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Lever-rule gray market protection: which is NOT a physical and material difference?

April 2026 examEntry / Entry SummaryQuestion 43 of 80

When evaluating an application for Lever-rule protection against gray market articles in accordance with 19 CFR 133.2(e), which of the following is NOT a physical and material difference that CBP may consider between articles authorized for importation or sale in the United States and those not so authorized?

How to get there

Lever-rule protection lets a U.S. trademark owner block genuine foreign-market goods ("gray market") that are physically and materially different from the U.S. versions. The regulation lists what CBP may consider:

19 CFR 133.2(e): Lever-rule protectionCBP determination of physical and material differences may include, but is not limited to, considerations of:
(1) The specific composition of both the authorized and gray market product(s) (including chemical composition);
(2) Formulation, product construction, structure, or composite product components …;
(3) Performance and/or operational characteristics …;
(4) Differences resulting from legal or regulatory requirements, certification, etc.;
(5) Other distinguishing and explicitly defined factors that would likely result in consumer deception or confusion …

Options A, B and D are lifted straight from (4), (2) and (3). Retail price isn't a physical or material characteristic of the product at all. The answer is C.

Why the other choices are wrong

A) Legal or regulatory requirements, certification: listed in § 133.2(e)(4).
B) Formulation, construction, structure, components: listed in § 133.2(e)(2).
D) Performance or operational characteristics: listed in § 133.2(e)(3).
Tip
Price differences are often why gray market goods exist, but Lever protection turns on differences in the product itself that could deceive consumers. The trademark owner must state them "with particularity," support them with "competent evidence," and CBP publishes the request in the Customs Bulletin before deciding (§ 133.2(e)–(f)).

Source: 19 CFR 133.2(e)–(f) (eCFR); Lever Bros. Co. v. United States, 981 F.2d 1330 (D.C. Cir. 1993).

CBP answer key: Answer C · 19 CFR 133.2(e)Source: CBP past exams ↗