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[Federal Register Volume 62, Number 43 (Wednesday, March 5, 1997)]
[Notices]
[Pages 10069-10070]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-5408]

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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-380]

Certain Agricultural Tractors Under 50 Power Take-Off Horsepower; 
Issuance of General Exclusion Order and Cease and Desist Orders

AGENCY: 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 and eleven cease and 
desist orders in the above-captioned investigation.

FOR FURTHER INFORMATION CONTACT: Shara L. Aranoff, Esq., Office of the 
General Counsel, U.S. International Trade Commission, 500 E Street, 
SW., Washington, DC 20436, telephone 202-205-3090.

SUPPLEMENTARY INFORMATION: 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 Secs. 210.45 and 210.50 of the 
Commission's rules of practice and procedure (19 CFR 210.45 and 
210.50).
    This trademark-based section 337 investigation was instituted by 
the Commission on February 14, 1996, based on a complaint filed by 
Kubota Tractor Corporation (``KTC''), Kubota Manufacturing of America 
(``KMA''), and Kubota Corporation (``KBT'') (collectively 
``complainants''). Complainants alleged unfair acts in violation of 
section 337 of the Tariff Act of 1930 (19 U.S.C. 1337) in the 
importation, sale for importation, and/or the sale within the United 
States after importation, of certain agricultural tractors under 50 
power take-off horsepower, by reason of infringement of complainants' 
four registered trademarks, U.S. Reg. Nos. 922,330 (``KUBOTA'' in block 
letters), 1,775,620 (``KUBOTA'' stylized), 1,028,221 (Gear Design), and 
1,874,414 (stylized ``K''). The Commission's notice of investigation 
named 20 respondents: Eisho World Ltd., Nitto Trading Corporation, 
Nitto Trading Co. Ltd., Sanko Industries Co., Ltd., Sonica Trading, 
Inc., Suma Sangyo, Toyo Service Co., Ltd., Bay Implement Company, 
Casteel Farm Implement Co. of Monticello, Arkansas, Casteel Farm 
Implement Co. of Pine Bluff, Arkansas, Casteel World Group, Inc., Gamut 
Trading Co., Gamut Imports, Lost Creek Tractor Sales, MGA, Inc. 
Auctioneers, Tom Yarbrough Equipment Rental and Sales, Inc., The 
Tractor Shop, Tractor Company, Wallace International Trading Co. and 
Wallace Import Marketing Co. Inc. 61 FR 6802 (Feb. 22, 1996).
    On May 29, 1996, the Commission determined not to review an ID 
(Order No. 13) finding respondents Tractor Company, Sonica Trading, and 
Toyo Service in default pursuant to Commission rule 210.16 (19 CFR 
201.16), and ruling that they had waived their respective rights to 
appear, to be served with documents, and to contest the allegations at 
issue in the investigation. On June 19, 1996, the notice of 
investigation was amended to add Fujisawa Trading Company as a 
respondent. On September 25, 1996, the Commission issued a consent 
order terminating the investigation as to respondent Nitto Trading 
Corporation. On September 30, 1996, the Commission issued a consent 
order terminating the investigation as to

[[Page 10070]]

respondent Tom Yarbrough Equipment Rental and Sales, Inc.
    On August 21, 1996, the Commission determined not to review an 
initial determination (ID) (Order No. 40) granting complainants' motion 
for summary determination that complainants' four trademarks are valid 
and that the ``KUBOTA'' (block letters) and Gear Design marks are 
incontestable. On September 6, 1996, the Commission determined not to 
review an ID (Order No. 47) granting complainants' motion for summary 
determination that a domestic industry exists with respect to the 
``KUBOTA'' (block letters) and ``KUBOTA'' (stylized) trademarks.
    The presiding administrative law judge (ALJ) held an evidentiary 
hearing on the merits between August 29 and September 7, 1996, and 
heard closing arguments on October 24, 1996. The ALJ issued his final 
ID finding a violation of section 337 on November 22, 1996. He found 
that there had been imports of the accused products; that 24 specific 
models of the accused tractors infringed the ``KUBOTA'' (block letters) 
trademark (U.S. Reg. No. 922,330); that one model of the accused 
tractors, the KBT L200, did not infringe the ``KUBOTA'' (block letters) 
trademark; that none of the 25 accused KBT models considered infringed 
the ``KUBOTA'' (stylized) trademark (U.S. Reg. No. 1,775,620); and that 
complainants were no longer asserting violations of section 337 based 
on infringement of the stylized ``K'' and ``Gear Design'' trademarks.
    On January 9, 1997, the Commission determined to review (1) the 
finding of no infringement and no violation with respect to the KBT 
model L200 tractor; and (2) the decision to limit infringement analysis 
to 25 models of accused tractors rather than all models of KBT tractors 
as to which there is evidence of importation and sale in the United 
States.
    The Commission determined not to review the ID in all other 
respects. On review, the Commission requested that the parties address 
the following issues:

    (1) Whether the fact that gray market KBT model L200 tractors 
are imported and sold bearing Japanese-language labels constitutes a 
``material difference'' from the authorized KTC model L200 tractors 
sufficient to establish a likelihood of consumer confusion;
    (2) Whether evidence on the record in this investigation 
demonstrates that specific KBT models other than the 25 identified 
on (Staff Exhibit) SX-1 have been imported and sold in the United 
States; and, if so,
    (3) Whether evidence on the record in this investigation 
demonstrates that any specific KBT model identified in number (2) 
above was imported and sold in the United States bearing Japanese-
language labels or is otherwise materially different than the 
closest corresponding KTC model with respect to any of the 
differences found to be ``material'' in the ID.

In addition, the Commission requested written submissions on the issues 
of remedy, the public interest, and bonding. 62 FR 2179 (Jan. 15, 
1997).
    Submissions and reply submissions on remedy, the public interest, 
and bonding and on the issues under review were received from 
complainants, respondents, and the Commission investigative attorney 
(IA). In addition, complainants filed a request for oral hearing 
pursuant to Commission rule 210.45, complainants filed a request to 
strike pages 4-20 of respondents'' brief on review, respondents filed a 
request to strike certain consumer survey information submitted by 
complainants and to sanction complainants for submitting that 
information, complainants filed a motion for leave to file a surreply 
brief in response to the reply brief filed by the IA, and respondents 
filed an objection to complainants'' surreply brief.
    Having reviewed the record in this investigation, including the 
written submissions of the parties, the Commission has determined (1) 
to reverse the ALJ's finding of no infringement and no violation by the 
KBT model L200 tractor; (2) to find a violation of section 337 with 
respect to 20 models of KBT tractors in addition to the 25 models 
considered by the ALJ; and (3) to deny complainants'' request for oral 
hearing, both requests to strike, respondents'' request for sanctions, 
and complainants'' motion for leave to file a surreply brief. The 
Commission has further determined that the appropriate form of relief 
is a general exclusion order prohibiting the unlicensed entry for 
consumption of agricultural tractors under 50 power take-off horsepower 
manufactured by Kubota Corporation of Japan that infringe the 
federally-registered U.S. trademark ``KUBOTA'' (Reg. No. 922,330) and 
eleven cease and desist orders directed to respondents Bay Implement 
Company, Casteel World Group, Inc. (and related entities), Gamut 
Trading Co. (and related entities), Lost Creek Tractor Sales, MGA, Inc. 
Auctioneers, The Tractor Shop, Tractor Company, and Wallace 
International Trading Co. prohibiting the importation, sale for 
importation, or sale in the United States after importation of 
agricultural tractors under 50 power take-off horsepower manufactured 
by Kubota Corporation of Japan that infringe the federally-registered 
U.S. trademark ``KUBOTA'' (Reg. No. 922,330).
    The Commission has also determined that the public interest factors 
enumerated in subsections 1337(d) and (f) do not preclude the issuance 
of the general exclusion order and cease and desist orders, and that 
the bond during the Presidential review period shall be in the amount 
of 90 percent of the entered value of the articles in question.
    Copies of the Commission's order, the public version of the 
Commission's opinion in support thereof, and all other 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, S.W., Washington, D.C. 20436, telephone 202-
205-2000. Hearing impaired persons are advised that information on the 
matter can be obtained by contacting the Commission's TDD terminal at 
202-205-1810.

    Issued: February 25, 1997.

    By order of the Commission.
Donna R. Koehnke,
Secretary.
[FR Doc. 97-5408 Filed 3-4-97; 8:45 am]
BILLING CODE 7020-02-P
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