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

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2727 Paces Ferry RoadAzlanta, Georgia 30339Harbor Freight Salvage Co.3491 Mission Oaks BoulevardCamarillo, California 93010-3169Steve's Wholesale Distributor2423 South WalkerOklahoma City, Oklahoma 73109Trade Associates, Inc.4310 B Street, N.W.Auburn, Washington 98001Mechanics ProductsKent, Washington 98035International Consumer Brands, Inc.126 Monroe TurnpikeTrumbull, Connecticut 06611-1360Atlas Group115 Lehigh DriveFairfield, New Jersey 07006Tool City10562 Westminster AvenueGarden Grove, California 92643Floyd Ready and Associates96 Shobota DriveJackson, Mississippi 32909Ace Tool Company9099 Bank' StreetCleveland, Ohio 44125Nestor Sales Company12340 66th StreetNorth Largo, Florida 33543Pay N' Pak1209 Sojth Central AvenueKent, Washington 98032Pace Membership Warehouse3350 Peoria StreetAurora, Colorado 800104
Marcia H. Sundeen, Esq., Office of Unfair Import Investigations, was thenamed Commission Investigative Attorney. Judge John J. Mathias wasdesignated the Administrative Law Judge to preside over this investigation,Responses to the complaint and notice of investigation were filed onbehalf of most of the respondents.before the Administrative law Judge.A preliminary conference was heldAppearances were made on behalf ofcomplainants, staff and the following respondents:Pay N' Pak; KO ShinElectric and Machinery co., Ltd.; Jepson Inc.; Atlas Group; Union TechCorp.; Tool City; Alltrade, Inc.; Kuen Master Industry, Ltd.; HarborFreight Salvage Co. ; Pace Membership Warehouse ; Ta Shin Electric IndustrialCo., Ltd.; Tochiado Industry Co., Ltd.; International Consumer Brands; HomeDepot; Floyd Ready Associates; Trade Associates, Inc.; Jet Equipment &Tools, Inc.; Jenn Feng Industrial Co., Ltd.; and Puma Industrial Co.An Initial Determination was issued on October 17, 1988, granting themotions of complainants and Commission staff to amend the notice ofinvestigaton o p ~ the amendments to Section 337 effected by the OmnibusTrade and Competitiveness Act of 1988. (Order No. 6). Under suchamendments complainants were no longer required to prove that the unfairact of registered trademark infringement has the effect or tendency toinjure a domestic industry, and the complainants need not prove that thedomestic industry is efficiently and economically operated for any of theallegations of the complaint. The Commission by Notice of November 17,1988, decided not to review that Initial Determination. (53 Fed. Reg.47586, Nov. 23, 1988).By notice dated September 22, 1988, George G. Sunnnerfield, Jr., Esq. wasassigned as Commission Investigative Attorney in this investigation, in5
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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
Page 11 and 12: 3IIComplainants or is relatedtools,
Page 13 and 14: 5VI1(Service of Cease and Desist Or
Page 15: 7the issuance of temporary exclusio
Page 19 and 20: N? 1204296THEUNITED STATES OF AMERI
Page 21 and 22: ~~ ~' iUNITED STATES INTEFWATIONAL
Page 23 and 24: 3respondent Jet; (3) whether remedi
Page 25 and 26: 5the moving party had no previous o
Page 27 and 28: 7same parties, merchandise, and all
Page 29 and 30: 9investigation on the basis of the
Page 31 and 32: 11determination not to review and t
Page 33 and 34: 13Commission accordingly finds node
Page 35 and 36: 15that Jet is likely to resume such
Page 37 and 38: 17Tbe Public InterestThe public int
Page 39 and 40: 19United States, and United States
Page 41 and 42: 21Finally, to the extent that the d
Page 43: 23In the absence of any argument or
Page 46 and 47: written connnents from other agenci
Page 48 and 49: would be entitled to enter the Unit
Page 50 and 51: designation of sponsorship, source,
Page 52 and 53: FOR RESPONDENTS: JJcKaren M. Riggio
Page 54 and 55: TABLE OF CONTENTS . page 2VI1 . AVA
Page 56 and 57: TABLE OF CONTENTS - page 43. Other
Page 59 and 60: P8CCE2UUL HISTXV,Acomplaint was fil
Page 61: Honworld International Inc.P.O. BOX
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 and 110: specifically the witness statement
Page 111 and 112: more of the following features. . .
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170. In view of FF 167-69, above, t
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listed in a distributor price list
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188. This latter testimony of Mr. B
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(C( C199. (( C41).1C) (RXP 414, Sig
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212. In most categories of tools Mr
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differentiate respondents' battery
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(RXP 131, p. 5).and charger for add
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(CPX 96).... built tough and double
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235. The name "Makita" -- a registe
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247. ( C 1 sent a sample Makita cor
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of the Jepson and Chicago Electric
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design to CPX 37, the Makita sander
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attorneys for complainants, he advi
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I263. Study S was conducted with ap
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(CU 10, Sorensen W.S., at 9: Sorens
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individuals who do not intend to us
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. Twenty-five percent of the sample
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291. In Dr. Sorenson's Study S, a t
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particular item?" (Question 4a).The
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have not raised this issue or explo
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Tool S-2 (Makite Model 89035333 -Co
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Tool S-14 (MAKITA Hodel tDC7100/113
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prior to the conduct of the survey
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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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