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]

Download as PDF 57248 Federal Register / Vol. 85, No. 179 / Tuesday, September 15, 2020 / Notices An agency may not conduct or sponsor and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The authority for this action is the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). Chris Beardsley, Director, Policy and Programs. [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 jbell on DSKJLSW7X2PROD with NOTICES SUMMARY: VerDate Sep<11>2014 16:57 Sep 14, 2020 Jkt 250001 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 PO 00000 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 E:\FR\FM\15SEN1.SGM 15SEN1 jbell on DSKJLSW7X2PROD with NOTICES 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. VerDate Sep<11>2014 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 Frm 00069 Fmt 4703 Sfmt 4703 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’’ E:\FR\FM\15SEN1.SGM 15SEN1

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.

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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