Certain Footwear Products; Commission Determination To Affirm in Part and Reverse in Part a Remand Initial Determination; Issuance of a General Exclusion Order and Cease and Desist Orders; Termination of the Investigation, 57248-57249 [2020-20278]
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Federal Register / Vol. 85, No. 179 / Tuesday, September 15, 2020 / Notices
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[FR Doc. 2020–20249 Filed 9–14–20; 8:45 am]
BILLING CODE 4332–90–P
INTERNATIONAL TRADE
COMMISSION
[Investigation No. 337–TA–936 (Remand)]
Certain Footwear Products;
Commission Determination To Affirm
in Part and Reverse in Part a Remand
Initial Determination; Issuance of a
General Exclusion Order and Cease
and Desist Orders; 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 affirm in
part and reverse in part a remand initial
determination (‘‘RID’’) of the presiding
administrative law judge (‘‘ALJ’’) in the
above-captioned investigation. The
Commission has issued a general
exclusion order (‘‘GEO’’) directed to
footwear products that infringe U.S.
Trademark Registration No. 4,398,753
(‘‘the ’753 trademark’’), and cease and
desist orders (‘‘CDOs’’) directed to two
respondents found in default. The
investigation is terminated in its
entirety.
FOR FURTHER INFORMATION CONTACT:
Cathy Chen, Office of the General
Counsel, U.S. International Trade
Commission, 500 E Street SW,
Washington, DC 20436, telephone 202–
205–2392. Copies of non-confidential
documents filed in connection with this
investigation may be viewed on the
Commission’s electronic docket (EDIS)
at https://edis.usitc.gov. For help
accessing EDIS, please email
EDIS3Help@usitc.gov. General
information concerning the Commission
may also be obtained by accessing its
internet server at https://www.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
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SUMMARY:
VerDate Sep<11>2014
16:57 Sep 14, 2020
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on November 17, 2014, based on a
complaint filed on behalf of Converse
Inc. (‘‘Converse’’ or ‘‘Complainant’’) of
North Andover, Massachusetts. 79 FR
68482–83 (Nov. 17, 2014). The
complaint alleges, inter alia, violations
of section 337 of the Tariff Act of 1930,
as amended, 19 U.S.C. 1337, based upon
the importation into the United States,
the sale for importation, and the sale
within the United States after
importation of certain footwear products
by reason of infringement of U.S.
Trademark Registration Nos. 3,258,103
(‘‘the ’103 trademark’’) and 1,588,960
(‘‘the ’960 trademark’’), and the ’753
trademark, registered on September 10,
2013, and the common law trademark
rights for the same mark (the ‘‘CMT’’).
See id. The Commission’s notice of
investigation names numerous
respondents including Skechers U.S.A.,
Inc. (‘‘Skechers’’) of Manhattan Beach,
California, and Highline United LLC d/
b/a Ash Footwear USA (‘‘Highline’’),
now of Hyde Park, Massachusetts. Id.
New Balance Athletic Shoe, Inc. (‘‘New
Balance’’) of Boston, Massachusetts, was
subsequently added to the investigation
as a respondent-intervenor. 80 FR 9748
(Feb. 24, 2015). Only Skechers,
Highline, and New Balance remain
active in the investigation (collectively,
the ‘‘Active Respondents’’). The
following five respondents were found
in default: Dioniso SRL (‘‘Dioniso’’) of
Perugia, Italy; Shenzhen Foreversun
Industrial Co., Ltd. (a/k/a Shenzhen
Foreversun Shoes Co., Ltd.)
(‘‘Foreversun’’) of Shenzhen, China;
Fujian Xinya I&E Trading Co. Ltd. of
Jinjiang, China; Zhejiang Ouhai
International Trade Co. Ltd. (‘‘Ouhai’’)
of Wenzhou, China; and Wenzhou
Cereals Oils & Foodstuffs Foreign Trade
Co. Ltd. of Wenzhou, China
(collectively, the ‘‘Defaulting
Respondents’’). Every other respondent
was terminated from the investigation or
settled with Converse. The Office of
Unfair Import Investigations (‘‘OUII’’) is
also a party to the investigation. 79 FR
at 68483.
On June 23, 2016, the Commission
found a violation of section 337 with
respect to the ’103 trademark and the
’960 trademark and issued a GEO
directed against infringing footwear
products. 81 FR 42377–79 (June 29,
2016). The Commission found no
violation of section 337 with respect to
the ’753 trademark because it
determined the ’753 trademark and the
common law trademark rights in the
CMT were invalid based on a lack of
secondary meaning. Id. at 42379.
Thereafter, Converse appealed the
Commission’s finding of no violation of
section 337 with respect to the ’753
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Frm 00068
Fmt 4703
Sfmt 4703
trademark and its alleged common law
trademark rights in the CMT. The
Federal Circuit vacated the
Commission’s finding and remanded the
investigation to the Commission in
Converse, Inc. v. International Trade
Commission, 909 F.3d 1110 (Fed. Cir.
2018). On April 9, 2019, the
Commission, in turn, remanded the
matter to the ALJ who adjudicated the
original investigation to make findings
and issue an RID with respect to the
CMT in accordance with the Federal
Circuit decision.
On July 31, 2019, Converse, the
Active Respondents, and OUII each
filed an initial brief regarding the issues
on remand. On August 9, 2019,
Converse and the Active Respondents
each filed a reply brief.
On October 9, 2019, the ALJ issued
his RID finding no violation of section
337 by the Active Respondents.
Specifically, the RID found that
Converse had not established secondary
meaning of the CMT prior to each
Active Respondents’ alleged first use
and, therefore, Converse possessed no
valid common law trademark rights in
the CMT. The RID also found that the
Active Respondents’ accused products
do not infringe even if the CMT were
found to have acquired secondary
meaning, except for one Skechers
product found to infringe. The RID
further found the Defaulting
Respondents’ accused products infringe
the ’753 trademark.
On October 22, 2019, Converse, the
Active Respondents, and OUII each
filed a petition for review of the RID. On
October 30, 2019, each of these parties
filed responses to the other petitions for
review.
On February 7, 2020, the Commission
determined to review the RID in part. 85
FR 8322 (Feb. 13, 2020). Specifically,
the Commission determined to review
the RID’s infringement, validity, and
injury analyses with respect to the
common law trademark rights in the
CMT and the RID’s validity and
infringement analyses with respect to
the ’753 trademark. Id. The Commission
also requested additional briefing from
the parties on the issues under review
and on the issues of remedy, the public
interest, and bonding. Id. at 8322–23.
Converse, the Active Respondents, and
OUII filed timely initial and reply
written submissions.
Having reviewed the record in this
investigation, including the RID and the
parties’ written submissions, the
Commission has determined to affirm in
part and reverse in part the RID’s
findings under review. Specifically, the
Commission reverses the RID’s finding
that the CMT had not acquired
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Federal Register / Vol. 85, No. 179 / Tuesday, September 15, 2020 / Notices
secondary meaning prior to each Active
Respondents’ alleged first use of the
mark. The Commission has determined
that there has been no violation by the
Active Respondents because, although
Converse has established that its CMT
had acquired secondary meaning prior
to each of those Respondents’ alleged
first uses of the mark (which predate
registration of the ’753 trademark),
Converse has failed to show either a
likelihood of confusion or injury to its
domestic industry, or both, with respect
to those Respondents’ accused products.
The Commission has also determined
that it may assess the validity of the ’753
trademark and affirms with
modifications the RID’s finding that the
’753 trademark has not been proven
invalid. The Commission further
determines that Converse has proven a
violation of section 337 by substantial,
reliable, and probative evidence with
respect to Defaulting Respondents
Foreversun and Dioniso (whose
infringements postdate registration of
the ’753 trademark), but not with
respect to Defaulting Respondents
Xinya, Wenzhou, and Ouhai.
Accordingly, the Commission has
determined that there is a violation of
section 337 with respect to the ’753
trademark.
Having found a violation of section
337 as to the ’753 trademark, the
Commission has determined that the
appropriate form of relief is: (1) A GEO
prohibiting the unlicensed entry of
footwear products that infringe the ’753
trademark; and (2) CDOs prohibiting
Defaulting Respondents Dioniso and
Foreversun from further importing,
selling, and distributing infringing
products in the United States. The
Commission further determined that the
public interest factors enumerated in
section 337(d)(1) and (f)(1) do not
preclude issuance of the remedial
orders. Finally, the Commission
determined that a bond in the amount
of 100 percent of the entered value (per
pair) of the infringing 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
orders and opinion were delivered to
the President and to the United States
Trade Representative on the day of their
issuance. The investigation is hereby
terminated.
While temporary remote operating
procedures are in place in response to
COVID–19, the Office of the Secretary is
not able to serve parties that have not
retained counsel or otherwise provided
a point of contact for electronic service.
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16:57 Sep 14, 2020
Jkt 250001
Accordingly, pursuant to Commission
Rules 201.16(a) and 210.7(a)(1) (19 CFR
201.16(a), 210.7(a)(1)), the Commission
orders that the Complainant complete
service for any party without a method
of electronic service noted on the
attached Certificate of Service and shall
file proof of service on the Electronic
Document Information System (EDIS).
The Commission vote for this
determination took place on September
9, 2020.
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.
Issued: September 9, 2020.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2020–20278 Filed 9–14–20; 8:45 am]
BILLING CODE 7020–02–P
INTERNATIONAL TRADE
COMMISSION
[Investigation No. 337–TA–1118]
Certain Movable Barrier Operator
Systems and Components Thereof;
Notice of a Commission Determination
To Review a Remand Initial
Determination; Request for Written
Submissions
U.S. International Trade
Commission.
ACTION: Notice.
AGENCY:
Notice is hereby given that
the U.S. International Trade
Commission (the ‘‘Commission’’) has
determined to: Review a Remand Initial
Determination (‘‘Remand ID’’) finding
that the complainant The Chamberlain
Group, Inc. (‘‘CGI’’) has satisfied the
economic prong of the domestic
industry requirement with respect to
U.S. Patent No. 7,755,223 (‘‘the ’223
patent’’); and request supplemental
briefing on remedy, the public interest,
and bonding for the limited purpose of
updating submissions submitted in
March 2020.
FOR FURTHER INFORMATION CONTACT: Carl
P. Bretscher, Office of the General
Counsel, U.S. International Trade
Commission, 500 E Street SW,
Washington, DC 20436, telephone (202)
205–2382. Copies of non-confidential
documents filed in connection with this
investigation may be viewed on the
Commission’s electronic docket system
(‘‘EDIS’’) at https://edis.usitc.gov. For
help accessing EDIS, please email
SUMMARY:
PO 00000
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Fmt 4703
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57249
EDIS3Help@usitc.gov. General
information concerning the Commission
may also be obtained by accessing its
internet server at https://www.usitc.gov.
Hearing-impaired persons are advised
that information on this matter can be
obtained by contacting the
Commission’s TDD terminal, telephone
(202) 205–1810.
SUPPLEMENTARY INFORMATION: The
Commission instituted this investigation
on June 11, 2018, based on a complaint,
as supplemented, filed by CGI of Oak
Brook, Illinois. 83 FR 27020–21 (June
11, 2018). The complaint alleges a
violation of section 337 of the Tariff Act
of 1930, as amended, 19 U.S.C. 1337
(‘‘Section 337’’), in the importation, sale
for importation, or sale in the United
States after importation of certain
movable barrier operator (‘‘MBO’’)
systems that purportedly infringe one or
more of the asserted claims of the ’223
patent and U.S. Patent Nos. 8,587,404
(‘‘the ’404 patent’’) and 6,741,052 (‘‘the
’052 patent’’). Id. The Commission’s
notice of investigation named Nortek
Security & Control, LLC of Carlsbad, CA;
Nortek, Inc. of Providence, RI; and GTO
Access Systems, LLC of Tallahassee, FL
(collectively, ‘‘Nortek’’) as respondents.
Id. The Office of Unfair Import
Investigations was not named as a party
to this investigation. See id.
The Commission subsequently
terminated the investigation with
respect to certain patent claims
withdrawn by CGI. See Order No. 16
(Feb. 5, 2019), unreviewed by Comm’n
Notice (March 6, 2019); Order No. 27
(June 7, 2019), unreviewed by Comm’n
Notice (June 27, 2019); Order No. 31
(July 30, 2019), unreviewed by Comm’n
Notice (Aug. 19, 2019); Order No. 32
(Sept. 27, 2019), unreviewed by Comm’n
Notice (Oct. 17, 2019).
On June 5, 2019, the presiding
administrative law judge (‘‘ALJ’’) issued
a Markman order (Order No. 25)
construing the claim terms in dispute.
On December 12, 2018, CGI filed a
motion for summary determination that
it satisfied the economic prong of the
domestic industry requirement. Nortek
opposed the motion. On June 6, 2019,
the ALJ issued a notice advising the
parties that the motion would be
granted and a formal written order
would be issued later. Order No. 26
(June 6, 2019).
The ALJ held an evidentiary hearing
on the issues in dispute on June 10–14,
2019.
On November 25, 2019, ALJ issued
Order No. 38, finding no issue of
material fact that CGI’s investments in
labor and capital relating to its domestic
industry products were ‘‘significant’’
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]]>Agencies
[Federal Register Volume 85, Number 179 (Tuesday, September 15, 2020)]
[Notices]
[Pages 57248-57249]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-20278]
=======================================================================
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INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-936 (Remand)]
Certain Footwear Products; Commission Determination To Affirm in
Part and Reverse in Part a Remand Initial Determination; Issuance of a
General Exclusion Order and Cease and Desist Orders; 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 and reverse in part a
remand initial determination (``RID'') of the presiding administrative
law judge (``ALJ'') in the above-captioned investigation. The
Commission has issued a general exclusion order (``GEO'') directed to
footwear products that infringe U.S. Trademark Registration No.
4,398,753 (``the '753 trademark''), and cease and desist orders
(``CDOs'') directed to two respondents found in default. The
investigation is terminated in its entirety.
FOR FURTHER INFORMATION CONTACT: Cathy Chen, Office of the General
Counsel, U.S. International Trade Commission, 500 E Street SW,
Washington, DC 20436, telephone 202-205-2392. Copies of non-
confidential documents filed in connection with this investigation may
be viewed on the Commission's electronic docket (EDIS) at https://edis.usitc.gov. For help accessing EDIS, please email
[email protected]. General information concerning the Commission may
also be obtained by accessing its internet server at https://www.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. (``Converse'' or ``Complainant'') of North Andover, Massachusetts.
79 FR 68482-83 (Nov. 17, 2014). The complaint alleges, inter alia,
violations of section 337 of the Tariff Act of 1930, as amended, 19
U.S.C. 1337, based upon the importation into the United States, the
sale for importation, and the sale within the United States after
importation of certain footwear products by reason of infringement of
U.S. Trademark Registration Nos. 3,258,103 (``the '103 trademark'') and
1,588,960 (``the '960 trademark''), and the '753 trademark, registered
on September 10, 2013, and the common law trademark rights for the same
mark (the ``CMT''). See id. The Commission's notice of investigation
names numerous respondents including Skechers U.S.A., Inc.
(``Skechers'') of Manhattan Beach, California, and Highline United LLC
d/b/a Ash Footwear USA (``Highline''), now of Hyde Park, Massachusetts.
Id. New Balance Athletic Shoe, Inc. (``New Balance'') of Boston,
Massachusetts, was subsequently added to the investigation as a
respondent-intervenor. 80 FR 9748 (Feb. 24, 2015). Only Skechers,
Highline, and New Balance remain active in the investigation
(collectively, the ``Active Respondents''). The following five
respondents were found in default: Dioniso SRL (``Dioniso'') of
Perugia, Italy; Shenzhen Foreversun Industrial Co., Ltd. (a/k/a
Shenzhen Foreversun Shoes Co., Ltd.) (``Foreversun'') of Shenzhen,
China; Fujian Xinya I&E Trading Co. Ltd. of Jinjiang, China; Zhejiang
Ouhai International Trade Co. Ltd. (``Ouhai'') of Wenzhou, China; and
Wenzhou Cereals Oils & Foodstuffs Foreign Trade Co. Ltd. of Wenzhou,
China (collectively, the ``Defaulting Respondents''). Every other
respondent was terminated from the investigation or settled with
Converse. The Office of Unfair Import Investigations (``OUII'') is also
a party to the investigation. 79 FR at 68483.
On June 23, 2016, the Commission found a violation of section 337
with respect to the '103 trademark and the '960 trademark and issued a
GEO directed against infringing footwear products. 81 FR 42377-79 (June
29, 2016). The Commission found no violation of section 337 with
respect to the '753 trademark because it determined the '753 trademark
and the common law trademark rights in the CMT were invalid based on a
lack of secondary meaning. Id. at 42379.
Thereafter, Converse appealed the Commission's finding of no
violation of section 337 with respect to the '753 trademark and its
alleged common law trademark rights in the CMT. The Federal Circuit
vacated the Commission's finding and remanded the investigation to the
Commission in Converse, Inc. v. International Trade Commission, 909
F.3d 1110 (Fed. Cir. 2018). On April 9, 2019, the Commission, in turn,
remanded the matter to the ALJ who adjudicated the original
investigation to make findings and issue an RID with respect to the CMT
in accordance with the Federal Circuit decision.
On July 31, 2019, Converse, the Active Respondents, and OUII each
filed an initial brief regarding the issues on remand. On August 9,
2019, Converse and the Active Respondents each filed a reply brief.
On October 9, 2019, the ALJ issued his RID finding no violation of
section 337 by the Active Respondents. Specifically, the RID found that
Converse had not established secondary meaning of the CMT prior to each
Active Respondents' alleged first use and, therefore, Converse
possessed no valid common law trademark rights in the CMT. The RID also
found that the Active Respondents' accused products do not infringe
even if the CMT were found to have acquired secondary meaning, except
for one Skechers product found to infringe. The RID further found the
Defaulting Respondents' accused products infringe the '753 trademark.
On October 22, 2019, Converse, the Active Respondents, and OUII
each filed a petition for review of the RID. On October 30, 2019, each
of these parties filed responses to the other petitions for review.
On February 7, 2020, the Commission determined to review the RID in
part. 85 FR 8322 (Feb. 13, 2020). Specifically, the Commission
determined to review the RID's infringement, validity, and injury
analyses with respect to the common law trademark rights in the CMT and
the RID's validity and infringement analyses with respect to the '753
trademark. Id. The Commission also requested additional briefing from
the parties on the issues under review and on the issues of remedy, the
public interest, and bonding. Id. at 8322-23. Converse, the Active
Respondents, and OUII filed timely initial and reply written
submissions.
Having reviewed the record in this investigation, including the RID
and the parties' written submissions, the Commission has determined to
affirm in part and reverse in part the RID's findings under review.
Specifically, the Commission reverses the RID's finding that the CMT
had not acquired
[[Page 57249]]
secondary meaning prior to each Active Respondents' alleged first use
of the mark. The Commission has determined that there has been no
violation by the Active Respondents because, although Converse has
established that its CMT had acquired secondary meaning prior to each
of those Respondents' alleged first uses of the mark (which predate
registration of the '753 trademark), Converse has failed to show either
a likelihood of confusion or injury to its domestic industry, or both,
with respect to those Respondents' accused products. The Commission has
also determined that it may assess the validity of the '753 trademark
and affirms with modifications the RID's finding that the '753
trademark has not been proven invalid. The Commission further
determines that Converse has proven a violation of section 337 by
substantial, reliable, and probative evidence with respect to
Defaulting Respondents Foreversun and Dioniso (whose infringements
postdate registration of the '753 trademark), but not with respect to
Defaulting Respondents Xinya, Wenzhou, and Ouhai. Accordingly, the
Commission has determined that there is a violation of section 337 with
respect to the '753 trademark.
Having found a violation of section 337 as to the '753 trademark,
the Commission has determined that the appropriate form of relief is:
(1) A GEO prohibiting the unlicensed entry of footwear products that
infringe the '753 trademark; and (2) CDOs prohibiting Defaulting
Respondents Dioniso and Foreversun from further importing, selling, and
distributing infringing products in the United States. The Commission
further determined that the public interest factors enumerated in
section 337(d)(1) and (f)(1) do not preclude issuance of the remedial
orders. Finally, the Commission determined that a bond in the amount of
100 percent of the entered value (per pair) of the infringing 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 orders and opinion were delivered to the President and to
the United States Trade Representative on the day of their issuance.
The investigation is hereby terminated.
While temporary remote operating procedures are in place in
response to COVID-19, the Office of the Secretary is not able to serve
parties that have not retained counsel or otherwise provided a point of
contact for electronic service. Accordingly, pursuant to Commission
Rules 201.16(a) and 210.7(a)(1) (19 CFR 201.16(a), 210.7(a)(1)), the
Commission orders that the Complainant complete service for any party
without a method of electronic service noted on the attached
Certificate of Service and shall file proof of service on the
Electronic Document Information System (EDIS).
The Commission vote for this determination took place on September
9, 2020.
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.
Issued: September 9, 2020.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2020-20278 Filed 9-14-20; 8:45 am]
BILLING CODE 7020-02-P
