[Federal Register Volume 66, Number 26 (Wednesday, February 7, 2001)]
[Notices]
[Pages 9359-9360]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-3195]



[[Page 9359]]

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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-114]


In the Matter of: Certain Miniature Plug-In Blade Fuses; Notice 
of Exclusion Order Modification Proceeding and Request for Comments

AGENCY: U.S. International Trade Commission.

ACTION: Notice and request for written comments.

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SUMMARY: Notice is hereby given that the U.S. International Trade 
Commission is instituting a proceeding under 19 CFR 210.76 to determine 
whether to modify a provision of the general exclusion order issued in 
1983 in the above-captioned investigation. The Commission requests 
written comments from interested persons on issues specified below in 
the SUPPLEMENTARY INFORMATION section of this notice.

DATES:   
Effective Date: The modification proceeding is instituted effective 
February 7, 2001.
    Deadline for Written Comments: Interested persons other than 
parties to the investigation may file written comments on the matters 
to be decided in the modification proceeding on or before 5:15 p.m. 
March 9, 2001.

ADDRESSES: A signed original and twelve (12) copies of each set of 
comments should be mailed or hand-delivered to Donna R. Koehnke, 
Secretary, United States International Trade Commission, 500 E Street, 
SW., Room 112, Washington, DC 20436.

FOR FURTHER INFORMATION CONTACT: P.N. Smithey, Esq., Office of the 
General Counsel, U.S. International Trade Commission, telephone 202-
205-3061. General information concerning the Commission and the above-
captioned investigation also may be obtained by accessing its Internet 
server (http://www.usitc.gov). Hearing-impaired individuals can obtain 
information concerning this matter by contacting the Commission's TDD 
terminal at 202-205-1810.

SUPPLEMENTARY INFORMATION:
    The Investigation. The Commission instituted the subject 
investigation in 1982 to determine whether there was a violation of 
section 337 of the Tariff Act of 1930 (19 U.S.C. 1337 (1978 and 1981 
Supp.)) in the importation or sale of certain miniature plug-in blade 
fuses that allegedly misrepresented their place of geographic origin, 
infringed the complainant's patents and/or trademarks, misappropriated 
the complainant's trade dress, were passed off as merchandise of the 
complainant, or were the subject of false advertising. The complainant 
was the patent and trademark owner, Littelfuse, Inc., of Des Plaines, 
Illinois. The Commission named nine firms in Taiwan and three domestic 
firms as respondents in the investigation. Their names and addresses, 
as they appeared in the notice of investigation in 1982, are set forth 
below:

Fuji Industries, Yang Tye Building, Third Floor, No. 50, Sung Chiang 
Road, Taipei, Taiwan
Leumark Industrial Co., Ltd., P.O. Box 38-113, Taipei, Taiwan
Walter Electronic Co., Ltd., P.O. Box 48-22, Taipei, Taiwan
Terng Nan Industrial Corp., P.O. Box 55-462, Taipei, Taiwan
Rite Industrial Corp, P.O. Box 59105, Taipei, Taiwan
Yueh Jyh Metal Industrial Co., Ltd., No. 257 Fu Hsin Road, Chung Ho 
City, Taipei Hsien, Taiwan
M & T Auto Parts, 3038 31st Street, Long Island City, New York 11102
Speedway, 4140 Eagle Rock Boulevard, Los Angeles, California 90065
David Art & Handicraft Co., Ltd., P.O. Box 16-133, Taipei, Taiwan
Tophole Trading Co., Ltd., P.O. Box 17-157, Taipei, Taiwan
Interchem Corp., 403 West 8th Street, Suite 620, Los Angeles, 
California 90014
Zeeman Fuse Manufacturing Corp., 2F and 3F, No. 2, Lane 79, San Chang 
Road, Nankank District, Taipei, Taiwan

See 47 FR 1448 (Jan. 13, 1982).
    The investigation resulted in the issuance of a general exclusion 
order in 1983, prohibiting, among other things, the entry of imported 
miniature plug-in blade fuses having a trade dress, i.e., a product 
configuration and/or packaging, simulating that of complainant 
Littelfuse. Certain Miniature Plug-In Blade Fuses, Inv. No. 337-TA-114, 
USITC Publication 1337 (Jan. 1983), Commission Action and Order at page 
2, para. 2 (Jan. 13, 1983).
    The Pudenz Litigation. At the time of the investigation, Littelfuse 
marketed its miniature plug-in blade fuses under various trademarks, 
including ``ATO.'' Littelfuse continued to use that mark after the 
investigation ended. Littelfuse also obtained U.S. Trademark 
Registration No. 1,513,357 (``the '357 registration''), which covers 
the two-dimensional outline of the ATO fuse, and U.S. Trademark 
Registration No. 1,553,579 (``the '579 registration''), which covers 
the three-dimensional configuration of the ATO fuse housing.
    Wilhelm Pudenz GmbH, a German firm that was not a respondent in the 
original section 337 investigation, challenged the validity of the 
aforesaid trademark registrations by filing a civil action against 
Littelfuse in the United States District Court for the Northern 
District of Georgia, Atlanta Division. The district court decided that 
the individual features of the ATO fuse housing and the overall 
configuration of those features in the housing are functional and that 
this functionality renders the '357 and '579 registrations invalid and 
unenforceable. See the [Unpublished] Judgment and the [Unpublished] 
Order issued on January 7, 1998, in Civil Action No. 1:95-CV-2445-JTC, 
Wilhelm Pudenz GmbH [and] Wickmann USA, Inc. v. Littelfuse, Inc.
    The U.S. Court of Appeals for the Eleventh Circuit affirmed the 
district court's decision. Wilhelm Pudenz GmbH v. Littlefuse [sic], 
Inc., 177 F.3d 1204, 51 U.S.P.Q.2d 1045 (11th Cir. 1999).
    The Modification Proceeding. During the investigation, the 
nonfunctional nature of the asserted design features was one criterion 
the Commission applied in determining that Littelfuse's trade dress was 
entitled to protection from unauthorized copying. See USITC Pub. 1337, 
Commission Opinion at 19-21. The district and appellate courts have 
concluded, however, that as disclosed in the '357 and '579 
registrations, individual features of the ATO fuse housing and the 
overall configuration of those features in the housing are functional. 
See the district court's Order of January 7, 1998, at Findings of Fact 
and Conclusions of Law, Functionality, 13-26; and 177 F.3d at 1212, 51 
U.S.P.Q.2d at 1050.
    Complainant Littelfuse has admitted that the product configuration 
covered by the exclusion order is substantially similar to the product 
configuration covered by Littelfuse's '357 and '579 trademark 
registrations. Written Report [of Complainant Littelfuse, Inc.] (Aug. 
2, 2000) at page 2, para. 7. That admission and other considerations 
prompted the Commission to institute a proceeding, under 19 CFR 210.76, 
to determine whether the trade dress/product configuration provision of 
the section 337 general exclusion order should be modified in light of 
the judicial findings.
    The Commission Order issued along with this notice discusses (1) 
the changed conditions of fact or law and the public interest reasons 
that prompted the Commission to institute the modification proceeding, 
(2) the specific modification that the Commission is contemplating, (3) 
the supporting materials and arguments,

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and (4) the filing of written submissions by parties to the 
investigation.
    The Commission expects to reach a determination in this proceeding 
without conducting a public hearing or delegating the proceeding to an 
administrative law judge for a hearing and a recommended determination.
    All nonconfidential documents filed in the investigation, listed in 
the Commission Order issued along with this notice, or filed in the 
modification proceeding are or will be made available for public 
inspection during official business hours (8:45 a.m. to 5:15 p.m.) in 
the Commission's Office of the Secretary, Dockets Branch, 500 E Street, 
SW., Room 112, Washington, DC 20436, telephone 202-205-1802.
    In addition, the Commission Order issued along with this notice, 
Littelfuse's written report, the Commission investigative staff's 
written comments on that report, and all nonconfidential documents 
filed in the modification proceeding will be available for inspection 
on the Commission's website. To access them from the Home Page of the 
Commission's Internet server, click on ``EDIS ON-LINE,'' click on 
``337'' under ``Home,'' click on ``337 114 Violation Miniature Plug-In 
Blade Fuses,'' and then click on the specific document to be reviewed.
    Written Comments. Interested persons who are not parties to the 
investigation may file written comments on (1) the conditions of fact 
or law and the public interest reasons set forth in the Commission 
Order of January 30, 2001, that prompted the Commission to institute 
the proceeding, (2) the specific modification that the Commission is 
contemplating, and (3) any other issues that will aid the Commission in 
determining whether to modify the trade dress/product configuration 
provision of the exclusion order. Such comments must be filed in 
accordance with the Commission's Rules of Practice and Procedure, 
particularly the relevant provisions of 19 CFR 201.6, 201.8 (except for 
the number of copies prescribed by 201.8(d)), 201.14, 201.16, and 210.4 
through 210.7.

    Issued: February 1, 2001.

    By Order of the Commission.
Donna R. Koehnke,
Secretary.
[FR Doc. 01-3195 Filed 2-6-01; 8:45 am]
BILLING CODE 7020-02-P