2020-16028. Certain Motorized Vehicles and Components Thereof; Commission Determination To Institute a Modification Proceeding; Schedule and Procedure for the Modification Proceeding

AGENCY:

U.S. International Trade Commission.

ACTION:

Notice.

SUMMARY:

Notice is hereby given that the U.S. International Trade Commission has determined to institute a modification proceeding in the above-captioned investigation. The Commission has also determined to delegate the modification proceeding to the Chief Administrative Law Judge (“ALJ”) to designate a presiding ALJ to make all necessary factual and legal findings and to issue a recommended determination. The Commission has further determined to set the date for the ALJ to issue a recommended determination to three months from issuance of this notice.

FOR FURTHER INFORMATION CONTACT:

Houda Morad, Office of the General Counsel, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436, telephone [phone]. 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 [e-mail]. General information concerning the Commission may also be obtained by accessing its internet server at https://www.usitc.gov. The public record for this investigation may be viewed on the Commission's electronic docket (EDIS) at https://edis.usitc.gov. Hearing-impaired persons are advised that information on this matter can be obtained by contacting the Commission's TDD terminal on [phone].

SUPPLEMENTARY INFORMATION:

The Commission instituted this investigation on September 13, 2018, based on a complaint, as amended, filed by FCA US LLC of Auburn Hills, Michigan (“Complainant”). See 83 FR 46517 (Sept. 13, 2018). The complaint alleges violations of section 337 based upon the importation into the United States, the sale for importation, and the sale within the United States after importation of certain motorized vehicles and components thereof by reason of: (1) Infringement of U.S. Trademark Registration Nos. 4,272,873; 2,862,487; 2,161,779; 2,794,553; and 4,043,984 (collectively, “the Asserted Trademarks”); (2) trademark dilution and unfair competition in violating the complainant's common law trademark rights; and (3) trade dress infringement. See id. The notice of investigation names Mahindra & Mahindra Ltd. of Mumbai, India and Mahindra Automotive North America, Inc. of Auburn Hills, Michigan (collectively, “Respondents”) as respondents in this investigation. See id. The Office of Unfair Import Investigations is also a party to this investigation. See id.

The ALJ conducted an evidentiary hearing on August 19-23, 2019. On November 8, 2019, the ALJ issued a final initial determination (“FID”) finding a violation of section 337. Specifically, the FID determined that Respondents' Roxor vehicle (2018-2019 model) infringes FCA's asserted trade dress but not its Asserted Trademarks. The FID also determined that Complainant did not establish trademark dilution.

On June 11, 2020, the Commission determined to affirm the FID's determination of a violation of section 337. The Commission issued an LEO barring entry of articles that infringe the asserted trade dress and a CDO against both Respondents. The Commission declined to adjudicate Respondents' proposed redesigned vehicles and required Respondents to obtain a ruling (via an advisory opinion or a modification proceeding) from the Commission prior to any importation of redesigned vehicles or components thereof.

On June 18, 2020, Respondents filed a petition for an expedited modification proceeding as to two redesigned vehicles, namely the 2020 Roxor vehicle and the Post-2020 Roxor vehicle. Respondents further request, should the Commission determine that the 2020 Roxor vehicle requires more time, that the Commission institute a modification proceeding only as to the Post-2020 ROXOR vehicle. On June 29, 2020, Complainant filed a response in opposition to Respondents' petition. OUII did not file a response to the petition. On July 7, 2020, Respondents filed a motion for leave to file a reply in support of their petition for an expedited modification proceeding, which is hereby GRANTED.

The Commission has determined to institute a modification proceeding under 19 U.S.C. 1337(k) and 19 CFR 210.76 to adjudicate infringement with respect to Respondents' Post-2020 ROXOR vehicle. The Commission has also determined to delegate the modification proceeding to the Chief ALJ to designate a presiding ALJ to make all necessary factual and legal findings and to issue a recommended determination as to whether the Commission shall modify the remedial orders to explicitly exempt Respondents' Post-2020 ROXOR vehicle. The Commission has further determined to set the deadline for the ALJ to issue a recommended determination to three months from issuance of this notice. Should the ALJ determine that more time is necessary, the deadline may be extended for good cause shown.

The Commission's vote on this determination took place on July 20, 2020.

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: July 20, 2020.

Lisa Barton,

Secretary to the Commission.