Notice2023-25279
Certain Chocolate Milk Powder and Packaging Thereof; Notice of Institution of Formal Enforcement Proceeding
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
November 16, 2023
Issuing agencies
International Trade Commission
Abstract
Notice is hereby given that the U.S. International Trade Commission has determined to institute a formal enforcement proceeding relating to the general exclusion order ("GEO") issued on November 15, 2022, in the above-referenced investigation.
Full Text
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<title>Federal Register, Volume 88 Issue 220 (Thursday, November 16, 2023)</title>
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[Federal Register Volume 88, Number 220 (Thursday, November 16, 2023)]
[Notices]
[Pages 78786-78787]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-25279]
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INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-1332]
Certain Chocolate Milk Powder and Packaging Thereof; Notice of
Institution of Formal Enforcement Proceeding
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 institute a formal enforcement proceeding
relating to the general exclusion order (``GEO'') issued on November
15, 2022, in the above-referenced investigation.
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#5712131e04641f323b271722243e233479303821"><span class="__cf_email__" data-cfemail="7a3f3e332949321f160a3a0f09130e19541d150c">[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 December 1, 2020, based on a complaint filed on behalf of Meenaxi
Enterprise Inc. (``Meenaxi'') of Edison, New Jersey. 85 FR 77237-8
(Dec. 1, 2020). The complaint alleged violations of section 337 based
upon the importation into the United States, the sale for importation,
and the sale within the United States after importation of certain
chocolate milk powder and packaging thereof by reason of infringement
of U.S. Trademark Registration No. 4,206,026 (``the '026 mark''). The
Commission's notice of investigation named as respondents Bharat Bazar
Inc. of Union City, California; Madras Group Inc. d/b/a Madras
Groceries of Sunnyvale, California; Organic Food d/b/a Namaste Plaza
Indian Super Market (``Organic Food'') of Fremont, California; India
Cash & Carry of Sunnyvale California; New India Bazar Inc. d/b/a New
India Bazar of San Jose, California; Aapka Big Bazar of Jersey City,
New Jersey; Siya Cash & Carry Inc. d/b/a Siya Cash & Carry of Newark,
New Jersey; JFK Indian Grocery LLC d/b/a D-Mart Super Market of Jersey
City, New Jersey; Trinethra Indian Super Markets of Newark, California;
Apna Bazar Cash & Carry Inc. d/b/a Apna Bazar Cash & Carry of Edison,
New Jersey; Subzi Mandi Cash & Carry Inc. d/b/a Mandi Cash & Carry of
Piscataway, New Jersey; Patidar Cash & Carry Inc. d/b/a Patidar Cash &
Carry of South Plainfield, New Jersey; Keemat Grocers of Sugarland,
Texas; KGF World Food Warehouse Inc. d/b/a World Food Mart of Houston,
Texas; Telfair Spices of Sugarland Texas; Indian Groceries and Spices
Inc. d/b/a <a href="http://iShopIndia.com">iShopIndia.com</a> of Milwaukee, Wisconsin; Rani Foods LP d/b/a
Rani's World Foods of Houston, Texas; Tathastu Trading LLC of South
Plainfield, New Jersey; and Choice Trading LLC of Guttenberg, New
Jersey. Id. The Office of Unfair Import Investigations (``OUII'') was
also a party to the investigation.
All respondents were found in default. See Order No. 6 (Feb. 10,
2021), unreviewed by Comm'n Notice (Mar. 2, 2021); Order No. 23 (May
19, 2022), unreviewed by Comm'n Notice (Jun. 14, 2022).
On May 24, 2021, Meenaxi moved for summary determination of
violation of section 337 by the respondents found in default by Order
No. 6 and requested a GEO. On December 1, 2021, the former chief
administrative law judge (``CALJ'') granted the motion as an initial
determination (``ID'') (Order No. 15). No petitions for review of the
ID were filed. The ID, however, noted discrepancies with respect to
respondent Organic Food, calling into question whether that respondent
was ever properly served with the complaint and notice of investigation
and with the CALJ's order to show cause why the respondents should not
be found in default, Order No. 5 (Jan. 13, 2021). See Order No. 15 at 1
n.1. The Commission determined sua sponte to review Order No. 15 and
ordered reconsideration of Order No. 6 as to Organic Food and/or any
other respondents who may not have been properly served with documents
in the underlying investigation. Notice at 3 (Jan 18, 2022). The
Commission remanded the investigation to an ALJ for further
proceedings. Id.
On remand, the current CALJ issued Order No. 18, granting Meenaxi's
unopposed motion for leave to amend the complaint and notice of
investigation to (i) substitute Organic Food with proposed respondent
Organic Ingredients Inc. d/b/a Namaste Plaza Indian Super Market
(``Organic Ingredients'') of San Diego, California; (ii) correct the
address of respondent New India Bazar Inc. d/b/a New India Bazar (``New
India'') of San Jose, California; (iii) correct the address of
respondent Bharat Bazar Inc. (``Bharat Bazar'') of Union City,
California; and (iv) supplement the complaint with Exhibits 9-a, 9-b,
and 9-c, concerning Organic Food and/or Organic Ingredients. Order No.
18 at 1-5 (Mar. 11, 2022), unreviewed by Comm'n Notice, 87 FR 22940
(Apr. 18, 2020). Meenaxi demonstrated that Bharat Bazar had been
actually served with all of the documents in the investigation (prior
to remand) despite incorrectly spelling Bharat Bazar's address as being
on ``Niled Road'' instead of ``Niles Road.'' Order No. 18 at 4.
The current CALJ conducted remand proceedings as to Organic
Ingredients and New India, first ordering them to respond to the
amended complaint and notice of investigation, and then ordering them
to respond to an order to show cause why they should not be found in
default. See Order No. 27 at 3 (Aug. 3, 2022). On May 19, 2022, the
CALJ issued an ID finding Organic Ingredients and New India in default
(collectively with the respondents previously found in default, the
``Defaulting Respondents''). Order No. 23 (May 19, 2022), unreviewed by
Comm'n Notice (June 14, 2022).
Subsequently, on June 15, 2022, following the remand determination
of default, Meenaxi again moved for summary determination of violation
by the Defaulting Respondents and requested a GEO. On July 6, 2022,
OUII filed a response supporting the motion.
On August 3, 2022, the current CALJ issued a remand ID (``RID''),
granting the second motion for summary determination and finding a
violation of section 337 with respect to the '026 mark. The RID found
that all Defaulting Respondents met the importation requirement and
that Meenaxi satisfied the domestic industry requirement. See 19 U.S.C.
1337(a)(1)(B), (a)(2), and (a)(3). The RID also contained the CALJ's
recommended determination (``RD'') on remedy and bonding. The RD
recommended issuance of a GEO with
[[Page 78787]]
respect to the asserted '026 mark. No party petitioned for review of
the ID.
On September 19, 2022, the Commission determined not to review the
RID. 87 FR 58130-1 (Sept. 23, 2022). On November 15, 2022, the
Commission issued a final determination finding a violation, issuing a
GEO prohibiting the unlicensed importation of chocolate milk powder and
packaging thereof that infringe the '026 mark, and terminating the
investigation. 87 FR 70864-65. On the same day, the Commission issued
an opinion explaining the basis for its final determination.
On October 9, 2023, Meenaxi filed a complaint requesting that the
Commission institute an enforcement proceeding under Commission Rule
210.75 to investigate alleged violations of the General Exclusion Order
by four proposed enforcement respondents: (1) Organic Ingredients; (2)
New India; (3) Bharat Bazar; and (4) Coconut Hill Inc. of Sunnyvale,
California. Meenaxi asserts that the four proposed enforcement
respondents continue to import, sell for importation, advertise,
market, distribute, offer to sell ``Bournvita'' products that infringe
the `026 mark. Meenaxi also alleges that the four proposed enforcement
respondents are in continuing violation of the GEO and as a result, it
is sustaining ``immediate and irreparable harm.'' None of the
respondents answered Meenaxi's enforcement complaint.
Having examined the enforcement complaint and the supporting
documents, the Commission has determined to institute a formal
enforcement proceeding, pursuant to Commission Rule 210.75(a) (19 CFR
210.75(a)), to determine whether violations of the GEO, issued on
November 15, 2022 in the above-referenced investigation, have occurred
and to determine what, if any, enforcement measures are appropriate.
The named respondents are: (1) Organic Ingredients Inc. d/b/a Namaste
Plaza Indian Super Market; (2) New India Bazar Inc.; (3) Bharat Bazar
Inc.; and (4) Coconut Hill Inc. d/b/a Coconut Hill. OUII is also named
as a party.
In the Order issued concurrently herewith, the Commission has
delegated this enforcement proceeding to the CALJ for designation of a
presiding Administrative Law Judge to conduct any necessary
proceedings, issue an Enforcement Initial Determination, and make a
recommendation on appropriate enforcement measures, if any.
The Commission's vote on this determination took place on November
9, 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: November 9, 2023.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2023-25279 Filed 11-15-23; 8:45 am]
BILLING CODE 7020-02-P
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