[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