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Donald S. Clark

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RE:

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March 28, 2005

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In the Matter of Chicago Bridge Iron Company N. V

Chicago Bridge Iron Company, Pitt-Des Moines, Inc.

(Docket No. 9300)

Please find enclosed for fiing today Respondents' Further Briefing on

Complaint Counsel's Motion for Clarifcation.

Sincerely,

/f/M
UNITED STATES OF AMERICA

BEFORE THE FEDERA TRAE COMMISSION

In the Matter of

CHICAGO BRIDGE & IRON COMPAN N.V. ) a foreign corporation, Docket No. 9300

CHICAGO BRIDGE & IRON COMPAN

a corporation, PUBLIC

PITT-DES MOINES, INC.,

a corporation.

RESPONDENTS' FURTHER BRIEFING

ON COMPLAINT COUNSEL'S MOTION FOR CLARIFICATION

Respondents Chicago Bridge & Iron Company N.V. and Chicago Bridge & Iron

Company ("CB&I ) file this brief in response to the Order issued March 15, 2005, requesting

fuher briefing on Complaint Counsel's Petition for Reconsideration to Clarfy Respondents

Obligations as to the Pitt-Des Moines andCB&I Corporate Names ("Counsel's Petition to

Clarify

CB&I Does Not Own Nor Have Rights to the Pitt-Des Moines Name.

CB&I objected to those portions of Counsel's Petition to Clarify that would impose 

affrmative duty on CB&I to transfer any right or title in and to the corporate name of Pitt-Des

Moines ("PDM ), including the PDM mark. When CB&I acquired the Industrial Division of

PDM, it acquired only a one-year, non-renewable, non-exclusive transitional license to the use of

! Pitt-Des Moines is represented by separate counsel and is expected to fie a separate brief on this issue. 
the PDM mark. That license expired on Februar 6, 2002. Accordingly, CB&l has no right or

title in or to the PDM corporate name or mark which it could transfer to a purchaser.

CB&I has conferred with counsel for PDM and understands that, if the PDM name is

available, PDM would consider granting a transitional license to a purchaser of the divested

assets to the use of the PDM name on some commercially reasonable basis in the event the

Commission s divestiture order is ultimately upheld on appea1.

Even a Transitional License to the CB&I Name Would Cause Signifcant Harm and

Confusion to the CB&I Name.

CB&I was founded in 1889 as Chjcago Bridge & Iron Company and has built a solid

reputation as a leading engineering, procurement, and construction company, specializing in

lump-sum turney proj ects for customers that produce, process, store, and distribute natural

resources. The CB&I name has been in continuous use for more than 115 years. CB&I believes

that its name is a valuable asset and uniquely associated with the company. 

3 In the event of a

divestiture, CB&I would continue to operate in the United States under the CB&I name in

competition with the purchaser of the divested assets. Accordingly, it would not be feasible to

grant a transitional license to the use ofthe CB&I name to such purchaser. The potential adverse

consequences of allowing the competitor to use the CB&I name include the potential for adverse

2 CB&I understands that counsel for PDM is investigating whether the PDM name is currently

in use and, if so, tbe conditions of such use. Natually, PDM is in a better position to infont the

Commission of the current use of the PDM name, if any, and CB&I expects that PDM will

inform the Commission regarding this matter in its brief.

3 At the same time, and as demonstrated by the numerous recent competitions won by foreign

entities, either alone or in conjunctionwith a U.S. company, having an established brand name is

not in and of itselfa guarantee of success.
competitive effects, market confusion, loss of branding value, and harm to theCB&I reputation.

Unlike PDM, CB&I wil remain a competitor in the businesses made the subject of the

divestiture order long after any transitional license could arguably be necessar. A transitional

license would subject the reputation built on the CB&I name to risks from which CB&I may not

be able to recover upon expiration of the license. CB&I can continue to protect its name through

its own operations. CB&I canot protect its name through the operations of an unrelated third

pary.

Moreover, CB&I competes in many markets under the CB&I name that are not the

subject of the Commission s order. If divestiture is affrmed, it would be untenable to have two

companies operate under the CB&I name - one the historical CB&I that operates in many

markets including the markets made the subject of the Commission order and one the transitional

CB&I that operates in the markets made the subject of the divestiture order.

Transitional License to the Use of the CB&I Name Would Not Address

Assignabilty Issues.

CB&I urged that divestiture would be unreasonable, in par, because a number of the

existing contracts that would have to be assigned to "New PDM" and " New CB&I" include

4 Although the Commission 

approved a consent agreement in In re General Mils Inc. which

included, in par, an agreement to allow the purchaser of the divested assets to sell Pillsburybranded products and to use the "Doughboy" brand, several Commissioners objected to the

licensing of the Pilsbury name, noting the potential for customer confusion and dynamics

undermining the parties' incentives to promote the brand. See Statement of Commissioner

Mozelle W. Thompson, General Mills, Inc./Diageo p1c/Pillsbur Co., FTC No. 001-0213 (Oct.

2001), available at http://ww.ftc.gov/os/2001/l0/gmstmtthomp.htm; Statement of

Commissioner Sheila F. Anthony, General Mills, Inc./Diageo plc/Pillsbur Co., FTC No. 001-

0213 (Oct. 23 , 2001) available at http://ww.ftc.gov/os/2001/l0/gmstmtant.htm; Statement of

Commissioners Orson Swindle and Thomas B. Lear, General Mills, Inc./Diageo p1c/Pilsbury

Co., FTC No. 001-0213 (Oct. 23 , 2001), available at http://ww.ftc.gov/os/2001/l0/

gmstmtswinleary.htm.

3 '
nonassignability clauses that preclude such assignents. A transitional license to the CB&I

name would not cure this problem. The purchaser of the divested assets, regardless of name

would be an unrelated third pary potentially triggering nonassignability and associated default

clauses.

Dated: March 28 2005

Respectfully submitted

/tn1

Cliffo H. Aronson 

SKADDEN, ARs, SLATE, MEAGHER & FLOM LLP

4 Times Square

New York, NY 10036-6522

Telephone No. : 212-735-2644

Facsimile N o : 917 - 777 - 2644

Charles W. Schwarz

SKADDEN; ARs, SLATE, MEAGHER & FLOM LLP

1600 Smith, Suite 4400

Houston, TX 77002-7348

Telephone No. : 713-655-5160

Facsimile No. : 888-329-2286

ATTORNYS FOR RESPONDENTS

CHICAGO BRIGE & IRON COMPAN N.

AN CHICAGO BRIGE & IRON COMPAN
CERTIFICATE OF SERVICE

, Charles W. Schwarz, hereby certify that on March 28 2005 , a tre and correct'

copy of the foregoing was served on the following persons by hand delivery:

Donald S. Clark

Secretary

Federal Trade Commission

Room H- 159

600 Pennsylvania Avenue, N.

Washington, D.C 20580

Rhett R. Krulla, Esq.

Assistant Director

Bureau of CompetitiQn

Federal Trade Commission

Room S-3602

600 Pennsylvania Avenue, N.

Washington, D.C. 20580

Steven L. Wilensky, Esq.

Federal Trade Commission

601 New Jersey Avenue, N.W. .

Room NJ -6120

Washington, D.C 20001

I further certify that on March 28, 2005 , a tre and correct copy of the foregoing

was served on the following by facsimile and regular mail:

Robert M. Unger

Brown Raysman Milstein Felder & Steiner

900 Third Avenue

New York, NY 10022

ffi/ly . Schwarz '