ITC Reinstates General Exclusion Order on Self-Propelled Harvesters, Etc.
In a remand investigation, the International Trade Commission has determined that since there is a violation of section 337 of the Trade Act of 1930 by respondents Bourdeau Bros., Inc., Sunova Implement Co., and OK Enterprises, it has reinstated the general exclusion order for certain imported self-propelled forage harvesters (SPFHs) and the cease and desist orders against Bourdeau and OK Enterprises and certain other firms that it had issued in its original investigation. The ITC has also terminated the investigation. (337-TA-487)
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(The remand investigation involved the gray market claims of Deere & Co. that Bourdeau Bros., Inc., Sunova Implement Co., and OK Enterprises (Bourdeau respondents) violated section 337 in the importation into the U.S., the sale for importation, and the sale within the U.S. after importation of Deere’s European version SPFHs (EVSPFHs) by reason of infringement of certain specified trademarks.)
ITC Rescinded Orders due to CAFC Ruling, Case Remanded Back to ITC
In the original investigation, the ITC determined that there was a violation of section 337 and issued, in relevant part, a general exclusion order covering EVSPFHs and cease and desist orders directed to certain of the Bourdeau respondents and other respondents. However, the U.S. Court of Appeals for the Federal Circuit vacated the ITC's determination and the orders were then rescinded by the ITC. The Appeals Court remanded the case to the ITC to determine whether (1) domestic sales of EVSPFHs by official Deere dealers were authorized by Deere and (2) whether all or substantially all of the SPFH’s authorized by Deere for sale in the domestic market were of its North American version SPFHs (NASPFHs).
ITC Found No Violation, Said Deere Failed to Prove Gray Market Sales
The ITC then issued a final determination that there was no section 337 violation and found that Deere failed to prove that sales of EVSPFHs in the U.S. by its official dealers were not authorized and also failed to prove that substantially all of the authorized sales of Deere SPFHs in the U.S. were NASPFHs.
Deere Appealed ITC Finding, CAFC Remanded Again, ITC Found in Deere’s Favor
Deere appealed and, on appeal, the Court found that the ITC misapplied the “all or substantially all” test for gray market trademark infringement and remanded for reconsideration of whether Deere satisfied the requirement that substantially all of its SPFH sales in the U.S. were NASPFHs.
On remand, the ITC determined that Deere has established that substantially all of its U.S. SPFH sales were of NASPFHs. According to the ITC, Deere met its burden of proof on remand to satisfy the “all or substantially all” test for gray market trademark infringement and, accordingly, is entitled to a determination of violation of section 337 and the reinstatement of the exclusion order and cease and desist orders with respect to EVSPFHs issued by the ITC in the original investigation.
(See ITT's Online Archives 04052725 for summary of original general exclusion and cease and desist orders. See ITT’s Online Archives 06081035 for summary of ITC’s rescission of the general exclusion and cease and desist orders for these agricultural vehicles.)
(FR Pub 01/20/12, 337-TA-487)