Certain Portable Battery Jump Starters and Components Thereof (III); Notice of Commission Determination To Review in Part and, on Review, To Affirm With Modification a Final Initial Determination Finding No Violation of Section 337; Termination of the Investigation

Certain Portable Battery Jump Starters and Components Thereof (III); Notice of Commission Determination To Review in Part and, on Review, To Affirm With Modification a Final Initial Determination Finding No Violation of Section 337; Termination of the Investigation

Publication: Federal Register
Agency: International Trade Commission
Byline: Lisa Barton
Date: 26 July 2024
Subject: American Government

Topic: Noco

[Federal Register Volume 89, Number 144 (Friday, July 26, 2024)]
[Notices]
[Pages 60660-60661]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-16433]

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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-1360]

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 to review in part and, on review, to affirm
with modification the presiding administrative law judge's (``ALJ'')
final initial determination (``FID'') finding no violation of section
337 of the Tariff Act of 1930, as amended. The investigation is
terminated with a finding of no violation.

FOR FURTHER INFORMATION CONTACT: Lynde Herzbach, Office of the General
Counsel, U.S. International Trade Commission, 500 E Street SW,
Washington, DC 20436, telephone (202) 205-3228. 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
EDIS3Help@usitc.gov. General information concerning the Commission may
also be obtained by accessing its internet server at https://www.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 18, 2023, the Commission instituted
this investigation under section 337 of the Tariff Act of 1930, as
amended, 19 U.S.C. 1337 (``section 337''), based on a complaint filed
by The NOCO Company of Glenwillow, Ohio (``NOCO''). See 88 FR 23688
(Apr. 18, 2023). The complaint, as amended, alleges violations of
section 337 based upon 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 the infringement of certain claims of U.S. Patent
Nos. 9,770,992; 10,328,808; 10,981,452; 11,254,213; and 11,447,023. Id.
The complaint also alleges violations of section 337 based upon the
importation into the United States, or in the sale of certain portable
battery jump starters and components thereof by reason of common law
trade dress infringement, false designation of origin, and false
advertising and unfair competition, the threat or effect of which is to
destroy or substantially injure an industry in the United States. Id.
The complaint also alleges that a domestic industry exists. Id. The
Commission severed the complaint into two separate investigations: the
present investigation directed to the trade dress infringement, false
designation of origin, false advertising, and unfair competition
allegations; and a related investigation, Inv. No. 337-TA-1359,
involving the patent infringement allegations.
The notice of investigation names seven respondents, including:
Shenzhen Carku Technology Co., Ltd. of Guangdong, China; Aukey
Technology Co., Ltd. of Shenzhen, China; Metasee LLC of Pearland, Texas
(``Metasee''); Ace Farmer LLC of Houston, Texas; Shenzhen Konghui
Trading Co., Ltd., d/b/a Hulkman Direct of Guangdong, China (``Hulkman
Direct''); HULKMAN LLC of Santa Clara, California; and Shenzhenshi
Daosishangmao Youxiangongsi, d/b/a/Fanttik Direct of Guangdong, China
(``Fanttik Direct'') (collectively, ``Respondents''). Id. The Office of
Unfair Import Investigations is also named as a party. Id.
On May 17, 2024, the presiding ALJ issued the FID, finding no
violation of section 337 in the importation into the United States, or
in the sale of certain portable battery jump starters and components
thereof. Specifically, the FID finds that: (1) Respondents did not
engage in false advertising under 15 U.S.C. 1125(a)(1); (2) Respondents
did not falsely designate the origin of their products or cause unfair
competition; (3) Respondents do not infringe the X Design Trade Dress;
(4) NOCO has demonstrated that it has a domestic industry; and (5) NOCO
has not demonstrated substantial injury or a threat of substantial
injury to its domestic industry.
The FID includes the ALJ's recommended determination (``RD'') on
remedy, the public interest, and bonding should the Commission find a
violation of section 337. Specifically, the RD recommends, if the
Commission finds a violation, issuing a limited exclusion order
directed to certain portable battery jump starts and components thereof
imported, sold for importation, and/or sold after importation by
respondents. The RD also recommends issuing cease and desist orders
directed to Metasee, Hulkman Direct, and Fanttik Direct. The RD
recommends that a one hundred percent (100%) bond be set for any
importations of Respondents' products, which are found to violate
section 337, during the period of Presidential review.
On May 28, 2024, the Commission published its post-RD Federal
Register notice seeking submissions on public interest issues raised by
the relief recommended by the ALJ should the Commission find a
violation. 89 FR 46160-61 (May 28, 2024). No responses were submitted
in response to the notice. The parties did not file any public interest
submissions pursuant to Commission Rule 210.50(a)(4), 19 CFR
210.50(a)(4).
On May 31, 2024, Respondents filed a contingent petition for review
contending that the FID is correct in all material respects and solely
contesting the RD, should it become relevant. Neither NOCO nor OUII
filed a petition for review. NOCO's failure to file a petition for
review constitutes abandonment of all issues decided adversely to it in
the FID. 19 CFR 210.43(b)(2), (b)(4). On June 5, 2024, prior to the
deadline for the filing of responses, Respondents withdrew their
contingent petition. See June 5, 2024 letter from Kevin J. Patariu
(EDIS Doc. ID 823040).
The Commission, having reviewed the record in this investigation,
has determined to review in part and, on review, to affirm with
modification the FID's finding of no violation. In particular, the
Commission has

[[Page 60661]]

determined to review the FID's jurisdiction findings. On review, the
Commission notes that it interprets the ALJ's use of ``in personam
jurisdiction'' as a shorthand to refer to the Commission's statutory
authority to investigate a particular respondent's accused articles
that are imported into the United States or sold after importation, and
interprets the ALJ's use of ``in rem jurisdiction'' as a shorthand to
refer to its statutory authority to investigate the importation into
the United States or the sale of such articles. The Commission has also
determined to review, and on review, take no position regarding the
following findings in the FID: (1) the interstate commerce findings
(FID at 103-105); (2) that NOCO has demonstrated that it has a domestic
industry (FID at 136-149); and (3) that NOCO has not demonstrated
substantial injury or a threat of substantial injury to its domestic
industry (FID at 149-171). The Commission has determined not to review
the remainder of the FID.
The investigation is terminated with a finding of no violation of
section 337.
The Commission vote for this determination took place on July 22,
2024.
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: July 22, 2024.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2024-16433 Filed 7-25-24; 8:45 am]
BILLING CODE 7020-02-P