In the Matter of Certain Cigarettes and Packaging Thereof: Notice of Commission Final Determination of Violation of Section 337; Termination of Investigation; Issuance of General Exclusion Order, 49891-49892 [E9-23389]

Download as PDF jlentini on DSKJ8SOYB1PROD with NOTICES Federal Register / Vol. 74, No. 187 / Tuesday, September 29, 2009 / Notices persons are advised that information on this matter can be obtained by contacting the Commission’s TDD terminal on (202) 205–1810. SUPPLEMENTARY INFORMATION: This investigation was instituted on March 7, 2008, based on a complaint filed by Presstek, Inc. (‘‘Presstek’’) of Hudson, New Hampshire. The complaint alleged violations of section 337 of the Tariff Act of 1930, as amended, in the importation into the United States, the sale for importation, and the sale within the United States after importation of certain laser imageable lithographic printing plates that infringe certain claims of U.S. Patent Nos. 5,339,737 (‘‘the ‘737 patent’’) and 5,487,338 (‘‘the ‘338 patent’’) and U.S. Trademark Reg. No. 1,711,005 (‘‘the ‘005 trademark’’). All assertions relating to the ‘005 trademark were subsequently terminated from the investigation. Certain respondents have been terminated from the investigation, and the remaining respondents are VIM Technologies, Ltd., Hanita Coatings RCA, Ltd., AteCe Canada, Guaranteed Service & Supplies, Inc., Recognition Systems, Inc., and Spicers Paper, Inc. (hereinafter referred to collectively as ‘‘Respondents’’). On July 24, 2009, the ALJ issued the subject ID finding that a violation of section 337 has occurred in the importation into the United States, the sale for importation, or the sale within the United States after importation of certain laser imageable lithographic printing plates by reason of infringement of one or more of claims 1, 10, and 27 of the ‘737 patent and by reason of infringement of one or more of claims 20, 21, and 23 of the ‘338 patent. Respondents filed a combined petition for review of the ID, which Presstek and the Commission investigative attorney opposed. Having reviewed the record of this investigation, including Respondents’ petition for review and the responses thereto, the Commission has determined to review certain aspects of the ID relating to claim construction. On review, the Commission has determined to modify the ID by supplementing the ALJ’s claim construction analysis for reasons that will be provided in the Commission’s opinion on remedy, the public interest, and bonding, and has determined to affirm the ALJ’s determination of violation of section 337. 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 VerDate Nov<24>2008 16:18 Sep 28, 2009 Jkt 217001 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: The parties to the investigation, interested government agencies, and any other interested parties are encouraged to file written submissions on the issues of remedy, the public interest, and bonding. Complainants and the IA are also requested to submit proposed remedial orders for the Commission’s consideration. Complainants are also requested to state the dates that the patents expire and the HTSUS numbers under which the accused products are PO 00000 Frm 00044 Fmt 4703 Sfmt 4703 49891 imported. The written submissions and proposed remedial orders must be filed no later than close of business on October 6, 2009. Reply submissions, if any, must be filed no later than the close of business on October 13, 2009. No further submissions on 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 201.6. 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 of the Commission’s Rules of Practice and Procedure (19 CFR 210.42). By order of the Commission. Issued September 24, 2009. Marilyn R. Abbott, Secretary to the Commission. [FR Doc. E9–23499 Filed 9–28–09; 8:45 am] BILLING CODE 7020–02–P INTERNATIONAL TRADE COMMISSION [Investigation No. 337–TA–643] In the Matter of Certain Cigarettes and Packaging Thereof: Notice of Commission Final Determination of Violation of Section 337; Termination of Investigation; Issuance of General Exclusion Order AGENCY: U.S. International Trade Commission. ACTION: Notice. SUMMARY: Notice is hereby given that the U.S. International Trade Commission has determined that there is a violation of 19 U.S.C. 1337 by Alcesia SRL (‘‘Alcesia’’) of Moldova in the above-captioned investigation and has issued a general exclusion order. The investigation is terminated. E:\FR\FM\29SEN1.SGM 29SEN1 jlentini on DSKJ8SOYB1PROD with NOTICES 49892 Federal Register / Vol. 74, No. 187 / Tuesday, September 29, 2009 / Notices FOR FURTHER INFORMATION CONTACT: Daniel E. Valencia, Office of the General Counsel, U.S. International Trade Commission, 500 E Street, SW., Washington, DC 20436, telephone (202) 205–1999. Copies of 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. (‘‘PM USA’’) of Richmond, VA, naming Alcesia; Emarket Systems Ltd. (d.b.a. alldiscount-cigarettes.com); Jamen Chong (d.b.a. asiadfs.com); Tri-kita (d.b.a. cheapcigarettes4all.com); Mr. Eduard Lee (d.b.a. cigarettesonlineshop.com); Zonitech Properties Limited (d.b.a. cigline.net); Zonitech Properties Limited (d.b.a. shopping-heaven.com); Cendano (d.b.a. galastore.com); Ms. Svetlana Trevinska (d.b.a. save-oncigarettes.com); LMB Trading SA (d.b.a. k2smokes.ch); G.K.L. International SRL (d.b.a. all-cigarettes-brandsxom); G.K.L. International SRL (d.b.a. smokerjim.net); and Best Product Solution Ltd. as respondents. The complaint 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 PM USA. Subsequent to institution all respondents but Alcesia were found in default. On February 3, 2009, the ALJ issued Order No. 19, a summary initial determination (‘‘ID’’) granting PM USA’s motion for summary determination that Alcesia has violated section 337 with respect to three trademarks: U.S. Trademark Registration Nos. 68,502; 378,340; and 894,450. On February 17, 2009, Alcesia petitioned for review of the ID. On February 24 and 25, 2009, PM USA and the Commission Investigative Attorney (‘‘IA’’), respectively, opposed Alcesia’s petition for review. VerDate Nov<24>2008 16:18 Sep 28, 2009 Jkt 217001 On April 9, 2009, the Commission determined to review the ID and requested written submissions on the issues under review, remedy, the public interest, and bonding. On May 8, 2009, the parties filed opening submissions, and on May 29, 2009, the parties filed response submissions. Several nonparties also filed submissions addressing issues related to remedy and the public interest. Having examined the record of this investigation, including the ALJ’s summary ID, the Commission has determined to affirm the ALJ’s finding that Alcesia has violated section 337 by selling for importation into the United States gray market cigarettes that infringe PM USA’s Marlboro®, Parliament®, and Virginia Slims® trademarks. In particular, the Commission has adopted the ALJ’s finding that a lack of English-language warning labels from the Surgeon General on the gray market cigarette packages makes them materially different from the U.S. market cigarettes. The Commission, however, has declined to adopt the ID’s finding that the gray market cigarettes’ susceptibility to seizure under the Imported Cigarette Compliance Act makes them materially different from U.S. market cigarettes. The Commission also takes no position on the ID’s finding that a material difference exists between the gray market and U.S. market cigarettes because PM USA exercises quality control over procedures for distribution, storage, and transportation of the U.S. market cigarettes, while it does not exercise this control over the gray market cigarettes. The Commission has determined that the appropriate form of relief is a general exclusion order prohibiting the unlicensed entry of Marlboro®, Parliament®, or Virginia Slims® branded cigarettes that (a) infringe one or more of the following U.S. Trademark Reg. Nos. 68,502, 378,340, and 894,450 and (b) are materially different from cigarettes manufactured by or under authority of PM USA for sale and use in the United States. The Commission further determined that the public interest factors enumerated in section 337(d) (19 U.S.C. 1337(d)) do not preclude issuance of the general exclusion order. Finally, the Commission determined that the amount of bond during the Presidential review period (19 U.S.C. 1337(j)) shall be 100 percent of the entered value of the article that is subject to the order. The Commission’s order was delivered to the President and the United States Trade Representative on the day of its issuance. PO 00000 Frm 00045 Fmt 4703 Sfmt 4703 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 sections 210.42–50 of the Commission’s Rules of Practice and Procedure (19 CFR 210.42–50). By order of the Commission. Issued: September 21, 2009. Marilyn R. Abbott, Secretary to the Commission. [FR Doc. E9–23389 Filed 9–28–09; 8:45 am] BILLING CODE 7020–02–P DEPARTMENT OF JUSTICE Office of Information Policy; Attorney General Memorandum for Executive Departments and Agencies Concerning the Freedom of Information Act Department of Justice. Notice. AGENCY: ACTION: SUMMARY: On January 21, 2009, the President issued a memorandum for the heads of executive departments and agencies on the Freedom of Information Act (FOIA). That memorandum required that the Attorney General issue new guidelines governing the FOIA to the heads of executive departments and agencies, reaffirming the commitment to accountability and transparency, and to publish such guidelines in the Federal Register. Pursuant to the President’s directive, the Attorney General issued new FOIA guidelines on March 19, 2009. Those guidelines are now published here. FOR FURTHER INFORMATION CONTACT: Melanie Ann Pustay, Director, Office of Information Policy, U.S. Department of Justice, 1425 New York Avenue, NW., Suite 11050, Washington, DC 20009, telephone (202) 514–3642. SUPPLEMENTARY INFORMATION: In his January 21, 2009 memorandum on the Freedom of Information Act (FOIA) the President stated that ‘‘[a]ll agencies should adopt a presumption in favor of disclosure, in order to renew their commitment to the principles embodied in FOIA, and to usher in a new era of open Government.’’ This memorandum is published in the Federal Register at 74 FR 4683–84 and is available at https://www.whitehouse.gov/thepress_ office/FreedomoflnformationAct/. The President also directed the Attorney I General ‘‘to issue new guidelines governing the FOIA to the heads of executive departments and agencies, reaffirming the commitment to accountability and transparency.’’ Pursuant to this instruction, the E:\FR\FM\29SEN1.SGM 29SEN1

Agencies

[Federal Register Volume 74, Number 187 (Tuesday, September 29, 2009)]
[Notices]
[Pages 49891-49892]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-23389]


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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-643]


 In the Matter of Certain Cigarettes and Packaging Thereof: 
Notice of Commission Final Determination of Violation of Section 337; 
Termination of Investigation; Issuance of General Exclusion Order

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 determined that there is a violation of 19 U.S.C. 1337 
by Alcesia SRL (``Alcesia'') of Moldova in the above-captioned 
investigation and has issued a general exclusion order. The 
investigation is terminated.

[[Page 49892]]


FOR FURTHER INFORMATION CONTACT: Daniel E. Valencia, Office of the 
General Counsel, U.S. International Trade Commission, 500 E Street, 
SW., Washington, DC 20436, telephone (202) 205-1999. Copies of 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. (``PM USA'') of Richmond, VA, naming Alcesia; Emarket Systems Ltd. 
(d.b.a. all-discount-cigarettes.com); Jamen Chong (d.b.a. asiadfs.com); 
Tri-kita (d.b.a. cheapcigarettes4all.com); Mr. Eduard Lee (d.b.a. 
cigarettesonlineshop.com); Zonitech Properties Limited (d.b.a. 
cigline.net); Zonitech Properties Limited (d.b.a. shopping-heaven.com); 
Cendano (d.b.a. galastore.com); Ms. Svetlana Trevinska (d.b.a. save-on-cigarettes.com); LMB Trading SA (d.b.a. k2smokes.ch); G.K.L. 
International SRL (d.b.a. all-cigarettes-brandsxom); G.K.L. 
International SRL (d.b.a. smokerjim.net); and Best Product Solution 
Ltd. as respondents. The complaint 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 PM USA. Subsequent to institution all 
respondents but Alcesia were found in default.
    On February 3, 2009, the ALJ issued Order No. 19, a summary initial 
determination (``ID'') granting PM USA's motion for summary 
determination that Alcesia has violated section 337 with respect to 
three trademarks: U.S. Trademark Registration Nos. 68,502; 378,340; and 
894,450. On February 17, 2009, Alcesia petitioned for review of the ID. 
On February 24 and 25, 2009, PM USA and the Commission Investigative 
Attorney (``IA''), respectively, opposed Alcesia's petition for review.
    On April 9, 2009, the Commission determined to review the ID and 
requested written submissions on the issues under review, remedy, the 
public interest, and bonding. On May 8, 2009, the parties filed opening 
submissions, and on May 29, 2009, the parties filed response 
submissions. Several non-parties also filed submissions addressing 
issues related to remedy and the public interest.
    Having examined the record of this investigation, including the 
ALJ's summary ID, the Commission has determined to affirm the ALJ's 
finding that Alcesia has violated section 337 by selling for 
importation into the United States gray market cigarettes that infringe 
PM USA's Marlboro[supreg], Parliament[supreg], and Virginia 
Slims[supreg] trademarks. In particular, the Commission has adopted the 
ALJ's finding that a lack of English-language warning labels from the 
Surgeon General on the gray market cigarette packages makes them 
materially different from the U.S. market cigarettes. The Commission, 
however, has declined to adopt the ID's finding that the gray market 
cigarettes' susceptibility to seizure under the Imported Cigarette 
Compliance Act makes them materially different from U.S. market 
cigarettes. The Commission also takes no position on the ID's finding 
that a material difference exists between the gray market and U.S. 
market cigarettes because PM USA exercises quality control over 
procedures for distribution, storage, and transportation of the U.S. 
market cigarettes, while it does not exercise this control over the 
gray market cigarettes.
    The Commission has determined that the appropriate form of relief 
is a general exclusion order prohibiting the unlicensed entry of 
Marlboro[supreg], Parliament[supreg], or Virginia Slims[supreg] branded 
cigarettes that (a) infringe one or more of the following U.S. 
Trademark Reg. Nos. 68,502, 378,340, and 894,450 and (b) are materially 
different from cigarettes manufactured by or under authority of PM USA 
for sale and use in the United States.
    The Commission further determined that the public interest factors 
enumerated in section 337(d) (19 U.S.C. 1337(d)) do not preclude 
issuance of the general exclusion order. Finally, the Commission 
determined that the amount of bond during the Presidential review 
period (19 U.S.C. 1337(j)) shall be 100 percent of the entered value of 
the article that is subject to the order. The Commission's order was 
delivered to the President and the United States Trade Representative 
on the day of its issuance.
    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 sections 210.42-50 of the Commission's Rules of Practice and 
Procedure (19 CFR 210.42-50).

    By order of the Commission.

    Issued: September 21, 2009.
Marilyn R. Abbott,
Secretary to the Commission.
[FR Doc. E9-23389 Filed 9-28-09; 8:45 am]
BILLING CODE 7020-02-P
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