Certain Pickup Truck Folding Bed Cover Systems and Components Thereof; Commission Issuance of Limited Exclusion Order Against Infringing Products of Respondent Found in Default; Issuance of Cease and Desist Order Against Defaulting Respondent; Termination of Investigation |
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Lisa Barton
International Trade Commission
8 April 2020
[Federal Register Volume 85, Number 68 (Wednesday, April 8, 2020)]
[Notices]
[Pages 19774-19775]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-07336]
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INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-1143]
Certain Pickup Truck Folding Bed Cover Systems and Components
Thereof; Commission Issuance of Limited Exclusion Order Against
Infringing Products of Respondent Found in Default; Issuance of Cease
and Desist Order Against Defaulting Respondent; Termination of
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
infringing products from Ningbo Huadian Cross Country Automobile
Accessories Co., Ltd. (``Ningbo'') of Ningbo, China and a cease and
desist order (``CDO'') against Ningbo. The investigation is terminated.
FOR FURTHER INFORMATION CONTACT: Clint Gerdine, Esq., Office of the
General Counsel, U.S. International Trade Commission, 500 E Street SW,
Washington, DC 20436, telephone (202) 708-2310. 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 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
[[Page 19775]]
this matter can be obtained by contacting the Commission's TDD terminal
on (202) 205-1810.
SUPPLEMENTARY INFORMATION: The Commission instituted this investigation
on February 15, 2019, based on a complaint filed on behalf of Extang
Corporation and Laurmark Enterprises, Inc. d/b/a BAK Industries
(collectively, ``Complainants''), both of Ann Arbor, Michigan. 84 FR
4534-35 (Feb. 15, 2019). The complaint alleges violation of section 337
of the Tariff Act of 1930, as amended, 19 U.S.C. 1337 (``Section
337''), based upon the importation into the United States, sale for
importation, and the sale within the United States after importation of
certain pickup truck folding bed cover systems and components thereof
by reason of infringement of certain claims of U.S. Patent Nos.
D620,877; 7,188,888 (``the '888 patent''); 7,484,788; 8,061,758;
8,182,021 (``the '021 patent''); and 8,690,224; and U.S. Trademark
Registration Nos. 5,104,393 (``the '393 trademark'') and 3,904,016
(``the '016 trademark''). The Commission's notice of investigation
names eleven respondents: Ningbo; DT Trading Inc. of Alhambra,
California; JL Concepts Inc. and Stehlen Automotive, both of Walnut,
California; Wenzhou Kouvi Hardware Products Co., Ltd. of Zhejiang
Province, China; SyneticUSA of Pico Rivera, California; Topline
Autoparts, Inc. and Velocity Concepts Inc., both of Hacienda Heights,
California; Apex Auto Parts Mfg. Inc. and Syppo Marketing, Inc., both
of City of Industry, California; and Sunwood Industries Co., Ltd.
(``Sunwood'') of Jiangsu, China. The Office of Unfair Import
Investigations (``OUII'') is also a party to the investigation. The
Commission previously found Ningbo in default. Order No. 23 (May 3,
2019), unreviewed by Comm'n Notice (May 29, 2019). Apart from Ningbo,
all of the respondents were terminated from the investigation via
consent orders. See Order Nos. 13-19 (Apr. 12, 2019), unreviewed by
Comm'n Notice (May 8, 2019); Order Nos. 20-21 (Apr. 26, 2019),
unreviewed by Comm'n Notice (May 15, 2019); Order No. 27 (July 3,
2019), unreviewed by Comm'n Notice (July 29, 2019).
On March 12, 2019, Complainants filed a motion, pursuant to
Commission Rule 210.16 (19 CFR 210.16), requesting: (1) An order
directing, inter alia, Ningbo to show cause why it should not be found
in default for failure to respond to the complaint and notice of
investigation as required by Commission Rule 210.13 (19 CFR 210.13);
and (2) the issuance of an initial determination (``ID'') finding,
inter alia, Ningbo in default upon its failure to show cause. On March
19, 2019, the presiding administrative law judge (``ALJ'') issued Order
No. 9 which required, inter alia, Ningbo to show cause no later than
April 1, 2019, as to why it should not be held in default and have
judgment rendered against it pursuant to Commission Rule 210.16 (19 CFR
210.16). No response was received from Ningbo to the motion or show
cause order.
The ALJ issued an ID (Order No. 23) on May 3, 2019, finding Ningbo
in default, pursuant to Commission Rule 210.16 (19 CFR 210.16), because
it did not respond to the complaint, notice of investigation, and Order
No. 9. Subsequently, the ALJ issued Order No. 27, which entered a
consent order with respect to Sunwood. Order No. 27 also terminated the
investigation before the ALJ because Sunwood was the last participating
respondent. The Commission determined not to review Order No. 27 and
requested written submissions on the issues of remedy, the public
interest, and bonding. 84 FR 37673-74 (August 1, 2019).
Complainants and OUII submitted briefing responsive to the
Commission's request on August 12, 2019, and OUII submitted a reply
brief on August 19, 2019. Complainants and OUII both argued that the
Commission should issue an LEO directed to Ningbo's infringing products
and a CDO directed to Ningbo.
Having reviewed the record in the investigation, including the
written submissions of the parties, the Commission has made its
determination on the issues of remedy, the public interest, and
bonding. The Commission has determined to issue relief directed solely
to the defaulting respondent, Ningbo, pursuant to Section 337(g)(1), 19
U.S.C. 1337(g)(1). The Commission finds that the statutory requirements
of Section 337(g)(1)(A)-(E) (19 U.S.C. 1337(g)(1)(A)-(E)) are met with
respect to the defaulting respondent. Pursuant to Section 337(g)(1) and
Commission Rule 210.16(c) (19 CFR 210.16(c)), the Commission presumes
the facts alleged in the complaint to be true. Based on the record in
this investigation and the written submissions from the parties, the
Commission has determined to issue an LEO directed to the defaulting
respondent prohibiting the unlicensed entry of folding cover assemblies
for pickup truck cargo boxes and components thereof that infringe one
or more of claim 11 of the '888 patent, claim 18 of the '021 patent,
the '393 trademark, and the '016 trademark, and that are manufactured
abroad by or on behalf of, or imported by or on behalf of Ningbo, or
any of its affiliated companies, parents, subsidiaries, or other
related business entities, or their successors or assigns. The
Commission has also determined to issue a CDO prohibiting Ningbo from
conducting any of the following activities in the United States:
Importing, selling, marketing, advertising, distributing, offering for
sale, transferring (except for exportation), and soliciting U.S. agents
or distributors for folding cover assemblies for pickup truck cargo
boxes and components thereof that infringe one or more of claim 11 of
the '888 patent, claim 18 of the '021 patent, the '393 trademark, and
the '016 trademark. See Certain Electric Skin Care Devices, Brushes and
Chargers Therefor, and Kits Containing the Same, Inv. No. 337-TA-959,
Comm'n Op. (Feb. 13, 2017) (public version) (including Chairman
Schmidtlein's Separate Views on issuing cease and desist orders
governed by Section 337(g)(1)).
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 issuance of the LEO or CDO. Finally, the Commission has
determined that a bond in the amount of 100 percent of the entered
value of the covered products is required during the period of
Presidential review (19 U.S.C. 1337(j)). The Commission's order was
delivered to the President and to the United States Trade
Representative on the day of its issuance.
The Commission has terminated this investigation. 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: October 23, 2019.
Lisa Barton,
Secretary to the Commission.
Editorial note: This document was received for publication by
the Office of the Federal Register on April 2, 2020.
[FR Doc. 2020-07336 Filed 4-7-20; 8:45 am]
BILLING CODE 7020-02-P