Notice2025-05516
Certain Chocolate Milk Powder and Packaging Thereof; Notice of Institution of Formal Enforcement Proceeding
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Published
April 1, 2025
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 and cease and desist orders ("CDOs") issued on November 18, 2024, in the above-referenced investigation.
Full Text
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<title>Federal Register, Volume 90 Issue 61 (Tuesday, April 1, 2025)</title>
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[Federal Register Volume 90, Number 61 (Tuesday, April 1, 2025)]
[Notices]
[Pages 14381-14382]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2025-05516]
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INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-1232 (Enforcement II)]
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 and cease and desist orders (``CDOs'') issued on November 18,
2024, 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#6623222f35552e030a162613150f120548010910"><span class="__cf_email__" data-cfemail="60252429335328050c102015130914034e070f16">[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 the original
investigation on December 1, 2020, based on a complaint filed on behalf
of Meenaxi Enterprise Inc. (``Meenaxi'') of Edison, New Jersey. 85 FR
77237-38 (Dec. 1, 2020). The complaint alleged violations of section
337 of the Tariff Act of 1930, 19 U.S.C. 1337, 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 several respondents,
including but not limited to Bharat Bazar of Union City, California;
Coconut Hill of Sunnyvale, California; Organic Food d/b/a Namaste Plaza
Indian Super Market (``Organic Food'') of Fremont, California; and New
India Bazar of San Jose, California. Id. at 77237. The Office of Unfair
Import Investigations (``OUII'') was also a party to the investigation.
Id.
In the underlying 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 violations 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 (``former CALJ'') granted the
motion as an initial determination (Order No. 15), but 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 former 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. No petitions for
review of Order No. 15 were filed. 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. See
Comm'n Notice at 3 (Jan. 18, 2022). The Commission remanded the
investigation to an ALJ for further proceedings. Id.
On remand, the current chief administrative law judge (``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 of San Diego,
California; (ii) correct the address of respondent New India; (iii)
correct the address of respondent Bharat Bazar; 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 (Apr. 12, 2022); see also 87 FR 22940-41 (Apr. 18,
2022). Meenaxi also 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.'' See Order No. 18 at 4.
The CALJ conducted remand proceedings as to Organic Ingredients and
New India with respect to service of the amended complaint and notice
of investigation, and upon the failure of these respondents to respond
to the amended complaint and notice of investigation, the CALJ ordered
them to respond to an order to show cause why they should not be found
in default. See Order No. 19 (Mar. 11, 2022); Order No. 21 at 2-3 (May
3, 2022). On May 19, 2022, the CALJ issued an initial determination
finding Organic Ingredients and New India in default. Order No. 23 (May
19, 2022), unreviewed by Comm'n Notice (June 14, 2022). Accordingly,
the Commission found all respondents in default (collectively with the
respondents previously found in default, the ``Defaulting
Respondents'').
On June 13, 2022, Meenaxi again moved for summary determination of
violations by the Defaulting Respondents and requested a GEO. On July
6, 2022, OUII filed a response supporting the motion.
On August 3, 2022, the CALJ issued a remand ID (``RID'') (Order No.
27), 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)(2)-(3). No party petitioned for review of the RID.
On September 19, 2022, the Commission determined not to review the
RID. See 87 FR 58130-32 (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. See 87 FR 70864-66 (Nov. 21, 2022). The GEO is currently
in effect and prohibits the unlicensed importation of ``chocolate milk
powder in consumer-sized container with the Bournvita label.'' Id.; GEO
at 2 (Nov. 15, 2022). On the same day, the Commission issued an opinion
explaining the basis for its final determination. See Comm'n Op. (Nov.
15, 2022) (Conf. Ver.); Comm'n Op. (Dec. 9, 2022) (Pub. Ver.).
Approximately ten (10) months later, the Enforcement Complaint was
filed with the Commission on behalf of Meenaxi to enforce the GEO
entered in the original investigation, seeking, inter alia, issuance of
CDOs for alleged
[[Page 14382]]
violations of the GEO. On November 9, 2023, upon consideration of
Meenaxi's Enforcement Complaint, the Commission issued a notice of its
determination to institute an enforcement proceeding under Commission
Rule 210.75 to investigate alleged violations of the GEO by the four
Enforcement Respondents. See Comm'n Notice, EDIS Doc. ID 808258 (Nov.
9, 2023). This enforcement proceeding was instituted by publication in
the Federal Register on November 16, 2023. See 88 FR 78786-87 (Nov. 16,
2023) (``NOI''). OUII is also named as a party. Id. at 78787. On the
same day the Commission determined to institute, the Commission issued
an order (the ``Commission Order'') certifying the 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. See Comm'n Order (Nov. 9, 2023), EDIS Doc. ID
808290. Meenaxi filed proof that the Enforcement Complaint and
Exhibits, the Commission's November 9th notice, and the Commission
Order were served on each of the four Enforcement Respondents. See Nov.
14, 2023 Letter from Anil Gandhi to Secretary Barton, Ex. A, EDIS Doc.
ID 808539. No responses to the Enforcement Complaint and NOI were
filed.
On January 10, 2024, the presiding ALJ issued an order directing
the Enforcement 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 Enforcement Complaint and NOI. See Order No.
6 (Jan. 10, 2024). Order No. 6 directed the Enforcement Respondents to
make any showing of good cause by no later than February 2, 2024. Id.
at 3. Meenaxi filed proof that Order No. 6 was served on each of the
four Enforcement Respondents. See Jan. 16, 2024 Letter from Llofel
Rogolifoi to Secretary Barton, Ex. A, EDIS Doc. ID 812042. No party
responded to Order No. 6. See Order No. 8 at 1 (Feb. 13, 2024).
On March 14, 2024, the Commission determined that the four
Enforcement Respondents were in default. See Order No. 8 (Feb. 13,
2024), unreviewed by Comm'n Notice (Mar. 15, 2024). On March 15, 2024,
Meenaxi filed a motion requesting summary determination of violation of
the GEO and the issuance of CDOs against the four Enforcement
Respondents. See Order No. 9 at 5 (Aug. 16, 2024).
On August 16, 2024, the presiding ALJ issued the subject ID
granting Meenaxi's motion for summary determination and recommending
issuance of the requested CDOs. The ALJ concluded that ``the unrebutted
evidence [ ] demonstrates that the Enforcement Respondents have
imported and/or sold after importation chocolate milk powder products
bearing the `Bournvita' label'' in violation of the GEO. ID at 16-17.
The ID noted that Meenaxi alleged that the Enforcement Respondents have
violated the GEO by offering for sale, selling, advertising, and aiding
and abetting the sale of Cadbury's ``BOURNVITA'' products. Id. at 17-
18. The ID explained that ``[t]hese (or similar) products were found to
infringe the '026 Mark during the violation phase'' of this
investigation. Id. at 18. The ID applied the same trademark
infringement analysis to the products accused of violating the GEO in
Meenaxi's Enforcement Complaint. See id. at 19-26. Meenaxi filed proof
that the ID was served on each of the four Enforcement Respondents. See
Aug. 30, 2024 Letter from Llofel Rogolifoi to Secretary Barton, Ex. A,
EDIS Doc. ID 831085. No party filed a petition seeking review of the
ID.
On August 19, 2024, the Commission issued a notice soliciting
submissions on public interest issues raised by the recommended relief
should the Commission find a violation of the GEO, specifically, CDOs
against the four Enforcement Respondents. See 89 FR 68203-04 (Aug. 23,
2024). No comments were received in response to the notice.
On October 28, 2024, the Commission determined to review the ID's
findings that the Enforcement Respondents have violated the GEO. See 89
FR 81547-49 (Oct. 8, 2024). In connection with these findings, the
Commission requested responses from the parties to the issues under
review. See 89 FR at 81548. The Commission also requested parties to
the investigation, interested government agencies, and any other
interested parties to file written submissions on the issues of remedy,
the public interest, and bonding. Id. at 81549.
On November 18, 2024, the Commission issued a final determination
finding that all four enforcement respondents violated the GEO, issuing
a CDO order against each of them, and terminating the investigation. 89
FR 92722-23. On the same day, the Commission issued an opinion
explaining the basis for its final determination.
On February 24, 2025, Meenaxi filed a second enforcement complaint
requesting that the Commission institute an enforcement proceeding
under Commission Rule 210.75 to investigate alleged violations of the
GEO and the CDOs by the same four enforcement respondents: (1) Organic
Ingredients; (2) New India; (3) Bharat Bazar; and (4) Coconut Hill Inc.
Meenaxi asserts that the four proposed enforcement respondents continue
to import, sell for importation, advertise, market, distribute, and
offer to sell ``Bournvita'' products that infringe the '026 mark
despite the GEO and CDOs. Meenaxi also alleges that the four proposed
enforcement respondents are in continuing violation of the GEO and CDOs
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, and CDOs, issued on November 18, 2024, 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 March 26,
2025.
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: March 26, 2025.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2025-05516 Filed 3-31-25; 8:45 am]
BILLING CODE 7020-02-P
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