81_FR_6912 81 FR 6886 - Certain Footwear Products: Commission Determination To Review-in-Part a Final Initial Determination Finding a Violation of Section 337; and To Request Written Submissions Regarding the Issues Under Review and Remedy, Bonding, and the Public Interest

81 FR 6886 - Certain Footwear Products: Commission Determination To Review-in-Part a Final Initial Determination Finding a Violation of Section 337; and To Request Written Submissions Regarding the Issues Under Review and Remedy, Bonding, and the Public Interest

INTERNATIONAL TRADE COMMISSION

Federal Register Volume 81, Issue 26 (February 9, 2016)

Page Range6886-6889
FR Document2016-02465

Notice is hereby given that the U.S. International Trade Commission has determined to review-in-part a final initial determination (``ID'') of the presiding administrative law judge (``ALJ'') finding a violation of section 337 in the above-captioned investigation. The Commission is also requesting written submissions regarding the issues under review and remedy, bonding, and the public interest.

Federal Register, Volume 81 Issue 26 (Tuesday, February 9, 2016) 
[Federal Register Volume 81, Number 26 (Tuesday, February 9, 2016)]
[Notices]
[Pages 6886-6889]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-02465]


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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-936]


Certain Footwear Products: Commission Determination To Review-in-
Part a Final Initial Determination Finding a Violation of Section 337; 
and To Request Written Submissions Regarding the Issues Under Review 
and Remedy, Bonding, and the Public Interest

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 review-in-part a final initial 
determination (``ID'') of the presiding administrative law judge 
(``ALJ'') finding a violation of section 337 in the above-captioned 
investigation. The Commission is also requesting written submissions 
regarding the issues under review and remedy, bonding, and the public 
interest.

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 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

[[Page 6887]]

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 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

[[Page 6888]]

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 certain accused products of defaulting respondent Foreversun 
infringe both the '103 and '960 trademarks. The ALJ also found no 
violation of section 337 with respect to the common law rights asserted 
in the designs depicted in the '753, '103, and '960 trademarks, and 
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 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.
    Having examined the record of this investigation including the ID, 
the parties' petitions for review, and the responses thereto, the 
Commission has determined to review-in-part the final ID. Specifically, 
the Commission has determined 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 has also determined not to 
review the remainder of the final ID.
    On review, with respect to violation, the parties are requested to 
submit briefing limited to the following issues:
    (1) Please explain whether and to what extent the statutory 
presumption of validity for a registered trademark, i.e., 15 U.S.C. 
1057(b), 1115(a), applies where the trademark owner alleges 
infringement which began prior to the date of registration. Please 
include in your discussion how the courts have applied the presumption 
with respect to shifting the burden of production and the burden of 
persuasion. Please discuss applicable legislative history, statutory 
provisions, and case law. Please provide an analysis of how the 
presumption applies to the evidence in the record with regard to 
secondary meaning.
    (2) After secondary meaning factor (7) (evidence that actual 
purchasers associate the trademark with a particular source), please 
provide an analysis of the relative importance of each factor that 
courts consider regarding whether or not a trademark has acquired 
secondary meaning.
    (3) Does secondary meaning factor (2) (exclusivity of use) require 
actual evidence of relative volume of sales, market penetration, and/or 
consumer association with the third-party's use of the relevant 
trademark for this factor to be meaningfully considered? Please provide 
an analysis of the evidence of record in your discussion of relevant 
authorities pertaining to this issue. See, e.g., Echo Travel, Inc. v. 
Travel Associates, Inc., 870 F.2d 1264, 1267 (7th Cir. 1989); Levi 
Strauss & Co. v. Genesco, Inc., 742 F.2d 1401, 1403 (Fed. Cir. 1984).
    (4) What is the appropriate time frame for considering evidence 
pertaining to secondary meaning factor (2) (exclusivity of use)? Does 
the time frame used for secondary meaning factor (3) (length of use) 
inform the appropriate time frame for factor (2)? Please discuss 
applicable case law. Please include in your discussion cases analyzing 
historic third-party use relating to the relevant consumer group.
    (5) With regard to secondary meaning factor (7) (evidence that 
actual purchasers associate the trademark with a particular source), 
please discuss how courts assess survey results with respect to the 
minimum acceptable percentage of survey participants who associate the 
relevant trademark with one source.
    (6) Regarding secondary meaning factor (4) (the degree and manner 
of sales, advertising, and promotional activities), the ALJ found that 
Converse's failure to highlight the CMT in its advertisements did not 
lessen the support of this factor weighing in favor of secondary 
meaning. ID at 53-54. Is this the correct conclusion? Can other 
attributes of the product also identify it with the Complainant (e.g., 
the Chuck Taylor star)? Does the record evidence establish the 
significance of other attributes?
    (7) Did the ID appropriately consider the strength of the '753 
trademark in analyzing infringement?
    In addressing these issues, the parties are: (1) Requested to make 
specific reference to the evidentiary record and to cite relevant 
authority, especially authority relevant to trade dress (i.e., product 
design) cases; and (2) to follow the ALJ's finding and only consider 
the results of one secondary meaning survey, i.e., Ms. Butler's ``CBSC 
only'' survey.
    In connection with the final disposition of this investigation, the 
Commission may (1) issue an order that results in the exclusion of the 
subject articles from entry into the United States, and/or (2) issue 
one or more cease and desist orders that could result in the respective 
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 Certain Devices for Connecting Computers via Telephone 
Lines, Inv. No. 337-TA-360, USITC Pub. No. 2843 (December 1994) 
(Commission Opinion).
    When 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.
    When 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 section 337(j), 19 U.S.C. 
1337(j) and the 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. 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 are requested 
to file written submissions on the issues under review that 
specifically address the Commission's questions set forth in this 
notice. The submissions should be concise and thoroughly referenced to

[[Page 6889]]

the record in this investigation. 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, and such submissions should address the 
recommended determination by the ALJ on remedy and bonding. Complainant 
and the IA are also requested to submit proposed remedial orders for 
the Commission's consideration. Complainant is also requested to: (1) 
State the HTSUS numbers under which the accused articles are imported; 
and (2) supply a list of known importers of the accused products. The 
written submissions and proposed remedial orders must be filed no later 
than close of business 14 days after the date this notice issues. Reply 
submissions must be filed no later than the close of business seven 
days later. No further submissions on these issues will be permitted 
unless otherwise ordered by the Commission.
    Persons filing written submissions must file the original document 
electronically on or before the deadlines stated above and submit eight 
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 
investigation number (``Inv. No. 337-TA-936'') in a prominent place on 
the cover page and/or the first page. (See Handbook for Electronic 
Filing Procedures, http://www.usitc.gov/secretary/fed_reg_notices/rules/handbook_on_electronic_filing.pdf). 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 of the Commission and must include 
a full statement of the reasons why the Commission should grant such 
treatment. See 19 CFR 210.6. Documents for which confidential treatment 
by the Commission is properly sought will be treated accordingly. A 
redacted non-confidential version of the document must also be filed 
simultaneously with any confidential filing. All non-confidential 
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 Part 210 of the Commission's Rules of Practice and Procedure, 19 CFR 
part 210.

    By order of the Commission.

    Issued: February 3, 2016.
Lisa R. Barton,
Secretary to the Commission.
[FR Doc. 2016-02465 Filed 2-8-16; 8:45 am]
BILLING CODE 7020-02-P

6886 Federal Register / Vol. 81, No. 26 / Tuesday, February 9, 2016 / Notices INTERNATIONAL TRADE named as respondents Raritan regarding the issues under review and COMMISSION Americas, Inc., of Somerset, New Jersey; remedy, bonding, and the public Legrand North America, of West interest. [Investigation No. 337–TA–980] Hartford, Connecticut; and Legrand SA FOR FURTHER INFORMATION CONTACT: Certain Rack Mountable Power of Limoges Cedex, France (collectively, Clint Gerdine, Esq., Office of the Distribution Units; Commission ‘‘Respondents’’). Id. at 1442. The Office General Counsel, U.S. International Decision Not To Review an Initial of Unfair Import Investigation was not Trade Commission, 500 E Street SW., Determination Terminating the named as a party to the investigation. Id. Washington, DC 20436, telephone (202) Investigation in Its Entirety Based on a On January 8, 2016, STI filed an 708–2310. Copies of non-confidential Settlement Agreement; Termination of unopposed motion to terminate the documents filed in connection with this the Investigation investigation based on a settlement investigation are or will be available for agreement. No party responded to the inspection during official business AGENCY: U.S. International Trade motion. hours (8:45 a.m. to 5:15 p.m.) in the Commission. On January 12, 2016, the ALJ issued Office of the Secretary, U.S. ACTION: Notice. the subject ID, granting the motion. The International Trade Commission, 500 E ALJ found that STI attached the Street SW., Washington, DC 20436, SUMMARY: Notice is hereby given that settlement agreement, and stated that telephone (202) 205–2000. General the U.S. International Trade there were no other agreements between information concerning the Commission Commission has determined not to STI and Respondents concerning the may also be obtained by accessing its review the presiding administrative law subject matter of the investigation. The Internet server at http://www.usitc.gov. judge’s (‘‘ALJ’’) initial determination ALJ also found that there is no The public record for this investigation (‘‘ID’’) (Order No. 1) terminating the indication that terminating the may be viewed on the Commission’s investigation in its entirety based on a investigation based on settlement would electronic docket (EDIS) at http:// settlement agreement. harm the public interest. No party edis.usitc.gov. Hearing-impaired FOR FURTHER INFORMATION CONTACT: petitioned for review of the subject ID. persons are advised that information on Robert Needham, Office of the General The Commission has determined not this matter can be obtained by Counsel, U.S. International Trade to review the subject ID. contacting the Commission’s TDD Commission, 500 E Street SW., The authority for the Commission’s terminal on (202) 205–1810. Washington, DC 20436, telephone (202) determination is contained in section SUPPLEMENTARY INFORMATION: The 708–5468. Copies of non-confidential 337 of the Tariff Act of 1930, as Commission instituted this investigation documents filed in connection with this amended (19 U.S.C. 1337), and in Part on November 17, 2014, based on a investigation are or will be available for 210 of the Commission’s Rules of complaint filed on behalf of Converse inspection during official business Practice and Procedure (19 CFR part Inc. of North Andover, Massachusetts. hours (8:45 a.m. to 5:15 p.m.) in the 210). 79 FR 68482–83. The complaint alleges Office of the Secretary, U.S. By order of the Commission. violations of section 337 of the Tariff International Trade Commission, 500 E Issued: February 3, 2016. Act of 1930, as amended, 19 U.S.C. Street SW., Washington, DC 20436, Lisa R. Barton, 1337, by reason of infringement of telephone (202) 205–2000. General certain U.S. Trademark Registration Secretary to the Commission. information concerning the Commission Nos.: 4,398,753 (‘‘the ’753 trademark’’); [FR Doc. 2016–02416 Filed 2–8–16; 8:45 am] may also be obtained by accessing its 3,258,103 (‘‘the ’103 trademark’’); and BILLING CODE 7020–02–P Internet server (http://www.usitc.gov). 1,588,960 (‘‘the ’960 trademark’’). The The public record for this investigation complaint further alleges violations of may be viewed on the Commission’s section 337 based upon unfair INTERNATIONAL TRADE electronic docket (EDIS) at http:// competition/false designation of origin, COMMISSION edis.usitc.gov. Hearing-impaired common law trademark infringement persons are advised that information on [Investigation No. 337–TA–936] and unfair competition, and trademark this matter can be obtained by dilution, the threat or effect of which is contacting the Commission’s TDD Certain Footwear Products: to destroy or substantially injure an terminal on (202) 205–1810. Commission Determination To Review- industry in the United States. The in-Part a Final Initial Determination Commission’s notice of investigation SUPPLEMENTARY INFORMATION: The Finding a Violation of Section 337; and named numerous respondents including Commission instituted this investigation To Request Written Submissions Wal-Mart Stores, Inc. of Bentonville, on January 12, 2016, based on a Regarding the Issues Under Review Arkansas; Skechers U.S.A., Inc. of complaint filed by Server Technology, and Remedy, Bonding, and the Public Manhattan Beach, California; and Inc. (‘‘STI’’), of Reno, Nevada. 81 FR Interest Highline United LLC d/b/a Ash 1441–42. The complaint alleges violations of section 337 of the Tariff AGENCY: U.S. International Trade Footwear USA of New York City, New Act of 1930, as amended, 19 U.S.C. Commission. York. The Office of Unfair Import 1337, in the importation into the United ACTION: Notice. Investigations (‘‘OUII’’) is also a party to States, the sale for importation, and the the investigation. Id. New Balance sale within the United States after SUMMARY: Notice is hereby given that Athletic Shoe, Inc. (‘‘New Balance’’) of mstockstill on DSK4VPTVN1PROD with NOTICES importation of certain rack mountable the U.S. International Trade Boston, Massachusetts was power distribution units through the Commission has determined to review- subsequently added as a respondent- infringement of certain claims of U.S. in-part a final initial determination intervenor. See Order No. 36 Patent Nos. 7,162,521; 7,400,493; (‘‘ID’’) of the presiding administrative (unreviewed, Comm’n Notice Feb. 19, 7,414,329; 7,447,002; 7,567,430; law judge (‘‘ALJ’’) finding a violation of 2015). Only these four respondents 7,706,134; 8,541,907; 8,601,291; and section 337 in the above-captioned remain active in the investigation. All 8,694,272. Id. at 1441. The investigation. The Commission is also other respondents, as detailed below, Commission’s notice of investigation requesting written submissions have been found in default or have been VerDate Sep<11>2014 17:54 Feb 08, 2016 Jkt 238001 PO 00000 Frm 00059 Fmt 4703 Sfmt 4703 E:\FR\FM\09FEN1.SGM 09FEN1

Federal Register / Vol. 81, No. 26 / Tuesday, February 9, 2016 / Notices 6887 terminated from the investigation based not to review an ID (Order No. 67) California terminating the investigation on good cause or settlement and/or granting a joint motion of complainant as to Kitson based on settlement consent order stipulation. and The Aldo Group (‘‘Aldo’’) of agreement and consent order On February 10, 2015, the Montreal, Canada terminating the stipulation. On June 12, 2015, the Commission determined not to review investigation as to Aldo based on Commission determined not to review an ID (Order No. 32) granting a joint settlement agreement and consent order an ID (Order No. 114) granting a joint motion of complainant and Skeanie stipulation. motion of complainant and Esquire Shoes, Inc. (‘‘Skeanie’’) of New South On April 1, 2015, the Commission Footwear LLC (‘‘Esquire’’) of New York Wales, Australia terminating the determined not to review an ID (Order City, New York terminating the investigation as to Skeanie Shoes based No. 69) granting a joint motion of investigation as to Esquire based on on settlement and consent order complainant and Gina Group, LLC settlement agreement, consent order stipulation. On the same date, the (‘‘Gina Group’’) of New York City, New stipulation, and consent order. On July Commission determined not to review York terminating the investigation as to 15, 2015, the Commission determined an ID (Order No. 33) granting a joint Gina Group based on settlement not to review an ID (Order No. 128) motion of complainant and PW Shoes, agreement and consent order granting a joint motion of complainant Inc. (‘‘PW Shoes’’) of Maspeth, New stipulation. On the same date, the and Fortune Dynamic, Inc. (‘‘Fortune York terminating the investigation as to Commission determined not to review Dynamic’’) of City of Industry, PW Shoes based on settlement and an ID (Order No. 70) granting a joint California terminating the investigation motion of complainant and Tory Burch as to Fortune Dynamic based on consent order stipulation. Also on the LLC (‘‘Tory Burch’’) of New York City, settlement agreement and consent order same date, the Commission determined New York terminating the investigation stipulation. On August 12, 2015, the not to review an ID (Order No. 34) as to Tory Burch based on settlement Commission determined not to review granting a joint motion of complainant agreement and consent order an ID (Order No. 154) granting a joint and Ositos Shoes, Inc. (‘‘Ositos Shoes’’) stipulation. On April 24, 2015, the motion of complainant and CMerit USA, of South El Monte, California Commission determined not to review Inc. (‘‘CMerit’’) of Chino, California terminating the investigation as to an ID (Order No. 73) granting a joint terminating the investigation as to Ositos Shoes based on settlement motion of complainant and Brian CMerit based on settlement agreement agreement and consent order Lichtenberg, LLC (‘‘Brian Lichtenberg’’) and consent order stipulation. On stipulation. On March 4, 2015, the of Los Angeles, California terminating August 14, 2015, the Commission Commission determined not to review the investigation as to Brian Lichtenberg determined not to review an ID (Order an ID (Order No. 52) granting a joint based on settlement agreement and No. 155) granting a joint motion of motion of complainant and Ralph consent order stipulation. On the same complainant and Kmart Corporation Lauren Corporation (‘‘Ralph Lauren’’) of date, the Commission determined not to (‘‘Kmart’’) of Hoffman Estates, Illinois New York City, New York terminating review an ID (Order No. 80) granting a terminating the investigation as to the investigation as to Ralph Lauren joint motion of complainant and Fila Kmart based on settlement agreement based on settlement agreement and U.S.A., Inc. (‘‘Fila’’) of Sparks, Maryland and consent order stipulation. consent order stipulation. On March 12, terminating the investigation as to Fila Also, on March 12, 2015, the 2015, the Commission determined not based on settlement agreement and Commission determined not to review to review an ID (Order No. 55) granting consent order stipulation. On May 4, an ID (Order No. 58) finding Dioniso a joint motion of complainant and 2015, the Commission determined not SRL of Perugia, Italy; Shenzhen OPPO Original Corp. (‘‘OPPO’’) of City to review an ID (Order No. 86) granting Foreversun Industrial Co., Ltd. (a/k/a of Industry, California terminating the a joint motion of complainant and Shenzhen Foreversun Shoes Co., Ltd.) investigation as to OPPO based on Mamiye Imports LLC d/b/a Lilly of New (‘‘Foreversun’’) of Shenzhen, China; and settlement agreement and consent order York located in Brooklyn, New York Fujian Xinya I&E Trading Co. Ltd. of stipulation. On the same date, the and Shoe Shox of Seattle, Washington Jinjiang, China in default. Similarly, on Commission determined not to review (collectively, ‘‘Mamiye Imports’’) June 2, 2015, the Commission an ID (Order No. 57) granting a joint terminating the investigation as to determined not to review an ID (Order motion of complainant and H & M Mamiye Imports based on settlement No. 106) finding Zhejiang Ouhai Hennes & Mauritz LP (‘‘H & M’’) of New agreement and consent order International Trade Co. Ltd. and York City, New York terminating the stipulation. Wenzhou Cereals Oils & Foodstuffs investigation as to H & M based on On May 6, 2015, the Commission Foreign Trade Co. Ltd., both of settlement agreement and consent order determined not to review an ID (Order Wenzhou, China, in default. Further, on stipulation. On March 24, 2015, the No. 83) granting New Balance’s motion March 25, 2015, the Commission Commission determined not to review to terminate the investigation as to New determined not to review an ID (Order an ID (Order No. 59) granting a joint Balance’s accused CPT Hi and CPT Lo No. 68) granting the motion of Orange motion of complainant and Zulily, Inc. model sneakers based on a consent Clubwear, Inc. of Westminster, (‘‘Zulily’’) of Seattle, Washington order stipulation. On May 13, 2015, the California to terminate the investigation terminating the investigation as to Commission determined not to review as to itself based on a consent order Zulily based on settlement agreement an ID (Order No. 93) granting a joint stipulation. On May 12, 2015, the and consent order stipulation. On motion of complainant and Iconix Commission determined not to review March 30, 2015, the Commission Brand Group, Inc. (‘‘Iconix’’) of New an ID terminating the investigation as to mstockstill on DSK4VPTVN1PROD with NOTICES determined not to review an ID (Order York City, New York terminating the Edamame Kids, Inc. of Alberta, Canada No. 65) granting a joint motion of investigation as to Iconix based on for good cause and without prejudice. complainant and Nowhere Co. Ltd. d/b/ settlement agreement and consent order The ALJ issued his final ID on a Bape (‘‘Nowhere’’) of Tokyo, Japan stipulation. On June 4, 2015, the November 17, 2015, finding a violation terminating the investigation as to Commission determined not to review of section 337 as to certain accused Nowhere based on settlement agreement an ID (Order No. 108) granting a joint products of each active respondent and and consent order stipulation. On the motion of complainant and A-List, Inc. as to all accused products of each same date, the Commission determined d/b/a Kitson (‘‘Kitson’’) of Los Angeles, defaulting respondent. Specifically, the VerDate Sep<11>2014 17:54 Feb 08, 2016 Jkt 238001 PO 00000 Frm 00060 Fmt 4703 Sfmt 4703 E:\FR\FM\09FEN1.SGM 09FEN1

6888 Federal Register / Vol. 81, No. 26 / Tuesday, February 9, 2016 / Notices ALJ found that the ’753 trademark is not (2) After secondary meaning factor (7) In connection with the final invalid and that certain accused (evidence that actual purchasers disposition of this investigation, the products of each active respondent, and associate the trademark with a Commission may (1) issue an order that all accused products of each defaulting particular source), please provide an results in the exclusion of the subject respondent, infringe the ’753 trademark. analysis of the relative importance of articles from entry into the United The ALJ also found that certain accused each factor that courts consider States, and/or (2) issue one or more products of defaulting respondent regarding whether or not a trademark cease and desist orders that could result Foreversun infringe both the ’103 and has acquired secondary meaning. in the respective respondent being ’960 trademarks. The ALJ also found no (3) Does secondary meaning factor (2) required to cease and desist from violation of section 337 with respect to (exclusivity of use) require actual engaging in unfair acts in the the common law rights asserted in the evidence of relative volume of sales, importation and sale of such articles. designs depicted in the ’753, ’103, and market penetration, and/or consumer Accordingly, the Commission is ’960 trademarks, and found no dilution association with the third-party’s use of interested in receiving written of the ’753 trademark. The ALJ also the relevant trademark for this factor to submissions that address the form of issued his recommendation on remedy be meaningfully considered? Please remedy, if any, that should be ordered. and bonding during the period of provide an analysis of the evidence of If a party seeks exclusion of an article Presidential review. He recommended a record in your discussion of relevant from entry into the United States for general exclusion order directed to authorities pertaining to this issue. See, purposes other than entry for footwear products that infringe the e.g., Echo Travel, Inc. v. Travel consumption, the party should so asserted trademarks, and recommended Associates, Inc., 870 F.2d 1264, 1267 indicate and provide information cease and desist orders directed against (7th Cir. 1989); Levi Strauss & Co. v. establishing that activities involving each respondent found to infringe. On Genesco, Inc., 742 F.2d 1401, 1403 (Fed. other types of entry either are adversely December 4, 2015, complainant, Cir. 1984). affecting it or likely to do so. For respondents, and the Commission (4) What is the appropriate time frame background, see Certain Devices for investigative attorney (‘‘IA’’) each filed for considering evidence pertaining to Connecting Computers via Telephone a timely petition for review of the final secondary meaning factor (2) Lines, Inv. No. 337–TA–360, USITC ID. On December 14, 2015, each of these (exclusivity of use)? Does the time frame Pub. No. 2843 (December 1994) parties filed responses to the other used for secondary meaning factor (3) (Commission Opinion). petitions for review. (length of use) inform the appropriate When the Commission contemplates time frame for factor (2)? Please discuss some form of remedy, it must consider Having examined the record of this applicable case law. Please include in the effects of that remedy upon the investigation including the ID, the your discussion cases analyzing historic public interest. The factors the parties’ petitions for review, and the third-party use relating to the relevant Commission will consider include the responses thereto, the Commission has consumer group. effect that an exclusion order and/or determined to review-in-part the final (5) With regard to secondary meaning cease and desist orders would have on ID. Specifically, the Commission has factor (7) (evidence that actual (1) the public health and welfare, (2) determined to review: (1) The ID’s purchasers associate the trademark with competitive conditions in the U.S. finding of no invalidity of the ’753 a particular source), please discuss how economy, (3) U.S. production of articles trademark; (2) the ID’s findings courts assess survey results with respect that are like or directly competitive with regarding infringement of the ’753 to the minimum acceptable percentage those that are subject to investigation, trademark; (3) the ID’s finding of of survey participants who associate the and (4) U.S. consumers. The invalidity of the common law rights relevant trademark with one source. Commission is therefore interested in asserted in the design depicted in the (6) Regarding secondary meaning receiving written submissions that ’753 trademark; and (4) the ID’s finding factor (4) (the degree and manner of address the aforementioned public of no violation of section 337 with sales, advertising, and promotional interest factors in the context of this respect to the common law rights activities), the ALJ found that investigation. asserted in the designs depicted in the Converse’s failure to highlight the CMT When the Commission orders some ’103 and ’960 trademarks. The in its advertisements did not lessen the form of remedy, the U.S. Trade Commission has also determined not to support of this factor weighing in favor Representative, as delegated by the review the remainder of the final ID. of secondary meaning. ID at 53–54. Is President, has 60 days to approve or On review, with respect to violation, this the correct conclusion? Can other disapprove the Commission’s action. the parties are requested to submit attributes of the product also identify it See section 337(j), 19 U.S.C. 1337(j) and briefing limited to the following issues: with the Complainant (e.g., the Chuck the Presidential Memorandum of July (1) Please explain whether and to Taylor star)? Does the record evidence 21, 2005. 70 FR 43251 (July 26, 2005). what extent the statutory presumption establish the significance of other During this period, the subject articles of validity for a registered trademark, attributes? would be entitled to enter the United i.e., 15 U.S.C. 1057(b), 1115(a), applies (7) Did the ID appropriately consider States under bond, in an amount where the trademark owner alleges the strength of the ’753 trademark in determined by the Commission. The infringement which began prior to the analyzing infringement? Commission is therefore interested in date of registration. Please include in In addressing these issues, the parties receiving submissions concerning the your discussion how the courts have are: (1) Requested to make specific amount of the bond that should be mstockstill on DSK4VPTVN1PROD with NOTICES applied the presumption with respect to reference to the evidentiary record and imposed if a remedy is ordered. shifting the burden of production and to cite relevant authority, especially Written Submissions: The parties to the burden of persuasion. Please discuss authority relevant to trade dress (i.e., the investigation are requested to file applicable legislative history, statutory product design) cases; and (2) to follow written submissions on the issues under provisions, and case law. Please provide the ALJ’s finding and only consider the review that specifically address the an analysis of how the presumption results of one secondary meaning Commission’s questions set forth in this applies to the evidence in the record survey, i.e., Ms. Butler’s ‘‘CBSC only’’ notice. The submissions should be with regard to secondary meaning. survey. concise and thoroughly referenced to VerDate Sep<11>2014 17:54 Feb 08, 2016 Jkt 238001 PO 00000 Frm 00061 Fmt 4703 Sfmt 4703 E:\FR\FM\09FEN1.SGM 09FEN1

Federal Register / Vol. 81, No. 26 / Tuesday, February 9, 2016 / Notices 6889 the record in this investigation. Parties Practice and Procedure, 19 CFR part consent decree upon written request to the investigation, interested 210. and payment of reproduction costs. government agencies, and any other By order of the Commission. Please mail your request and payment interested parties are encouraged to file Issued: February 3, 2016. to: Consent Decree Library, U.S. DOJ— written submissions on the issues of ENRD, P.O. Box 7611, Washington, DC Lisa R. Barton, remedy, the public interest, and 20044–7611. bonding, and such submissions should Secretary to the Commission. Please enclose a check or money order address the recommended [FR Doc. 2016–02465 Filed 2–8–16; 8:45 am] for $11.50 (25 cents per page determination by the ALJ on remedy BILLING CODE 7020–02–P reproduction cost) payable to the United and bonding. Complainant and the IA States Treasury. are also requested to submit proposed DEPARTMENT OF JUSTICE Robert Brook, remedial orders for the Commission’s consideration. Complainant is also Assistant Section Chief, Environmental Notice of Lodging of Proposed Enforcement Section, Environment and requested to: (1) State the HTSUS Natural Resources Division. numbers under which the accused Consent Decree Under the Clean Water Act [FR Doc. 2016–02474 Filed 2–8–16; 8:45 am] articles are imported; and (2) supply a BILLING CODE 4410–15–P list of known importers of the accused On February 2, 2016, the Department products. The written submissions and of Justice lodged a proposed consent proposed remedial orders must be filed decree with the United States District DEPARTMENT OF JUSTICE no later than close of business 14 days Court for the District of Utah in the after the date this notice issues. Reply lawsuit entitled United States and State [OMB Number 1117–0033] submissions must be filed no later than of Utah v. Salt Lake County, Utah, Civil the close of business seven days later. Action No. 2:16cv87BCW. Agency Information Collection No further submissions on these issues The United States filed this lawsuit Activities; Proposed eCollection, will be permitted unless otherwise under the Clean Water Act. The eComments Requested; Extension ordered by the Commission. complaint seeks injunctive relief and Without Change of a Previously Persons filing written submissions civil penalties. The complaint alleges Approved Collection; Report of Mail must file the original document that the defendant violated the Clean Order Transactions electronically on or before the deadlines Water Act by failing to comply with the stated above and submit eight true paper AGENCY: Drug Enforcement terms and conditions of a National Administration, Department of Justice. copies to the Office of the Secretary by Pollutant Discharge Elimination System noon the next day pursuant to section ACTION: 60-Day Notice. (‘‘NPDES’’) permit, issued to the County 210.4(f) of the Commission’s Rules of for discharges of storm water from the SUMMARY: The Department of Justice Practice and Procedure (19 CFR County’s municipal separate storm (DOJ), Drug Enforcement 210.4(f)). Submissions should refer to sewer system (‘‘MS4’’). The consent Administration (DEA), will be the investigation number (‘‘Inv. No. decree requires the defendant to submitting the following information 337–TA–936’’) in a prominent place on perform injunctive relief to bring it into collection request to the Office of the cover page and/or the first page. (See compliance with its NPDES permit and Management and Budget (OMB) for Handbook for Electronic Filing to pay a $280,000 civil penalty. review and approval in accordance with Procedures, http://www.usitc.gov/ The publication of this notice opens the Paperwork Reduction Act of 1995. secretary/fed_reg_notices/rules/ a period for public comment on the handbook_on_electronic_filing.pdf). DATES: Comments are encouraged and consent decree. Comments should be Persons with questions regarding filing will be accepted for 60 days until April addressed to the Assistant Attorney should contact the Secretary (202–205– 11, 2016 General, Environment and Natural 2000). Resources Division, and should refer to FOR FURTHER INFORMATION CONTACT: If Any person desiring to submit a United States and State of Utah v. Salt you have comments on the estimated document to the Commission in Lake County, Utah, D.J. Ref. No. 90–5– public burden or associated response confidence must request confidential 1–1–10984. All comments must be time, suggestions, or need a copy of the treatment. All such requests should be submitted no later than thirty (30) days proposed information collection directed to the Secretary of the after the publication date of this notice. instrument with instructions or Commission and must include a full Comments may be submitted either by additional information, please contact statement of the reasons why the email or by mail: Barbara J. Boockholdt, Office of Commission should grant such Diversion Control, Drug Enforcement treatment. See 19 CFR 210.6. Documents To submit Administration; Mailing Address: 8701 Send them to: for which confidential treatment by the comments: Morrissette Drive, Springfield, Virginia Commission is properly sought will be 22152; Telephone: (202) 598–6812. By e-mail ...... pubcomment- treated accordingly. A redacted non- SUPPLEMENTARY INFORMATION: Written ees.enrd@usdoj.gov. confidential version of the document By mail ......... Assistant Attorney General, comments and suggestions from the must also be filed simultaneously with U.S. DOJ—ENRD, P.O. public and affected agencies concerning any confidential filing. All non- Box 7611, Washington, DC the proposed collection of information confidential written submissions will be mstockstill on DSK4VPTVN1PROD with NOTICES 20044–7611. are encouraged. Your comments should available for public inspection at the address one or more of the following Office of the Secretary. During the public comment period, four points: The authority for the Commission’s the consent decree may be examined determination is contained in section and downloaded at this Justice —Evaluate whether the proposed 337 of the Tariff Act of 1930, as Department Web site: http:// collection of information is necessary amended, 19 U.S.C. 1337, and in Part www.justice.gov/enrd/consent-decrees. for the proper performance of the 210 of the Commission’s Rules of We will provide a paper copy of the functions of the agency, including VerDate Sep<11>2014 17:54 Feb 08, 2016 Jkt 238001 PO 00000 Frm 00062 Fmt 4703 Sfmt 4703 E:\FR\FM\09FEN1.SGM 09FEN1


Document Created: 2018-02-02 14:30:20
Document Modified: 2018-02-02 14:30:20
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionNotices
ActionNotice.
ContactClint 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.
FR Citation81 FR 6886 
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