Notice2023-15247
Certain Oil-Vaping Cartridges, Components Thereof, and Products Containing the Same; Notice of a Commission Final Determination Finding Glo Extracts in Default; Issuance of a Limited Exclusion Order and Cease and Desist Orders; Termination of the Investigation
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Published
July 19, 2023
Issuing agencies
International Trade Commission
Abstract
Notice is hereby given that the U.S. International Trade Commission has determined to find Glo Extracts of Los Angeles, California in default and issue a limited exclusion order ("LEO") barring entry of certain oil-vaping cartridges, components thereof, and products containing the same that are imported by or on behalf of six respondents: Glo Extracts; BulkCarts.com of Canton, Michigan; Greenwave Naturals LLC ("Greenwave Naturals") of Austin, Texas; Cartridgesforsale.com of Ypsilanti, Michigan; HW Supply, LLC ("HW Supply") of Ypsilanti, Michigan; and Obsidian Supply, Inc. ("Obsidian Supply") of Irvine, California (collectively, the "Defaulting Respondents"). The Commission has also determined to issue cease and desist orders ("CDOs") against the Defaulting Respondents. The investigation is terminated.
Full Text
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<title>Federal Register, Volume 88 Issue 137 (Wednesday, July 19, 2023)</title>
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[Federal Register Volume 88, Number 137 (Wednesday, July 19, 2023)]
[Notices]
[Pages 46180-46182]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-15247]
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INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-1286]
Certain Oil-Vaping Cartridges, Components Thereof, and Products
Containing the Same; Notice of a Commission Final Determination Finding
Glo Extracts in Default; Issuance of a Limited 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 find Glo Extracts of Los Angeles,
California in default and issue a limited exclusion order (``LEO'')
barring entry of certain oil-vaping cartridges, components thereof, and
products containing the same that are imported by or on behalf of six
respondents: Glo Extracts; <a href="http://BulkCarts.com">BulkCarts.com</a> of Canton, Michigan; Greenwave
Naturals LLC (``Greenwave Naturals'') of Austin, Texas;
<a href="http://Cartridgesforsale.com">Cartridgesforsale.com</a> of Ypsilanti, Michigan; HW Supply, LLC (``HW
Supply'') of Ypsilanti, Michigan; and Obsidian Supply, Inc. (``Obsidian
Supply'') of Irvine, California (collectively, the ``Defaulting
Respondents''). The Commission has also determined to issue cease and
desist orders (``CDOs'') against the Defaulting Respondents. The
investigation is terminated.
FOR FURTHER INFORMATION CONTACT: Paul Lall, Office of the General
Counsel, U.S. International Trade Commission, 500 E Street SW,
Washington, DC 20436, telephone (202) 205-2043. 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#ce8b8a879dfd86aba2be8ebbbda7baade0a9a1b8"><span class="__cf_email__" data-cfemail="5c1918150f6f1439302c1c292f35283f723b332a">[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 November 10, 2021, the Commission
instituted this investigation based on a complaint filed by Smoore
Technology Limited (``Smoore'' or ``Complainant''). 86 FR 62567-69
(Nov. 10, 2021) (``Notice of Institution''). The complaint alleged
violations of section 337 of the Tariff Act of 1930, as amended, 19
U.S.C. 1337, based on the importation into the United States, the sale
for importation, or the sale within the United States after importation
of certain oil-vaping cartridges, components thereof, and products
containing the same by reason of infringement of certain claims of U.S.
Patent Nos. 10,357,623; 10,791,762; and 10,791,763; and U.S. Registered
Trademark No. 5,633,060 (``the '060 mark''). Id.
The Commission's notice of investigation named the following
entities as respondents: Glo Extracts; <a href="http://Cartridgesforsale.com">Cartridgesforsale.com</a>; HW
Supply; <a href="http://BulkCarts.com">BulkCarts.com</a>; Greenwave Naturals; Obsidian Supply; BBTank USA,
LLC (``BBTank'') of Lambertville, Michigan; <a href="http://BoldCarts.com">BoldCarts.com</a> of Tempe,
Arizona; Bold Crafts, Inc. (``Bold Crafts'') of Irvine, California;
Blinc Group Holdings, LLC of New York, New York; Jonathan Ray Carfield
(``Jonathan Carfield''), d/b/a AlderEgo Wholesale, AlderEgo Holdings,
Inc. and AlderEgo Group, Limited a/k/a AVD Holdings Limited of
Guangdong, China; Hanna Carfield (``Hanna Carfield'') of Tacoma,
Washington; Next Level Ventures, LLC (``Next Level Ventures'') of
Seattle, Washington; Advanced Vapor Devices, LLC of Los Angeles,
California; <a href="http://avd710.com">avd710.com</a> of Seattle, Washington; AlderEgo Group Limited
(``AEG'') of Hong Kong; A&A Global Imports, Inc. (``A&A Global'') of
Vernon, California; Bulk Natural, LLC (``Bulk Natural'') of Portland
Oregon; Brand King, LLC (``Brand King'') of Sacramento, California;
ZTCSMOKE USA Inc. (``ZTCSMOKE'') of Niceville, Florida;
<a href="http://headcandysmokeshop.com">headcandysmokeshop.com</a> and Head Candy Enterprise Ltd. (together ``Head
Candy'') both of Canada; Green Tank Technologies Corp. of Canada;
Cannary Packaging Inc (``Cannary Packaging'') of Canada; Cannary LA
(``Cannary LA'') of Signal Hill, California; <a href="http://dcalchemy.com">dcalchemy.com</a> and DC
Alchemy, LLC (together ``Alchemy'') both of Phoenix, Arizona;
International Vapor Group, LLC (``International Vapor'') of Miami
Lakes, Florida; <a href="http://Ygreeninc.com">Ygreeninc.com</a> and Ygreen Inc. (together (``Ygreen'')
both of Walnut, California; Atmos Nation LLC (``Atmos'') of Davie,
Florida; <a href="http://shopbvv.com">shopbvv.com</a> (``<a href="http://shopbvv.com">shopbvv.com</a>'') of Naperville, Illinois; Best
Value Vacs,
[[Page 46181]]
LLC (``Best Value Vacs'') of Naperville, Illinois;
<a href="http://Royalsupplywholesale.com">Royalsupplywholesale.com</a> (``Royalsupplywholesale'') of San Francisco,
California; <a href="http://Customcanabisbranding.com">Customcanabisbranding.com</a> (``Customcanabisbranding'') of
San Francisco, California; CLK Global, Inc. (``CLK'') of San Francisco,
California; iKrusher, Inc., d/b/a <a href="http://iKrusher.com">iKrusher.com</a>, of Arcadia, California;
and The Calico Group Inc. of Austin, Texas. The Office of Unfair Import
Investigations (``OUII'') was also named as a party in this
investigation. Id.
The Commission terminated multiple respondents based on consent
orders, settlement, and/or withdrawal of the complaint. See Order No. 9
(Dec. 16, 2021) (Head Candy), unreviewed by Comm'n Notice (Jan. 10,
2022); Order No. 10 (Dec. 20, 2021) (ZTCSMOKE), unreviewed by Comm'n
Notice (Jan. 11, 2022); Order Nos. 12 and 13 (Dec. 21, 2021) (Alchemy,
CLK, Royalsupplywholesale, and Customcanabisbranding), unreviewed by
Comm'n Notice (Jan. 11, 2022); Order No. 15 (Jan. 10, 2022) (Ygreen),
unreviewed by Comm'n Notice (Feb. 4, 2022); Order Nos. 16 and 17 (Jan.
18, 2022) (Cannary Packaging and Cannary LA), unreviewed by Comm'n
Notice (Feb. 15, 2022); Order No. 17 (Jan. 21, 2022) (International
Vapor), unreviewed by Comm'n Notice (Feb. 15, 2022); Order No. 20 (Feb.
23, 2022) (BBTank), unreviewed by Comm'n Notice (Mar. 18, 2022); Order
No. 29 (June 7, 2022) (Best Value Vacs and <a href="http://shopbvv.com">shopbvv.com</a>), unreviewed by
Comm'n Notice (June 22, 2022); Order Nos. 33 and 34 (July 5, 2022)
(Atmos, AEG, Hanna Carfield, and Jonathan Carfield), unreviewed by
Comm'n Notice (Aug. 2, 2022); Order No. 46 (Jan. 31, 2023) (The Calico
Group), unreviewed by Comm'n Notice (Mar. 3, 2023). On March 23, 2022,
Smoore filed an amended complaint consistent with Order No. 20.
On July 28, 2022, the Chief Administrative Law Judge (``CALJ'')
issued an order pursuant to Commission Rule 210.16 directing the six
non-participating respondents--<a href="http://Cartridgesforsale.com">Cartridgesforsale.com</a>; Glo Extracts; HW
Supply, LLC; Obsidian Supply, Inc.; <a href="http://BulkCarts.com">BulkCarts.com</a>; and Greenwave
Naturals LLC--to show cause why they should not be found in default and
why judgment should not be rendered against them for failing to respond
to the amended complaint and amended Notice of Institution. Order No.
38 (July 28, 2022).
The CALJ held an evidentiary hearing from August 1-5, 2022 with the
following participating respondents: The Blinc Group Inc.; Bold Crafts;
Greentank; iKrusher; Next Level Ventures; AVD; <a href="http://avd710.com">avd710.com</a>; Bulk
Natural; Brand King; and A&A Global. On August 19, 2022, Smoore filed
an initial post-hearing brief (``Smoore Post-hearing Br.''). See EDIS
Doc. No. 778377 (Aug. 19. 2022). In its post-hearing brief, Smoore
requested a limited exclusion order and cease and desist orders against
respondents found to violate section 337 and/or found to be in default.
Smoore Post-hearing Br. at 82-87.
On November 2, 2022, the CALJ issued another order pursuant to
Commission Rule 210.16 directing the same six non-participating
respondents to show cause why they should not be found in default and
why judgment should not be rendered against them for failing to respond
to the amended complaint and amended notice of investigation. Order No.
40 (Nov. 2, 2022). The order directed the non-participating respondents
to make any showing of good cause by no later than November 16, 2022.
Id. at 2. It also directed Smoore to ensure that copies of the order
were served on the non-participating respondents and to file proof of
service on EDIS. Id. No party responded to Order No. 40.
On November 7, 2022, Smoore filed with the Commission proof of
service for four respondents: Greenwave Naturals LLC; HW Supply, LLC;
<a href="http://BulkCarts.com">BulkCarts.com</a>; and Obsidian Supply, Inc. See EDIS Doc. ID 783960 (11/
07/2022 Letter).
On January 23, 2023, the CALJ issued an initial determination
(``ID'') finding five of the six non-participating respondents in
default: (1) <a href="http://Cartridgesforsale.com">Cartridgesforsale.com</a>; (2) HW Supply, LLC; (3) Obsidian
Supply, Inc.; (4) <a href="http://BulkCarts.com">BulkCarts.com</a>; and (5) Greenwave Naturals LLC. See
Order No. 42 at 2-3 (Jan. 23, 2023), unreviewed by Comm'n Notice (Feb.
14, 2023), at 1. The ID noted that four respondents were actually
served and a fifth, <a href="http://Cartridgesforsale.com">Cartridgesforsale.com</a>, was constructively served
through its operating entity, HW Supply, LLC, on November 4, 2022.
Order No. 42 at 2. It further found that Smoore ``has not provided
proof that the sixth respondent, Glo Extracts, was served with Order
No. 40.'' Id. (citing EDIS Doc. ID 786724 (12/21/2022 Letter), Exs. 2
and 3 (showing return of service package to sender Smoore)). The ID
declined to find Glo Extracts in default because it was not properly
served with the show-cause order. Id.
On February 1, 2023, the CALJ issued the final ID finding no
violation of section 337 by the participating respondents with regard
to the asserted patent claims. The final ID stated that it did not find
Glo Extracts in default because Smoore did not show that Glo Extracts
was properly served with Order No. 40 to show cause. ID at 103 (citing
Order No. 42 at 2). The ID further found that ``Smoore has not shown
that Glo Extracts was served with Smoore's motion for summary
determination.'' Id. (citing EDIS Doc. ID 772026 at Certificate of
Service (does not list Glo Extracts); EDIS Doc. ID 772501 at
Certificate of Service (does not list Glo Extracts)). The ID determined
that ``[b]ecause Glo Extracts was not given notice and an opportunity
to be heard on Smoore's motion for summary determination, the motion is
denied as to Glo Extracts.'' Id. (citing 19 U.S.C. 1337(c)). The ID
made no additional findings as to the other Defaulting Respondents or
as to the '060 mark, which was only asserted against the Defaulting
Respondents. The ID included the CALJ's recommended determination on
remedy and bonding (``RD''). The RD recommended that, should the
Commission find a violation, issuance of a limited exclusion order and
cease and desist orders would be appropriate. ID at 105-108. The RD
also recommended imposing no bond for covered products imported during
the period of Presidential review because Smoore failed to meet its
burden to establish a need for a bond. Id. at 108-09.
On February 13, 2023, Smoore filed a petition for review of the
final ID and the participating respondents filed a contingent petition
for review of the ID. On February 21, 2023, the parties, including
OUII, filed responses to the petitions.
On April 24, 2023, the Commission issued a notice of its
determination finding no violation of section 337 as to the asserted
patent claims. See 88 FR 26332-35 (Apr. 28, 2023. The Commission also
determined to review all findings and orders as to Glo Extracts and
requested briefing from the parties on whether Smoore has been able to
serve Glo Extracts with the Amended Complaint and Notice of
Investigation, Smoore's motion for summary determination, and any of
the Orders from this investigation, including the ALJ's show-cause
order (Order No. 40). Id. at 26332. The Commission also requested
written submissions from the parties on the issue under review, and
requested briefing from the parties, interested government agencies,
and other interested persons on the issues of remedy, the public
interest, and bonding. Id. at 26334-35.
On May 8, 2023, Smoore and OUII filed submissions in response to
the Commission's notice, arguing that the
[[Page 46182]]
public interest does not preclude issuance the requested LEO and CDOs.
Smoore also sought a bond during the period of Presidential review in
the amount of one hundred percent (100%) of the entered value of the
infringing articles. With respect to the Commission's review of
findings and orders as to Glo Extracts, OUII argued that Smoore was not
properly served with the show cause order (Order No. 40) and therefore
could not be found to be in default. In contrast, Smoore argued that
the Commission should find Glo Extracts to be in default because Smoore
had properly served Glo Extracts with the Amended Complaint, Notice of
Investigation, Smoore's motion for summary determination, and Orders
from this investigation. On May 15, 2023, Smoore filed a reply to
OUII's response.
Having examined the record of this investigation, including the
parties' submissions, the Commission has determined to find Glo
Extracts in default. Specifically, the Commission finds that the
conditions set forth in section 337(g)(1)(A)-(E) (19 U.S.C.
1337(g)(1)(A)-(E)) have been satisfied, and section 337(g)(1) directs
the Commission, upon request, to issue an LEO or a CDO or both against
a respondent found in default, based on the allegations regarding a
violation of section 337 in the complaint, which are presumed to be
true, unless after consideration of the public interest factors in
section 337(g)(1), it finds that such relief should not issue. As
discussed in the attached opinion, Smoore made multiple attempts to
serve the show cause order on Glo Extracts. Assuming for the sake of
argument that there was no service of the show cause order on Glo
Extracts, the Commission waives Rule 201.16 requiring service in view
of the particular circumstances here. See 19 CFR 201.4(b). Concurrent
with this notice, the Commission is issuing an opinion with further
explanation of its determination.
The Commission has further determined pursuant to subsection
337(g)(1) that the appropriate remedy in this investigation is: (1) an
LEO prohibiting the unlicensed entry of certain oil-vaping cartridges,
components thereof, and products containing the same that are imported
by or on behalf of the Defaulting Respondents that infringe the '060
mark; and (2) CDOs against all of the Defaulting Respondents. The
Commission has also determined that the public interest factors
enumerated in subsection 337(g)(1) do not preclude the issuance of the
LEO and CDOs. 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 one hundred percent (100%) of
the entered value of the infringing articles. The investigation is
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(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).
The Commission's vote for this determination took place on July 13,
2023.
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: July 13, 2023.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2023-15247 Filed 7-18-23; 8:45 am]
BILLING CODE 7020-02-P
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