International Criminal Court Lacks Authority to Proceed Against Israel

SAMUEL ESTREICHER, GEORGE BOGDEN

NYU law professor Samuel Estreicher and JD candidate George Bogden, PhD, comment on a recent filing by the Prosecutor of the International Criminal Court (ICC) asking the court to exercise jurisdiction and grant permission to pursue an investigation of alleged war crimes in the West Bank and the Gaza Strip. Estreicher and Bogden argue that because Israel is not a state party to the action and Palestine is not a state recognized by international law, the ICC lacks territorial jurisdiction under the Rome Statute.

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ICCS USA Corp. v. United States

Court: US Court of Appeals for the Federal Circuit

Docket: 19-1561

Opinion Date: March 11, 2020

Judge: Raymond T. Chen

Areas of Law: Intellectual Property, International Trade, Trademark

ICCS imported 56,616 individual butane gas canisters into the U.S. that displayed a “PREMIUM” brand label and a registered certification mark owned by Underwriters Laboratories (UL). Customs determined that the canisters were “counterfeit” in that they made unauthorized use of the UL certification mark and issued a notice ordering ICCS to redeliver the imported canisters to Customs’ custody pursuant to 19 U.S.C. 1526(e). ICCS redelivered only 29,008 canisters. UL did not consent to retroactive certification. Customs assessed damages of $41,412.00. The Trade Court granted the government summary judgment. The Federal Circuit affirmed. The canisters displayed UL’s mark without UL’s approval. ICCS’s arguments as to physical similarities between the PREMIUM model and other merchandise that UL had previously certified fail because the Service Terms dictate that UL, not ICCS, determines whether any differences from the basic product are superficial. On the date of entry, Customs had no way of ascertaining whether the PREMIUM model was the same physical product as the basic product without UL having made that determination. The court rejected an argument that, in denying ICCS’s protest, Customs relied on UL’s lack of consent to the point of delegating its statutory duty to enforce the trademark laws to UL.