[Federal Register Volume 84, Number 143 (Thursday, July 25, 2019)]
[Notices]
[Pages 35883-35884]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-15801]



[[Page 35883]]

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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-1008 (Remand)]


Certain Carbon Spine Board, Cervical Collar, CPR Masks and 
Various Medical Training Manikin Devices, and Trademarks, Copyrights of 
Product Catalogues, Product Inserts and Components Thereof; Issuance of 
a Limited Exclusion Order Against Respondents Found in Default; 
Issuance of a Cease and Desist Order; Termination of the Investigation

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 limited exclusion order (``LEO'') against 
certain products of eleven respondents found in default. The Commission 
has also issued a cease and desist order (``CDO'') against respondent 
Basic Medical Supply, LLC. The investigation is terminated.

FOR FURTHER INFORMATION CONTACT: Robert Needham, Office of the General 
Counsel, U.S. International Trade Commission, 500 E Street SW, 
Washington, DC 20436, telephone (202) 708-5468. 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 (https://www.usitc.gov). The public record for this investigation may be viewed 
on the Commission's electronic docket (EDIS) at https://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: The Commission instituted this investigation 
on June 24, 2016, based on an amended complaint, as supplemented, filed 
by Laerdal Medical Corp. of Wappingers Falls, New York, and Laerdal 
Medical AS of Stavanger, Norway (together, ``Laerdal''). 81 FR 41349-
50. The investigation was instituted to determine whether there is a 
violation of section 337 of the Tariff Act of 1930, as amended, 19 
U.S.C. 1337 (``section 337''), in the importation into the United 
States, the sale for importation, and the sale within the United States 
after importation of certain carbon spine board, cervical collar, CPR 
masks, various medical training manikin devices, trademarks, copyrights 
of product catalogues and product inserts, and components thereof by 
reason of infringement of one or more of U.S. Patent No. 6,090,058 
(``the '058 patent''), U.S. Trademark Registration No. 3,476,656 (``the 
'656 trademark''), U.S. Copyright Registration Nos. VA 1-879-023 and VA 
1-879-026, or by reason of trade dress misappropriation and 
infringement. Id. at 41349. The Commission's notice of investigation 
named as respondents Shanghai Evenk International Trading Co., Ltd., 
Shanghai Honglian Medical Instrument Development Co., Ltd., and 
Shanghai Jolly Medical Education Co., Ltd., all of Shanghai, China; 
Zhangjiagang Xiehe Medical Apparatus & Instruments Co., Ltd., 
Zhangjiagang New Fellow Med Co., Ltd., Jiangsu Yongxin Medical 
Equipment Co., Ltd., and Jiangsu Yongxin Medical-Use Facilities Making, 
Co., Ltd, all of Zhangjiagang City, China; Jiangyin Everise Medical 
Devices Co., Ltd., of Jiangyin City, China; Medsource International 
Co., Ltd. and Medsource Factory, Inc. of PuDong, China; and Basic 
Medical Supply, LLC of Richmond, Texas (collectively, ``Respondents''). 
Id. at 41350. The Office of Unfair Import Investigations was also named 
as a party. Id.
    On November 21, 2016, the ALJ issued an initial determination 
finding all of the Respondents in default for failing to respond to the 
complaint and notice of investigation, Order No. 6 (Nov. 21, 2016). The 
Commission declined to review that determination, Notice (Dec. 20, 
2016). The Commission determined to issue an LEO and a CDO with respect 
to the '058 patent and the '656 trademark, but declined to issue any 
relief with respect to Laerdal's trade dress or copyright claims. 
Comm'n Op. (Jun. 14, 2017). The Commission found that, even when the 
facts in Laerdal's complaint were taken as true, Laerdal's trade dress 
allegations were inadequate because Laerdal failed to specify its trade 
dresses, failed to show that its trade dress was nonfunctional, and 
failed to allege an adequate injury. Id. at 8-11. The Commission also 
found that Laerdal's copyright allegations were legally erroneous. Id. 
at 5-8.
    Laerdal appealed the Commission's denial of trade dress relief. On 
December 7, 2018, the Federal Circuit held that the Commission erred by 
refusing to issue trade dress relief based on the allegations in the 
amended complaint, and remanded the proceeding to the Commission for a 
determination on the proper trade dress remedy and the public interest. 
Laerdal Med. Corp. v. Int'l Trade Comm'n, 910 F.3d 1207, 1210, 1216 
(Fed. Cir. 2018). The Court's mandate issued on January 29, 2019.
    On March 26, 2019, the Commission ordered Laerdal and OUII to: (1) 
Define each trade dress at issue; (2) explain what remedy is 
appropriate for each trade dress; (3) explain the effect of each remedy 
on the public interest; and (4) provide proposed remedial orders. Order 
(Mar. 26, 2019). Laerdal and OUII each provided responses on April 15, 
2019, and reply submissions on April 29, 2019. On April 30, 2019, 
Laerdal provided corrected versions of its proposed LEO and CDO. The 
submissions agreed that the appropriate remedy is the entry of an LEO 
against Respondents and the entry of a CDO against Basic Medical 
Supply, LLC (``Basic Medical''), that the public interest factors do 
not weigh against granting these remedial orders, and that bonding 
should be set at 100 percent of the entered value of the infringing 
products.
    The Commission has determined that the appropriate form of relief 
in this investigation is: (a) An LEO against Respondents prohibiting 
the unlicensed entry of products that infringe Laerdal's trade dresses; 
and (b) an order that Basic Medical cease and desist from importing, 
selling, offering for sale, marketing, advertising, distributing, 
offering for sale, transferring (except for exportation), or soliciting 
U.S. agents or distributors of imported cervical collars that infringe 
Laerdal's trade dresses. The Commission has further determined that the 
public interest factors enumerated in section 337(g)(1) (19 U.S.C. 
1337(g)(1)) do not preclude the issuance of the LEO and CDO. Finally, 
the Commission has determined that the bond for importation during the 
period of Presidential review shall be in the amount of 100 percent of 
the entered value of the imported subject articles of the respondents. 
The investigation is terminated.
    The Commission's orders and opinion were delivered to the President 
and the United States Trade Representative on the day of their 
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 Part 210 of the Commission's Rules of Practice and Procedure (19 CFR 
part 210).

    By order of the Commission.


[[Page 35884]]


    Issued: July 22, 2019.
William Bishop,
Supervisory Hearings and Information Officer.
[FR Doc. 2019-15801 Filed 7-24-19; 8:45 am]
 BILLING CODE 7020-02-P