By Eric Schweibenz and John PresperOn February 28, 2017, the International Trade Commission (“Commission”) issued a notice of its determination to review and reverse the Initial Determination (“ID”) of ALJ Dee Lord in Order No. 46 terminating Complainant U.S. Steel Corp.’s (“U.S. Steel”) false designation of origin claim in Certain Carbon and Alloy Steel Products (Inv. No. 337-TA-1002).
By way of background, this investigation was based on a complaint filed by U.S. Steel alleging a violation of section 337 by numerous Chinese steel producers and distributors—as well as certain Hong Kong and U.S. affiliates—by reason of: (1) a conspiracy to fix prices and control output and export volumes, the threat or effect of which is to restrain or monopolize trade and commerce in the U.S.; (2) misappropriation and use of trade secrets, the threat or effect of which is to destroy or substantially injure an industry in the U.S.; and (3) false designation of origin of manufacturer, the threat or effect of which is to destroy or substantially injure an industry in the U.S. See our April 26, 2016, June 7, 2016, August 30, 2016, and November 14, 2016 posts for more details on this investigation.
According to the notice:
On December 6, 2016, the ALJ, sua sponte, ordered U.S. Steel to show cause why its false designation of origin claim should not be terminated based on U.S. Steel’s failure to submit “direct evidence that any named respondent actually imported any steel with a false designation of origin.” Order No. 41 at 2. The ALJ stated that the absence of any known importation raises a question of subject matter jurisdiction and violates Commission Rule 210.12(a)(3), which “requires that a complaint ‘describe specific instances of alleged unlawful importation[s] or sales . . . .”’ Id. at 3.
On January 11, 2017, the ALJ, acting sua sponte, issued the subject ID (Order No. 46) that terminated U.S. Steel’s false designation of origin claim under section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a)(1) pursuant to 19 C.F.R. §§ 210.21 and 210.18. Specifically, the ID found that the complaint failed to comply with Commission Rule 210.12(a)(3), 19 C.F.R. § 210.12(a)(3), because the complaint “does not identify a specific instance of importation or sale.” ID at 12.
On January 23, 2017, U.S. Steel and OUII filed petitions for review of the ID. On January 30, 2017, the participating respondents filed a joint response to the petitions for review. No party requested an oral argument before the Commission.
Having reviewed the record of the investigation, including the complaint, Order No. 46, the petitions for review, and the response thereto, the Commission has determined to review the ID. On review, the Commission has determined to reverse the ID and remand the investigation to the ALJ for further proceedings. The reasons for the Commission’s determination will be set forth in the Commission’s forthcoming opinion.