Notice2022-07711
Certain In Vitro Fertilization Products, Components Thereof, and Products Containing the Same; Notice of Commission Final Determination To Issue a Limited Exclusion Order and a Cease and Desist Order; Termination of the Investigation
Primary source
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Published
April 11, 2022
Issuing agencies
International Trade Commission
Abstract
Notice is hereby given that the U.S. International Trade Commission has determined to issue a limited exclusion order ("LEO") barring entry of certain in vitro fertilization products, components thereof, and products containing the same, that infringe Complainant's asserted trademarks and that are imported by or on behalf of respondents FastIVF of Scottsdale, Arizona ("FastIVF") and Hermes Ezcanesi of Istanbul, Turkey (collectively, the "Defaulting Respondents"). The Commission has further determined to issue a cease and desist order ("CDO") directed to Defaulting Respondent FastIVF. The investigation is terminated.
Full Text
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<title>Federal Register, Volume 87 Issue 69 (Monday, April 11, 2022)</title>
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[Federal Register Volume 87, Number 69 (Monday, April 11, 2022)]
[Notices]
[Pages 21135-21136]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-07711]
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INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-1196]
Certain In Vitro Fertilization Products, Components Thereof, and
Products Containing the Same; Notice of Commission Final Determination
To Issue a Limited Exclusion Order and a Cease and Desist Order;
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 issue a limited exclusion order (``LEO'')
barring entry of certain in vitro fertilization products, components
thereof, and products containing the same, that infringe Complainant's
asserted trademarks and that are imported by or on behalf of
respondents FastIVF of Scottsdale, Arizona (``FastIVF'') and Hermes
Ezcanesi of Istanbul, Turkey (collectively, the ``Defaulting
Respondents''). The Commission has further determined to issue a cease
and desist order (``CDO'') directed to Defaulting Respondent FastIVF.
The investigation is terminated.
FOR FURTHER INFORMATION CONTACT: Houda Morad, Office of the General
Counsel, U.S. International Trade Commission, 500 E Street SW,
Washington, DC 20436, telephone (202) 708-4716. 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#4e0b0a071d7d062b223e0e3b3d273a2d60292138"><span class="__cf_email__" data-cfemail="6326272a30502b060f132316100a17004d040c15">[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 April 16, 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 complainant EMD Serono, Inc. of Rockland, Massachusetts
(``Complainant''). See 85 FR 21267-68 (Apr. 16, 2020). The complaint,
as amended and supplemented, alleges a violation of section 337 based
on the importation into the United States, the sale for importation,
and the sale within the United States after importation of certain in
vitro fertilization products, components thereof, and products
containing same (collectively, ``Gray Market IVF Products''), by reason
of infringement of U.S. Trademark Registration Nos. 4,689,651;
1,772,761; 3,777,170; 3,389,332; 3,816,320; 1,972,079; 3,604,207; and
3,185,427 (collectively, ``the Asserted Trademarks''); unfair methods
of competition and unfair acts in the importation and sale of Gray
Market IVF Products by reason of false designation of source; and
unfair methods of competition and unfair acts in the importation and
sale of the Gray Market IVF Products by reason of false advertising.
See id. In addition to the Defaulting Respondents, the notice of
investigation names General Plastik Drug Stores (``Unserved
Respondent'') of Istanbul Suadiye, Turkey as a respondent in this
investigation. See id. The Office of Unfair Import Investigations
(``OUII'') is also a party to the investigation. See id.
On September 1, 2020, the Chief ALJ issued an initial determination
(``ID'') finding each of the Defaulting Respondents in default. See
Order No. 6 (Sept. 1, 2020), unreviewed by Comm'n Notice (Sept. 24,
2020). On October 13, 2020, the Chief ALJ also issued an ID terminating
Unserved Respondent from the investigation based on the withdrawal of
the complaint allegations as to that respondent. See Order No. 8 (Oct.
13, 2020), unreviewed by Comm'n Notice (Oct. 26, 2020).
On April 16, 2021, the Chief ALJ issued an ID (Order No. 10)
(``SD'') granting in part Complainant's motion for summary
determination of violation of section 337 by the Defaulting Respondents
with respect to Complainant's claim under section 337(a)(1)(C)
(infringement of the Asserted Trademarks) but denied the motion with
respect to Complainant's unfair competition claims under section
337(a)(1)(A). In addition, the Chief ALJ recommended that the
Commission issue a general exclusion order (``GEO'') and set a bond at
100 percent during the period of Presidential review.
On May 18, 2021, the Commission determined to review the SD (Order
No. 10) in part. See Comm'n Notice (May 18, 2021). Specifically, the
Commission determined to review the SD's findings with respect to the
economic prong of the domestic industry requirement. See id. The
Commission determined not to review any other findings in the SD.
On October 6, 2021, the Commission determined to vacate the SD in
part. Specifically, the Commission vacated the SD's finding that
Complainant has satisfied the economic prong of the domestic industry
requirement. Consequently, the Commission also vacated the SD's finding
of a violation of section 337 and remanded the investigation to the
Chief ALJ. Because Complainant requested a GEO, the Commission found
that Complainant failed to establish a violation by ``substantial,
reliable, and probative evidence'' and that genuine issues of material
fact remained as to whether the economic prong of the domestic industry
requirement was satisfied. See Comm'n Op. at 8 n.9, 25 (Oct. 6, 2021)
(citing 19 U.S.C. 1337(g)(2)). Commissioners Karpel and Schmidtlein
dissented from the Commission's decision that Complainant had failed to
satisfy the economic prong of the domestic industry requirement and
would have found a violation of section 337 based on substantial,
reliable, and probative evidence.
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After the Commission's decision to vacate the SD, Complainant
withdrew its request for a GEO and requested an LEO against the
Defaulting Respondents and a CDO against FastIVF. On December 15, 2021,
the Chief ALJ issued an ID partially terminating the investigation as
to Complainant's unfair competition claims under section 337(a)(1)(A).
See Order No. 13 (Dec. 15, 2021), unreviewed by Comm'n Notice (Jan. 10,
2022).
On December 15, 2021, the Chief ALJ issued a remand final initial
determination (``FID'') finding a violation of section 337 based on the
infringement by the Defaulting Respondents of Complainant's Asserted
Trademarks pursuant to section 337(g)(1), 19 U.S.C. 1337(g)(1). In
addition, the Chief ALJ issued a Recommended Determination (``RD'')
recommending that the Commission issue an LEO against the infringing
articles imported by or on behalf of the Defaulting Respondents and a
CDO against FastIVF.
On January 4, 2022, Complainant filed a statement on the public
interest pursuant to Commission Rule 210.50, 19 CFR 210.50. On the same
day, Complainant filed a declaration requesting relief against the
Defaulting Respondents, namely, an LEO against the Defaulting
Respondents' infringing products and a CDO against FastIVF. No
submissions were filed in response to the Federal Register notice
requesting public interest comments. See 86 FR 72620-21 (Dec. 22,
2021).
On February 11, 2022, the Commission issued a notice determining
not to review the remand FID and therefore affirmed the remand FID's
finding of a violation of section 337 pursuant to section 337(g)(1) (19
U.S.C. 1337(g)(1)). See 87 FR 9086-88 (Feb. 17, 2022) (``the Remedy
Notice''). In default cases governed by section 337(g)(1), the
Commission ``presume[s] the facts alleged in the complaint to be
true.'' See 19 U.S.C. 1337(g)(1). The Remedy Notice also requested
briefing on remedy, the public interest, and bonding from the parties
and from any interested third party. See id.
On February 28, 2022, Complainant and OUII filed responses to the
Commission's Remedy Notice. On March 7, OUII filed a reply to
Complainant's submission.
Having examined the record of this investigation, including the
FID, the RD, and the parties' submissions in response to the Remedy
Notice, the Commission has determined that the appropriate remedy in
this investigation is: (1) An LEO prohibiting the unlicensed entry of
certain in vitro fertilization products, components thereof, and
products containing the same, that infringe Complainant's Asserted
Trademarks and that are imported by or on behalf of the Defaulting
Respondents; and (2) a CDO directed to Defaulting Respondent FastIVF.
The Commission has further determined that the bond during the period
of Presidential review pursuant to section 337(j) (19 U.S.C. 1337(j))
shall be in the amount of 100 percent of the entered value of the
imported articles that are subject to the LEO and/or CDO. Still
further, the Commission has determined that the public interest factors
enumerated in subsections 337(g)(1) (19 U.S.C. 1337(g)(1)) do not
preclude the issuance of the LEO and CDO.
The Commission's vote for this determination took place on April 6,
2022.
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: April 6, 2022.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2022-07711 Filed 4-8-22; 8:45 am]
BILLING CODE 7020-02-P
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