[Federal Register Volume 87, Number 69 (Monday, April 11, 2022)]
[Notices]
[Pages 21135-21136]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-07711]


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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-1196]


Certain In Vitro Fertilization Products, Components Thereof, and 
Products Containing the Same; Notice of Commission Final Determination 
To Issue a Limited Exclusion Order and a Cease and Desist Order; 
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 determined to issue a limited exclusion order (``LEO'') 
barring entry of certain in vitro fertilization products, components 
thereof, and products containing the same, that infringe Complainant's 
asserted trademarks and that are imported by or on behalf of 
respondents FastIVF of Scottsdale, Arizona (``FastIVF'') and Hermes 
Ezcanesi of Istanbul, Turkey (collectively, the ``Defaulting 
Respondents''). The Commission has further determined to issue a cease 
and desist order (``CDO'') directed to Defaulting Respondent FastIVF. 
The investigation is terminated.

FOR FURTHER INFORMATION CONTACT: Houda Morad, Office of the General 
Counsel, U.S. International Trade Commission, 500 E Street SW, 
Washington, DC 20436, telephone (202) 708-4716. Copies of non-
confidential documents filed in connection with this investigation may 
be viewed on the Commission's electronic docket (EDIS) at https://edis.usitc.gov. For help accessing EDIS, please email 
<a href="/cdn-cgi/l/email-protection#4e0b0a071d7d062b223e0e3b3d273a2d60292138"><span class="__cf_email__" data-cfemail="6326272a30502b060f132316100a17004d040c15">[email protected]</span></a>. General information concerning the Commission may 
also be obtained by accessing its internet server at https://www.usitc.gov. Hearing-impaired persons are advised that information on 
this matter can be obtained by contacting the Commission's TDD terminal 
on (202) 205-1810.

SUPPLEMENTARY INFORMATION: On April 16, 2020, the Commission instituted 
this investigation under section 337 of the Tariff Act of 1930, as 
amended, 19 U.S.C. 1337 (``section 337''), based on a complaint filed 
by complainant EMD Serono, Inc. of Rockland, Massachusetts 
(``Complainant''). See 85 FR 21267-68 (Apr. 16, 2020). The complaint, 
as amended and supplemented, alleges a violation of section 337 based 
on the importation into the United States, the sale for importation, 
and the sale within the United States after importation of certain in 
vitro fertilization products, components thereof, and products 
containing same (collectively, ``Gray Market IVF Products''), by reason 
of infringement of U.S. Trademark Registration Nos. 4,689,651; 
1,772,761; 3,777,170; 3,389,332; 3,816,320; 1,972,079; 3,604,207; and 
3,185,427 (collectively, ``the Asserted Trademarks''); unfair methods 
of competition and unfair acts in the importation and sale of Gray 
Market IVF Products by reason of false designation of source; and 
unfair methods of competition and unfair acts in the importation and 
sale of the Gray Market IVF Products by reason of false advertising. 
See id. In addition to the Defaulting Respondents, the notice of 
investigation names General Plastik Drug Stores (``Unserved 
Respondent'') of Istanbul Suadiye, Turkey as a respondent in this 
investigation. See id. The Office of Unfair Import Investigations 
(``OUII'') is also a party to the investigation. See id.
    On September 1, 2020, the Chief ALJ issued an initial determination 
(``ID'') finding each of the Defaulting Respondents in default. See 
Order No. 6 (Sept. 1, 2020), unreviewed by Comm'n Notice (Sept. 24, 
2020). On October 13, 2020, the Chief ALJ also issued an ID terminating 
Unserved Respondent from the investigation based on the withdrawal of 
the complaint allegations as to that respondent. See Order No. 8 (Oct. 
13, 2020), unreviewed by Comm'n Notice (Oct. 26, 2020).
    On April 16, 2021, the Chief ALJ issued an ID (Order No. 10) 
(``SD'') granting in part Complainant's motion for summary 
determination of violation of section 337 by the Defaulting Respondents 
with respect to Complainant's claim under section 337(a)(1)(C) 
(infringement of the Asserted Trademarks) but denied the motion with 
respect to Complainant's unfair competition claims under section 
337(a)(1)(A). In addition, the Chief ALJ recommended that the 
Commission issue a general exclusion order (``GEO'') and set a bond at 
100 percent during the period of Presidential review.
    On May 18, 2021, the Commission determined to review the SD (Order 
No. 10) in part. See Comm'n Notice (May 18, 2021). Specifically, the 
Commission determined to review the SD's findings with respect to the 
economic prong of the domestic industry requirement. See id. The 
Commission determined not to review any other findings in the SD.
    On October 6, 2021, the Commission determined to vacate the SD in 
part. Specifically, the Commission vacated the SD's finding that 
Complainant has satisfied the economic prong of the domestic industry 
requirement. Consequently, the Commission also vacated the SD's finding 
of a violation of section 337 and remanded the investigation to the 
Chief ALJ. Because Complainant requested a GEO, the Commission found 
that Complainant failed to establish a violation by ``substantial, 
reliable, and probative evidence'' and that genuine issues of material 
fact remained as to whether the economic prong of the domestic industry 
requirement was satisfied. See Comm'n Op. at 8 n.9, 25 (Oct. 6, 2021) 
(citing 19 U.S.C. 1337(g)(2)). Commissioners Karpel and Schmidtlein 
dissented from the Commission's decision that Complainant had failed to 
satisfy the economic prong of the domestic industry requirement and 
would have found a violation of section 337 based on substantial, 
reliable, and probative evidence.

[[Page 21136]]

    After the Commission's decision to vacate the SD, Complainant 
withdrew its request for a GEO and requested an LEO against the 
Defaulting Respondents and a CDO against FastIVF. On December 15, 2021, 
the Chief ALJ issued an ID partially terminating the investigation as 
to Complainant's unfair competition claims under section 337(a)(1)(A). 
See Order No. 13 (Dec. 15, 2021), unreviewed by Comm'n Notice (Jan. 10, 
2022).
    On December 15, 2021, the Chief ALJ issued a remand final initial 
determination (``FID'') finding a violation of section 337 based on the 
infringement by the Defaulting Respondents of Complainant's Asserted 
Trademarks pursuant to section 337(g)(1), 19 U.S.C. 1337(g)(1). In 
addition, the Chief ALJ issued a Recommended Determination (``RD'') 
recommending that the Commission issue an LEO against the infringing 
articles imported by or on behalf of the Defaulting Respondents and a 
CDO against FastIVF.
    On January 4, 2022, Complainant filed a statement on the public 
interest pursuant to Commission Rule 210.50, 19 CFR 210.50. On the same 
day, Complainant filed a declaration requesting relief against the 
Defaulting Respondents, namely, an LEO against the Defaulting 
Respondents' infringing products and a CDO against FastIVF. No 
submissions were filed in response to the Federal Register notice 
requesting public interest comments. See 86 FR 72620-21 (Dec. 22, 
2021).
    On February 11, 2022, the Commission issued a notice determining 
not to review the remand FID and therefore affirmed the remand FID's 
finding of a violation of section 337 pursuant to section 337(g)(1) (19 
U.S.C. 1337(g)(1)). See 87 FR 9086-88 (Feb. 17, 2022) (``the Remedy 
Notice''). In default cases governed by section 337(g)(1), the 
Commission ``presume[s] the facts alleged in the complaint to be 
true.'' See 19 U.S.C. 1337(g)(1). The Remedy Notice also requested 
briefing on remedy, the public interest, and bonding from the parties 
and from any interested third party. See id.
    On February 28, 2022, Complainant and OUII filed responses to the 
Commission's Remedy Notice. On March 7, OUII filed a reply to 
Complainant's submission.
    Having examined the record of this investigation, including the 
FID, the RD, and the parties' submissions in response to the Remedy 
Notice, the Commission has determined that the appropriate remedy in 
this investigation is: (1) An LEO prohibiting the unlicensed entry of 
certain in vitro fertilization products, components thereof, and 
products containing the same, that infringe Complainant's Asserted 
Trademarks and that are imported by or on behalf of the Defaulting 
Respondents; and (2) a CDO directed to Defaulting Respondent FastIVF. 
The Commission has further determined that the bond during the period 
of Presidential review pursuant to section 337(j) (19 U.S.C. 1337(j)) 
shall be in the amount of 100 percent of the entered value of the 
imported articles that are subject to the LEO and/or CDO. Still 
further, the Commission has determined that the public interest factors 
enumerated in subsections 337(g)(1) (19 U.S.C. 1337(g)(1)) do not 
preclude the issuance of the LEO and CDO.
    The Commission's vote for this determination took place on April 6, 
2022.
    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 part 210 of the Commission's Rules of Practice and Procedure (19 CFR 
part 210).

    By order of the Commission.

    Issued: April 6, 2022.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2022-07711 Filed 4-8-22; 8:45 am]
BILLING CODE 7020-02-P


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