00-22438. In the Matter of Certain Cigarettes and Packing Thereof; Notice of Commission Determination Not To Review an Initial Determination; Schedule for the Filing of Written Submission on Remedy, the Public Interest, and Bonding

AGENCY:

U.S. International Trade Commission.

ACTION:

Notice.

SUMMARY:

Notice is hereby given that the U.S. International Trade Commission has determined not to review an initial determination (“ID”) issued by the presiding administrative law judge (“ALJ”) on June 22, 2000.

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 [phone], e-mail [e-mail].

SUPPLEMENTARY INFORMATION:

The Commission instituted this trademark-based investigation on September 16, 1999, based on a complaint filed by Brown & Williamson Tobacco Corp. (“complainant”) alleging 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 sale within the United States after importation of certain cigarettes and packaging thereof, by reason of (a) infringement of 11 federally registered U.S. trademarks; (b) trademark dilution; (c) false representation of source; and (d) false advertising. The Commission's notice of investigation named Allstate Cigarette Distributors, Inc. (“Allstate”), Dood Enterprises, Inc. (“Dood”), Prestige Storage and Distribution, Inc. (“Prestige”), and R.E. Tobacco Sales, Inc. (“R.E. Tobacco”) as respondents.

On December 15, 1999, the Commission determined not to review an ID (Order No. 15) granting the motion of PTI, Inc., doing business as Ampac Trading (“PTI” or “intervenor”), to intervene in this investigation. On February 22, 2000, the Commission determined to review and affirm an ID (Order No. 30) granting the motion of respondent Allstate to terminate the investigation as to it based on a consent order. On March 24, 2000, the Commission determined not to review two IDs (Orders Nos. 60 and 61) granting the motions of respondents Prestige and R.E. Tobacco to terminate the investigation as to them based on consent orders. On March 24, 2000, the Commission determined not to review an ID (Order No. 59) granting complainant's motion for partial summary determination that a domestic industry exists with respect to complainant's trademarks. On April 27, 2000, the Commission determined not to review an ID (Order No. 68) granting the motion of respondent Dood to terminate the investigation as to it based on a consent order.

The ALJ held an evidentiary hearing on the merits beginning on March 20, 2000, and issued her final ID finding a violation of section 337 on June 22, 2000. She found that there had been imports of the accused products by intervenor PTI; that PTI's importation and sale of the accused cigarettes infringed complainant's trademarks; that PTI's importation and sale of accused cigarettes diluted complainant's trademarks; that PTI's importation and sale of accused cigarettes constituted a false designation of source; that complainant had failed to demonstrate that PTI engaged in false advertising with respect to the accused cigarettes; that PTI's trademark dilution and false designation of source had the threat or effect of substantially injuring the domestic industry; and that PTI was not denied due process in proceedings before the ALJ in this investigation.

Intervenor PTI filed a petition for review of the final ID, and complainants and the Commission investigative attorney filed responses to the petition.

On June 27, 2000, the Commission determined to extend the date by which it must make its determination whether to review the instant ID to August 28, 2000, and to extend the target date in this investigation to October 16, 2000.

Having examined the record in this investigation, including the ID, the Commission has determined not to review 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) a cease and desist order that could result in intervenor 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 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 order 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, 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 June 22, 2000, recommended determination by the ALJ on remedy and bonding. Complainant 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 September 11, 2000. Reply submissions must be filed no later than the close of business on September 18, 2000. 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 CFR 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 (19 U.S.C. 1337), and section 210.42 of the Commission's Rules of Practice and Procedure (19 CFR 210.42).

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 [phone]. Hearing-impaired persons are advised that information can be obtained by contacting the Commission's TDD terminal on 202-205-1810. General information concerning the Commission may also be obtained by accessing its Internet server (http://www.usitc.gov).

By order of the Commission.

Issued: August 28, 2000.

Donna R. Koehnke,

Secretary.