.” merchandise,” but 1581(i)(2). provi Similarly, Congress made no C. 28 U. S. International Trade of review the Court of for direct sion labeling entry, challenges such as to conditions of facial (1987) §§ 11.6-11.7 g., marking requirements, see, e. marking spirits, (packaging wines, and malt of distilled §§ (labeling liquors); and textile wool, fur, 11.12-11.12b § 11.1 g., (inspection inspection, products), e. see, perfumery); preparations, cigars, cigarettes, medicinal meats). closely (inspection more Or, to focus genre regulation disputes of trade at issue here, no one Congress grant declined to the Court of International Trade jurisdiction import prohibitions relating exclusive over “public safety” supra, health and or “immoral articles.” See By choosing “embargoes” at 184. phrase the word over the “importation prohibitions,” Congress likewise declined to grant the Court of International Trade exclusive importation prohibitions over embargoes. that are not To depart Congress from the words chose would infect the jurisdictional courts with the same confusion that intended to cure.
Concededly, Congress fully explain did not its exclusion of certain customs-related matters from the Court of Interna jurisdiction. example, tional Trade’s is, There no obvi *12 why Congress grant ous juris reason declined to that court challenges diction to review to conditions of of type may mentioned above. There likewise be no ade quate explanation Congress’ importation pro for omission of ordinary meaning hibitions that do not fall within the of “embargoes.” disagree Whatever the reason, however, we petitioner that the omission is inconsistent with Con gress’ specialized “utiliz[e] expertise intent to of United States Customs Court and the United States Court Appeals Rep. Customs and Patent . . . .” H. R. No. 96- supra, at 20. Court, The Customs which the Customs Court Act of 1980renamed the Court International Trade, Appeals, and the Court of Patent Customs and which the Improvement merged Federal Courts Act of 1982 with the Appeals Court of Claims to form the United States Court of rarely for the Federal Circuit, had dealt with, much less de veloped “specialized expertise” a trademark in, law. Nor is (aside any petitioner’s reading there indication strained “embargo”) Congress of the term wished the new insti acquire expertise predeces tutions to in the area in which its sors had none. legislative history juris- purpose sum,
In provide provision to hint that intended no dictional depart meaning “embargoes.” ordinary from the
B vesting theory juris- exclusive second Petitioner’s easily more in of International Trade is diction the Court 1581(a), begins grants rejected. with U. S. C. It jurisdiction “[t]he . International Trade . . exclusive Court of pro- to contest the denial civil action commenced part, Tariff Act under section 515 the test, whole or (a) “protest” to in subsection is an of 1930.” The referred challenge remedy specified deci- administrative available including ordering officers, a decision “the Customs sions entry any provi- . . . merchandise from under exclusion of 1514(a)(4) (empha- laws.” 19 U. S. C. sion of customs added). acknowledges present that the action sis Petitioner challenges protest de- because a Customs Service entry permit gray-market of, exclude, not to cision goods. It that since this suit involves sub- asserts instead given protest gray- ject had would have rise to matter that goods rather admitted, excluded than market been “ jurisdiction had exclusive ‘as a cor- of International Trade ollary 1581(a).’” protest under 28 U. S. C. (quoting Inc. 17 Photo, 47th Street Vivi- Brief for Petitioner 1560). putative 761 F. at The source of corol- tar, 2d, § 1581(i)(4), lary *13 which confers Court of is 28 U. S. C. against jurisdiction over suits Trade Gov- International pertaining arising federal laws to “administra- ernment out of respect with the matters referred tion and enforcement (a).” subsectio[n] alia,] in [, inter 1581(i)(4) Appeals agree the Court of will with We reading. Corp., Olympus petitioner’s 792 See also not bear “matte[r] to” in is F. at 317-319. The referred 2d, very protes[t],” pro- [a] broadest, at “a “the denial of “protest,” no much less a de- test.” this suit involves Since
191 by any imagination stretch of the involve one, nial of cannot providing enforce- . . . for . . . administration and “law protest. Id., ment” of a at 318.
HI Appeals’ Dis- affirm the Court of conclusion that the We jurisdiction, trict Court had and restore these cases to reargument calendar for on the merits.
It is so ordered. Kennedy part in the took no consideration Justice decision of this case. The
Justice with whom Chief Justice and Jus- Scalia, tice O’Connor join, dissenting.
In a Court that selects its docketed cases on the basis of general they jurisdic- importance present, of the issues questions get tional tend to short shrift. The central issue may “gray-market” this have suit, issue, the so-called economy, immediate and substantial effects on the national provoked juris- has no less than 15 amici while the briefs; question, dictional which could have the undesirable conse- quence preventing merits, our immediate resolution of the pages only pages petitioners has been briefed in 11 and 6 by respondents. Understandably enough, myself in- one, no eager powerless cluded, are to resolve conclude that we the issue that is this suit’s claim to national attention. carefully any question so,
Even we must that asks review particu power, determine us to larly the limits of a federal court’s when, this suit, two different sets of courts have they concluded have exclusive over the sub Compare ject Corp. of the suit. Vivitar v. United (CA 1985), 1552, F. 2d 1557-1560 denied, Fed. cert. (1986); App. U. S. cases D. C. below, U. S. (1986); Olympus F. 344-346, 790 2d 903, 905-907 (CA2 1986). Corp. States, 792 v. United F. 2d 315, 317-319 gray-market question greater Moreover, while im- is of *14 192 enough importance (though we soon economic would
mediate it), jurisdictional ques- have occasion address another incorrectly, may generate uncertainty and tion, if decided my litigation In view, into the indefinite future. hence plain language question of this strains Court’s resolution jurisdictional clear line that Con- statute, and blurs a of the gress has established. of International Trade’s exclusive
The Court against any its action the United extends to civil agencies arises out of law of United officers, or “that quantitative embargoes providing . . or other for . States importation of merchandise reasons restrictions public safety.” protection health or 28 other than § 1581(i)(3). The statute does not define “em S.U. C. anything bargo,” give than is no reason other there meaning. embargo prohibition imposed ordinary An is “a its by general upon either or in one or more of commerce law Dictionary Third International branches,” its Webster’s New (1981), prohibiting “[gjovernment a order commercial nations,” of other Black’s trade with individuals businesses (5th 1979), stop “[authoritative Dictionary Law ed. any special foreign page trade,” Funk & commerce or Dictionary English Wagnalls Lan New International (1984). guage 411 regula- challenges present a Customs Service
The lawsuit 133.21(c) 526(a) (1987), implements tion, 1526(a). statutory § C. That Act 19 U. S. the Tariff “(a) Importation begins caption provision, foreign-made prohibited,” the United States excludes from bearing and recorded trademark owned merchandise corporation. is, Section citizen United States embargo against language debate, “an from the Senate borrow country shipping goods any foreign here where an American Cong. upon Rec. 11603 them.” he has trade-mark claims added). (1922)(remarks Kellogg) (emphasis Because of Sen. pro against a law vid- arises out of the United States this suit *15 exclu- the it is within embargo, that hold I ing would an for Trade. of International Court sive “embargo” a means acknowledges the term that The Court prohibition, 185, at import ante, imposed” “governmentally departs analysis that truth. from me that its it seems to but 526(a) prohibition, en- imports, that prohibits § Surely agency, is by an executive by and enforced acted surely governmentally argue might the that imposed. One 526(a) § an to it not be exception causes to privately invocable only absolute prohibition, and that governmental absolute embargoes. The qualify prohibitions as governmental many of analysis, since however, rightly line that avoids pri- embargoes regarded contain commonly as provisions the exemptions for certain exceptions, such vately as invocable g., 1202, A. S. C. e. 19 U. See, privately uses. determined 12.80(b)(v), §§ Subpart E; p. 4, Part 1, Schedule excep- (1987). privately (vi) despite invocable its if, But prohibition, 526(a) being a requirement the meets tion, being govern- requirement a unquestionably meets it embargoes, the other imposed mentally Here, with one. exception ex- affects privately availability invocable of a prohibition, whatever prohibition; the residual but tent of governmental. extent, is its embargoes apart other from to set seeks
The Court observing by “rather exceptions that privately invocable quantity of on the governmental reflecting restriction a than merely provides a it product enter, particular will that a option, might, party private its own at a mechanism quantity restricting im- aid the Government’s enlist right.” private at 185. Ante, ports to enforce in order mechanism, but provide Perhaps such to it is meant prohibition, governmental to but is a it to not whether relates happens prohibition governmental purpose theof what usage say with common in accord no more It is be. protect purpose embargo tois if its provision be cannot (as Appeals say did the Court rights private than analysis readily rejects, ibid., that the Court that it cannot embargo purpose something if be an its is other than trade policy. Embargoes imposed many purposes, are different including protection private rights. sometimes the As suredly purpose those which have the latter are different beyond why purpose, any those that not, do any but me govern- more than other one, would cause them not to be mentally imposed import prohibitions. my In view, for ex ample, prohibition of art stolen from *16 private §§ nonprofit a see museum, 19 CFR 12.104-12.104h (1987), unquestionably embargo. is an Moreover, since the using analysis prohibition’s lever that the Court is for its is the “governmental” asserted lack of it character, should make no objective prohibition pro difference whether the of the is to private “right,” protect private tect a or to some other in wowprivate entity terest, or the interest of some other than analysis the Government Thus, itself. on the Court’s there “embargo” prohibition would be excluded from the term the importing pre-Columbian sculptures on or murals, which apply importer produces does if not the a certificate issued country origin stating goods the that the were not unlaw fully (1987). exported. 19 U. S. C. § 2092; simply understanding. This is not in accord with normal inherently “nonembargo” The Court seeks to establish the prohibition protecting private property rights character of a by noting injunction enforcing that a court a contractual im- port prohibition embargo. agree an not Ante, at 185. I injunction embargo, that an is not an but that conclusiondoes injunction not follow from the fact that issued at the private protect property rights. instance of a individual to injunction A court issued at the instance of a Government agency, prevent importation part conspiracy to that was a generally in violation of the Sherman Act, would likewise not thought embargo normally be of as an the word is —because applied only prohibitions imposed by Legislative to Executive Branches of Government. import “embargo” anis is that an of the matter
The short prohibition governmental regulation of a the form that takes may any exceptions contain and regardless imports, on quotas, tariffs, purpose just as regardless of its ultimate — import importation forms identifiable are on and conditions exceptions purposes. The regardless regulation of their may diffi- be sometimes that it points ante, at out, prohi- importation distinguish on a condition cult may exceptions. containing That be bition only prohibitions agreed we are but since true, ambigu- embargo, meaning within come conditions view of Court’s grappled with under ity to be will have to the It is irrelevant things mine. under less than no ambiguity within one existence of present unless issue, my Under another. creation of justifies the needless statute import provision identified as has been analysis, when (however may it is neither be—and prohibition difficult here) matter. an end that is contested nor difficult proceed ex- analysis, further one must Court’s Under purpose. prohibition its exceptions amine the prohibitions what as to Today’s doubt some decision leaves *17 526(a) governmental, not are importation other than on parties private they embargoes, benefit because hence if the Court’s Even by private consent. are avoidable private protect prohibitions that holding be limited can prohibitions on the status “rights,” the then at least copyrights infringe goods trademarks 17 U. S. C. 1124; question. C. 15 U. S. See into is called pro- purpose earlier, §§ as noted since, And 601-603. mean) logi- (whatever might “rights” tecting private protecting pri- invalidating purpose of cally than no more nongovernmental broadly, more even, “interests,” vate prohibitions import is cast other the status of interests, as well. doubt departure today’s particular from arise uncertainties These prohi- governmental “embargo” meaning “a
from unfortunately, are greater, importation.” Much on bition acknowledgment today’s arise uncertainties Having permissible. cast departure is principle that language, leave moorings we of its from the loose lawyerly It remains invention. currents it to drift meaning ordinary limitations other what seen to be than mind apparent naked to the “embargo,” no more may present exist. one,