[Federal Register Volume 75, Number 179 (Thursday, September 16, 2010)]
[Notices]
[Pages 56556-56557]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-23045]
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INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-678]
In the Matter of Certain Energy Drink Products; Notice of
Issuance of a General Exclusion; Termination of the Investigation
AGENCY: U.S. International Trade Commission.
ACTION: Notice.
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SUMMARY: Notice is hereby given that the U.S. International Trade
Commission has issued a general exclusion order in the above-captioned
investigation and has terminated the investigation.
FOR FURTHER INFORMATION CONTACT: Jia Chen, Esq., Office of the General
Counsel, U.S. International Trade Commission, 500 E Street, SW.,
Washington, DC 20436, telephone 202-708-3747. Copies of all
nonconfidential documents filed in connection with this investigation
are or will be available for inspection during official business hours
(8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S.
International Trade Commission, 500 E Street, SW., Washington, DC
20436, telephone 202-205-2000. Hearing-impaired persons are advised
that information on this matter can be obtained by contacting the
Commission's TDD terminal on 202-205-1810. General information
concerning the Commission may also be obtained by accessing its
Internet server (http://www.usitc.gov). The public record for this
investigation may be viewed on the Commission's electronic docket
(EDIS) at http://edis.usitc.gov.
SUPPLEMENTARY INFORMATION: This trademark and copyright-based
investigation was instituted by the Commission on June 17, 2009, based
on a complaint filed by Red Bull GmbH of Fuschl am See, Austria, and
Red Bull North America, Inc. of Santa Monica, California (collectively,
``Red Bull''). 74 FR 28725 (Jun. 17, 2009). The respondents named in
the notice of investigation were: Chicago Import Inc. of Chicago,
Illinois (``Chicago Import''); Lamont Distr., Inc., a/k/a Lamont
Distributors Inc., of Brooklyn, New York (``Lamont''); India Imports,
Inc., a/k/a International Wholesale Club, of Metairie, Louisiana
(``India Imports''); Washington Food and Supply of D.C., Inc., a/k/a
Washington Cash & Carry, of Washington, DC (``Washington Food'');
Vending Plus, Inc. d/b/a Baltimore Beverage Co., of Glen Burnie,
Maryland (``Vending Plus''); Posh Nosh Imports (USA), Inc. of South
Kearny, New Jersey
[[Page 56557]]
(``Posh Nosh''); Greenwich, Inc. of Florham Park, New Jersey
(``Greenwich''); Advantage Food Distributors Ltd. of Suffolk, UK
(``Advantage Food''); Wheeler Trading, Inc. of Miramar, Florida
(``Wheeler Trading''); Avalon International General Trading, LLC of
Dubai, United Arab Emirates (``Avalon''); and Central Supply, Inc. of
Brooklyn, New York (``Central Supply''). The complaint further alleged
that an industry in the United States exists as required by subsection
(a)(2) of section 337. The asserted trademarks are U.S. Trademark Reg.
Nos. 3,092,197; 2,946,045; 2,994,429; and 3,479,607. The asserted
copyright is U.S. Copyright Registration No. VA0001410959.
On January 5, 2010, the Commission determined not to review two
initial determinations (``IDs'') (Order Nos. 21 and 22) finding Lamont
and Avalon in default pursuant to Commission Rule 210.16. On January
28, 2010, the Commission determined not to review two additional IDs
(Order Nos. 29 and 30) finding respondents Posh Nosh, Greenwich,
Advantage Food, and Chicago Imports in default pursuant to Commission
Rule 210.16. On February 16, 2010, the Commission determined not to
review an ID (Order No. 32) finding respondent Central Supply in
default pursuant to Commission Rule 210.16.
Wheeler Trading, Washington Food, India Imports, and Vending Plus
were the only respondents that responded to the complaint and notice of
investigation. On January 20, 2010, the Commission determined not to
review four IDs (Order Nos. 24, 25, 26, and 27) terminating the
investigation as to those respondents on the basis of settlement
agreements. Thus, defaulting respondents Posh Nosh, Greenwich,
Advantage Food, Chicago Imports, Avalon, Central Supply, and Lamont
were the only respondents remaining in the investigation.
On December 2, 2009, Red Bull moved for summary determination on
the issues of domestic industry, importation, and violation of Section
337. Pursuant to Commission Rule 210.16(c)(2), 19 CFR 216(c)(2), Red
Bull also stated that it was seeking a general exclusion order. On
March 31, 2010, the presiding ALJ issued the subject ID, Order No. 34,
granting Red Bull's motion for summary determination of violation with
respect to respondents Avalon, Posh Nosh, Greenwich, Advantage Food,
Central Supply, and Chicago Import, but not with respect to Lamont. He
also issued his recommendations on remedy and bonding in Order No. 34.
Specifically, the ALJ recommended issuance of a general exclusion order
and a bond of 100 percent. No petitions for review were filed.
On May 14, 2010, the Commission issued notice of its determination
not to review the ID granting summary determination of violation in
part, and requesting briefing on remedy, the public interest, and
bonding. On May 28, 2010, Red Bull submitted briefing on remedy, the
public interest, and bonding. Specifically, Red Bull requested a
general exclusion order. The IA also submitted briefing on May 28,
2010, in support of a general exclusion order. No other submissions
were received.
Having reviewed the record in this investigation, including the
ALJ's recommended determination, the Commission has determined that the
appropriate relief is a general exclusion order prohibiting the
unlicensed entry of certain energy drink products that (i) infringe
U.S. Trademark Registration Nos. 3,092,197; 2,946,045; 2,994,429; or
3,479,607 or any marks confusingly similar thereto or that are
otherwise misleading as to source, origin, or sponsorship, or (ii) bear
Red Bull's U.S. Copyright Registration No. VA0001410959 or a design
confusingly similar thereto or that are otherwise misleading as to
source, origin or sponsorship.
The Commission has further determined that the public interest
factors listed in section 337(d)(1) do not preclude issuance of the
general exclusion order. Finally, the Commission has determined that
the amount of bond to permit temporary importation during the period of
Presidential review shall be in the amount of 100 percent of the value
of the infringing products that are subject to the general exclusion
order. The Commission's order and opinion were delivered to the
President and to the United States Trade Representative on the day they
were issued.
The authority for the Commission's determination is contained in
section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337, and
in sections 210.49-50 of the Commission's Rules of Practice and
Procedure, 19 CFR 210.49-50.
Issued: September 8, 2010.
By order of the Commission.
Marilyn R. Abbott,
Secretary to the Commission.
[FR Doc. 2010-23045 Filed 9-15-10; 8:45 am]
BILLING CODE 7020-02-P