[Federal Register Volume 85, Number 158 (Friday, August 14, 2020)]
[Notices]
[Pages 49678-49679]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-17782]
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INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-1169]
Certain Fish-Handling Pliers and Packaging Thereof; Notice of a
Commission Final Determination of Violation of Section 337; Issuance of
a General Exclusion Order; Termination of 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 that there is a violation of section 337 of
the Tariff Act of 1930, as amended, in the above-captioned
investigation. The Commission has issued a general exclusion order
(``GEO'') barring entry of certain fish-handling pliers and packaging
thereof that infringe the two trademarks asserted in this
investigation. The investigation is terminated.
FOR FURTHER INFORMATION CONTACT: Robert Needham, Esq., Office of the
General Counsel, U.S. International Trade Commission, 500 E Street SW,
Washington, DC 20436, telephone (202) 708-5468. 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
on July 29, 2019, based on a complaint filed by complainant United
Plastic Molders, Inc. of Jackson, Mississippi (``UPM''). 84 FR 36620-21
(July 29, 2019). The complaint, as supplemented, alleges violations of
section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337, in
the importation into the United States, the sale for importation, or
the sale within the United States after importation of certain fish-
handling pliers and packaging thereof by reason of infringement of
claims 1-11 of U.S. Patent No. 6,256,923 (``the '923 patent'') and U.S.
Trademark Registration Nos. 4,980,923 (``the '923 mark'') and 5,435,944
(``the '944 mark''). Id. The complaint further alleges that a domestic
industry exists. Id. The Commission's notice of investigation named as
respondents Yixing Five Union Industry & Trade Co., Ltd. of Yixing
City, China (``Five Union''); NOEBY Fishing Tackle Co., Ltd. of Weihai,
China (``NOEBY''); Weihai iLure Fishing Tackle Co., Ltd. of Weihai,
China (``iLure''); SamsFX of Yangzhou City, China (``SamsFX''); and
Weihai Lotus Outdoor Co., Ltd. of Weihai, China (``Lotus'')
(collectively, ``Respondents''). Id. The Office of Unfair Import
Investigations (``OUII'') is participating in the investigation. Id.
All five Respondents defaulted. On December 18, 2019, the
Commission found NOEBY, iLure, Weihai Lotus, and Five Union in default
for failing to respond to the complaint and notice of investigation.
Order No. 11 (Nov. 19, 2019), not reviewed, Notice (Dec. 18, 2019).
Also on December 18, 2019, the Commission found SamsFX in default for
failing to respond to the complaint and notice of investigation. Order
No. 12 (Nov. 25, 2019), not reviewed, Notice (Dec. 18, 2019).
On December 5, 2019, UPM moved for a summary determination of
violation and for a recommendation for the issuance of a general
exclusion order (``GEO''). In its motion, UPM dropped its allegations
with respect to claims 2-6 and 8-11 of the '923 patent, but continued
to assert claims 1 and 7 of the '923 patent. On January 3, 2020, OUII
filed a motion that largely supported UPM's motion.
On April 10, 2020, the ALJ issued the subject ID, Order No. 14,
granting in part UPM's motion. Specifically, the ALJ issued a summary
of determination of violation finding that SamsFX, Lotus, and NOEBY
violated section 337 with respect to claims 1 and 7 of the '923 patent,
as well as the '923 and '944 marks; that iLure violated section 337
with respect to claims 1 and 7 of the '923 patent; and that Five Union
violated section 337 with respect to the '923 mark. The ALJ also found
that UPM failed to show that iLure violated section 337 with respect to
the '923 and '944 marks, as the only evidence of importation predates
the registration of
[[Page 49679]]
those marks. No petitions for review of the ID were filed.
On May 27, 2020, the Commission determined to review in part the ID
granting summary determination of a section 337 violation. 85 FR 33705-
07 (Jun. 2, 2020). Specifically, the Commission determined to review
the ID's finding of violation with respect to the '923 patent, the ID's
finding that UPM satisfied the economic prong of the domestic industry
requirement, and the ID's finding of violation with respect to Lotus
and Five Union.
The Commission also requested written submissions on certain
questions and the issues of remedy, the public interest, and bonding.
83 FR 51706 (Oct. 12, 2018). UPM and OUII filed initial written
submissions, and OUII also filed a reply to UPM's submission. No other
submissions were filed in response to the Commission notice.
Having reviewed the written submissions and the evidentiary record,
the Commission has determined to: (1) Vacate the ID's finding of
violation with respect to the '923 patent, as well as all other
findings related solely to the '923 patent, based on that patent's
expiration; (2) affirm the ALJ's findings on the economic prong of the
domestic industry requirement; and (3) reverse the ID's findings of
violation with respect to Five Union and Lotus based on UPM's failure
to provide substantial, reliable, and probative evidence that those
entities manufacture the accused SamsFX products. Based on the findings
in the ID as modified above, the Commission has determined that UPM has
shown a violation of section 337(a)(1)(C), 19 U.S.C. 1337(a)(1)(C), by
NOEBY and SamsFX with respect to the '923 and '944 marks. The
Commission finds that UPM failed to show a violation by the remaining
defaulted respondents.
The Commission has determined that the appropriate remedy in this
investigation is a GEO prohibiting the unlicensed importation of
certain fish-handling pliers and packaging thereof that infringe the
'923 and '944 marks. The Commission has further determined that the
public interest factors enumerated in section 337(d) (19 U.S.C.
1337(d)) do not preclude issuance of the GEO. Finally, the Commission
has determined that a bond in the amount of one hundred (100) percent
of the entered value of the imported articles that are subject to the
GEO is required to permit temporary importation of the articles in
question during the period of Presidential review (19 U.S.C. 1337(j)).
The investigation is hereby terminated in its entirety.
The Commission's order and opinion were delivered to the President
and to the United States Trade Representative on the day of their
issuance. The Commission has also notified the Secretary of the
Treasury and Customs and Border Protection of the order.
The Commission vote for these determinations took place on August
10, 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).
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(s) complete service for any
party/parties 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).
By order of the Commission.
Issued: August 10, 2020.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2020-17782 Filed 8-13-20; 8:45 am]
BILLING CODE 7020-02-P