Certain Footwear Products; Commission Decision To Affirm-in-Part, Reverse-in-Part, and Vacate Certain Portions of a Final Initial Determination Finding a Violation of Section 337; Issuance of General Exclusion Order; Termination of the Investigation, 42377-42379 [2016-15339]

Download as PDF mstockstill on DSK3G9T082PROD with NOTICES Federal Register / Vol. 81, No. 125 / Wednesday, June 29, 2016 / Notices obtained by contacting the Commission’s TDD terminal on (202) 205–1810. SUPPLEMENTARY INFORMATION: The Commission has received a complaint and a submission pursuant to section 210.8(b) of the Commission’s Rules of Practice and Procedure filed on behalf of Lehigh Valley Technologies, Inc.; Endo Global Ventures; Endo Ventures Limited; and Generics Bidco I, LLC (d/ b/a Qualitest Pharmaceuticals and Par Pharmaceutical) on June 15, 2016 . 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, the sale for importation, and the sale within the United States after importation of certain potassium chloride powder products. The complaint names as respondents Viva Pharmaceutical Inc. of Canada; Virtus Pharmaceuticals, LLC of Tampa, FL; and Virtus Pharmaceuticals OPCO II, LLC of Nashville, TN. The complainant requests that the Commission issue a limited exclusion order, cease and desist orders and impose a bond upon respondents’ alleged infringing articles during the 60-day Presidential review period pursuant to 19 U.S.C. 1337(j). Proposed respondents, other interested parties, and members of the public are invited to file comments, not to exceed five (5) pages in length, inclusive of attachments, on any public interest issues raised by the complaint or section 210.8(b) filing. Comments should address whether issuance of the relief specifically requested by the complainant in this investigation would affect the public health and welfare in the United States, competitive conditions in the United States economy, the production of like or directly competitive articles in the United States, or United States consumers. In particular, the Commission is interested in comments that: (i) Explain how the articles potentially subject to the requested remedial orders are used in the United States; (ii) identify any public health, safety, or welfare concerns in the United States relating to the requested remedial orders; (iii) identify like or directly competitive articles that complainant, its licensees, or third parties make in the United States which could replace the subject articles if they were to be excluded; (iv) indicate whether complainant, complainant’s licensees, and/or third party suppliers have the capacity to replace the volume of articles VerDate Sep<11>2014 17:18 Jun 28, 2016 Jkt 238001 potentially subject to the requested exclusion order and/or a cease and desist order within a commercially reasonable time; and (v) explain how the requested remedial orders would impact United States consumers. Written submissions must be filed no later than by close of business, eight calendar days after the date of publication of this notice in the Federal Register. There will be further opportunities for comment on the public interest after the issuance of any final initial determination in this investigation. Persons filing written submissions must file the original document electronically on or before the deadlines stated above and submit 8 true paper copies to the Office of the Secretary by noon the next day pursuant to section 210.4(f) of the Commission’s Rules of Practice and Procedure (19 CFR 210.4(f)). Submissions should refer to the docket number (‘‘Docket No. 3157’’) in a prominent place on the cover page and/or the first page. (See Handbook for Electronic Filing Procedures, Electronic Filing Procedures).4 Persons with questions regarding filing should contact the Secretary (202–205–2000). Any person desiring to submit a document to the Commission in confidence must request confidential treatment. All such requests should be directed to the Secretary to 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 properly sought will be treated accordingly. All nonconfidential written submissions will be available for public inspection at the Office of the Secretary and on EDIS.5 This action is taken under the authority of section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and of sections 201.10 and 210.8(c) of the Commission’s Rules of Practice and Procedure (19 CFR 201.10, 210.8(c)). By order of the Commission. Issued: June 16, 2016. Lisa R. Barton, Secretary to the Commission. [FR Doc. 2016–15450 Filed 6–28–16; 8:45 am] BILLING CODE 7020–02–P 4 Handbook for Electronic Filing Procedures: http://www.usitc.gov/secretary/fed_reg_notices/ rules/handbook_on_electronic_filing.pdf. 5 Electronic Document Information System (EDIS): http://edis.usitc.gov. PO 00000 Frm 00070 Fmt 4703 Sfmt 4703 42377 INTERNATIONAL TRADE COMMISSION [Investigation No. 337–TA–936] Certain Footwear Products; Commission Decision To Affirm-inPart, Reverse-in-Part, and Vacate Certain Portions of a Final Initial Determination Finding a Violation of Section 337; Issuance of General Exclusion Order; Termination of the Investigation U.S. International Trade Commission. ACTION: Notice. AGENCY: Notice is hereby given that the U.S. International Trade Commission has determined to affirmin-part, reverse-in-part, and vacate certain portions of a final initial determination (‘‘ID’’) of the presiding administrative law judge (‘‘ALJ’’) finding a violation of section 337 in the above-captioned investigation, and has issued a general exclusion order directed against infringing footwear products. The Commission has terminated the investigation. FOR FURTHER INFORMATION CONTACT: Clint Gerdine, Esq., Office of the General Counsel, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436, telephone (202) 708–2310. 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 http://www.usitc.gov. The public record for this investigation may be viewed on the Commission’s electronic docket (EDIS) at http:// 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: The Commission instituted this investigation on November 17, 2014, based on a complaint filed on behalf of Converse Inc. of North Andover, Massachusetts. 79 FR 68482–83. The complaint alleges violations of section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337, by reason of infringement of certain U.S. Trademark Registration Nos.: 4,398,753 (‘‘the ’753 trademark’’); 3,258,103 (‘‘the ’103 trademark’’); and 1,588,960 (‘‘the ’960 trademark’’). The SUMMARY: E:\FR\FM\29JNN1.SGM 29JNN1 mstockstill on DSK3G9T082PROD with NOTICES 42378 Federal Register / Vol. 81, No. 125 / Wednesday, June 29, 2016 / Notices complaint further alleges violations of section 337 based upon unfair competition/false designation of origin, common law trademark infringement and unfair competition, and trademark dilution, the threat or effect of which is to destroy or substantially injure an industry in the United States. The Commission’s notice of investigation named numerous respondents including Wal-Mart Stores, Inc. of Bentonville, Arkansas; Skechers U.S.A., Inc. of Manhattan Beach, California; and Highline United LLC d/b/a Ash Footwear USA of New York City, New York. The Office of Unfair Import Investigations (‘‘OUII’’) is also a party to the investigation. Id. New Balance Athletic Shoe, Inc. (‘‘New Balance’’) of Boston, Massachusetts was subsequently added as a respondentintervenor. See Order No. 36 (unreviewed, Comm’n Notice Feb. 19, 2015). Only these four respondents remain active in the investigation. All other respondents, as detailed below, have been found in default or have been terminated from the investigation based on good cause or settlement and/or consent order stipulation. On February 10, 2015, the Commission determined not to review an ID (Order No. 32) granting a joint motion of complainant and Skeanie Shoes, Inc. (‘‘Skeanie’’) of New South Wales, Australia terminating the investigation as to Skeanie Shoes based on settlement and consent order stipulation. On the same date, the Commission determined not to review an ID (Order No. 33) granting a joint motion of complainant and PW Shoes, Inc. (‘‘PW Shoes’’) of Maspeth, New York terminating the investigation as to PW Shoes based on settlement and consent order stipulation. Also on the same date, the Commission determined not to review an ID (Order No. 34) granting a joint motion of complainant and Ositos Shoes, Inc. (‘‘Ositos Shoes’’) of South El Monte, California terminating the investigation as to Ositos Shoes based on settlement agreement and consent order stipulation. On March 4, 2015, the Commission determined not to review an ID (Order No. 52) granting a joint motion of complainant and Ralph Lauren Corporation (‘‘Ralph Lauren’’) of New York City, New York terminating the investigation as to Ralph Lauren based on settlement agreement and consent order stipulation. On March 12, 2015, the Commission determined not to review an ID (Order No. 55) granting a joint motion of complainant and OPPO Original Corp. (‘‘OPPO’’) of City of Industry, California terminating the VerDate Sep<11>2014 17:18 Jun 28, 2016 Jkt 238001 investigation as to OPPO based on settlement agreement and consent order stipulation. On the same date, the Commission determined not to review an ID (Order No. 57) granting a joint motion of complainant and H & M Hennes & Mauritz LP (‘‘H & M’’) of New York City, New York terminating the investigation as to H & M based on settlement agreement and consent order stipulation. On March 24, 2015, the Commission determined not to review an ID (Order No. 59) granting a joint motion of complainant and Zulily, Inc. (‘‘Zulily’’) of Seattle, Washington terminating the investigation as to Zulily based on settlement agreement and consent order stipulation. On March 30, 2015, the Commission determined not to review an ID (Order No. 65) granting a joint motion of complainant and Nowhere Co. Ltd. d/b/ a Bape (‘‘Nowhere’’) of Tokyo, Japan terminating the investigation as to Nowhere based on settlement agreement and consent order stipulation. On the same date, the Commission determined not to review an ID (Order No. 67) granting a joint motion of complainant and The Aldo Group (‘‘Aldo’’) of Montreal, Canada terminating the investigation as to Aldo based on settlement agreement and consent order stipulation. On April 1, 2015, the Commission determined not to review an ID (Order No. 69) granting a joint motion of complainant and Gina Group, LLC (‘‘Gina Group’’) of New York City, New York terminating the investigation as to Gina Group based on settlement agreement and consent order stipulation. On the same date, the Commission determined not to review an ID (Order No. 70) granting a joint motion of complainant and Tory Burch LLC (‘‘Tory Burch’’) of New York City, New York terminating the investigation as to Tory Burch based on settlement agreement and consent order stipulation. On April 24, 2015, the Commission determined not to review an ID (Order No. 73) granting a joint motion of complainant and Brian Lichtenberg, LLC (‘‘Brian Lichtenberg’’) of Los Angeles, California terminating the investigation as to Brian Lichtenberg based on settlement agreement and consent order stipulation. On the same date, the Commission determined not to review an ID (Order No. 80) granting a joint motion of complainant and Fila U.S.A., Inc. (‘‘Fila’’) of Sparks, Maryland terminating the investigation as to Fila based on settlement agreement and consent order stipulation. On May 4, 2015, the Commission determined not to review an ID (Order No. 86) granting PO 00000 Frm 00071 Fmt 4703 Sfmt 4703 a joint motion of complainant and Mamiye Imports LLC d/b/a Lilly of New York located in Brooklyn, New York and Shoe Shox of Seattle, Washington (collectively, ‘‘Mamiye Imports’’) terminating the investigation as to Mamiye Imports based on settlement agreement and consent order stipulation. On May 6, 2015, the Commission determined not to review an ID (Order No. 83) granting New Balance’s motion to terminate the investigation as to New Balance’s accused CPT Hi and CPT Lo model sneakers based on a consent order stipulation. On May 13, 2015, the Commission determined not to review an ID (Order No. 93) granting a joint motion of complainant and Iconix Brand Group, Inc. (‘‘Iconix’’) of New York City, New York terminating the investigation as to Iconix based on settlement agreement and consent order stipulation. On June 4, 2015, the Commission determined not to review an ID (Order No. 108) granting a joint motion of complainant and A-List, Inc. d/b/a Kitson (‘‘Kitson’’) of Los Angeles, California terminating the investigation as to Kitson based on settlement agreement and consent order stipulation. On June 12, 2015, the Commission determined not to review an ID (Order No. 114) granting a joint motion of complainant and Esquire Footwear LLC (‘‘Esquire’’) of New York City, New York terminating the investigation as to Esquire based on settlement agreement, consent order stipulation, and consent order. On July 15, 2015, the Commission determined not to review an ID (Order No. 128) granting a joint motion of complainant and Fortune Dynamic, Inc. (‘‘Fortune Dynamic’’) of City of Industry, California terminating the investigation as to Fortune Dynamic based on settlement agreement and consent order stipulation. On August 12, 2015, the Commission determined not to review an ID (Order No. 154) granting a joint motion of complainant and CMerit USA, Inc. (‘‘CMerit’’) of Chino, California terminating the investigation as to CMerit based on settlement agreement and consent order stipulation. On August 14, 2015, the Commission determined not to review an ID (Order No. 155) granting a joint motion of complainant and Kmart Corporation (‘‘Kmart’’) of Hoffman Estates, Illinois terminating the investigation as to Kmart based on settlement agreement and consent order stipulation. Also, on March 12, 2015, the Commission determined not to review an ID (Order No. 58) finding Dioniso SRL of Perugia, Italy; Shenzhen Foreversun Industrial Co., Ltd. (a/k/a E:\FR\FM\29JNN1.SGM 29JNN1 mstockstill on DSK3G9T082PROD with NOTICES Federal Register / Vol. 81, No. 125 / Wednesday, June 29, 2016 / Notices Shenzhen Foreversun Shoes Co., Ltd.) (‘‘Foreversun’’) of Shenzhen, China; and Fujian Xinya I&E Trading Co. Ltd. of Jinjiang, China in default. Similarly, on June 2, 2015, the Commission determined not to review an ID (Order No. 106) finding Zhejiang Ouhai International Trade Co. Ltd. and Wenzhou Cereals Oils & Foodstuffs Foreign Trade Co. Ltd., both of Wenzhou, China, in default. Further, on March 25, 2015, the Commission determined not to review an ID (Order No. 68) granting the motion of Orange Clubwear, Inc. of Westminster, California to terminate the investigation as to itself based on a consent order stipulation. On May 12, 2015, the Commission determined not to review an ID terminating the investigation as to Edamame Kids, Inc. of Alberta, Canada for good cause and without prejudice. The ALJ issued his final ID on November 17, 2015, finding a violation of section 337 as to certain accused products of each active respondent and as to all accused products of each defaulting respondent. Specifically, the ALJ found that the ’753 trademark is not invalid and that certain accused products of each active respondent, and all accused products of each defaulting respondent, infringe the ’753 trademark. The ALJ also found that: (1) Converse satisfied both the economic and technical prongs of the domestic industry requirement with respect to all asserted trademarks; (2) certain accused products of defaulting respondent Foreversun infringe both the ’103 and ’960 trademarks; and (3) a violation of section 337 with respect to the ’103 and ’960 trademarks by Foreversun. The ALJ also found no dilution of the ’753 trademark. The ALJ also issued his recommendation on remedy and bonding during the period of Presidential review. He recommended a general exclusion order directed to footwear products that infringe the asserted trademarks, and recommended cease and desist orders directed against each active, remaining respondent found to infringe. On December 4, 2015, complainant, respondents, and the Commission investigative attorney (‘‘IA’’) each filed a timely petition for review of the final ID. On December 14, 2015, each of these parties filed responses to the other petitions for review. On February 3, 2016, the Commission issued notice of its determination to review: (1) The ID’s finding of no invalidity of the ’753 trademark; (2) the ID’s findings regarding infringement of the ’753 trademark; (3) the ID’s finding of invalidity of the common law rights asserted in the design depicted in the VerDate Sep<11>2014 17:18 Jun 28, 2016 Jkt 238001 ’753 trademark; and (4) the ID’s finding of no violation of section 337 with respect to the common law rights asserted in the designs depicted in the ’103 and ’960 trademarks. The Commission also determined not to review the remainder of the final ID. The determinations made in the ALJ’s final ID that were not reviewed became final determinations of the Commission by operation of rule. See 19 CFR 210.43(h)(2). The Commission also requested the parties to respond to certain questions concerning the issues under review and requested written submissions on the issues of remedy, the public interest, and bonding from the parties and interested non-parties. 81 FR 6886–89 (Feb. 9, 2016). On February 17 and 24, 2016, respectively, complainant, respondents, and the IA each filed a brief and a reply brief on all issues for which the Commission requested written submissions. Respondents’ reply brief included a request for a Commission hearing to present oral argument under Commission rule 210.45(a). On February 29 and March 3, 2016, respectively, both Converse and the IA each filed a response to respondents’ request, with each accompanied by a motion for leave to file a sur-reply to the request for oral argument. On March 1, 2016, respondents filed a motion for leave to submit a sur-reply to their request for oral argument. The Commission has determined to grant all motions for leave to file sur-replies submitted by the parties, and to deny respondents’ request for a Commission hearing to present oral argument. Having reviewed the record in this investigation, including the ALJ’s final ID and the parties’ written submissions, the Commission has determined to affirm-in-part, reverse-in-part, and vacate certain portions of the final ID’s findings under review. Specifically, the Commission has reversed the ALJ’s finding that the ’753 trademark is not invalid, and instead has found the trademark invalid based on lack of secondary meaning. The Commission has also affirmed the ALJ’s finding that there is a likelihood of confusion with respect to the ’753 trademark for specific accused footwear products if the trademark was not invalid. The Commission has also affirmed the ALJ’s finding that there is no likelihood of confusion with respect to the ’753 trademark for specific accused footwear products regardless of invalidity. Further, the Commission has affirmed the ALJ’s finding that the asserted common law rights in the ’753 trademark are invalid. Accordingly, the Commission has determined that there PO 00000 Frm 00072 Fmt 4703 Sfmt 9990 42379 is no violation of section 337 with respect to the ’753 trademark. The Commission has vacated the ALJ’s finding that the asserted common law rights in the designs depicted in the ’103 and ’960 trademarks are invalid. The Commission has determined that this finding with respect to these common law rights is moot in view of the Commission’s finding of a violation with respect to the federally-registered rights in the ’103 and ’960 trademarks since the scope of the common law and federally-registered rights in these trademarks is co-extensive. See Comm’n Notice (Feb. 3, 2016); ID at 107–08, 121– 26, 128–29, 131–32. Having found a violation of section 337 as to the ’103 and ’960 federallyregistered trademarks, the Commission has made its determination on the issues of remedy, the public interest, and bonding. The Commission has determined that the appropriate form of relief is a general exclusion order prohibiting the unlicensed entry of footwear products that infringe the ’103 or ’960 trademarks. The Commission further determined that the public interest factors enumerated in section 337(d)(1) (19 U.S.C. 1337(d)(1)) do not preclude issuance of the general exclusion order. Finally, the Commission determined that a bond of 100 percent of the entered value (per pair) of the covered products is required to permit temporary importation during the period of Presidential review (19 U.S.C. 1337(j)). The Commission has also issued an opinion explaining the basis for the Commission’s action. The Commission’s order and opinion were delivered to the President and to the United States Trade Representative on the day of their issuance. The investigation is terminated. 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 part 210 of the Commission’s Rules of Practice and Procedure, 19 CFR part 210. By order of the Commission. Dated: June 23, 2016. Lisa R. Barton, Secretary to the Commission. [FR Doc. 2016–15339 Filed 6–28–16; 8:45 am] BILLING CODE 7020–02–P E:\FR\FM\29JNN1.SGM 29JNN1

Agencies

[Federal Register Volume 81, Number 125 (Wednesday, June 29, 2016)]
[Notices]
[Pages 42377-42379]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-15339]


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

INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-936]


Certain Footwear Products; Commission Decision To Affirm-in-Part, 
Reverse-in-Part, and Vacate Certain Portions of a Final Initial 
Determination Finding a Violation of Section 337; Issuance of General 
Exclusion Order; Termination of the Investigation

AGENCY: U.S. International Trade Commission.

ACTION: Notice.

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

SUMMARY: Notice is hereby given that the U.S. International Trade 
Commission has determined to affirm-in-part, reverse-in-part, and 
vacate certain portions of a final initial determination (``ID'') of 
the presiding administrative law judge (``ALJ'') finding a violation of 
section 337 in the above-captioned investigation, and has issued a 
general exclusion order directed against infringing footwear products. 
The Commission has terminated the investigation.

FOR FURTHER INFORMATION CONTACT: Clint Gerdine, Esq., Office of the 
General Counsel, U.S. International Trade Commission, 500 E Street SW., 
Washington, DC 20436, telephone (202) 708-2310. 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 http://www.usitc.gov. The public record for this investigation may be viewed 
on the Commission's electronic docket (EDIS) at http://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: The Commission instituted this investigation 
on November 17, 2014, based on a complaint filed on behalf of Converse 
Inc. of North Andover, Massachusetts. 79 FR 68482-83. The complaint 
alleges violations of section 337 of the Tariff Act of 1930, as 
amended, 19 U.S.C. 1337, by reason of infringement of certain U.S. 
Trademark Registration Nos.: 4,398,753 (``the '753 trademark''); 
3,258,103 (``the '103 trademark''); and 1,588,960 (``the '960 
trademark''). The

[[Page 42378]]

complaint further alleges violations of section 337 based upon unfair 
competition/false designation of origin, common law trademark 
infringement and unfair competition, and trademark dilution, the threat 
or effect of which is to destroy or substantially injure an industry in 
the United States. The Commission's notice of investigation named 
numerous respondents including Wal-Mart Stores, Inc. of Bentonville, 
Arkansas; Skechers U.S.A., Inc. of Manhattan Beach, California; and 
Highline United LLC d/b/a Ash Footwear USA of New York City, New York. 
The Office of Unfair Import Investigations (``OUII'') is also a party 
to the investigation. Id. New Balance Athletic Shoe, Inc. (``New 
Balance'') of Boston, Massachusetts was subsequently added as a 
respondent-intervenor. See Order No. 36 (unreviewed, Comm'n Notice Feb. 
19, 2015). Only these four respondents remain active in the 
investigation. All other respondents, as detailed below, have been 
found in default or have been terminated from the investigation based 
on good cause or settlement and/or consent order stipulation.
    On February 10, 2015, the Commission determined not to review an ID 
(Order No. 32) granting a joint motion of complainant and Skeanie 
Shoes, Inc. (``Skeanie'') of New South Wales, Australia terminating the 
investigation as to Skeanie Shoes based on settlement and consent order 
stipulation. On the same date, the Commission determined not to review 
an ID (Order No. 33) granting a joint motion of complainant and PW 
Shoes, Inc. (``PW Shoes'') of Maspeth, New York terminating the 
investigation as to PW Shoes based on settlement and consent order 
stipulation. Also on the same date, the Commission determined not to 
review an ID (Order No. 34) granting a joint motion of complainant and 
Ositos Shoes, Inc. (``Ositos Shoes'') of South El Monte, California 
terminating the investigation as to Ositos Shoes based on settlement 
agreement and consent order stipulation. On March 4, 2015, the 
Commission determined not to review an ID (Order No. 52) granting a 
joint motion of complainant and Ralph Lauren Corporation (``Ralph 
Lauren'') of New York City, New York terminating the investigation as 
to Ralph Lauren based on settlement agreement and consent order 
stipulation. On March 12, 2015, the Commission determined not to review 
an ID (Order No. 55) granting a joint motion of complainant and OPPO 
Original Corp. (``OPPO'') of City of Industry, California terminating 
the investigation as to OPPO based on settlement agreement and consent 
order stipulation. On the same date, the Commission determined not to 
review an ID (Order No. 57) granting a joint motion of complainant and 
H & M Hennes & Mauritz LP (``H & M'') of New York City, New York 
terminating the investigation as to H & M based on settlement agreement 
and consent order stipulation. On March 24, 2015, the Commission 
determined not to review an ID (Order No. 59) granting a joint motion 
of complainant and Zulily, Inc. (``Zulily'') of Seattle, Washington 
terminating the investigation as to Zulily based on settlement 
agreement and consent order stipulation. On March 30, 2015, the 
Commission determined not to review an ID (Order No. 65) granting a 
joint motion of complainant and Nowhere Co. Ltd. d/b/a Bape 
(``Nowhere'') of Tokyo, Japan terminating the investigation as to 
Nowhere based on settlement agreement and consent order stipulation. On 
the same date, the Commission determined not to review an ID (Order No. 
67) granting a joint motion of complainant and The Aldo Group 
(``Aldo'') of Montreal, Canada terminating the investigation as to Aldo 
based on settlement agreement and consent order stipulation.
    On April 1, 2015, the Commission determined not to review an ID 
(Order No. 69) granting a joint motion of complainant and Gina Group, 
LLC (``Gina Group'') of New York City, New York terminating the 
investigation as to Gina Group based on settlement agreement and 
consent order stipulation. On the same date, the Commission determined 
not to review an ID (Order No. 70) granting a joint motion of 
complainant and Tory Burch LLC (``Tory Burch'') of New York City, New 
York terminating the investigation as to Tory Burch based on settlement 
agreement and consent order stipulation. On April 24, 2015, the 
Commission determined not to review an ID (Order No. 73) granting a 
joint motion of complainant and Brian Lichtenberg, LLC (``Brian 
Lichtenberg'') of Los Angeles, California terminating the investigation 
as to Brian Lichtenberg based on settlement agreement and consent order 
stipulation. On the same date, the Commission determined not to review 
an ID (Order No. 80) granting a joint motion of complainant and Fila 
U.S.A., Inc. (``Fila'') of Sparks, Maryland terminating the 
investigation as to Fila based on settlement agreement and consent 
order stipulation. On May 4, 2015, the Commission determined not to 
review an ID (Order No. 86) granting a joint motion of complainant and 
Mamiye Imports LLC d/b/a Lilly of New York located in Brooklyn, New 
York and Shoe Shox of Seattle, Washington (collectively, ``Mamiye 
Imports'') terminating the investigation as to Mamiye Imports based on 
settlement agreement and consent order stipulation.
    On May 6, 2015, the Commission determined not to review an ID 
(Order No. 83) granting New Balance's motion to terminate the 
investigation as to New Balance's accused CPT Hi and CPT Lo model 
sneakers based on a consent order stipulation. On May 13, 2015, the 
Commission determined not to review an ID (Order No. 93) granting a 
joint motion of complainant and Iconix Brand Group, Inc. (``Iconix'') 
of New York City, New York terminating the investigation as to Iconix 
based on settlement agreement and consent order stipulation. On June 4, 
2015, the Commission determined not to review an ID (Order No. 108) 
granting a joint motion of complainant and A-List, Inc. d/b/a Kitson 
(``Kitson'') of Los Angeles, California terminating the investigation 
as to Kitson based on settlement agreement and consent order 
stipulation. On June 12, 2015, the Commission determined not to review 
an ID (Order No. 114) granting a joint motion of complainant and 
Esquire Footwear LLC (``Esquire'') of New York City, New York 
terminating the investigation as to Esquire based on settlement 
agreement, consent order stipulation, and consent order. On July 15, 
2015, the Commission determined not to review an ID (Order No. 128) 
granting a joint motion of complainant and Fortune Dynamic, Inc. 
(``Fortune Dynamic'') of City of Industry, California terminating the 
investigation as to Fortune Dynamic based on settlement agreement and 
consent order stipulation. On August 12, 2015, the Commission 
determined not to review an ID (Order No. 154) granting a joint motion 
of complainant and CMerit USA, Inc. (``CMerit'') of Chino, California 
terminating the investigation as to CMerit based on settlement 
agreement and consent order stipulation. On August 14, 2015, the 
Commission determined not to review an ID (Order No. 155) granting a 
joint motion of complainant and Kmart Corporation (``Kmart'') of 
Hoffman Estates, Illinois terminating the investigation as to Kmart 
based on settlement agreement and consent order stipulation.
    Also, on March 12, 2015, the Commission determined not to review an 
ID (Order No. 58) finding Dioniso SRL of Perugia, Italy; Shenzhen 
Foreversun Industrial Co., Ltd. (a/k/a

[[Page 42379]]

Shenzhen Foreversun Shoes Co., Ltd.) (``Foreversun'') of Shenzhen, 
China; and Fujian Xinya I&E Trading Co. Ltd. of Jinjiang, China in 
default. Similarly, on June 2, 2015, the Commission determined not to 
review an ID (Order No. 106) finding Zhejiang Ouhai International Trade 
Co. Ltd. and Wenzhou Cereals Oils & Foodstuffs Foreign Trade Co. Ltd., 
both of Wenzhou, China, in default. Further, on March 25, 2015, the 
Commission determined not to review an ID (Order No. 68) granting the 
motion of Orange Clubwear, Inc. of Westminster, California to terminate 
the investigation as to itself based on a consent order stipulation. On 
May 12, 2015, the Commission determined not to review an ID terminating 
the investigation as to Edamame Kids, Inc. of Alberta, Canada for good 
cause and without prejudice.
    The ALJ issued his final ID on November 17, 2015, finding a 
violation of section 337 as to certain accused products of each active 
respondent and as to all accused products of each defaulting 
respondent. Specifically, the ALJ found that the '753 trademark is not 
invalid and that certain accused products of each active respondent, 
and all accused products of each defaulting respondent, infringe the 
'753 trademark. The ALJ also found that: (1) Converse satisfied both 
the economic and technical prongs of the domestic industry requirement 
with respect to all asserted trademarks; (2) certain accused products 
of defaulting respondent Foreversun infringe both the '103 and '960 
trademarks; and (3) a violation of section 337 with respect to the '103 
and '960 trademarks by Foreversun. The ALJ also found no dilution of 
the '753 trademark. The ALJ also issued his recommendation on remedy 
and bonding during the period of Presidential review. He recommended a 
general exclusion order directed to footwear products that infringe the 
asserted trademarks, and recommended cease and desist orders directed 
against each active, remaining respondent found to infringe. On 
December 4, 2015, complainant, respondents, and the Commission 
investigative attorney (``IA'') each filed a timely petition for review 
of the final ID. On December 14, 2015, each of these parties filed 
responses to the other petitions for review.
    On February 3, 2016, the Commission issued notice of its 
determination to review: (1) The ID's finding of no invalidity of the 
'753 trademark; (2) the ID's findings regarding infringement of the 
'753 trademark; (3) the ID's finding of invalidity of the common law 
rights asserted in the design depicted in the '753 trademark; and (4) 
the ID's finding of no violation of section 337 with respect to the 
common law rights asserted in the designs depicted in the '103 and '960 
trademarks. The Commission also determined not to review the remainder 
of the final ID. The determinations made in the ALJ's final ID that 
were not reviewed became final determinations of the Commission by 
operation of rule. See 19 CFR 210.43(h)(2). The Commission also 
requested the parties to respond to certain questions concerning the 
issues under review and requested written submissions on the issues of 
remedy, the public interest, and bonding from the parties and 
interested non-parties. 81 FR 6886-89 (Feb. 9, 2016).
    On February 17 and 24, 2016, respectively, complainant, 
respondents, and the IA each filed a brief and a reply brief on all 
issues for which the Commission requested written submissions. 
Respondents' reply brief included a request for a Commission hearing to 
present oral argument under Commission rule 210.45(a). On February 29 
and March 3, 2016, respectively, both Converse and the IA each filed a 
response to respondents' request, with each accompanied by a motion for 
leave to file a sur-reply to the request for oral argument. On March 1, 
2016, respondents filed a motion for leave to submit a sur-reply to 
their request for oral argument. The Commission has determined to grant 
all motions for leave to file sur-replies submitted by the parties, and 
to deny respondents' request for a Commission hearing to present oral 
argument.
    Having reviewed the record in this investigation, including the 
ALJ's final ID and the parties' written submissions, the Commission has 
determined to affirm-in-part, reverse-in-part, and vacate certain 
portions of the final ID's findings under review. Specifically, the 
Commission has reversed the ALJ's finding that the '753 trademark is 
not invalid, and instead has found the trademark invalid based on lack 
of secondary meaning. The Commission has also affirmed the ALJ's 
finding that there is a likelihood of confusion with respect to the 
'753 trademark for specific accused footwear products if the trademark 
was not invalid. The Commission has also affirmed the ALJ's finding 
that there is no likelihood of confusion with respect to the '753 
trademark for specific accused footwear products regardless of 
invalidity. Further, the Commission has affirmed the ALJ's finding that 
the asserted common law rights in the '753 trademark are invalid. 
Accordingly, the Commission has determined that there is no violation 
of section 337 with respect to the '753 trademark. The Commission has 
vacated the ALJ's finding that the asserted common law rights in the 
designs depicted in the '103 and '960 trademarks are invalid. The 
Commission has determined that this finding with respect to these 
common law rights is moot in view of the Commission's finding of a 
violation with respect to the federally-registered rights in the '103 
and '960 trademarks since the scope of the common law and federally-
registered rights in these trademarks is co-extensive. See Comm'n 
Notice (Feb. 3, 2016); ID at 107-08, 121-26, 128-29, 131-32.
    Having found a violation of section 337 as to the '103 and '960 
federally-registered trademarks, the Commission has made its 
determination on the issues of remedy, the public interest, and 
bonding. The Commission has determined that the appropriate form of 
relief is a general exclusion order prohibiting the unlicensed entry of 
footwear products that infringe the '103 or '960 trademarks.
    The Commission further determined that the public interest factors 
enumerated in section 337(d)(1) (19 U.S.C. 1337(d)(1)) do not preclude 
issuance of the general exclusion order. Finally, the Commission 
determined that a bond of 100 percent of the entered value (per pair) 
of the covered products is required to permit temporary importation 
during the period of Presidential review (19 U.S.C. 1337(j)). The 
Commission has also issued an opinion explaining the basis for the 
Commission's action. The Commission's order and opinion were delivered 
to the President and to the United States Trade Representative on the 
day of their issuance. The investigation is terminated.
    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 part 210 of the Commission's Rules of Practice and Procedure, 19 CFR 
part 210.

    By order of the Commission.

    Dated: June 23, 2016.
Lisa R. Barton,
Secretary to the Commission.
[FR Doc. 2016-15339 Filed 6-28-16; 8:45 am]
 BILLING CODE 7020-02-P