Notice2022-00281
Certain Vacuum Insulated Flasks and Components Thereof; Commission Final Determination of Violation of Section 337; Issuance of a General Exclusion Order; Termination of Investigation
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Published
January 11, 2022
Issuing agencies
International Trade Commission
Abstract
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 vacuum insulated flasks and components thereof that infringe the patents and the trademarks asserted in this investigation. The Commission has terminated this investigation.
Full Text
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<title>Federal Register, Volume 87 Issue 7 (Tuesday, January 11, 2022)</title>
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[Federal Register Volume 87, Number 7 (Tuesday, January 11, 2022)]
[Notices]
[Pages 1433-1434]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-00281]
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INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-1216]
Certain Vacuum Insulated Flasks and Components Thereof;
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 vacuum insulated flasks and
components thereof that infringe the patents and the trademarks
asserted in this investigation. The Commission has terminated this
investigation.
FOR FURTHER INFORMATION CONTACT: Michael Liberman, Esq., 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 <a href="https://edis.usitc.gov">https://edis.usitc.gov</a>. For help accessing EDIS, please email
<a href="/cdn-cgi/l/email-protection#e1a4a5a8b2d2a9848d91a19492889582cf868e97"><span class="__cf_email__" data-cfemail="9bdedfd2c8a8d3fef7ebdbeee8f2eff8b5fcf4ed">[email protected]</span></a>. General information concerning the Commission may
also be obtained by accessing its internet server at <a href="https://www.usitc.gov">https://www.usitc.gov</a>. 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: On September 3, 2020, the Commission
instituted this investigation under section 337 of the Tariff Act of
1930, as amended, 19 U.S.C. 1337 (``section 337''), based on a
complaint filed by Steel Technology LLC d/b/a Hydro Flask and Helen of
Troy Limited (collectively, ``Complainants'' or ``Hydro Flask''). 85 FR
55030-31 (Sept. 3, 2020). The complaint alleges a violation of section
337 in the importation into the United States, the sale for
importation, or the sale within the United States after importation of
certain vacuum insulated flasks and components thereof by reason of
infringement of: (1) The sole claims of U.S. Design Patent Nos.
D806,468 (``the D'468 patent''); D786,012 (``the D'012 patent''); and
D799,320 (``the D'320 patent''), respectively; and (2) U.S. Trademark
Registration Nos. 4,055,784 (``the '784 trademark''); 5,295,365 (``the
'365 trademark''); 5,176,888 (``the '888 trademark''); and 4,806,282
(``the '282 trademark''). The complaint also alleges the existence of a
domestic industry. The notice of investigation names numerous
respondents: Cangnan Kaiyisi E-Commerce Technology Co., Ltd.; Shenzhen
Huichengyuan Technology Co., Ltd.; Sinbada Impex Co., Ltd.; Yongkang
Huiyun Commodity Co., Ltd.; Wuyi Loncin Bottle Co., Ltd.; Zhejiang
Yuchuan Industry & Trade Co., Ltd.; Zhejiang Yongkang Unique Industry &
Trade Co., Ltd.; Suzhou Prime Gifts Co., Ltd.; Hangzhou Yuehua
Technology Co., Ltd.; Guangzhou Yawen Technology Co., Ltd.; Jinhua City
Ruizhi E-Commerce Co., Ltd.; Wo Ma Te (Tianjin) International Trade
Co., Ltd.; and Shenzhen City Yaxin General Machinery Co., Ltd.
(collectively, the ``Defaulting Respondents''); Eddie Bauer, LLC; PSEB
Holdings, LLC; Dunhuang Group a.k.a. DHgate; Everich and Tomic
Houseware Co., Ltd.; HydroFlaskPup; Yiwu Honglu Daily Necessities Co.,
Ltd.; and Yiwu Houju E-commerce Firm. The Commission's Office of Unfair
Import Investigations (``OUII'') is also named as a party in this
investigation. Id.
Subsequently, the Commission permitted Hydro Flask to amend the
complaint and notice of investigation to: (1) Assert the D'012 patent
against additional infringing products; (2) incorporate into the
complaint the information and additional paragraphs included in
Complainants' Supplemental Letter to the Commission of August 18, 2020;
and (3) correct the corporate names of four non-appearing respondents--
Yiwu Houju E-Commerce Firm; Jinhua City Ruizhi E-Commerce Co., Ltd.; Wo
Ma Te (Tianjin) International Trade Co., Ltd.; and
[[Page 1434]]
Shenzhen City Yaxin General Machinery Co., Ltd. Mot. at 1. Order No. 12
(Nov. 6, 2020), unreviewed by Notice (Nov. 24, 2020); see 85 FR 77239-
40 (Dec. 1, 2020). The Commission terminated the investigation as to
the following respondents based on consent orders and/or settlement
agreements: Eddie Bauer LLC and PSEB Holdings, LLC; DHgate; Everich and
Tomic Houseware Co., Ltd. Order No. 13 (Nov. 30, 2020), unreviewed by
Notice (Dec. 21, 2020); Order No. 17 (Jan. 27, 2021), unreviewed by
Notice (Feb. 16, 2021); Order No. 19 (Feb. 22, 2021), unreviewed by
Notice (Mar. 12, 2021). The Commission also terminated the
investigation with respect to the '282 trademark. Order No. 16 (Jan.
11, 2021), unreviewed by Notice (Feb. 8, 2021).
On April 14, 2021, the Commission found the Defaulting Respondents
in default. Order No. 21 (Mar. 22, 2021), unreviewed by Notice (Apr.
14, 2021). The Commission also permitted Hydro Flask to withdraw the
amended complaint as to the remaining respondents: HydroFlaskPup, Yiwu
Honglu Daily Necessities Co., Ltd., and Yiwu Houju E-commerce Firm.
Order No. 22 (Apr. 7, 2021), unreviewed by Notice (Apr. 22, 2021).
On April 8, 2021, Hydro Flask filed a motion for summary
determination of a violation of section 337 pursuant to Commission
Rules 210.16(c)(2), 210.18 (19 CFR 210.16(c)(2), 210.18) to support its
request for entry of a GEO with respect to all asserted patents and
trademarks. On August 9, 2021, OUII filed a response in support of the
motion.
On September 3, 2021, the presiding chief administrative law judge
(``CALJ'') issued an initial determination (``ID'') granting in part
Hydro Flask's motion for summary determination. The ID finds that Hydro
Flask has shown by reliable, probative, and substantial evidence that a
violation of section 337 has occurred with respect to the '784, '365,
and '888 trademarks, and the D'468, D'012, and D'320 patents, and that
the domestic industry requirement is satisfied for the infringed
trademarks and patents. The ID finds that a violation has been
established with respect to ten out of thirteen defaulting respondents:
Cangnan Kaiyisi E-Commerce Technology Co., Ltd.; Yongkang Huiyun
Commodity Co., Ltd.; Wuyi Loncin Bottle Co., Ltd.; Zhejiang Yongkang
Unique Industry & Trade Co., Ltd.; Suzhou Prime Gifts Co., Ltd.;
Hangzhou Yuehua Technology Co., Ltd.; Guangzhou Yawen Technology Co.,
Ltd.; Jinhua City Ruizhi E-Commerce Co., Ltd.; Wo Ma Te (Tianjin)
International Trade Co., Ltd.; and Shenzhen City Yaxin General
Machinery Co., Ltd. The ID also finds that no violation has been
established as to respondents Shenzhen Huichengyuan Technology Co.,
Ltd.; Sinbada Impex Co., Ltd.; and Zhejiang Yuchuan Industry & Trade
Co., Ltd.
The ID contains the CALJ's recommended determination on remedy and
bonding (``RD''). The RD recommends issuance of a GEO with respect to
the asserted patents and trademarks. The RD does not recommend issuance
of any cease and desist orders. No petitions for review were filed.
The Commission determined to review the subject ID in part. See 86
FR 59424-26 (Oct. 27, 2021). Specifically, the Commission determined to
review the ID's finding that Hydro Flask has satisfied the economic
prong of the domestic industry requirement under section 337(a)(3)(A).
Id.; see ID at 89-92. On review, the Commission affirmed the ID's
finding that Hydro Flask has established a domestic industry under
section 337(a)(3)(A). Id. The Commission also requested written
submissions on remedy, the public interest, and bonding. Id.
On November 4, 2021, Complainants and OUII filed their opening
written submissions on remedy, the public interest, and bonding. On
November 12, 2021, OUII filed its responsive written submission. No
other submissions were received by the Commission.
Having reviewed the submissions filed in response to the Commission
request for briefing and the evidentiary record, the Commission has
determined that the appropriate form of relief in this investigation is
a GEO prohibiting the unlicensed importation of certain vacuum
insulated flasks and components thereof that infringe the sole claims
of the D'468, D'012, and D'320 patents and the '784, '365, and '888
trademarks.
The Commission has further determined that the public interest
factors enumerated in subsection (d)(1) (19 U.S.C. 1337(d)(1)) do not
preclude issuance of the above-referenced remedial order. Finally, the
Commission has determined that a bond in the amount of one hundred
(100) percent of the entered value 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
terminated.
The Commission's order and the record upon which it based its
determination 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 of the order.
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.
The Commission vote for this determination took place on January 5,
2022.
By order of the Commission.
Issued: January 5, 2022.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2022-00281 Filed 1-10-22; 8:45 am]
BILLING CODE 7020-02-P
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