In the Matter of Certain Cigarettes and Packaging Thereof; Notice of Commission Determination To Review the Presiding Administrative Law Judge's Initial Summary Determination of Violation; Schedule for Written Submissions, 17512-17514 [E9-8569]

Agencies

• INTERNATIONAL TRADE COMMISSION

[Federal Register Volume 74, Number 71 (Wednesday, April 15, 2009)]
[Notices]
[Pages 17512-17514]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-8569]


-----------------------------------------------------------------------

INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-643]


In the Matter of Certain Cigarettes and Packaging Thereof; Notice 
of Commission Determination To Review the Presiding Administrative Law 
Judge's Initial Summary Determination of Violation; Schedule for 
Written Submissions

AGENCY: U.S. International Trade Commission.

ACTION: Notice.

-----------------------------------------------------------------------

SUMMARY: Notice is hereby given that the U.S. International Trade 
Commission has determined to review in its entirety the administrative 
law judge's (``ALJ'') initial summary determination (``ID'') (Order No. 
19) in the above-captioned investigation, in which he granted the 
complainant's motion for a summary determination of violation.

FOR FURTHER INFORMATION CONTACT: Jonathan J. Engler, Esq., Office of 
the General Counsel, U.S. International Trade Commission, 500 E Street, 
SW., Washington, DC 20436, telephone (202) 205-3112. Copies of the 
ALJ's IDs and all other non-confidential 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 also be obtained by accessing its 
Internet server at 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 this matter can be obtained by contacting the 
Commission's TDD terminal on (202) 205-1810.

SUPPLEMENTARY INFORMATION: On April 4, 2008, the Commission instituted 
this investigation, based on a complaint filed by Philip Morris USA 
Inc., naming Alcesia SRL; Emarket Systems Ltd. (d.b.a. https://all-discount-cigarettes.com); Jamen Chong (d.b.a. https://asiadfs.com); Tri-
kita (d.b.a. https://cheapcigarettes4all.com); Mr. Eduard Lee (d.b.a. 
https://cigarettesonlineshop.com); Zonitech Properties Limited (d.b.a. 
https://cigline.net); Zonitech Properties Limited (d.b.a. https://shopping-heaven.com); Cendano (d.b.a. https://galastore.com); Ms. 
Svetlana Trevinska (d.b.a. https://

[[Page 17513]]

save-on-cigarettes.com); LMB Trading SA (d.b.a. https://k2smokes.ch); 
G.K.L. International SRL (d.b.a. https://all-cigarettes-brandsxom); 
G.K.L. International SRL (d.b.a. https://smokerjim.net); and Best 
Product Solution Ltd. as respondents. The complainant alleges 
violations of Section 337 of the Tariff Act of 1930, 19 U.S.C. 1337, in 
the importation into the United States of certain cigarettes and 
packaging thereof that infringe registered trademarks owned by 
complainant.
    On December 12, 2008, the ALJ issued an ID, Order No. 13, in which 
he determined to extend the target date in this investigation from July 
6, 2009, to September 21, 2009. No petitions for review were filed, and 
the Commission determined not to review Order No. 13.
    On November 25, 2008, the complainant moved for an initial 
determination finding 11 respondents in default for failing to show 
cause why they should not be found in default with regard to 14 
trademarks listed in the Commission's Notice of Investigation and one 
additional respondent in default for failing to participate in the 
proceeding. On January 9, 2009, the ALJ issued an initial 
determination, Order No. 17, granting Phillip Morris' motion for entry 
of default as to these 12 respondents. No petitions for review were 
filed, and on February 5, 2009, the Commission determined not to review 
Order No. 17.
    On February 3, 2009, the ALJ issued Order No. 19, an initial 
determination granting Phillip Morris' motion for summary determination 
that Alcesia had violated Section 337 of the Tariff Act with respect to 
three trademarks: U.S. Trademark Registration Nos. 68,502; 378,340; and 
894,450. On February 17, 2009, Alcesia filed a petition for review of 
Order No. 19. Both Phillip Morris and the Commission's Office of Unfair 
Import Investigations filed responses on February 23, 2009. On February 
26, 2009, Alcesia filed a motion requesting leave to file a reply, 
which Phillip Morris opposed on March 2, 2009. On March 4, 2009, the 
Commission extended the deadline for determining whether to review 
Order No. 19 until April 9, 2009.
    On February 3, 2009, the ALJ also issued Order No. 20, in which he 
denied Phillip Morris' request for a recommended determination on 
remedy and bonding on grounds that Phillip Morris' November 26, 2008 
motion for summary determination did not, in fact, resolve the issues 
in the investigation with respect to all 14 trademarks, but only with 
respect to three: U.S. Trademark Registration Nos. 68,502; 378,340; and 
894,450. The ALJ declined to terminate the violation phase of the 
investigation until Phillip Morris withdrew the 11 trademarks not 
addressed in its motion for summary determination.
    On February 9, 2009, Phillip Morris filed a motion withdrawing the 
11 trademark claims. On February 23, 2009, the ALJ issued Order No. 21 
in which he granted the motion. Order No. 21 was not reviewed by the 
Commission. On March 18, 2009, the ALJ issued his recommendations on 
remedy and bonding.
    The Commission has determined to review Order No. 19 in its 
entirety. It has also determined to deny Alcesia's motion for leave to 
file a reply. The Commission requests briefing by the parties to the 
investigation on the following questions:
    (1) Does the Commission have the authority to find a foreign entity 
in violation of 19 U.S.C. 1337 (a)(1)(C) if that entity is not an 
``owner, importer or consignee'' of the alleged gray market goods?
    (2) What is the appropriate standard for the Commission to apply in 
gray market cases to determine whether two entities are affiliated for 
purposes of its ``all or substantially all'' analysis? More 
specifically, where the Commission is seeking to determine whether all 
or substantially all of a complainant's sales in the United States are 
of goods that contain the alleged material differences, and there is 
evidence that other entities in the United States or abroad have a 
corporate relationship with the complainant, under what circumstances 
should gray market sales by those other entities be imputed to the 
complainant?
    (3) Is Phillip Morris International authorized and/or licensed to 
use the specific Phillip Morris USA trademarks at issue in this 
investigation in the manufacture and sale of cigarettes abroad? Please 
make specific reference to documents in the record. If Phillip Morris 
International was not so authorized, was this case properly brought as 
a gray market case?
    In connection with the final disposition of this investigation, the 
Commission may (1) issue an order that could result in the exclusion of 
the subject articles from entry into the United States, and/or (2) 
issue one or more cease and desist orders that could result in the 
respondent being required to cease and desist from engaging in unfair 
acts in the importation and sale of such articles. Accordingly, the 
Commission is interested in receiving written submissions that address 
the form of remedy, if any, that should be ordered. If a party seeks 
exclusion of an article from entry into the United States for purposes 
other than entry for consumption, the party should so indicate and 
provide information establishing that activities involving other types 
of entry either are adversely affecting it or likely to do so. For 
background, see In the Matter of Certain Devices for Connecting 
Computers via Telephone Lines, Inv. No. 337-TA-360, USITC Pub. No. 2843 
(December 1994) (Commission Opinion).
    If the Commission contemplates some form of remedy, it must 
consider the effects of that remedy upon the public interest. The 
factors the Commission will consider include the effect that an 
exclusion order and/or cease and desist orders would have on (1) the 
public health and welfare, (2) competitive conditions in the U.S. 
economy, (3) U.S. production of articles that are like or directly 
competitive with those that are subject to investigation, and (4) U.S. 
consumers. The Commission is therefore interested in receiving written 
submissions that address the aforementioned public interest factors in 
the context of this investigation.
    If the Commission orders some form of remedy, the U.S. Trade 
Representative, as delegated by the President, has 60 days to approve 
or disapprove the Commission's action. See Presidential Memorandum of 
July 21, 2005. 70 FR 43251 (July 26, 2005). During this period, the 
subject articles would be entitled to enter the United States under 
bond, in an amount determined by the Commission and prescribed by the 
Secretary of the Treasury. The Commission is therefore interested in 
receiving submissions concerning the amount of the bond that should be 
imposed if a remedy is ordered.
    Written Submissions: Parties to the investigation are asked to file 
written submissions on the questions posed by the Commission. Parties 
to the investigation, interested government agencies, and any other 
interested parties and on the issues of remedy, the public interest, 
and bonding. Complainants and the Commission investigative attorney are 
also requested to submit proposed remedial orders for the Commission's 
consideration. Complainants are also requested to state the HTSUS 
numbers under which the accused products are imported.
    Briefing must be filed no later than close of business on May 8, 
2009. Reply submissions must be filed no later than the close of 
business on May 29, 2009. Such submissions should address the 
recommended determinations on remedy and bonding which were made by the 
ALJ in Order No. 23 (March 18,

[[Page 17514]]

2009). No further submissions on any of these issues will be permitted 
unless otherwise ordered by the Commission.
    Persons filing written submissions must file the original document 
and 12 true copies thereof on or before the deadlines stated above with 
the Office of the Secretary. Any person desiring to submit a document 
to the Commission in confidence must request confidential treatment 
unless the information has already been granted such treatment during 
the proceedings. All such requests should be directed to the Secretary 
of the Commission and must include a full statement of the reasons why 
the Commission should grant such treatment. See 19 CFR 210.6. Documents 
for which confidential treatment by the Commission is sought will be 
treated accordingly. All nonconfidential written submissions will be 
available for public inspection at the Office of the Secretary.
    The authority for the Commission's determination is contained in 
section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and 
in section 210.42-46 of the Commission's Rules of Practice and 
Procedure (19 CFR 210.42-46).

    Issued: April 9, 2009.

    By order of the Commission.
Marilyn R. Abbott,
Secretary to the Commission.
 [FR Doc. E9-8569 Filed 4-14-09; 8:45 am]
BILLING CODE 7020-02-P