04-28337. In the Matter of Certain Purple Protective Gloves; Notice of Issuance of General Exclusion Order and Termination of the Investigation

AGENCY:

U.S. International Trade Commission.

ACTION:

Notice.

SUMMARY:

Notice is hereby given that the U.S. International Trade Commission has determined to issue a general exclusion order in the above-captioned investigation and has terminated the investigation.

FOR FURTHER INFORMATION CONTACT:

Michael Diehl, Esq., Office of the General Counsel, U.S. International Trade Commission, 500 E Street, SW., Washington, DC 20436, telephone [phone]. Copies of 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 [phone]. General information concerning the Commission may 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. Hearing-impaired persons are advised that information on the matter can be obtained by contacting the Commission's TDD terminal on 202-205-1810.

SUPPLEMENTARY INFORMATION:

This trademark-based section 337 investigation was instituted by the Commission based on a complaint filed by Kimberly-Clark Corporation of Irving, Texas and Safeskin Corporation of Roswell, Georgia (collectively “K-C/Safeskin”). 68 FR 66491 (Nov. 26, 2003). K-C/Safeskin alleged violations of section 337 of the Tariff Act of 1930 in the importation and sale of certain purple protective gloves by reason of infringement of U.S. Registered Trademark Nos. 2,596,539, 2,533,260, and 2,593,382.

Six of the seven respondents named in the complaint entered into settlement agreements with K-C/Safeskin. On May 24, 2004, the administrative law judge (“ALJ”) issued an initial determination (“ID”) (Order No. 15) terminating the investigation as to Latexx Partners Berhad and Medtexx Partners on the basis of a confidential settlement agreement. On June 1, 2004, the ALJ issued another ID (Order No. 16), terminating the investigation as to The Delta Group; Delta Hospital Supply, Inc.; Delta Medical Systems, Inc.; and Delta Medical Supply Group, Inc. on the basis of a settlement agreement and a consent order. The Commission determined not to review the IDs on June 22, 2004.

The seventh respondent—Dash Medical Gloves, Inc. (“Dash”)—failed to file a timely response to the complaint and notice of investigation. Dash filed a motion for termination of the investigation as to it by entry of a consent order. Subsequently, in response to an order to show cause why it should not be held in default, Dash withdrew its request for termination by entry of consent and indicated that it “will not oppose entry of a Default in this matter.” On May 24, 2004, the ALJ issued an ID (Order No. 14) finding Dash in default pursuant to Commission rule 210.16(a)(1). The Commission determined not to review the ID on June 22, 2004.

On September 23, 2004, the ALJ issued an ID (Order No. 17) finding “substantial, reliable, and probative evidence” of a violation of section 337 by reason of Dash's importation and sale of the accused gloves and the existence of a domestic industry. No party petitioned for review of the ID. The ALJ recommended the issuance of a general exclusion order, and that the bond permitting temporary importation during the Presidential review period be set at 100 percent of the value of the infringing imported product. On October 19, 2004, the Commission determined not to review this ID, and issued a notice seeking comments on remedy, the public interest, and bonding. K-C/Safeskin and the Commission investigative attorney (“IA”) supported the recommendations of the ALJ in briefs filed on November 12, 2004. The IA filed a reply on November 19, 2004.

Having examined the relevant portions of the record in this investigation, including the ALJ's recommended determination, and the written submissions on remedy, the public interest, and bonding, the Commission determined to issue a general exclusion order prohibiting unlicensed entry for consumption of purple protective gloves that infringe U.S. Registered Trademarks Nos. 2,596,539, 2,533,260, or 2,593,382. The Commission also determined that the public interest factors enumerated in section 337(d) do not preclude the issuance of the aforementioned remedial order and that the bond during the Presidential review period shall be 100 percent of the entered value of the articles in question. (The Commission's order was delivered to the President on the day of its issuance.)

This action is taken under the authority of section 337 of the Tariff Act of 1930 (19 U.S.C. 1337(d)(2)), and sections 210.41 and 210.50 of the Commission's Rules of Practice and Procedure, (19 CFR 210.41 and 210.50).

By order of the Commission.

Issued: December 22, 2004.

Marilyn R. Abbott,

Secretary to the Commission.