Certain Electric Power Tools, Battery Cartridges, and ... - USITC

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156. Mr. Bartlett testified that the particular shape of a batterycharger is not a major factor in the customer identification or selectionof the tool itself.(Bartlett, Tr. 1598-99; Unopposed SPF D27).157. At pages 3152-53 of the transcript, I directed complainants'counsel to clarify just what the issue is as to the various specificfeatures listed in Complainants* Supplemental Response to StaffInterrogatory 11 (the design features listed for each tool other than the7" and 9*' grinders). (Tr. 3152-53).158. Complainants* counsel responded in part as follows:(Tr. 3154-55).Item No. 3 basically amounts to thefollowing. We have a list of features whichat some if you want to call it magic point,leave an impression in the mind of a consumeror of anyone in this room of what the overalldesign of a tool actually is or what is itthat actually makes the tool distinctive.People may have different opinions as towhat it is that creates that impression. Thepoint here is Your Honor, at some point somecombination of these features will create theimpression of overall design that we claim isuniquely Makita. That is the purpose of ItemNo. 3. Therefore, what I believe Mr.Margolis is testifying is still correct.To one person; it MY be that very few ofthose features will create that impression.On the other hand, to another, it may be thatit will require'all of them but the point isthat these are features. We did not considerthem to constitute independent trademark- a-ignificant-type features but ratherdescriptive features that would at some pointcreate an impression of an overall design.159. Mr. Zeitler stated in response to my further question, that thecontrolling language in the response to Staff's Interrogatory 11 (ExhibitB to Mr. Griffin's witness statement) is "Overall design including one or52
more of the following features. . . . 'ITr. 3155).(CXA 3, Griffin W.S., at Ex. B;160. ( C 1( C1( C1( C )B. Wtered Trademarks161. The registered trademark at issue in this proceeding is themark "Makita," Registration No. 1,204,296 ("the '296 mark").(Hattori,Tr. 983).v. DISTINCTIVENESS162. Many non-respondent power tool manufacturers sell power toolsin the United States which contain design features similar to theprincipal design features of the Makita tools here at issue.A perusalof the catalogues of various competitors, namely, Ryobi, Kress, Black &Decker, Bosch, Milwaukee, Hitachi, AEG,Sears, Perles, Toshiba, Metabo,Freud, Stanley, Stuhr and Skil, reveal numerous tools containing featuressimilar to those found on the Makita tools at issue. (RXP 178, 109, 13,22, 146, 91, 7, 9, 195, 170, 208, 145, 44, 205, 206; CXA 771).163. An examination of physical exemplars of various power tools,battery cartridges and battery chargers of non-respondents which are inevidence alio -reveal many similarities. (CPX 97, 100, 104, 105, 113,115, 116, 119, 121, 122, 124.A, 125, 127, 128, 129, 138, 139, 140, 141,142, 142B, 145, 146, 148, lSOA, 151, 152, 154, 155, 157, 158A, 160, 161,162, 165, 166, 185; RXP 250, 250B, 252, 330b, 359, 362, 3628, 430).53
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UNITED STATES INTERNATIONAL TRADE C
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25. For the sole violation of secti
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UNITED STATES INTERNATIONAL TRADE C
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3IIComplainants or is relatedtools,
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5VI1(Service of Cease and Desist Or
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7the issuance of temporary exclusio
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N? 1204296THEUNITED STATES OF AMERI
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~~ ~' iUNITED STATES INTEFWATIONAL
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3respondent Jet; (3) whether remedi
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5the moving party had no previous o
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7same parties, merchandise, and all
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9investigation on the basis of the
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11determination not to review and t
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13Commission accordingly finds node
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15that Jet is likely to resume such
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17Tbe Public InterestThe public int
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19United States, and United States
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21Finally, to the extent that the d
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23In the absence of any argument or
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written connnents from other agenci
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would be entitled to enter the Unit
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designation of sponsorship, source,
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FOR RESPONDENTS: JJcKaren M. Riggio
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TABLE OF CONTENTS . page 2VI1 . AVA
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TABLE OF CONTENTS - page 43. Other
Page 59 and 60: P8CCE2UUL HISTXV,Acomplaint was fil
Page 61 and 62: Honworld International Inc.P.O. BOX
Page 63 and 64: Marcia H. Sundeen, Esq., Office of
Page 65 and 66: e held in default and subjected to
Page 67 and 68: The foiiowing abbreviations are use
Page 69 and 70: located at 14930-C Northam Street,
Page 71 and 72: will add another (C) manufacturing
Page 73 and 74: attery cartridges and battery charg
Page 75 and 76: Republic of China.(CXG 1, Response
Page 77 and 78: 54. Alltrade power tools are source
Page 79 and 80: direct from ( C) (CXE 1, all pages:
Page 81 and 82: 83. Floyd Ready Associates, Inc. ("
Page 83 and 84: Charng Machinery Works, Ltd., to sh
Page 85 and 86: (b) Corded 4" Disk Grinders - Model
Page 87 and 88: and sold in the U.S. by Respondents
Page 89 and 90: and sold in the U.S. by ( C 1( C (C
Page 91 and 92: United States by Respondents PhF Br
Page 93 and 94: (j) Ohio Forge Model 644-196, sold
Page 95 and 96: is also sold by Respondent Tool Cit
Page 97 and 98: (e) Nesco Model Ni6800 is manufactu
Page 99 and 100: (g) Chicago Electric Power Tools Mo
Page 101 and 102: ( C ) (CXI 9, p. 2,Supplemental Res
Page 103 and 104: chargers for sale in the United Sta
Page 105 and 106: (j) Alltrade Model 1926-D-7, import
Page 107 and 108: IV.A. -on La w-138. The common law
Page 109: specifically the witness statement
Page 113 and 114: 170. In view of FF 167-69, above, t
Page 115 and 116: listed in a distributor price list
Page 117 and 118: 188. This latter testimony of Mr. B
Page 119 and 120: (C( C199. (( C41).1C) (RXP 414, Sig
Page 121 and 122: 212. In most categories of tools Mr
Page 123 and 124: differentiate respondents' battery
Page 125 and 126: (RXP 131, p. 5).and charger for add
Page 127 and 128: (CPX 96).... built tough and double
Page 129 and 130: 235. The name "Makita" -- a registe
Page 131 and 132: 247. ( C 1 sent a sample Makita cor
Page 133 and 134: of the Jepson and Chicago Electric
Page 135 and 136: design to CPX 37, the Makita sander
Page 137 and 138: attorneys for complainants, he advi
Page 139 and 140: I263. Study S was conducted with ap
Page 141 and 142: (CU 10, Sorensen W.S., at 9: Sorens
Page 143 and 144: individuals who do not intend to us
Page 145 and 146: . Twenty-five percent of the sample
Page 147 and 148: 291. In Dr. Sorenson's Study S, a t
Page 149 and 150: particular item?" (Question 4a).The
Page 151 and 152: have not raised this issue or explo
Page 153 and 154: Tool S-2 (Makite Model 89035333 -Co
Page 155 and 156: Tool S-14 (MAKITA Hodel tDC7100/113
Page 157 and 158: prior to the conduct of the survey
Page 159 and 160: underrepresentation of females, and
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after the interviewer counted from
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manufacturers' names utilize that a
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350. One-half of the respondents in
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(a p9r CXA 49 , CXA 50). The eviden
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365. Respondent Jenn Feng's Johnswe
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infringe any of Makita's claimed ma
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380. Respondents P&F BrotherjNu-Way
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5. 4" Disc (Sander) Grinders389. Th
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a hex key on the motor housing and
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It is a distinctively different col
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plunge router would not be covered
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and the attachment of the handle an
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with CPX 24, 42, 25, 21, and 23).Ov
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that the Mark I battery packs would
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(Unopposed CPF PR 55 (14-1711, are
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cordless jigsaw; 7.2V and 9.6V batt
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grinder, Model No. JC 100; 14" cut-
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479. Mr. Griffin had no personal kn
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492. The respondents affix their ow
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( C )( C )( C )( C 1( C )( C 1(CXD
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Response to Complainants' Interr. N
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511. ( CC( C( C( C( C( C( C( C )512
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MQQELCCCCCCCCCC 1Since 1984, Jepson
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MODELDOLLAR AVERAGEOUANTITl BMOUNT
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MODELOUA!!ITyDOLLARAMOUNTAVERAGEPRI
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CGCCCCCCCCCCCCC. c535. In 1988, P&F
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541. Ta Shin designs and assembles
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552.In 1988, Tochiado sold (CCCC553
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MODEL( C 1( C 1(CXF 2).XVI. -TIC IN
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C570. ( C571. (( C 1CCC 1C572. MCA
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CCCCCCCCCCCCCCCC1577. ( CCC578. ( C
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( C 1(e) Total Domestic W e n t of
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1CCCCC( C 1CCCC.cCCCC 111( CCC(- C
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( C )Once drafted by Hr. Margolis,
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((CC602. (C(C 1603. (CCC 1C604. (C
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617. (C 1..A. CgmDetition Bet ween
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627. Respondent Pace displays tools
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Ithe United States. (CXG 1, Ta Shin
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652. Jepson has ( C )throughout the
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( C1( C)( C 1665. ( C ) has adverti
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( C 1(CPX 58, Bing Lin Dep., at 180
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D. Attendance of Trade Sho WS689. T
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(CC1C(C1705. (C( C706.(C1C 1C 1( C1
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712. (C- cC 1(C713. ((ICExxALmu189
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CC(C 1720. (CCCC 1C 1C 1CCC 1C 1(Cx
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activities of respondents is tenuou
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739. Employment at MCA increased in
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(C( C752. (C(C( C )753. (C(C(C754.
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investigation under 19 U.S.C.51337
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indicates that complainants are ent
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are: (1) whether the design asserte
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internal components and the need to
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limited number of alternatives inso
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lue has considerable utility and th
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use of the color pink on its insula
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Certain L-e Products, Majority Op.
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quotas to ensure an even distributi
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The Long Handle Cordless Drill (Mak
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staff's position is well taken beca
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from their sample as many people as
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Respondents' experts testified pers
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The Finishing Sander (Makita Model
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attributable only to the claimed ma
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percent accepted).Moreover, such ca
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especially where the survey was con
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The results of the R survey have no
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any of these persons appear as witn
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I221after requesting a Makita produ
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122 (19821, S€hWer K€& COS v. U
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commercial realities test in the Co
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produced in the United States. 2 1A
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The evidence reveals that complaina
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If complainants had proven that the
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in conceivable loss of sales, a ten
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vnotion Docket Nos. 284-133 and 284
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espondents' unfair acts and unfair
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production of power tools in their
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Certain Electric Power Tools, Battery Cartridges, and ... - USITC

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