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

31and the subject matter of the investigation; (2) whether complainants have aright to use the designs and color claimed as common-law trademarks andwhether those designs and color are & jure functional, are inherentlydistinctive, or have acquired secondary meaning; (3) whether there is alikelihood of confusion between complainants' products and respondents'imported products; (4) whether any respondent has engaged.in passing off,false representation, or false advertising in the importation or sale ofaccused merchandise; and (5) whether any respondent has engaged in registeredtrademark infringement in the importation or sale of accused products inviolation of section 337(a)(l)(C) (within the meaning of section 337(a)(2),(3), and (4)). The aforesaid portions of the ID collectively have become theCommission's final determination concerning violation of section 337 in thisinvestigation. Sep interim Commission rule 210.53(h) (53 FR 33043, hug. 29,1988) (to be codified at 19 CFR s 210.53(h).The Commission takes no position on the ID'S adjudication of other issuesrelating to the alleged violation of section 337. &/ This includes the issueof complainants' readiness to conmence domestic production of certainproducts. The Commission accordingly vacates the order in the ID requiringcomplainants to submit verified progress reports on that subject on or beforeSeptember 1, 1989. The Commission does adopt, however, the ID'S dispositionof various motions and ancillary matters not related to the alleged violationof section 337 ( ea, the motions to strike and the in camera treatment ofcertain materials and information).Since the Commission has found that a violation of section 337 hasoccurred, the Commission may issue (1) an order which could result in theexclusion of the subject articles from entry into the United States and/or(2) cease and desist orders which could result in the respondent in questionbeing required to cease and desist from engaging in unfair acts in theimportation and sale of such articles. Accordingly, the Conmission isinterested in receiving written.submissions which address the form of relief,if any, which should be ordered.If the Comission concludes that relief is appropriate, it must alsoconsider the effect of that relief upon (1) the public health and welfare,(2) competitive conditions in the U.S. economy, (3) the U.S. production ofarticles which'aro like or directly competitive with those that are subject toinvestigation, and (4) U.S. consumers. The Commission is therefore interestedin receiving written submission concerning the effect, if any, that grantingrelief would have on the enumerated public interest factors.IIIf the Commission ordersrelief, the President has 60 days to approve ordisapprove the Commission's action. During this period, the subject articles2,/ Chairman Brunsdale and Vice Chairman Cass adopted the entire ID as theirfinal determination concerning the violation of section 337.