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

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321. One can evaluate the alleged color trademark by examining theresponses "color" and "it's blue".Dr. Sorensen concluded that color had ahigh degree of secondary meaning with respect to Makita.(Sorensen,CXA 10, Sorensen W.S., p. 35; Sorensen, Tr. 3662-63).322. Of the persons that identified Makita as the sole source of thetools that have a blue housing, 24.1% of the 24.01% sole-source Makitaidentifiers answered only "color" or "it's blue" in response to an inquiryas to why they believed Makita was the company that makes the particularproduct. (Judge's Ex. 1). This percentage (5.8%) recognition is clearlynot sufficient, in and of itself, to support a finding of secondary meaningin Makita blue.323. Dr. Sorensen testified that. the overall shape, appearance anddesign of each individual Makita electric power tool carry a significantdegree of secondary meaning, except for the Makita 14" cutoff saw which hadno Makita blue on its exterior housing. (CXA 10; Sorensen W.S., p. 37).324. In Dr. Sorensen's opinion, any and all Makita electric power toolsthat are the subject of the instant proceeding and which bear identical orsimilar shape, appearance, design factors and/or color will generatesecondary meaning results similar to those obtained in this survey.Dr.Sorensen concluded that all of the Makita products specified in theComplaint bear the identical or similar shape, appearance, design factorsand/or color as do the tools that were shown in Survey S. (CXA 10,Sorensen W.S., p. 38).325. The reported results of complainants' survey are inflated due togeographic. distribution, overrepresentation of professional users,
underrepresentation of females, and underrepresentation of prospectivepurchasers. (FF 260-325).326. Respondents' experts testified that even assuming the surveys arenot fatally flawed, the numbers in Study S are not sufficient to establishsecondary meaning. (Bunge, Tr. 2681; Jacoby, Tr. 2892-93).XII.CONFUSIONA. 3uu-t327. In addition to Study S, Dr. Sorensen conducted a study entitled"Consumer Perception of Source of Fourteen Various Imported Electric PowerTools" ("Study C") to ascertain whether or not the appearance of fourteenfully-labelled electric power tools or accessories of the Respondents, eachfrom the same product category represented by a MITA electric power toolor accessory used in Study S, caused consumers to confuse their source withone or mLre other sources and, if so, with what source, to what extent, andfor what reasons. (CXA 10, Sorensen W.S., p. 7).328. The imported tools and accessory items which Dr.Sorensen selectedfor Study C were:TOOL IC-1 - Jepson (Model 18218) 7-1/4" Circular sawTOOL XC-2 - Atlas (Model #RSN-18) Cordless sanderTOOL IC-3 - Jepsona(Mode1 t6425) Finishing sanderTOOL #C-4- Jepson (Model 12416R) Long handle cordlessdrill kitTOOL #C-5 - Mark I (Model IJD327) Short handle 3/8"Cordless drillTOOL XC-6 - Trade Associates (Model #JC332) Cordlessgr inde rTOOL IC-7 - Jepson (Model 14204N) 4" Sander grinderTOOL #C-8- Jepson (Model #1210) 3/8" VSR drill101
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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. ("
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Charng Machinery Works, Ltd., to sh
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(b) Corded 4" Disk Grinders - Model
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and sold in the U.S. by Respondents
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and sold in the U.S. by ( C 1( C (C
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United States by Respondents PhF Br
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(j) Ohio Forge Model 644-196, sold
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is also sold by Respondent Tool Cit
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(e) Nesco Model Ni6800 is manufactu
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(g) Chicago Electric Power Tools Mo
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( C ) (CXI 9, p. 2,Supplemental Res
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chargers for sale in the United Sta
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(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 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: prior to the conduct of the survey
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
Page 185 and 186: with CPX 24, 42, 25, 21, and 23).Ov
Page 187 and 188: that the Mark I battery packs would
Page 189 and 190: (Unopposed CPF PR 55 (14-1711, are
Page 191 and 192: cordless jigsaw; 7.2V and 9.6V batt
Page 193 and 194: grinder, Model No. JC 100; 14" cut-
Page 195 and 196: 479. Mr. Griffin had no personal kn
Page 197 and 198: 492. The respondents affix their ow
Page 199 and 200: ( C )( C )( C )( C 1( C )( C 1(CXD
Page 201 and 202: Response to Complainants' Interr. N
Page 203 and 204: 511. ( CC( C( C( C( C( C( C( C )512
Page 205 and 206: MQQELCCCCCCCCCC 1Since 1984, Jepson
Page 207 and 208: 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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