Notice2023-20345
Certain Casual Footwear and Packaging Thereof; Notice of Final Determination of No Violation by Active Respondents; Issuance of Default Remedial Orders; Termination of Investigation
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
September 20, 2023
Issuing agencies
International Trade Commission
Abstract
Notice is hereby given that the U.S. International Trade Commission ("Commission") has determined that there is no violation of section 337 of the Tariff Act of 1930, as amended, in this investigation by active respondents Hobby Lobby Stores, Inc. ("Hobby Lobby"), Quanzhou ZhengDe Network Corp. d/b/a Amoji ("Amoji"), and Orly Shoe Corp. ("Orly"). The Commission has further determined to issue a limited exclusion order ("LEO") against defaulting respondents La Modish Boutique ("La Modish"), Star Bay Group Inc. ("Star Bay"), Huizhou Xinshunzu Shoes Co., Ltd. ("Huizhou"), and Jinjiang Anao Footwear Co., Ltd. ("Anao") and cease and desist orders against defaulting respondents La Modish and Star Bay. This investigation is hereby terminated.
Full Text
<html>
<head>
<title>Federal Register, Volume 88 Issue 181 (Wednesday, September 20, 2023)</title>
</head>
<body><pre>
[Federal Register Volume 88, Number 181 (Wednesday, September 20, 2023)]
[Notices]
[Pages 64926-64928]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-20345]
=======================================================================
-----------------------------------------------------------------------
INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-1270]
Certain Casual Footwear and Packaging Thereof; Notice of Final
Determination of No Violation by Active Respondents; Issuance of
Default Remedial Orders; Termination of Investigation
AGENCY: U.S. International Trade Commission.
ACTION: Notice.
-----------------------------------------------------------------------
SUMMARY: Notice is hereby given that the U.S. International Trade
Commission (``Commission'') has determined that there is no violation
of section 337 of the Tariff Act of 1930, as amended, in this
investigation by active respondents Hobby Lobby Stores, Inc. (``Hobby
Lobby''), Quanzhou ZhengDe Network Corp. d/b/a Amoji (``Amoji''), and
Orly Shoe Corp. (``Orly''). The Commission has further determined to
issue a limited exclusion order (``LEO'') against defaulting
respondents La Modish Boutique (``La Modish''), Star Bay Group Inc.
(``Star Bay''), Huizhou Xinshunzu Shoes Co., Ltd. (``Huizhou''), and
Jinjiang Anao Footwear Co., Ltd. (``Anao'') and cease and desist orders
against defaulting respondents La Modish and Star Bay. This
investigation is hereby terminated.
FOR FURTHER INFORMATION CONTACT: Carl P. Bretscher, Esq., Office of the
General Counsel, U.S. International Trade Commission, 500 E Street SW,
Washington, DC 20436, telephone (202) 205-2382. 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#1f5a5b564c2c577a736f5f6a6c766b7c31787069"><span class="__cf_email__" data-cfemail="783d3c312b4b301d1408380d0b110c1b561f170e">[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: The Commission instituted this investigation
on July 9, 2021, based on a complaint filed by Crocs, Inc. of
Broomfield, Colorado (``Crocs''). 86 FR 36303-304 (July 9, 2021). The
complaint, as supplemented, alleges violations of section 337 of the
Tariff Act of 1930, as amended, 19 U.S.C. 1337 (``section 337''), in
the importation into the United States, sale for importation, or sale
in the United States after importation of certain casual footwear and
packaging thereof by reason of infringement, false designation of
origin, and dilution of one of more of U.S. Trademark Registration Nos.
5,149,328; 5,273,875 (collectively, the ``3D Marks''); and 3,836,415
(``the Word Mark'') (all collectively, ``the Asserted Marks''). Id. The
complaint alleges that a domestic industry exists, and that the threat
or effect of certain alleged violations is to destroy or substantially
injure an industry in the United States. Id.
The Commission's notice of investigation named numerous
respondents, including: Hobby Lobby of Oklahoma City, Oklahoma; Amoji
of Quanzhou, Fujian Province, China; Skechers USA, Inc. of Manhattan
Beach, California (``Skechers''); SG Footwear Meser Grp. Inc. a/k/a S.
Goldberg & Co. of Hackensack, New Jersey (``SG Footwear''); Cape Robbin
Inc. of Pomona, California (``Cape Robbin''); Dr. Leonard's Healthcare
Corp. d/b/a Carol Wright of Edison, New Jersey (``Dr. Leonard's'');
Fullbeauty Brands Inc. d/b/a Kingsize of New York, New York
(``Fullbeauty''); Legend Footwear, Inc. d/b/a/Wild Diva of City of
Industry, California (``Wild Diva''); Fujian Huayuan Well Import and
Export Trade Co., Ltd. of Fuzhou, Fujian Province, China (``Fujian'');
Yoki Fashion International LLC of New York, New York (``Yoki'');
Bijora, Inc. d/b/a Akira of Chicago, Illinois (``Akira''); Hawkins
Footwear, Sports, Military & Dixie Store of Brunswick, Georgia
(``Hawkins''); Shoe-Nami Inc. of Gretna, Louisiana (``Shoe-Nami''); PW
Shoes, Inc. a/k/a P&W of Maspeth, New York (``PW''); 718Closeouts of
Brooklyn, New York (``718Closeouts''); Crocsky of Austin, Texas
(``Crocsky''); Hobibear Shoes and Clothing Ltd. of Brighton, Colorado
(``Hobibear''); Ink Tee of Los Angeles, California (``Ink Tee'');
Maxhouse Rise Ltd. of Hong Kong, China (``Maxhouse''); La Modish of
West Covina, California; Loeffler Randall Inc. of New York, New York
(``Loeffler Randall''); Star Bay of Hackensack, New Jersey; and Royal
Deluxe Accessories, LLC of New Providence, New Jersey (``Royal
Deluxe''). The Office of Unfair Import Investigations (``OUII'') was
also named as a party.
[[Page 64927]]
On November 17, 2021, the Commission amended the complaint and
notice of investigation to add certain new respondents, including Orly
of New York, New York; Mould Industria de Matrizes Ltda. d/b/a/Boaonda
of Brazil (``Boaonda''); Dongguan Eastar Footwear Enterprises Co., Ltd.
of Guangzhou City, China (``Eastar''); KGS Sourcing Ltd. of Hong Kong,
China (``KGS''); Fujian Wanjiaxin Industrial Developing, Inc. a/k/a
Fujian Wanjiaxin Light Industrial Developing, Inc. of Quanzhou City,
China (``Wanjiaxin''); Anao of Jinjiang City, China; Walmart Inc. of
Bentonville, Arkansas (``Walmart''); and Huizhou of Huizhou City,
China, and to terminate the investigation with respect to Crocsky,
Hobibear, and Ink Tee. Order No. 30 (Oct. 21, 2021), unreviewed by
Comm'n Notice (Nov. 17, 2021).
The Commission subsequently terminated the investigation with
respect to various respondents on the basis of settlement agreements or
consent orders. See Order No. 12 (Aug. 11, 2021) (Skechers), unreviewed
by Comm'n Notice (Aug. 24, 2021); Order No. 16 (Aug. 26, 2021) (SG
Footwear) and Order No. 17 (Aug. 26, 2021) (Cape Robbin), unreviewed by
Comm'n Notice (Sept. 24, 2021); Order No. 20 (Sept. 1, 2021) (Dr.
Leonard's), unreviewed by Comm'n Notice (Sept. 29, 2021); Order No. 22
(Sept. 9, 2021) (Fullbeauty) and Order No. 23 (Sept. 9, 2021) (Wild
Diva), unreviewed by Comm'n Notice (Oct. 7, 2021); Order No. 24 (Sept.
17, 2021) (Fujian), unreviewed by Comm'n Notice (Oct. 7, 2021); Order
No. 25 (Sept. 22, 2021) (Yoki), unreviewed by Comm'n Notice (Oct. 7,
2021); Order No. 26 (Sept. 28, 2021) (Akira), unreviewed by Comm'n
Notice (Oct. 27, 2021); Order No. 27 (Oct. 6, 2021) (Hawkins),
unreviewed by Comm'n Notice (Oct. 29, 2021); Order No. 32 (Nov. 1,
2021) (Shoe-Nami) and Order No. 33 (Nov. 1, 2021) (PW), unreviewed by
Comm'n Notice (Nov. 29, 2021); Order No. 34 (Nov. 10, 2021) (718
Closeouts), unreviewed by Comm'n Notice (Dec. 6, 2021); Order No. 39
(Jan. 11, 2022) (Eastar), unreviewed by Comm'n Notice (Feb. 4, 2022);
Order No. 46 (March 3, 2022) (Maxhouse, Wanjiaxin), unreviewed by
Comm'n Notice (March 18, 2022); Order No. 49 (March 15, 2022)
(Boaonda), unreviewed by Comm'n Notice (April 1, 2022); Order No. 54
(April 22, 2022) (Royal Deluxe), unreviewed by Comm'n Notice (May 17,
2022); Order No. 56 (May 6, 2022) (Loeffler Randall), unreviewed by
Comm'n Notice (May 27, 2022); Order No. 81 (Sept. 28, 2022) (Walmart),
unreviewed by Comm'n Notice (Oct. 20, 2022). The Commission also
terminated the investigation with respect to KGS for good cause. Order
No. 40 (Feb. 1, 2022), unreviewed by Comm'n Notice (Feb. 22, 2022).
On June 10, 2022, the Commission found that respondents La Modish,
Star Bay, Huizhou, and Anao (``Defaulting Respondents'') were in
default and waived their rights to appear, to be served with documents,
and to contest the allegations in this investigation, pursuant to 19
CFR 210.16(b). Order No. 58 (May 20, 2022), unreviewed by Comm'n Notice
(June 10, 2022).
On September 13-16, 2022, the presiding administrative law judge
(``ALJ'') held an evidentiary hearing with Crocs, OUII, and the
remaining respondents Orly, Hobby Lobby (collectively, ``the Orly
Respondents''), and Amoji (all collectively, ``Respondents'').
On January 9, 2023, the ALJ issued the subject final ID, finding no
violation of section 337 because: (1) Crocs did not prove that
Respondents infringe the Asserted Marks; (2) Crocs did not prove that
Respondents falsely designate the origin of their accused products or
cause unfair competition; (3) Crocs did not prove that Respondents
dilute the Asserted Marks by blurring or tarnishment; (4) the 3D Marks
are invalid for lack of secondary meaning; and (5) Crocs waived its
infringement contentions against Defaulting Respondents. ID at 71-72,
83-86, 148-49. The ID also finds that Crocs has satisfied both the
technical and economic prongs of the domestic industry requirement. Id.
at 130, 149. The ID further finds that Respondents failed to prove that
the 3D Marks are invalid as functional or that the Word Mark is invalid
as generic. Id. at 128-29, 149. The ID takes no position on Crocs's
alleged injury or Respondents' fair use defense. Id. at 129-30.
On January 13, 2023, the Commission issued a notice soliciting
submissions from the public on the public interest implications of any
remedial orders the Commission may issue in this case. 88 FR 3437 (Jan.
19, 2023). On February 9, 2023, non-party Joybees, LLC, a U.S. seller
of footwear, filed a statement opposing issuance of a general exclusion
order, (``GEO''). EDIS Doc. ID 790010 (Feb. 9, 2023). The Commission
also received a letter dated June 14, 2023, from U.S. Representative
Brittany Pettersen (CO-7), who represents the congressional district in
which Crocs in headquartered. EDIS Doc. ID 798554 (June 14, 2023).
On April 5, 2023, the Commission determined to review the ID's
findings that: (1) Crocs waived its infringement contentions against
the lined version of Orly's Gators; (2) the 3D Marks are not entitled
to the presumption of validity and are invalid for lack of secondary
meaning; (3) Crocs waived its infringement contentions against
Defaulting Respondents; (4) subject matter jurisdiction; (5) likelihood
of confusion; (6) false designation of origin; (7) dilution; and (8)
the technical and economic prongs of domestic industry. Comm'n Notice
at 3-4 (Apr. 5, 2023); 88 FR 21712-15 (Apr. 11, 2023). The Commission
determined not to review the remaining findings in the ID.
On April 19, 2023, Crocs, the Orly Respondents, and OUII filed
their responses to the Commission's notice of review. On April 26,
2023, the parties filed their respective replies. Amoji did not file
its own response or join the briefing by the Orly Respondents.
Having reviewed the ID, the parties' submissions, and the evidence
of record, the Commission has determined to affirm and adopt the ID's
findings that Respondents have not infringed or diluted any of the
Asserted Marks, falsely designated the origin of their Accused
Products, or engaged in unfair competition. The Commission has
determined to reverse the ID's finding that Crocs waived its
infringement contentions with respect to the lined versions of the
accused Orly Gators and find instead that Crocs failed to prove
infringement by the lined Orly Gators.
The Commission takes no position on Orly's alleged first sale in
April 2016, the presumption of validity, secondary meaning, injury,
fair use, and the technical and economic prongs of the domestic
industry requirement.
The Commission has further determined to issue an LEO to Defaulting
Respondents and CDOs to defaulting respondents La Modish and Star Bay
pursuant to section 337(g)(1). 19 U.S.C. 1337(g)(1).
The Commission's reasoning in support of its determinations is set
forth more fully in its opinion issued herewith. Commissioner Kearns
dissents from the Commission's finding of no violation of section 337
for the reasons detailed in his dissenting views issued herewith.
The investigation is hereby terminated.
The Commission vote for this determination took place on September
14, 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).
[[Page 64928]]
By order of the Commission.
Issued: September 14, 2023.
Katherine Hiner,
Supervisory Attorney.
[FR Doc. 2023-20345 Filed 9-19-23; 8:45 am]
BILLING CODE 7020-02-P
</pre><script data-cfasync="false" src="/cdn-cgi/scripts/5c5dd728/cloudflare-static/email-decode.min.js"></script></body>
</html>Indexed from Federal Register on September 20, 2023.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.