[Federal Register Volume 87, Number 170 (Friday, September 2, 2022)]
[Notices]
[Pages 54260-54262]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-18998]


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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-1256]


Certain Portable Battery Jump Starters and Components Thereof; 
Notice of the Commission's Final Determination With Respect to 
Defaulting Respondents; Issuance of a Limited Exclusion Order; 
Termination of the Investigation

AGENCY: International Trade Commission.

ACTION: Notice.

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SUMMARY: Notice is hereby given that the U.S. International Trade 
Commission has found the requirements of the Tariff Act of 1930, as 
amended, met, based on a complaint filed by the NOCO Company alleging a 
violation with respect to U.S. Trademark Registration Nos. 4,811,656 
(``the '656 mark'') and 4,811,749 (``the '749 mark'') by defaulting 
respondent Zhejiang Quingyou Electronic Commerce Co., Ltd. (``Zhejiang 
Quingyou'') and with respect to the '749 mark by defaulting respondent 
Shenzhen Mediatek Tong Technology Co., Ltd. (``Mediatek''). The 
Commission has determined to issue a limited exclusion order against 
defaulting respondents Zhejiang Quingyou and Mediatek. 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 may 
be viewed on the Commission's electronic docket (EDIS) at https://edis.usitc.gov. For help accessing EDIS, please email 
[email protected]. General information concerning the Commission may 
also be obtained by accessing its internet server (https://www.usitc.gov). Hearing-impaired persons are advised that information 
on this matter can be obtained by contacting the Commission's TDD 
terminal, telephone (202) 205-1810.

SUPPLEMENTARY INFORMATION: On March 23, 2021, the Commission instituted 
this investigation based on a complaint filed on behalf of The NOCO 
Company of Glenwillow, Ohio (``NOCO''). 86 FR 15496-98 (Mar. 23, 2021). 
The complaint, as supplemented and amended, alleges 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 portable battery jump starters and components 
thereof by reason of infringement of one or more of claims 1, 4, 11, 
14, 18, 19, and 21 of U.S. Patent No. 9,007,015 (``the '015 patent'') 
and claims 1, 4-6, 16, 19, 23, 24, 26, 29, and 30 of the '024 patent, 
and infringement of the '656 and '749 marks. Id. at 15497.
    The notice of investigation named the following respondents: (1) 
Advance Auto Parts, Inc. of Raleigh, North Carolina; (2) Anker 
Technology (UK) Ltd. of Birmingham, United Kingdom; (3) Antigravity 
Batteries LLC of Gardena, California; (4) Arteck Electronic Co., Ltd. 
of Shenzhen, China; (5) AutoZone, Inc. of Memphis, Tennessee; (6) Best 
Buy Co., Inc. of South Richfield, Minnesota; (7) Best Parts, Inc. of 
Memphis, Tennessee; (8) Clore Automotive, LLC of Lenexa, Kansas; (9) 
Deltran USA, LLC of DeLand, Florida; (10) Energen, Inc. of City of 
Industry, California; (11) FlyLink Tech Co., Ltd. of Shenzhen, China; 
(12) Gooloo Technologies LLC and Shenzhen Gooloo E-Commerce Co., Ltd of 
Shenzhen, China; (13) Great Neck Saw Manufacturers, Inc. of Mineola, 
New York; (14) Guangdong Boltpower Energy Co., Ltd of Shenzhen City, 
China; (15) Halo2Cloud, LLC of Hartford, Connecticut; (16) Horizon 
Tool, Inc. of Greensboro, North Carolina; (17) K-Tool International of 
Plymouth, Michigan; (18) Lowe's Companies, Inc. of Mooresville, North 
Carolina; (19) Matco Tools Corporation of Stow, Ohio; (20) MonoPrice, 
Inc. of Brea, California; (21) National Automotive Parts Association, 
LLC (d/b/a NAPA) of Atlanta, Georgia; (22) Nekteck, Inc. of Anaheim, 
California; (23) O'Reilly Automotive, Inc. of Springfield, Missouri; 
(24) Paris Corporation of Westampton, New Jersey; (25) PowerMax Battery 
(U.S.A.), Inc. of Ontario, California; (26) Prime Global Products, Inc. 
of Ball Ground, Georgia;

[[Page 54261]]

(27) QVC, Inc. of West Chester, Pennsylvania; (28) Schumacher Power 
Technology Ltd. of Yancheng, China; (29) Schumacher Electric Corp. of 
Mount Prospect, Illinois; (30) Shenzhen Carku Technology Co., Ltd. of 
Shenzhen, China; (31) Shenzhen Dingjiang Technology Co., Ltd. of 
Shenzhen, China; (32) Shenzhen Jieruijia Technology Co. Ltd. of Gong 
Ming, China; (33) Mediatek of Shenzhen, China; (34) Shenzhen Take Tools 
Co., Ltd. of Shenzhen, China; (35) Shenzhen Topdon Technology Co., Ltd. 
of Shenzhen, China; (36) Shenzhen Valuelink E-Commerce Co., Ltd. of 
Shenzhen, China; (37) Smartech Products, Inc. of Savage, Maryland; (38) 
ThiEYE Technologies Co., Ltd. of Longgang, China; (39) Tii Trading Inc. 
of Baldwin Park, California; (40) Walmart Inc. of Bentonville, 
Arkansas; (41) Winplus North America, Inc. of Costa Mesa, California; 
(42) Zagg Co. Rrd Gst of Plainfield, Indiana; (43) Zhejiang Quingyou of 
Hangzhou, China; and (44) 70mai Co., Ltd. of Shanghai, China. Id. at 
15497-98. The Office of Unfair Import Investigations is a party to the 
investigation. Id. at 15498.
    The Commission permitted NOCO to amend the amended complaint and 
notice of investigation to make the following changes: (1) to 
substitute Lowe's Home Centers, LLC, for Lowe's Companies, Inc.; (2) to 
substitute O'Reilly Automotive Stores, Inc., O'Reilly Auto Enterprises, 
LLC, and Ozark Purchasing, LLC, for O'Reilly Automotive, Inc.; (3) to 
substitute Anker Innovations Ltd. (HK) for Anker Technology (UK) Ltd.; 
(4) to substitute ZAGG Inc. for Zagg Co. Rrd; (5) to substitute 
Shenzhen Dingjiang Technology Co., Ltd. (d/b/a Shenzhen Topdon 
Technology Co., Ltd. and Topdon Technology Co., Ltd.) for Shenzhen 
Dingjiang Technology Co., Ltd., and Shenzhen Topdon Technology Co., 
Ltd.; and (6) to add additional respondents related to Winplus North 
America, Inc.--ADC Solutions Auto, LLC d/b/a/Type-S and Winplus NA, 
LLC. Order No. 13 (Apr. 23, 2021), unreviewed by Comm'n Notice (May 18, 
2021).
    The Commission subsequently terminated the investigation with 
respect to National Automotive Parts Association, LLC (d/b/a NAPA), 
Shenzhen Jieruijia Technology Co., Ltd., and Shenzhen Take Tools Co., 
Ltd. based on a voluntary withdrawal of the complaint. Order No. 9 
(Apr. 13, 2021), unreviewed by Comm'n Notice (May 12, 2021); Order No. 
47 (Dec. 6, 2021), unreviewed by Comm'n Notice (Jan. 4, 2022). The 
Commission also subsequently terminated the investigation based on a 
settlement agreement with respect to the following respondents: Advance 
Auto Parts, Inc.; Lowe's Home Centers, LLC; Ozark Purchasing, LLC; 
O'Reilly Automotive Stores, Inc.; O'Reilly Auto Enterprises, LLC; 
Shenzhen Dingjiang Technology Co., Ltd. (d/b/a Shenzhen Topdon 
Technology Co., Ltd. and Topdon Technology Co., Ltd.); Walmart, Inc.; 
QVC, Inc.; AutoZone, Inc.; and Best Parts, Inc. Order No. 11 (Apr. 19, 
2021), unreviewed by Comm'n Notice (May 4, 2021); Order No. 14 (Apr. 
23, 2021), unreviewed by Comm'n Notice (May 18, 2021); Order No. 21 
(Jul. 7, 2021), unreviewed by Comm'n Notice (Jul. 26, 2021); Order No. 
31 (Sept. 20, 2021), unreviewed by Comm'n Notice (Oct. 12, 2021); Order 
No. 35 (Oct. 20, 2021), unreviewed by Comm'n Notice (Nov. 22, 2021); 
Order No. 44 (Nov. 15, 2021), unreviewed by Comm'n Notice (Dec. 6, 
2021). Finally, the Commission terminated the investigation with 
respect to Schumacher Electric Corp. and Schumacher Power Technology 
Ltd. based on a consent order stipulation and entry of a consent order. 
Order No. 52 (Jan. 12, 2022), unreviewed by Comm'n Notice (Feb. 4, 
2022).
    The Commission found several respondents in default for failing to 
respond to the complaint, notice of investigation, and order to show 
cause why they should not be found in default. These defaulting 
respondents include the following: Energen, Inc.; FlyLink Tech Co., 
Ltd.; K-Tool International; MonoPrice, Inc.; Prime Global Products, 
Inc.; Mediatek; Shenzhen Valuelink E-Commerce Co., Ltd.; ThiEYE 
Technologies Co., Ltd; Tii Trading Inc.; Zhejiang Quingyou; and Arteck 
Electronics Co., Ltd. Order No. 23 (Jul. 13, 2021), unreviewed by 
Comm'n Notice (Jul. 30, 2021); Order No. 45 (Nov. 16, 2021), unreviewed 
by Comm'n Notice (Dec. 10, 2021). The Commission also found Smartech 
Products, Inc. in default based on its voluntary default. Order No. 28 
(Aug. 9, 2021), unreviewed by Comm'n Notice (Aug. 20, 2021).
    Accordingly, at the time of the evidentiary hearing, the following 
respondents remained active in the investigation: Antigravity Batteries 
LLC, Gooloo Technology LLC and Shenzhen Gooloo E-Commerce Co., Ltd., 
Horizon Tool, Inc., Nekteck, Inc., PowerMax Battery (U.S.A.), Inc., 
Shenzhen Carku Technology Co., Ltd., 70mai Co., Ltd., Matco Tools 
Corporation, Paris Corporation, and Great Neck Saw Manufacturers, Inc. 
(collectively, the ``Carku respondents''); Guangdong Boltpower Energy 
Co., Ltd. and Best Buy Co., Inc. (collectively, the ``Boltpower 
respondents''); and Winplus North America, Inc., Winplus NA, LLC, and 
ADC Solutions Auto, LLC d/b/a Type S (collectively, the ``Winplus 
respondents'').
    The Commission also terminated the investigation with respect to 
claims 4, 14, 18, and 21 of the '015 patent and claims 4, 5, 6, 19, 23, 
and 26 of the '024 patent based on NOCO's partial withdrawal of the 
complaint. Order No. 27 (Aug. 6, 2021), unreviewed by Comm'n Notice 
(Aug. 18, 2021). The Commission later terminated the investigation with 
respect to the '015 patent in its entirety. Order No. 46 (Dec. 6, 
2021), unreviewed by Comm'n Notice (Jan. 4, 2022).
    Accordingly, at the time of the evidentiary hearing, the '656 mark, 
the '749 mark, and claims 1, 16, 24, 29, and 30 of the '024 patent 
remained asserted in the investigation. Specifically, NOCO asserted the 
following: claims 1, 16, 24, 29, and 30 of the '024 patent against the 
Carku respondents; claims 1, 16, 24, 29, and 30 against the Boltpower 
respondents; claims 1, 16, 29, and 30 against the Winplus respondents; 
and claims 1, 29, and 30 against ten of the twelve defaulting 
respondents. Final ID at 8-9. NOCO also accused defaulting respondent 
Mediatek of infringing the '749 mark and defaulting respondent Zhejiang 
Quingyou of infringing the '749 mark and the '656 mark. Id. at 338. 
NOCO's post-hearing brief did not contain infringement allegations 
against defaulting respondents FlyLink Tech Co., Ltd. and Arteck 
Electronics Co., Ltd. See CIB at 71-72, 183; Final ID at 8-9, 338.
    On April 29, 2022, the ALJ issued a Final Initial Determination 
(``ID'') finding a violation with respect to the '749 mark by 
defaulting respondent Mediatek and with respect to the '656 and '749 
marks by defaulting respondent Zhejiang Quingyou, and finding no 
violation with respect to the '024 patent. Specifically, with respect 
to the '024 patent, the ID finds that NOCO showed that the products of 
the Boltpower respondents and the ten defaulting respondents infringe 
the asserted claims of the '024 patent, but that NOCO failed to show 
that the products of the Carku respondents and Winplus respondents 
infringe the asserted claims. The ID further finds that no asserted 
claim of the '024 patent was shown to be invalid or unenforceable. 
Additionally, the ID finds that NOCO satisfied the economic prong of 
the domestic industry requirement but failed to satisfy the technical 
prong as to the '024 patent, and thus failed to establish a violation 
of section 337 as to that patent.

[[Page 54262]]

    The Commission received no post-Recommended Determination 
submissions on the public interest.
    On May 13, 2022, NOCO filed a petition with respect to the '024 
patent, seeking review of certain of the Final ID's findings on the 
technical prong of the domestic industry requirement and infringement 
and seeking contingent review of certain of the Final ID's findings on 
invalidity. That same day, Boltpower filed a petition seeking review of 
certain of the ALJ's and ID's findings on claim construction and 
infringement with respect to the '024 patent. Also on May 13, 2022, the 
Carku and Winplus respondents filed a joint contingent petition with 
respect to the '024 patent, seeking review of the Final ID on numerous 
issues related to infringement, invalidity, the technical prong of the 
domestic industry requirement, and the economic prong of the domestic 
industry requirement. No petitions were filed concerning the Final ID's 
findings with respect to the asserted trademarks. On May 23, 2022, the 
parties and OUII filed responses to each other's petitions.
    On June 30, 2022, the Commission determined not to review the Final 
ID's findings of a violation of section 337 with respect to the '656 
mark and the '749 mark by defaulting respondent Zhejiang Quingyou and 
with respect to the '749 mark by defaulting respondent Mediatek. The 
Commission presumes that the allegations in the second amended 
complaint against Zhejiang Quingyou and Mediatek are true with respect 
to the '656 and '749 marks based on those respondents' defaults. 19 
U.S.C. 1337(g)(1). The Commission also determined to review in part the 
Final ID's finding of no violation of section 337 with respect to the 
'024 patent and, on review, to affirm the Final ID's finding of no 
violation due to NOCO's failure to satisfy the technical prong of the 
domestic industry requirement. The Commission determined to take no 
position on the remainder of Final ID's findings under review. Beloit 
Corp. v. Valmet Oy, 742 F.2d 1421, 1423 (Fed. Cir. 1984). The 
Commission's notice requested that the parties, interested government 
agencies, and the public provide written submissions on remedy, 
bonding, and the public interest with respect to defaulting respondents 
Zhejiang Quingyou and Mediatek.
    Having examined the parties' submissions concerning remedy, the 
public interest, and bonding, the Commission has determined, pursuant 
to subsection 337(g)(1) (19 U.S.C. 1337(g)(1)), that the appropriate 
form of relief in this investigation is a limited exclusion order 
(``LEO'') with respect to Zhejiang Quingyou prohibiting the importation 
of certain portable battery jump starters and components thereof that 
infringe the '656 or '749 marks and with respect to Mediatek 
prohibiting the importation of certain portable battery jump starters 
and components thereof that infringe the '749 mark. Although NOCO 
requested the Commission to issue cease and desist orders (``CDOs'') 
directed to these defaulting respondents, the Commission has determined 
not to issue CDOs because of the lack of evidence or allegations that 
Zhejiang Quingyou or Mediatek maintain commercially significant 
inventory and/or engage in significant commercial operations the United 
States. The Commission has further determined that the public interest 
factors enumerated in subsection 337(g)(1) do not preclude the issuance 
of the limited exclusion order.
    Commissioner Schmidtlein and Commissioner Karpel agree that 
subsection 337(g)(1) is the appropriate authority for issuance of 
relief in this case, but they disagree with the determination not to 
issue the CDOs requested by NOCO. Specifically, Commissioners 
Schmidtlein and Karpel support issuance of both the requested LEO and 
the requested CDOs against defaulting respondents Zhejiang Quingyou and 
Mediatek because the criteria for issuance of such relief under 
subsection 337(g)(1)(A)-(E) are met as to these respondents. (19 U.S.C. 
1337(g)(1)(A)-(E); see Order No. 23 at 2 (July 13, 2021); Notice of a 
Commission Determination Not to Review an Initial Determination Finding 
Ten Respondents in Default (July 30, 2021)). Here, in addition to an 
exclusion order, NOCO has requested CDOs as to these two defaulting 
respondents both in its post-hearing briefing before the ALJ and in its 
remedy submission before the Commission. Given that subsections 
337(g)(1)(A)-(E) are satisfied, in Commissioner Schmidtlein's and 
Commissioner Karpel's view, the statute directs the Commission to issue 
the requested CDOs, subject to consideration of the public interest. 
Commissioners Schmidtlein and Karpel further find that the public 
interest factors enumerated in subsection 337(g)(1) do not preclude the 
issuance of the CDOs directed to defaulting respondents Zhejiang 
Quingyou and Mediatek. Accordingly, Commissioners Schmidtlein and 
Karpel support issuance of the CDOs, in addition to the issuance of the 
LEO discussed above, under subsection 337(g)(1).
    Finally, the Commission has determined that the bond for 
importation during the period of Presidential review shall be in the 
amount of one hundred percent (100%) of the entered value of such 
articles.
    The Commission's notice and order were delivered to the President 
and to the United States Trade Representative on the day of their 
issuance. The Commission has also notified the Secretary of the 
Treasury and Customs and Border Protection of the order. The 
investigation is hereby terminated.
    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.

    Issued: August 29, 2022.
Katherine Hiner,
Acting Secretary to the Commission.
[FR Doc. 2022-18998 Filed 9-1-22; 8:45 am]
BILLING CODE 7020-02-P