16
Apr
By Barry Herman
On April 9, 2009, the U.S. International Trade Commission issued a Notice determining to review in its entirety the Initial Determination (“ID”) (Order No. 19) issued by Administrative Law Judge E. James Gildea on February 3, 2009, in Certain Cigarettes and Packaging Thereof (337-TA-643). 

This investigation was instituted on April 4, 2008, based on the complaint of Philip Morris USA, Inc.  The respondents include Alcesia SRL; Emarket Systems Ltd. (d.b.a. all-discountcigarettes.com); Jamen Chong (d.b.a. asiadfs.com); Tri-kita (d.b.a.
cheapcigarettes4all.com); Mr. Eduard Lee (d.b.a. cigarettesonlineshop.com); Zonitech Properties Limited (d.b.a. cigline.net); Zonitech Properties Limited
(d.b.a. shopping-heaven.com); Cendano (d.b.a. galastore.com); Ms. Svetlana Trevinska (d.b.a. save-on-cigarettes.com); LMB Trading SA (d.b.a. k2smokes.ch); G.K.L. International SRL (d.b.a. allcigarettes-brandsxom); G.K.L. International SRL (d.b.a. smokerjim.net); and Best Product Solution Ltd. 

On February 3, 2009, ALJ Gildea issued an ID, granting Phillip Morris’ motion for summary determination that Alcesia had violated Section 337 with respect to three trademarks: U.S. Trademark Registration Nos. 68,502; 378,340; and 894,450.  Alcesia filed a petition for review of the ID on February 17, 2009.  On February 23, 2009, both Phillip Morris and the Commission Investigative Staff filed responses to Alcesia’s petition.  Alcesia thereafter filed a motion for leave to file a reply on February 26, 2009 that was opposed by Phillip Morris on March 2, 2009.

In its Notice, the Commission decided to review ALJ Gildea’s Order No. 19 and denied Alcesia’s motion for leave to file a reply.  In addition, the Notice requests briefing on three questions of particular interest to the Commission, including: (1) Does the Commission have the authority to find a foreign entity in violation of 19 U.S.C. 1337 (a)(1)(C) if that entity is not an ‘‘owner, importer or consignee’’ of the alleged gray market goods?; (2) What is the appropriate standard for the Commission to apply in gray market cases to determine whether two entities are affiliated for purposes of its ‘‘all or substantially all’’ analysis?; and (3) Is Phillip Morris International authorized and/or licensed to use the specific Phillip Morris USA trademarks at issue in this investigation in the manufacture and sale of cigarettes abroad?  If Phillip Morris International was not so authorized, was this case properly brought as a gray market case?

The Commission also expressed an interest in receiving written submissions that address the form of remedy, if any, that should be ordered, as well as certain public interest factors regarding the remedy.

The parties’ briefs to the Commission are due by May 8, 2009, with reply submissions due by May 29, 2009.
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