[Federal Register Volume 65, Number 204 (Friday, October 20, 2000)]
[Notices]
[Pages 63094-63095]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-27058]



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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-424]


Certain Cigarettes and Packaging Thereof; Notice of Issuance of 
General Exclusion Order and Cease and Desist Order

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 issued a general exclusion order and a cease and desist 
order 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, 
SW., Washington, DC 20436; telephone (202) 205-3090, e-mail 
[email protected].

SUPPLEMENTARY INFORMATION: The Commission instituted this investigation 
on September 16, 1999, based on a complaint and supplement to the 
complaint filed by Brown & Williamson Tobacco Corporation 
(``complainant'' or ``Brown & Williamson''). Complainant 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 sale within the 
United States after importation of certain cigarettes and packaging 
thereof, by reason of: (a) Infringement of 11 federally registered U.S. 
trademarks (U.S. Reg. Nos. 118,372; 311,961; 335,113; 366,744; 404,302; 
508,538; 747,482; 747,490; 2,055,297; 2,174,493; and 2,218,589) (``the 
Brown & Williamson trademarks''); (b) trademark dilution; (c) false 
representation of source; and (d) false advertising. The Commission's 
notice of investigation named Allstate Cigarette Distributors, Inc. 
(``Allstate''), Dood Enterprises, Inc. (``Dood''), Prestige Storage and 
Distribution, Inc. (``Prestige''), and R.E. Tobacco Sales, Inc. (``R.E. 
Tobacco'') as respondents.
    On December 15, 1999, the Commission determined not to review an 
initial determination (``ID'') (Order No. 15) granting the motion of 
PTI, Inc., doing business as Ampac Trading (``PTI'' or ``intervenor''), 
to intervene in this investigation. On February 22, 2000, the 
Commission determined to review and affirm an ID (Order No. 30) 
granting the motion of respondent Allstate to terminate the 
investigation as to it based on a consent order. On March 24, 2000, the 
Commission determined not to review two IDs (Orders Nos. 60 and 61) 
granting the motions of respondents Prestige and R.E. Tobacco to 
terminate the investigation as to them based on consent orders. On 
April 27, 2000, the Commission determined not to review an ID (Order 
No. 68) granting the motion of respondent Dood to terminate the 
investigation as to it based on a consent order.
    On March 24, 2000, the Commission determined not to review an ID 
(Order No. 59) granting complainant's motion for partial summary 
determination that a domestic industry exists with respect to 
complainant's trademarks.
    The presiding administrative law judge (``ALJ'') held an 
evidentiary hearing on violation beginning on March 20, 2000. On March 
24, 2000, the last day of the hearing, PTI filed a motion for dismissal 
of Brown & Williamson's complaint pursuant to Federal Rule of Civil 
Procedure (``FRCP'') 41(a), alleging that Brown & Williamson failed to 
set forth facts showing entitlement to relief for trademark 
infringement. The ALJ permitted complainant and the Commission 
investigative attorney (``IA'') to respond to PTI's motion in their 
posthearing briefs.
    On June 22, 2000, the ALJ issued her final ID finding a violation 
of section 337 and denying PTI's motion to dismiss. She found that 
there had been imports of the accused products by intervenor PTI; that 
PTI's importation and sale of certain ``KOOL'' and ``LUCKY STRIKE'' 
cigarettes infringed the Brown & Williamson trademarks; that PTI's 
importation and sale of accused cigarettes diluted the Brown & 
Williamson trademarks; that PTI's importation and sale of accused 
cigarettes constituted a false designation of origin; that complainant 
had failed to demonstrate that PTI engaged in false advertising with 
respect to the accused cigarettes; that PTI's trademark dilution and 
false designation had the threat or effect of substantially injuring 
the domestic industry; and that PTI was not denied due process in 
proceedings before the ALJ in this investigation.
    On June 27, 2000, the Commission determined to extend the date by 
which it was required determine whether to review the instant ID to 
August 28, 2000, and to extend the target date in this investigation to 
October 16, 2000.
    On July 12, 2000, intervenor PTI filed a petition for review of the 
final ID. On July 17, 2000, complainant and the IA filed responses to 
the petition. On August 28, 2000, the Commission determined not to 
review the ID and requested written submissions on the issues of 
remedy, the public interest, and bonding. 65 FR 53334 (Sept. 1, 2000).
    Submissions on remedy, the public interest, and bonding were 
received from complainant, intervenor PTI, and the IA. Reply 
submissions were received from complainant and the IA. Comments on the 
public interest were received from one U.S. Senator, nineteen Members 
of Congress, the National Association of Attorneys General, the 
Attorney General of Florida, the Petroleum Marketers Association of 
America, the National Association of Convenience Stores, and the 
National Grocers Association.
    Having reviewed the record in this investigation, including the 
written submissions of the parties and the public comments, the 
Commission has determined that the appropriate form of relief is a 
general exclusion order prohibiting the unlicenced entry for 
consumption of KOOL and LUCKY STRIKE cigarettes manufactured by Brown & 
Williamson that infringe the eleven federally-registered Brown & 
Williamson trademarks (U.S. Reg. Nos. 118,372; 311,961; 335,113; 
366,744; 404,302; 508,538; 747,482; 747,490; 2,055,297; 2,174,493; and 
2,218,589), dilute the identified trademarks, or bear the identified 
trademarks and falsely represent that the trademark owner is the source 
of such product, and a cease and desist order directed to intervenor 
PTI, prohibiting the importation, sale for importation, or sale in the 
United States after importation of KOOL and LUCKY STRIKE cigarettes 
that infringe the Brown & Williamson trademarks.
    The Commission has also determined that the public interest factors 
enumerated in subsections 1337(d) and (f) do not preclude the issuance 
of the general exclusion order and the cease and desist order, and that 
the bond during the Presidential review period shall be in the amount 
of seven dollars ($7.00) per carton of cigarettes.
    This action is taken under the authority of section 337 of the 
Tariff Act of 1930 (19 U.S.C. 1337) and section 210.50 of the 
Commission's Rules of Practice and Procedure (19 CFR 210.50).
    Copies of the Commission's orders, the public version of the 
Commission's opinion in support thereof, 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, SW., Washington, DC 20436, telephone (202) 
205-2000. Hearing impaired persons are advised that information can be 
obtained by contacting the Commission's TDD

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terminal on (202) 205-1810. Public documents are available for 
downloading from the Commission's Internet server (http://www.usitc.gov). General information concerning the Commission may also 
be obtained by accessing its Internet server.

    Issued October 16, 2000.

    By order of the Commission.
Donna R. Koehnke,
Secretary.
[FR Doc. 00-27058 Filed 10-19-00; 8:45 am]
BILLING CODE 7020-02-P