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

Honworld, Trade Associates, Harbor Freight ( C )( c ) , Alltrade, P&F Brother, Nu-Way, Ace Tool, Nestor Sales, Putna,Poromes, Homegene, Tool City, Pace Membership Warehouse, Pay Nt Pak, FloydReady, Jiang Charng and New Golden Star, would infringe one or more of suchclaimed marks. (FF 450-68). In the case of respondent Puma there is noevidence of a sale by this respondent.However, the evidence shows that aCCCCV. WSING OFF. F A L S E I O N3.21The only proof of "passing off", or false representation, by any of therespondents were representations made by one or more Jepson representativesto three experienced buyers for retail concerns.These buyers wereapparently told, or it was implied to them, that the Jepson tools, orcertain components thereof, were made by the same manufacturer that madethe Hakita tools or components. The tools they were shown were marked withthe Jepson label and the buyers knew they were not being offered Hakitatools.The Jepson products were being offered at prices lower than thosecharged for Hakita. (FF 618-20). None of these buyers, nor theircompanies, 'purchased the Jepson product.(FF 482, 486, 490). Moreover,there is no evidence of anyone ever being sold a respondents' product,=/ Although false advertising was included in the notice ofinvestigation, complainants did not include this issue in their prehearingstatement. Further, no proof has been introduced in evidence as to thisissue. Thus, complainants have abandoned this contention.236