[Federal Register Volume 62, Number 10 (Wednesday, January 15, 1997)]
[Notices]
[Pages 2179-2180]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-969]
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INTERNATIONAL TRADE COMMISSION
Certain Agricultural Tractors Under 50 Power; Take-off
Horsepower; Notice of Commission Determination to Review in Part an
Initial Determination; Schedule for the Filing of Written Submissions
on the Issue Under Review, and on Remedy, the Public interest, and
Bonding
Investigation No. 337-TA-380
AGENCY: U.S. International Trade Commission.
ACTION: Notice.
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SUMMARY: Notice is hereby given that the U.S. International Trade
Commission had determined to review in part the initial determination
(ID) issued by the presiding administrative law judge (ALJ) on November
22, 1996, in the above-captioned investigation.
FOR FURTHER INFORMATION CONTACT: Shara L. Aranoff, Esq., Office of the
General Counsel, U.S. International Trade Commission, 500 E Street,
S.W., Washington, D.C. 20436, telephone 202-205-3090.
SUPPLEMENTARY INFORMATION: This trademark-based section 337
investigation was instituted by the Commission on February 14, 1996,
based on a complaint filed by Kubota Tractor Corporation (``KTC'),
Kubota Manufacturing of America (``KMA'), and Kubota Corporation
(``KBT'') (collectively ``complainants'). Complainants alleged unfair
acts in violation of section 337 of the Tariff Act of 1930 (19 U.S.C.
1337) in the importation, sale for importation, and/or the sale within
the United States after importation of certain agricultural tractors
under 50 power take-off horsepower, by reason of infringement of
complainants' four registered trademarks, U.S. Reg. Nos. 922,330
(``KUBOTA'' in block letters), 1,775,620 (``KUBOTA'' stylized),
1,028,221 (Gear Design), and 1,874,414 (stylized ``K'). The
Commission's notice of investigation named Eisho World Ltd., Nitto
Trading Corporation, Nitto Trading Co. Ltd., Sanko Industries Co.,
Ltd., Sonica Trading, Inc., Suma Sangyo, Toyo Service Co., Ltd., Bay
Implement Company, Casteel Farm Implement Co. of Monticello, Arkansas,
Casteel Farm Implement Co. of Pine Bluff, Arkansas, Casteel World
Group, Inc., Gamut Trading Co., Gamut Imports, Lost Creek Tractor
Sales, MGA, Inc. Auctioneers, Tom Yarbrough Equipment Rental and Sales,
Inc., The Tractor Shop, Tractor Company, Wallace International Trading
Co. and Wallace Import Marketing Co. Inc. as respondents. 61 Fed. Reg.
6802 (Feb. 22, 1996).
On June 19, 1996, the notice of investigation was amended to add
Fujisawa Trading Company as a respondent. On May 29, 1996, the
Commission determined not to review an ID (Order No. 13) finding
respondents Tractor Company, Sonica Trading, and Toyo Service in
default pursuant to Commission rule 210.16, and ruling that they had
waived their respective rights to appear, to be served with documents,
and to contest the allegations at issue in the investigation. On
September 25, 1996, the Commission issued a consent order terminating
the investigation as to respondent Nitto Trading Corporation. On
September 30, 1996, the Commission issued a consent order terminating
the investigation as to respondent Yarbrough Equipment Rental and Sales
Inc.
On August 21, 1996, the Commission determined not to review an ID
(Order No. 40), granting complainants' motion for summary determination
that complainants' four trademarks are valid and that the ``KUBOTA''
(block letters) and Gear Design marks are incontestable. On September
6, 1996, the Commission determined not to review an ID (Order No. 47),
granting complainants' motion for summary determination that a domestic
industry exists with respect to the ``KUBOTA'' (block letters) and
``KUBOTA'' (stylized) trademarks.
The ALJ held an evidentiary hearing on the merits between August 29
and September 7, 1996, and heard closing arguments on October 24, 1996.
The ALJ issued his final ID finding a violation of section 337 on
November 22, 1996. He found that there had been imports of the accused
products; that 24 specific models of the accused tractors infringed the
``KUBOTA'' (block letters) trademark (U.S. Reg. No. 922,330); that one
model of the accused tractors, the KBT L200, did not infringe the
``KUBOTA'' (block letters) trademark; that the accused products did not
infringe the ``KUBOTA'' (stylized) trademark (U.S. Reg. No. 1,775,620);
and that complainants were no longer asserting violations of section
337 based on infringement of the stylized ``K'' and ``Gear Design''
trademarks.
[[Page 2180]]
Both complainants and respondents filed petitions for review of the
final ID, and complainants and the Commission investigative attorney
filed responses to the petitions. On December 19, 1996, complainants
filed a motion for leave to file a reply to the investigative
attorney's response. There is no provision in the Commission's rules
for such a reply. See 19 C.F.R. 210.43(c). Moreover, complainants'
reply fails to raise any arguments that could not have been raised
before the ALJ or in their petition for review. Accordingly, the
Commission has determined to deny complainants' motion for leave to
file a reply.
Having examined the record in this investigation, including the ID,
the Commission has determined to review (1) the finding of no
infringement with respect to the KBT model L200 tractor; and (2) the
decision to limit infringement analysis to 25 models of accused
tractors rather than all models of KBT tractors as to which there is
evidence of importation and sale in the United States. The Commission
has determined not to review the ID in all other respects. On review,
the Commission will consider the following issues:
(1) whether the fact that gray market KBT L200 tractors are
imported and sold bearing Japanese-language labels constitutes a
``material difference'' from the authorized KTC L200 model tractors
sufficient to establish a likelihood of confusion;
(2) whether evidence on the record in this investigation
demonstrates that specific KBT models other than the 25 identified on
SX-1 have been imported and sold in the United States; and, if so,
(3) whether evidence on the record in this investigation
demonstrates that any specific KBT model identified in number (2) above
was imported and sold in the United States bearing Japanese-language
labels or is otherwise materially different than the closest
corresponding KTC model with respect to any of the differences found to
be ``material'' in the ID.
In connection with final disposition of this investigation, the
Commission may issue (1) an order that could result in the exclusion of
the subject articles from entry into the United States, and/or (2)
cease and desist orders that could result in respondents being required
to cease and desist from engaging in unfair acts in the importation and
sale of such articles. Accordingly, the Commission is interested in
receiving written submissions that address the form of remedy, if any,
that should be ordered. If a party seeks exclusion of an article from
entry into the United States for purposes other than entry for
consumption, the party should so indicate and provide information
establishing that activities involving other types of entry either are
adversely affecting it or are likely to do so. For background, see the
Commission Opinion in In the Matter of Certain Devices for Connecting
Computers via Telephone Lines, Inv. No. 337-TA-360.
If the Commission contemplates some form of remedy, it must
consider the effects of that remedy upon the public interest. The
factors the Commission will consider include the effect that an
exclusion order and/or cease and desist orders would have on (1) the
public health and welfare, (2) competitive conditions in the U.S.
economy, (3) U.S. production of articles that are like or directly
competitive with those that are subject to investigation, and (4) U.S.
consumers. The Commission is therefore interested in receiving written
submissions that address the aforementioned public interest factors in
the context of this investigation.
If the Commission orders some form of remedy, the President has 60
days to approve or disapprove the Commission's action. During this
period, the subject articles would be entitled to enter the United
States under a bond, in an amount determined by the Commission and
prescribed by the Secretary of the Treasury. The Commission is
therefore interested in receiving submissions concerning the amount of
the bond that should be imposed.
Written Submissions
The parties to the investigation are requested to file written
submissions on the issues under review. The submissions should be
concise and thoroughly referenced to the record in this investigation,
including references to specific exhibits and testimony. Additionally,
the parties to the investigation, interested government agencies, and
any other interested persons are encouraged to file written submissions
on the issues of remedy, the public interest, and bonding. Such
submissions should address the November 22, 1996, recommended
determination by the ALJ on remedy and bonding. Complainants and the
Commission investigative attorney are also requested to submit proposed
remedial orders for the Commission's consideration. The written
submissions and proposed remedial orders must be filed no later than
the close of business on January 23, 1997. Reply submissions must be
filed no later than the close of business on January 30, 1997. No
further submissions will be permitted unless otherwise ordered by the
Commission.
Persons filing written submissions must file with the Office of the
Secretary the original document and 14 true copies thereof on or before
the deadlines stated above. Any person desiring to submit a document
(or portion thereof) to the Commission in confidence must request
confidential treatment unless the information has already been granted
such treatment during the proceedings. All such requests should be
directed to the Secretary of the Commission and must include a full
statement of the reasons why the Commission should grant such
treatment. See 19 C.F.R. 201.6. Documents for which confidential
treatment is granted by the Commission will be treated accordingly. All
nonconfidential written submissions will be available for public
inspection at the Office of the Secretary.
This action is taken under the authority of section 337 of the
Tariff Act of 1930, as amended (19 U.S.C. 1337), and sections
210.45-.51 of the Commission's Rules of Practice and Procedure (19
C.F.R. 210.45-.51).
Copies of the public version of the ID and all other
nonconfidential documents filed in connection with this investigation
are or will be available for inspection during official business hours
(8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S.
International Trade Commission, 500 E Street, S.W., Washington, D.C.
20436, telephone 202-205-2000. Hearing impaired persons are advised
that information on the matter can be obtained by contacting the
Commission's TDD terminal at 202-205-1810.
Issued: January 9, 1997.
By order of the Commission.
Donna R. Koehnke,
Secretary.
[FR Doc. 97-969 Filed 1-14-97; 8:45 am]
BILLING CODE 7020-02-P '