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

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cordless drill. The blue color of the Tochiado drill isslightly different than the blue of the Makita drills.(e) CPX 174, 206, 223 and 225, the cordless rechargeabledrills of Poromes, Puma, Johnswell ( C 9and Mark I (manufactured in Taiwan ;. c 1( c ) and sold in the U.S. by respondents TradeAssociates and ( c ), respectively are almost exactcopies of RXP 327(a), a Makita cordless rechargeable drill,except for a decided difference in the color used in thesaid drills of respondents.(f) CPX 191 and 200, the cordless finishing sanders ofthe Mark I (Trade Associates and ( c ) and Workshop( C 1brands respectively, are practically identical in design toCPX 37, the Makita finishing sander. Each are differentshades of blue from that of the Makita tool, although theWorkshop tool is very similar in color to the Makita tool.(g) CPX 260, the Pro-Tech cordless finishing sander ofrespondents P&F Brothers/Nu-Way is almost identical to CPX37, the Makita tool, except that the handle has been madeslightly more angular, the screws do not go all the waythrough the tool, and the color is a distinctly darkerblue.(h) CPX 199, the Marc I 7.2V cordless grinder (TradeAssociates) is almost identical to CPX 259, the Makita 7.2Vcordless grinder, except for the difference in blue colorand the location of the recess for the hexagonal tool forreplacing the disc.(i) CPX 188, Mark I 7.2V cordless jigsaw (Trade Associatesand ( C )is very similar to CPX 256, the Makita 7.2Vcordless jigsaw, except for the much darker blue and thelonger handle on the Mark I tool.(j) CPX 273 and 275 the Tochiado 9.6V and 7.2V cordlessjigsaws are also similar in appearance, and somewhatsimilar in color to the Makita cordless jigsaws, CPX 257and 256. There is a slightly different shape to theTokhr'ado tools and the front guard on the 9.6V Tochiadotool is different from that of the Makita 9.6V tool.(le) CPX 189, the Pro Tech 9.6V cordless jigsaw (PUBrothers and Nu-Way) is almost identical in design to theMakita 9.6V jigsaw (CPX 2571, but the color is quitedifferent.(1) CPX 260, a Pro-Tech brand cordless finishing sander ofrespondents P&F Brothers and Nu-Way is quite similar in76
design to CPX 37, the Makita sander, but has a verydistinctively different blue color.(m) CPX 270 and 271, the Tochiado 9.6V and 7.2V batterychargers are almost identical in design to CPX 211 and 271,the Makita battery chargers. The color of the Tochiadobattery chargers is a slightly darker blue than that of theMakita chargers.(n) CPX 265, the Workshops 7.2V battery charger,manufactured by ( C 1 for ( C 1) isvery close in design to the Makita battery charger (CPX185, 211). The venting, however, is much different. It isalso a darker shade of blue than the Makita charger.(0) CPX 251, a Noma fast charger imported by respondentTrade Associates is also similar in design to the Makitachargers (CPX 211 and 2711, except for the venting. It isalso a much darker blue than the Makita chargers.254. Complainants retained Dr. .Robert C. Sorensen, President ofSorensen Marketing/Management Corporation, to determine whether or not theappearance, shape, and characteristics of MAKITA power tools oraccessories,with all identifying name labels and logos masked, had anysecondary meaning and, if so, to what extent. Dr. Sorensen has substantialexperience in research into consumer perceptions and behavior, includingthe conduct and analysis of consumer surveys. (CXA10, Sorensen W.S. , at5-6; Sorensen, Tr. 2020-2028; CXA 10, Sorensen W.S., Ex. A).255. Respondents retained Dr. Jacob Jacoby to provide expert criticismof Dr. Sorensen's surveys.Dr. Jacoby is the Merchant's Council Professorof Consume3 Behavior and Retail Management at New York University.He wasreceived as an expert in the areas of consumer buying habits, surveys andmethodology. (Jacoby, Tr. 2823-26).256. Respondents also called John Bunge, President of Legal MarketingResearch, Inc. to analyze and criticize the survey.Mr. Bunge has been77
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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
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P8CCE2UUL HISTXV,Acomplaint was fil
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Honworld International Inc.P.O. BOX
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Marcia H. Sundeen, Esq., Office of
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e held in default and subjected to
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The foiiowing abbreviations are use
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located at 14930-C Northam Street,
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will add another (C) manufacturing
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attery cartridges and battery charg
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Republic of China.(CXG 1, Response
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54. Alltrade power tools are source
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direct from ( C) (CXE 1, all pages:
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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 and 110: specifically the witness statement
Page 111 and 112: more of the following features. . .
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: of the Jepson and Chicago Electric
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
Page 161 and 162: after the interviewer counted from
Page 163 and 164: manufacturers' names utilize that a
Page 165 and 166: 350. One-half of the respondents in
Page 167 and 168: (a p9r CXA 49 , CXA 50). The eviden
Page 169 and 170: 365. Respondent Jenn Feng's Johnswe
Page 171 and 172: infringe any of Makita's claimed ma
Page 173 and 174: 380. Respondents P&F BrotherjNu-Way
Page 175 and 176: 5. 4" Disc (Sander) Grinders389. Th
Page 177 and 178: a hex key on the motor housing and
Page 179 and 180: It is a distinctively different col
Page 181 and 182: plunge router would not be covered
Page 183 and 184: 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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