```
[Federal Register Volume 62, Number 10 (Wednesday, January 15, 1997)]
[Notices]
[Pages 2179-2180]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-969]

=======================================================================
-----------------------------------------------------------------------

INTERNATIONAL TRADE COMMISSION

Certain Agricultural Tractors Under 50 Power; Take-off 
Horsepower; Notice of Commission Determination to Review in Part an 
Initial Determination; Schedule for the Filing of Written Submissions 
on the Issue Under Review, and on Remedy, the Public interest, and 
Bonding

Investigation No. 337-TA-380
AGENCY: U.S. International Trade Commission.

ACTION: Notice.

-----------------------------------------------------------------------

SUMMARY: Notice is hereby given that the U.S. International Trade 
Commission had determined to review in part the initial determination 
(ID) issued by the presiding administrative law judge (ALJ) on November 
22, 1996, 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, 
S.W., Washington, D.C. 20436, telephone 202-205-3090.

SUPPLEMENTARY INFORMATION: 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 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. as respondents. 61 Fed. Reg. 
6802 (Feb. 22, 1996).
    On June 19, 1996, the notice of investigation was amended to add 
Fujisawa Trading Company as a respondent. 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, 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 
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 respondent Yarbrough Equipment Rental and Sales 
Inc.
    On August 21, 1996, the Commission determined not to review an 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 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 the accused products did not 
infringe 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.

[[Page 2180]]

    Both complainants and respondents filed petitions for review of the 
final ID, and complainants and the Commission investigative attorney 
filed responses to the petitions. On December 19, 1996, complainants 
filed a motion for leave to file a reply to the investigative 
attorney's response. There is no provision in the Commission's rules 
for such a reply. See 19 C.F.R. 210.43(c). Moreover, complainants' 
reply fails to raise any arguments that could not have been raised 
before the ALJ or in their petition for review. Accordingly, the 
Commission has determined to deny complainants' motion for leave to 
file a reply.
    Having examined the record in this investigation, including the ID, 
the Commission has determined to review (1) the finding of no 
infringement 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 
has determined not to review the ID in all other respects. On review, 
the Commission will consider the following issues:
    (1) whether the fact that gray market KBT L200 tractors are 
imported and sold bearing Japanese-language labels constitutes a 
``material difference'' from the authorized KTC L200 model tractors 
sufficient to establish a likelihood of confusion;
    (2) whether evidence on the record in this investigation 
demonstrates that specific KBT models other than the 25 identified on 
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 connection with final disposition of this investigation, the 
Commission may issue (1) an order that could result in the exclusion of 
the subject articles from entry into the United States, and/or (2) 
cease and desist orders that could result in respondents being required 
to cease and desist from engaging in unfair acts in the importation and 
sale of such articles. Accordingly, the Commission is interested in 
receiving written submissions that address the form of remedy, if any, 
that should be ordered. If a party seeks exclusion of an article from 
entry into the United States for purposes other than entry for 
consumption, the party should so indicate and provide information 
establishing that activities involving other types of entry either are 
adversely affecting it or are likely to do so. For background, see the 
Commission Opinion in In the Matter of Certain Devices for Connecting 
Computers via Telephone Lines, Inv. No. 337-TA-360.
    If the Commission contemplates some form of remedy, it must 
consider the effects of that remedy upon the public interest. The 
factors the Commission will consider include the effect that an 
exclusion order and/or cease and desist orders would have on (1) the 
public health and welfare, (2) competitive conditions in the U.S. 
economy, (3) U.S. production of articles that are like or directly 
competitive with those that are subject to investigation, and (4) U.S. 
consumers. The Commission is therefore interested in receiving written 
submissions that address the aforementioned public interest factors in 
the context of this investigation.
    If the Commission orders some form of remedy, the President has 60 
days to approve or disapprove the Commission's action. During this 
period, the subject articles would be entitled to enter the United 
States under a bond, in an amount determined by the Commission and 
prescribed by the Secretary of the Treasury. The Commission is 
therefore interested in receiving submissions concerning the amount of 
the bond that should be imposed.

Written Submissions

    The parties to the investigation are requested to file written 
submissions on the issues under review. The submissions should be 
concise and thoroughly referenced to the record in this investigation, 
including references to specific exhibits and testimony. Additionally, 
the parties to the investigation, interested government agencies, and 
any other interested persons are encouraged to file written submissions 
on the issues of remedy, the public interest, and bonding. Such 
submissions should address the November 22, 1996, recommended 
determination by the ALJ on remedy and bonding. Complainants and the 
Commission investigative attorney are also requested to submit proposed 
remedial orders for the Commission's consideration. The written 
submissions and proposed remedial orders must be filed no later than 
the close of business on January 23, 1997. Reply submissions must be 
filed no later than the close of business on January 30, 1997. No 
further submissions will be permitted unless otherwise ordered by the 
Commission.
    Persons filing written submissions must file with the Office of the 
Secretary the original document and 14 true copies thereof on or before 
the deadlines stated above. Any person desiring to submit a document 
(or portion thereof) to the Commission in confidence must request 
confidential treatment unless the information has already been granted 
such treatment during the proceedings. All such requests should be 
directed to the Secretary of the Commission and must include a full 
statement of the reasons why the Commission should grant such 
treatment. See 19 C.F.R. 201.6. Documents for which confidential 
treatment is granted by the Commission will be treated accordingly. All 
nonconfidential written submissions will be available for public 
inspection at the Office of the Secretary.
    This action is taken under the authority of section 337 of the 
Tariff Act of 1930, as amended (19 U.S.C. 1337), and sections 
210.45-.51 of the Commission's Rules of Practice and Procedure (19 
C.F.R. 210.45-.51).
    Copies of the public version of the ID 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: January 9, 1997.

    By order of the Commission.
Donna R. Koehnke,
Secretary.
[FR Doc. 97-969 Filed 1-14-97; 8:45 am]
BILLING CODE 7020-02-P '
```