[Federal Register Volume 74, Number 187 (Tuesday, September 29, 2009)]
[Notices]
[Pages 49891-49892]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-23389]


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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-643]


 In the Matter of Certain Cigarettes and Packaging Thereof: 
Notice of Commission Final Determination of Violation of Section 337; 
Termination of Investigation; Issuance of General Exclusion 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 determined that there is a violation of 19 U.S.C. 1337 
by Alcesia SRL (``Alcesia'') of Moldova in the above-captioned 
investigation and has issued a general exclusion order. The 
investigation is terminated.

[[Page 49892]]


FOR FURTHER INFORMATION CONTACT: Daniel E. Valencia, Office of the 
General Counsel, U.S. International Trade Commission, 500 E Street, 
SW., Washington, DC 20436, telephone (202) 205-1999. Copies of non-
confidential 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. General information concerning the 
Commission may also be obtained by accessing its Internet server at 
http://www.usitc.gov. The public record for this investigation may be 
viewed on the Commission's electronic docket (EDIS) at http://edis.usitc.gov. 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: On April 4, 2008, the Commission instituted 
this investigation, based on a complaint filed by Philip Morris USA 
Inc. (``PM USA'') of Richmond, VA, naming Alcesia; Emarket Systems Ltd. 
(d.b.a. all-discount-cigarettes.com); Jamen Chong (d.b.a. asiadfs.com); 
Tri-kita (d.b.a. cheapcigarettes4all.com); Mr. Eduard Lee (d.b.a. 
cigarettesonlineshop.com); Zonitech Properties Limited (d.b.a. 
cigline.net); Zonitech Properties Limited (d.b.a. shopping-heaven.com); 
Cendano (d.b.a. galastore.com); Ms. Svetlana Trevinska (d.b.a. save-on-cigarettes.com); LMB Trading SA (d.b.a. k2smokes.ch); G.K.L. 
International SRL (d.b.a. all-cigarettes-brandsxom); G.K.L. 
International SRL (d.b.a. smokerjim.net); and Best Product Solution 
Ltd. as respondents. The complaint alleges violations of section 337 of 
the Tariff Act of 1930, 19 U.S.C. 1337, in the importation into the 
United States of certain cigarettes and packaging thereof that infringe 
registered trademarks owned by PM USA. Subsequent to institution all 
respondents but Alcesia were found in default.
    On February 3, 2009, the ALJ issued Order No. 19, a summary initial 
determination (``ID'') granting PM USA's motion for summary 
determination that Alcesia has violated section 337 with respect to 
three trademarks: U.S. Trademark Registration Nos. 68,502; 378,340; and 
894,450. On February 17, 2009, Alcesia petitioned for review of the ID. 
On February 24 and 25, 2009, PM USA and the Commission Investigative 
Attorney (``IA''), respectively, opposed Alcesia's petition for review.
    On April 9, 2009, the Commission determined to review the ID and 
requested written submissions on the issues under review, remedy, the 
public interest, and bonding. On May 8, 2009, the parties filed opening 
submissions, and on May 29, 2009, the parties filed response 
submissions. Several non-parties also filed submissions addressing 
issues related to remedy and the public interest.
    Having examined the record of this investigation, including the 
ALJ's summary ID, the Commission has determined to affirm the ALJ's 
finding that Alcesia has violated section 337 by selling for 
importation into the United States gray market cigarettes that infringe 
PM USA's Marlboro[supreg], Parliament[supreg], and Virginia 
Slims[supreg] trademarks. In particular, the Commission has adopted the 
ALJ's finding that a lack of English-language warning labels from the 
Surgeon General on the gray market cigarette packages makes them 
materially different from the U.S. market cigarettes. The Commission, 
however, has declined to adopt the ID's finding that the gray market 
cigarettes' susceptibility to seizure under the Imported Cigarette 
Compliance Act makes them materially different from U.S. market 
cigarettes. The Commission also takes no position on the ID's finding 
that a material difference exists between the gray market and U.S. 
market cigarettes because PM USA exercises quality control over 
procedures for distribution, storage, and transportation of the U.S. 
market cigarettes, while it does not exercise this control over the 
gray market cigarettes.
    The Commission has determined that the appropriate form of relief 
is a general exclusion order prohibiting the unlicensed entry of 
Marlboro[supreg], Parliament[supreg], or Virginia Slims[supreg] branded 
cigarettes that (a) infringe one or more of the following U.S. 
Trademark Reg. Nos. 68,502, 378,340, and 894,450 and (b) are materially 
different from cigarettes manufactured by or under authority of PM USA 
for sale and use in the United States.
    The Commission further determined that the public interest factors 
enumerated in section 337(d) (19 U.S.C. 1337(d)) do not preclude 
issuance of the general exclusion order. Finally, the Commission 
determined that the amount of bond during the Presidential review 
period (19 U.S.C. 1337(j)) shall be 100 percent of the entered value of 
the article that is subject to the order. The Commission's order was 
delivered to the President and the United States Trade Representative 
on the day of its issuance.
    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 sections 210.42-50 of the Commission's Rules of Practice and 
Procedure (19 CFR 210.42-50).

    By order of the Commission.

    Issued: September 21, 2009.
Marilyn R. Abbott,
Secretary to the Commission.
[FR Doc. E9-23389 Filed 9-28-09; 8:45 am]
BILLING CODE 7020-02-P