In the Matter of Certain Ink Markers and Packaging Thereof; Issuance of a General Exclusion Order and a Cease and Desist Order; Termination of Investigation, 62328 [05-21591]

Agencies

• INTERNATIONAL TRADE COMMISSION

[Federal Register Volume 70, Number 209 (Monday, October 31, 2005)]
[Notices]
[Page 62328]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-21591]



[[Page 62328]]

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INTERNATIONAL TRADE COMMISSION

[Inv. No. 337-TA-552]


In the Matter of Certain Ink Markers and Packaging Thereof; 
Issuance of a General Exclusion Order and a Cease and Desist Order; 
Termination of Investigation

AGENCY: U.S. International Trade Commission.

ACTION: Notice.

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SUMMARY: Notice is hereby given that the U.S. International Trade 
Commission has issued a general exclusion order and a cease and desist 
order in the above-captioned investigation and has terminated the 
investigation.

FOR FURTHER INFORMATION CONTACT: Jonathan F. Engler, Esq., Office of 
the General Counsel, U.S. International Trade Commission, 500 E Street, 
SW., Washington, DC 20436, telephone 205-3112. Copies of all 
nonconfidential documents filed in connection with this investigation 
are or will be available for inspection during official business hours 
(8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. 
International Trade Commission, 500 E Street, SW., Washington, DC 
20436, telephone 202-205-2000. General information concerning the 
Commission may be obtained by accessing its Internet server (https://
www.usitc.gov). The public record for this investigation may be viewed 
on the Commission's electronic docket (EDIS) at https://edis.usitc.gov. 
Hearing-impaired persons are advised that information on the matter can 
be obtained by contacting the Commission's TDD terminal on 202-205-
1810.

SUPPLEMENTARY INFORMATION: This trademark-based section 337 
investigation was instituted by the Commission based on a complaint 
filed by Sanford, L.P. of Freeport, Illinois (``Sanford'' or 
``complainant''). 69 FR 52029 (August 24, 2004). The complaint, as 
supplemented, alleged violations of section 337 of the Tariff Act of 
1930, as amended, 19 U.S.C. 1337 (``Section 337'') in the importation 
into the United States, the sale for importation, and the sale within 
the United States after importation of certain ink markers and 
packaging thereof by reason of infringement of U.S. Trademark 
Registration Nos. 807,818 and 2,721,523 and also by reason of 
infringement of trade dress. The notice of investigation identified 12 
respondents. On November 10, 2004, the presiding administrative law 
judge (``ALJ'') granted a motion to add three respondents to the 
investigation. The Commission determined not to review this initial 
determination (``ID''). 69 FR 75342 (December 16, 2004). Each 
respondent was accused of violating Section 337 by infringing Sanford's 
trade dress. Certain respondents were also accused of infringing one or 
more of complainant's registered trademarks.
    Between November 15, 2004, and June 1, 2005, the ALJ issued several 
IDs terminating various respondents on the basis of settlement 
agreements or consent orders. During that time period other IDs were 
issued finding several other respondents in default. No petitions for 
review of any of these IDs were filed, and the Commission determined 
not to review any of them, thereby allowing them to become the 
Commission's determinations.
    On April 19, 2005, Sanford filed a motion seeking a summary 
determination of violation and issuance of a general exclusion order 
and a cease and desist order. On July 25, 2005, the ALJ issued Order 
No. 30, an ID finding violations of Section 337 and recommending the 
issuance of a general exclusion order and a cease and desist order to 
respondent Mon Ami Co. Ltd. (``Mon Ami'' ). He further recommended that 
the bond permitting temporary importation during the Presidential 
review period be set at 100 percent of the value of the infringing 
imported product.
    On August 5, 2005, Sanford filed a petition for review of one 
aspect of Order No. 30. Specifically, Sanford sought review of the ID's 
finding that complainant had failed to show importation with respect to 
defaulted respondent LiShui Laike Pen Co., Ltd. The Commission 
investigative attorney (``IA'') opposed Sanford's petition for review. 
On August 25, 2005, complainant filed a motion for leave to file a 
reply to the IA's petition for review.
    The Commission determined, on September 8, 2005, not to review the 
July 25, 2005 ID (Order No. 30) finding a violation of Section 337, and 
established a schedule for filing submission on the issues of remedy, 
the public interest and bonding. 70 FR 54079 (Sept. 13, 2005). The 
Commission also denied complainant's motion for leave to file a reply. 
Id. Sanford and the IA filed timely written submissions regarding the 
issues of remedy, the public interest, and bonding. Sanford filed a 
reply submission.
    Having reviewed the record in this investigation, including the 
parties' written submissions and responses thereto, the Commission 
determined that the appropriate form of relief in this investigation is 
general exclusion order and a cease and desist order to one respondent, 
Mon Ami. The general exclusion order prohibits the entry for 
consumption of contain ink markers and packaging thereof that bear 
SHARPIE Trademarks or Sanford's protected trade dress, as well as any 
marks or trade dress confusingly similar thereto or that are otherwise 
misleading as to source, origin or sponsorship. The cease and desist 
order prohibits respondent Mon Ami from importing, selling, marketing, 
advertising, distributing, offering for sale, transferring (Except by 
exportation), and soliciting U.S. agents or distributors for imported 
ink markers and packaging thereof that bear Sanford's protected trade 
dress, are confusingly similar thereto, or that are otherwise 
misleading as to source, origin or sponsorship.
    The Commission determined that the statutory public interest 
factors enumerated in subsections (d)(1) and (f)(1) of section 337 of 
the Tariff Act of 1930 (19 U.S.C. 1337(d)(1) and (f)(1)) do not 
preclude the issuance of these remedial orders. The Commission also 
determined that the excluded ink markers may be imported and sold in 
the United States during the Presidential review period under bond in 
the amount of 100 percent of the entered value of such items. The 
Commission's order and opinion in support thereof were delivered to the 
President and the United States Trade Representative on the day of 
their issuance.
    This action is taken under the authority of section 337 of the 
Tariff Act of 1930, as amended (19 U.S.C. 1337), and section 210.50 of 
the Commission's Interim Rules of Practice.

    By order of the Commission.

    Issued: October 25, 2005.
Marilyn R. Abbott,
Secretary to the Commission.
[FR Doc. 05-21591 Filed 10-30-05; 8:45 am]
BILLING CODE 7020-02-M