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Ronald Reagan Presidential Library
Digital Library Collections
This is a PDF of a folder from our textual collections.
Collection: Roberts, John G.: Files
Folder Title: JGR/Duracell Case (2 of 4)
Box: 19
To see more digitized collections visit:
https://reaganlibrary.gov/archives/digital-library
To see all Ronald Reagan Presidential Library inventories visit:
https://reaganlibrary.gov/document-collection
Contact a reference archivist at: [email protected]
Citation Guidelines: https://reaganlibrary.gov/citing
National Archives Catalogue: https://catalog.archives.gov/
THE WHITE HOUSE
WASHINGTON
January 4, 1985
MEMORANDUM FOR DIANNA G. HOLLAND
FROM:
JOHN G. ROBERTS 856
SUBJECT:
Proposed (Revised) Letter to ITC
Regarding Alkaline Batteries
This matter may be closed out. I advised Darman's office on
January 3 that we had no legal objection to the revised
letter, after obtaining Mr. Hauser's concurrence in that
course of action.
Attachment
ID #
CU
WHITE HOUSE
CORRESPONDENCE TRACKING WORKSHEET
0 - OUTGOING
H . INTERNAL
I - INCOMING
Date Correspondence
Received (YY/MM/DD)
/
/
Name of Correspondent:
Richard Dauman
MI Mail Report
User Codes: (A)
(B)
(C)
Subject: Proposed (Revised) letter to ITC re: Alkaline
Batteries
ROUTE TO:
ACTION
DISPOSITION
Tracking
Type
Completion
Action
Date
of
Date
Office/Agency
(Staff Name)
Code
YY/MM/DD
Response
Code
YY/MM/DD
Cutton
ORIGINATOR 84/11/03
/ /
Referral Note:
WAT 18
D 84 /01/03
ST4,01,03
Referral Note:
6:00
/ /
/
/
-
Referral Note:
/
/
/
/
-
Referral Note:
/
/
/
/
I
Referral Note:
ACTION CODES:
DISPOSITION CODES:
A - Appropriate Action
I . Info Copy Only/No Action Necessary
A Answered
C Completed
C - Comment/Recommendation
R - Direct Reply w/Copy
B - . Non-Special Referral
S Suspended
D Draft Response
S For Signature
F - Furnish Fact Sheet
x Interim Reply
to be used as Enclosure
FOR OUTGOING CORRESPONDENCE:
Type of Response = Initials of Signer
Code = "A"
Completion Date = Date of Outgoing
Comments:
Keep this worksheet attached to the original incoming letter.
Send all routing updates to Central Reference (Room 75, OEOB).
Always return completed correspondence record to Central Files.
Refer questions about the correspondence tracking system to Central Reference, ext. 2590.
5/81
Document No.
WHITE HOUSE STAFFING MEMORANDUM
DATE:
1/3/84
ACTION/CONCURRENCE/COMMENT DUE BY: 6:00 p.m. TODAY
PROPOSED (REVISED) LETTER TO ITC RE ALKALINE BATTERIES
SUBJECT:
ACTION FYI
ACTION FYI
VICE PRESIDENT
MURPHY
MEESE
OGLESBY
BAKER
ROGERS
DEAVER
SPEAKES
STOCKMAN
SVAHN
DARMAN
P
5S
VERSTANDIG
FIELDING
WHITTLESEY
FULLER
HERRINGTON
HICKEY
McFARLANE
McMANUS
REMARKS:
The attached letter was prepared by Treasury and USTR.
If my office has not heard from you by 6:00 p.m. tonight, we will
assume you have no problem with this revised letter and determination.
Thank you.
RESPONSE:
1985 JAN -3 Pill 4: 34
Richard G. Darman
Assistant to the President
Ext. 2702
DRAFT LETTER TO CHAIRWOMAN STERN
Dear Madame Chairwoman:
Pursuant to Section 337 (g) (2) of the Tariff Act of 1930, as
amended, I have decided to disapprove the Commission's determination
in Investigation No. 337-TA-165, Certain Alkaline Batteries.
Enclosed is a copy of my determination.
Sincerely,
RONALD REAGAN
DRAFT
Disapproval of the Determination of
the United States International Trade Commission
in Investigation No. 337-TA-165,
Certain Alkaline Batteries
The United States International Trade Commission, following
a finding of a violation of Section 337 of the Tariff Act of
1930, as amended, has ordered excluded from entry into the United
States imports of certain alkaline batteries that were found
to infringe a U.S. registered trademark and to misappropriate
the trade dress of the batteries on which the trademark is used.
The President is authorized by Section 337 (g) (2) to disapprove
a Commission determination for policy reasons. I have notified
the Commission today of my decision to disapprove its determination
in this case.
The Commission's interpretation of section 42 of the Lanham
Act (15 U.S.C. 1124), one of several grounds for the Commission's
determination, is at odds with the longstanding regulatory inter-
pretation by the Department of the Treasury, which is responsible
for administering the provisions of that section. The Administration
has advanced the Treasury Department's interpretation in a number
of pending court cases. Recent decisions of the U.S. District
Court for the District of Columbia and the court of International
Trade explicitly uphold the Treasury Department's interpretation.
Allowing the Commission's determination in this case to stand
could be viewed as an alteration of that interpretation. I,
therefore, have decided to disapprove the Commission's determination.
The Departments of Treasury and Commerce, on behalf of the Cabinet
Council on Commerce and Trade, have solicited data from the
public concerning the issue of parallel market importation and
are reviewing responses with a view toward formulating a cohesive
policy in this area. Failure to disapprove the Commission's
determination could be viewed as a change in the current policy
prior to the completion of this process.
DRAFT
Disapproval of the Determination of
the United States International Trade Commission
in Investigation No. 337-TA-165,
Certain Alkaline Batteries
The United States International Trade Commission, following
a finding of a violation of Section 337 of the Tariff Act of
1930, as amended, has ordered excluded from entry into the United
States imports of certain alkaline batteries that were found
to infringe a U.S. registered trademark and to misappropriate
the trade dress of the batteries on which the trademark is used.
The President is authorized by Section 337 (g) (2) to disapprove
a Commission determination for policy reasons. I have notified
the Commission today of my decision to disapprove its determination
in this case.
The Commission's interpretation of section 42 of the Lanham
Act (15 U.S.C. 1124), one of several grounds for the Commission's
determination, is at odds with the traditional interpretation
by the Department of the Treasury, which is responsible for
administering the provisions of that section. The Administration
has advanced the Treasury Department's interpretation in a number
of pending court cases. Allowing the Commission's determination
in this case to stand could be viewed as an alteration of that
interpretation. I, therefore, have decided to disapprove the
Commission's determination.
The Administration, through the Cabinet Council on Commerce
and Trade Working Group on Intellectual Property, is studying
the range of issues connected with so-called "grey market" imports.
My decision to disapprove the determination in this case does
not in any way prejudge the results of that review. Should
the Administration decide to alter the traditional Treasury
Department interpretation of section 42 of the Lanham Act, or
should that interpretation be overturned in court, the Treasury
Department will exclude the products that were the subject matter
of this case without the need for further legal action.
EXECUTIVE OFFICE OF THE PRESIDENT
OFFICE OF STATES UNITED
OFFICE OF MANAGEMENT AND BUDGET
WASHINGTON, D.C. 20503
MEMORANDUM FOR: RICHARD G. DARMAN
FROM:
ALTON G. KEEL
SUBJECT:
USITC Determination Re Certain
Alkaline Batteries
In general, USTR's memorandum fairly represents the
reasons for our view that the President should
disapprove the ITC determination. I would offer the
following clarifications:
O
We disagree with Ambassador Smith's arguments that
Presidential acquiescence in the ITC order would:
-- "preserve the rights of all concerned,
including [the President's], and
--
"reserve to [the President] the greatest
latitude in the current review of the 'grey
market' issue."
If the ITC's order is allowed to stand, and is
appealed to the Court of Appeals for the Federal
Circuit (a near certainty), the Court will be able
to invalidate the existing Customs regulations that
allow entry of gray market goods. We do not see
why the President should run the risk of judicial
reversal of current policy.
O
By expanding the concepts of "territoriality" and
"confusion" beyond their traditional interpretation
in trademark law, the Commission has, in effect,
created new trademark rights. The Commission's
order outlaws gray market imports by excluding
items bearing genuine foreign trademarks unless the
U.S. holder of the identical trademark consents --
even if the U.S. trademark holder is the parent of
the foreign manufacturer. This puts the Government
in the position of enforcing price discrimination
by multinational corporations. We believe that
multinational firms already have sufficient means
(such as contracts) to control the distribution of
their products.
2
There is a precedent for disapproval of a Section
337 case on the grounds of conflict with Executive
Branch responsibilities. In 1978, President Carter
disapproved an ITC determination because it was
based on a judgment that dumping had occurred.
(The antidumping laws are administered by the
Executive Branch.) The Congress subsequently
amended Section 337 to exclude dumping and subsidy
cases from ITC review.
If the President disapproves the ITC order,
Duracell has other remedies. For instance, they
can ask the ITC for a narrower exclusion order on
the grounds of improper labeling. (This remedy was
recommended by the two dissenting ITC
commissioners.) Duracell could also challenge the
Customs regulations in court.
A rewrite of the disapproval letter is offered at Tab A.
It tones down the presentation of the "turf" issue.
A summary of the case is attached for your information
at Tab B.
Attachments
Dear Madame Chairwoman:
This is to inform you that I have disapproved the
Commission's determination in Investigation No.
337-TA-165, Certain Alkaline Batteries, for the
following policy reasons:
1.
The Commission's ruling has the effect of
invalidating Customs regulations (19 CFR 133.21).
As a matter of policy, the Commission's
determinations should not contradict duly issued
Executive regulations.
2.
Recent decisions of the U.S. District Court for the
District of Columbia and the Court of International
Trade have upheld the aforementioned Customs
regulations. Allowing the Commission's decision to
stand would conflict with the posture of the
Government in pending appeals.
3.
The Administration, through the Cabinet Council on
Commerce and Trade, is reviewing current law and
policy on intellectual property rights in general
and "gray market" goods in particular. Congress is
also reviewing these issues. Failure to disapprove
the Commission's determination would effectively
change the present U.S. policy prior to the
completion of this process.
Sincerely,
The Honorable Paula Stern
Chairwoman
United States International
Trade Commission
701 E Street, N.W.
Washington, D.C. 20436
Summary of Duracell Case
Issue
Should the President disapprove the International Trade
Commission's order to exclude certain foreign-made
Duracell batteries from entry into the United States?
ITC Determination
By a 3-2 vote on a petition filed under Section 337 of
the Tariff Act of 1930, the ITC has:
O
determined that imports of Belgian Duracell
batteries into the U.S., without the consent of the
Belgian firm's American parent (Duracell, Inc.),
are per se unfair, and threaten to substantially
injure the domestic industry. (Since 1982, roughly
10 million Belgian Duracell batteries have been
imported into the U.S. by third parties.)
ordered the exclusion of all foreign made Duracell
batteries from entry into the U.S., unless
Duracell, Inc. gives its consent.
Dissent
The dissenting commissioners found that the third party
imports are not per se unfair, but that unfair trade
practices (such as violations of the Fair Labeling and
Packaging Act) have occurred. Consistent with its more
limited finding, the minority remedy would exclude only
those batteries that are improperly labelled.
Presidential Authority
The President has 60 days to disapprove an ITC order
"for policy reasons." If he takes no action, the ITC's
order automatically becomes effective. The 60-day
review period for this case expires January 5, 1985.
Significance of This Case
This case has been described in the press as a test of
"gray market" policy. "Gray market" goods bear genuine
foreign trademarks, but their importation into the U.S.
is not authorized by the holder of the identical U.S.
trademark.
2
Current law prohibits unauthorized imports of goods
bearing U.S. trademarks. By regulation, Customs does
not enforce this law when identical foreign and U.S.
trademarks are owned by the same entity. (The Customs
regulations are being challenged in several court cases.
So far, they have been upheld.)
The ITC determination that gray market imports are per
se unfair (and thus subject to exclusion) contradicts
the Customs regulations.
A CCCT Working Group is currently reviewing
Administration policy on gray market imports.
Substantial differences of opinion exist within the
Administration.
Options
1.
Allow the ITC order to go into effect, but inform
the Commission that Presidential acquiescence in
this case does not prejudge Administration policy
on gray market imports.
2.
Disapprove the ITC order on the grounds that it
contradicts existing Customs regulations.
Arguments for Letting the ITC's Order Stand
O
Since the Administration's gray markey "policy" is
undecided, there is no "policy" reason sufficient
to warrant the positive step of disapproval.
Presidential acquiescence does not imply approval.
(The President can formally approve an ITC order;
no agency is recommending this option. Disapproval
has occurred in only 3 of 65 cases.)
O
In the absence of a policy reason, disapproval
would deny due process to Duracell. (Current law
requires the ITC to review all petitions except
those based solely on allegations of subsidy or
dumping, and provides that relief shall be in
addition to any other provision of law.)
3
If the order takes effect and is appealed (which is
likely), a single appeals court will consider both
this case and the challenge to Customs regulations.
Concurrent judicial clarification of all legal
issues would facilitate policymaking.
Arguments for Disapproving the ITC's Order
Acquiescence in the ITC order would increase the
risk of judicial reversal of current policy, as
embodied in the Customs regulations. The
Administration has defended these regulations in
court. Preservation of Executive regulatory
flexibility is a sufficient "policy" reason to
warrant disapproval. The President should not take
himself to court over an issue that he can decide
directly.
Disapproval would discourage future attempts to
circumvent Customs regulations and established
judicial remedies by filing Section 337 cases. It
would be desirable as a matter of "policy" to close
this loophole in current law. (Note: If the
President disapproves this order, Duracell can
still seek ITC relief from the narrower trademark
infringements that appear to exist in this case.)
Notwithstanding any disclaimers to the contrary,
failure to disapprove this case would be perceived
as a step by the Administration in the direction of
curtailing gray market imports. Increased fear of
successful Section 337 cases could be a damper on
such imports.
THE UNITED STATES TRADE REPRESENTATIVE
1204 DEC 31 III S 24
WASHINGTON
20506
December 31, 1984
MEMORANDUM TO THE PRESIDENT
FROM:
MICHAEL B. SMITH
ACTING
SUBJECT: U.S. International Trade Commission Determination
Regarding Certain Alkaline Batteries
By January 5, you must decide what action, if any, you will
take regarding the U.S. International Trade Commission's deter-
mination in its investigation, under section 337 of the Tariff
Act of 1930, regarding certain alkaline batteries. I recommend
that you take no action regarding the determination but that
you direct the Trade Representative to advise the Commission,
for the record, that your decision does not constitute an endorsement
of the Commission's legal findings and does not indicate what
action you might take in future cases involving the same issues.
I believe that following my recommendation will preserve the
rights of all concerned, including yours; will reserve to you
the greatest latitude in the current review of the "grey market"
issue; and will allow judicial review of the all of the Commission's
legal findings by the Court of Appeals for the Federal Circuit.
(A draft letter is attached at Tab A.) My recommendation is
supported by the Departments of Agriculture, Commerce, Justice
and Labor.
The Department of the Treasury, supported by the Department
of State, the Council of Economic Advisers, and the Office of
Management and Budget, disagrees with my recommendation. These
agencies believe that if you do not disapprove the Commission's
determination, you, in effect, will have transferred this issue
to the courts when you have the authority to decide the question
yourself. This, they believe, would be an act directly against
the interests of an Executive Branch department which currently
is defending in federal court its interpretation of the statute
involved. They further argue that this would be a severe intrusion
into the authority of the President and the statutory authority
of an Executive Branch department by the Commission which would
be substituting its judgment for that of the Administration.
Further, if you fail to disapprove, they argue, you will be
giving up your discretionary authority regarding the Customs
Service treatment of "grey market" goods. (A draft letter to
the Commission giving your reasons for disapproval is attached
at Tab B.)
2
The two positions are discussed following a brief statement
of the facts, a description of the "grey market" issue, and
a review of the President's authority under section 337.
BACKGROUND
The complainant, Duracell, Inc., a Delaware Corporation, owns
the U.S. registered trademark, DURACELL. Duracell, Inc. manu-
factures batteries, for sale in the United States, in plants
located in Waterbury, Conn., La Grange, Ga., Lancaster, S.C.,
and Cleveland, Tenn. N.V. Duracell S.A., a Belgian corporation,
is authorized to use the Belgian registered trademark, DURACELL,
owned by its parent, Duracell International, Inc. Duracell
S.A. manufactures batteries in Belgium for sale in the European
Communities.
The respondents in the case purchase batteries, for sale in
the United States, after the batteries have left the control
of Duracell S.A. and entered the European distribution system.
The strong position of the U.S. dollar makes this practice
profitable. The importers sell the batteries to U.S. wholesalers
at prices below those of Duracell, Inc. The Commission record
indicates that at least 10 million batteries bearing the Belgian
registered trademark, DURACELL, have been imported by the three
respondents. The record also indicates that there are others
importing the batteries who were not named as respondents.
The Commission determined that there were unfair practices within
the meaning of section 337 in the importation into, and sale
in, the United States of batteries bearing the Belgian registered
trademark, DURACELL, based upon six independent grounds:
"(1) infringement of a registered trademark under
the common law of trademarks;
(2) violation of section 42 of the Lanham Act, 15
U.S.C. 1124;
(3) infringement of a registered trademark under section
32 (a) of the Lanham Act, 15 U.S.C. 1114;
(4) misappropriation of trade dress;
(5) false designation of origin under the Lanham Act,
15 U.S.C. 1125; and
(6) violations of the Fair Packaging and Labeling
Act, 15 U.S.C. 1452 and 1453." (USITC Publication
1616, November 1984, p.6.)
The Commission found that the unfair practices tended to injure
substantially an efficient and economically operated domestic
3
industry and, therefore, that there was a violation of section
337. The Commission (Chairwoman Stern and Commissioner Rohr
dissenting) ordered the U.S. Customs Service to deny entry to
imported batteries of particular sizes bearing the mark, DURACELL,
or using the distinctive copper and black trade dress, unless
importation was authorized by Duracell, Inc.
BACKGROUND REGARDING CUSTOMS TREATMENT OF "GREY MARKET" GOODS
Briefly, "grey market" goods are imported goods produced abroad
bearing a foreign trademark identical or substantially similar
to a U.S. registered trademark when there is common ownership
or control between the U.S. trademark owner owner and the foreign
user of the mark, or when the foreign user of the mark has the
authorization of the U.S. trademark owner. 6 The U.S. Customs
Service traditionally has not applied the provisions of 15 U.S.C.
1124 (which prohibits entry of goods which bear marks copying
or simulating U.S. registered trademarks) or 19 U.S.C. 1526
(which makes unlawful importation of goods without the written
authorization of the owner of the U.S. trademark) to "grey market"
goods. In two recent cases, the U.S. District Court for the
District of Columbia and the Court of International Trade have
upheld the Customs regulations. Both cases have been appealed,
the latter to the Court of Appeals for the Federal Circuit,
which is the reviewing Court for the Commission.
The Treasury and Commerce Departments on behalf of the Working
Group on Intellectual Property of the Cabinet Council on Commerce
and Trade have solicited data from the public concerning the
issue of "grey market" goods. To date they have received in
excess of 1,000 responses. These are being reviewed currently.
In the section of its opinion regarding 15 U.S.C. 1124, the
Commission majority held that importation of goods bearing the
foreign trademark identical to the U.S. registered trademark
should be denied entry even though the U.S. trademark owner
is related to the user of the foreign mark. It is this finding
that has raised questions regarding what action you should take
in this case.
Senators Baker, D'Amato, DeConcini, Kasten, and Thurmond and
Representatives Roybal, Spratt, and Stark have written urging
you to take no action in this case. Senators Chafee, Hawkins,
Roth, and Symms and Representatives Broomfield, Frenzel and
Gibbons have written urging that you disapprove the determination
in this case.
THE PRESIDENT'S AUTHORITY UNDER SECTION 337
Under subsection 337 (g) (2), you may disapprove a Commission
determination for policy reasons, leaving the determination,
and any order issued under its authority, without force or effect.
4
You also may approve a determination, making it, and any associated
order, final and ripe for appeal. The determination and associated
order become final automatically, and ripe for appeal, after
the sixty day review period if you take no action.
The Report of the Senate Finance Committee on the Trade Reform
Act of 1974 (Report No. 93-1298, p. 199), in discussing the
reasons for including authority for the President to disapprove
Commission determinations, states:
"It is recognized by the Committee that the granting
of relief against imports could have a very direct
and substantial impact on United States foreign relations,
economic and political. Further, the President would
often be able to best see the impact which the relief
ordered by the Commission may have upon the public
health and welfare, competitive conditions in the
United States economy, the production of like or directly
competitive articles in the United States, and United
States consumers.
Therefore, it was deemed appropriate by the Committee
to permit the President to intervene before such deter-
mination and relief become final, when he determines
that policy reasons require it. The President's power
to intervene would not be for the purpose of reversing
a Commission finding of a violation of section 337;
such finding is determined solely by the Commission,
subject to judicial review."
RECOMMENDATION TO TAKE NO ACTION
The scope of the issue before you is a narrow one. With regard
to this case, I believe there are no policy reasons, as outlined
in the legislative history to section 337, sufficient to justify
disapproval of the Commission's determination in this case,
thereby denying the U.S. manufacturer relief from the unfair
practices found by the Commission to exist. A decision to take
no action regarding a section 337 determination does not, in
any way, constitute approval of that determination since the
President does not have authority to reverse a determination
on the merits of a case. A letter to the Commission will prevent
any of the misunderstandings which concern the Treasury Department,
the State Department, the Council of Economic Advisers, and
the Office of Management and Budget.
Reviewing the particular facts of this case in the manner followed
in other cases, the alkaline batteries that are the subject
of the exclusion order are not necessary for human health and
safety. The domestic manufacturer can supply the demand for
its product. No allegations of anticompetitive behavior on
the part of the complainant were made during the Commission's
5
investigation. Competing brands of comparable quality and price
are readily available. Competitive conditions in the United
States, therefore, will not be affected by the exclusion of
foreign produced batteries bearing the Belgian trademark, DURACELL.
The U.S. Customs Service has indicated that shipments of other
batteries will not be delayed as a result of the exclusion order.
Exclusion of infringing batteries will not affect the production
of like or directly competitive products in the United States.
In fact, production of domestically produced batteries bearing
the U.S. registered trademark, DURACELL, is likely to increase.
Nothing in the Commission record suggests that consumers will
be affected adversely by the order since the foreign produced
batteries are sold for the same price as the domestically produced
ones.
The order is not inconsistent with U.S. obligations under the
General Agreement on Tariffs and Trade. No foreign government
has raised questions about this case. The Paris Convention
for the Protection of Industrial Property, to which most of
our trading partners adhere, expressly recognizes the principle
of territoriality of trademarks and, therefore, permits exclusion
of "grey market" goods. There are, therefore, no foreign or
domestic policy considerations presented by the facts of this
case, as ordinarily analyzed, that would justify a recommendation
that you disapprove the determination.
Regarding the larger questions that have been raised, if you
disapprove the determination, it cannot be appealed. On the
other hand, if you take no action, the Commission determination
will become final and ripe for appeal. While there is no guarantee
that it will be appealed, appeal seems very likely given the
interest in the issue. That would enable the Court of Appeals
for the Federal Circuit to review each of the issues before
the Commission at the same time as it reviews the Treasury Depart-
ment's regulations which are the subject of the case appealed
from the Court of International Trade.
The interpretation of the Treasury regulations themselves is
not completely clear, as illustrated by the Justice Department's
amicus brief, submitted to the U.S. Court of Appeals for the
Second Circuit in Bell & Howell : Mamiya Co. V. Masel Supply
Co., in which the Justice Department took the opposite position
to that which it now argues on behalf of the Treasury Department's
regulations. The CAFC will review the question of the Treasury
regulations regardless of your decision here because of the
appeal of the Court of International Trade case. The Court
of Appeals for the District of Columbia also will rule on the
appeal before it regardless of your decision. If either of
the Courts upholds the Treasury Department's regulations, the
respondents in this case can ask the Commission to modify its
order in light of the changed circumstances.
6
Neither of those Courts, however, will address the question
of how common law trademark infringement, or registered trademark
infringement under 15 U.S.C. 1114, or misappropriation of trade
dress, or passing off, or violations of the Fair packaging and
Labeling Act should be treated when the owner of a U.S. trademark
and the user of a foreign trademark are related. An appeal
of the Commission's determination would allow the CAFC to review
all of the questions regarding the appropriate treatment of
"grey market" goods under U.S. trademark law and related laws.
The Court would tell us for the first time what the law is in
each of these areas. If you disapprove the Commission's deter-
mination, it cannot be appealed. We would lose the opportunity
to have all of the issues related to trademarks, when "grey
market" goods are involved, reviewed by one court at one time.
The CAFC's opinion would enhance the CCCT Working Group's review
of the "grey market" question rather than negating it, since
it would enable us to consider the question in light overall
trademark policy, not just in terms of Customs Service treatment
of trademarked goods. Consideration of the question in light
of trademark policy is particularly important at a time when
Congress has passed major legislation strengthening trademark
protection at home and tying trade benefits to adequate and
effective intellectual property protection abroad. This view
is supported by the Chairman of the CCCT Working Group.
The Commission's jurisdiction under section 337 also is a legal
question suitable for review by the CAFC. Section 337 requires
the Commission to investigate any allegations presented in a
legally sufficient petition. The law states that relief under
section 337 is in addition to any other provision of law. The
statute excepts only allegations of subsidization and dumping
and that exception has been in the law since 1975. On several
occasions, the Commission has has found violations of section
337 based upon trademark infringement and copyright infringement,
over which the Customs Service also has jurisdiction, without
objection from the Administration or from the Congress.
A statement that the Commission should not assert jurisdiction
in an area where Congress has not indicated it should not could
be viewed by the Congress as overreaching by the Administration.
Disapproval also would not act as a legal precedent on which
the Commission could rely in future cases. It also would not
answer the question of jurisdiction when petitions allege only
registered trademark infringement and common law trademark
infringement and there is a relationship between the owner of
the U.S. trademark and the foreign user of the mark. A CAFC
decision defining the Commission's jurisdiction would serve
as precedent for the Commission and would provide direction
on treatment of "grey market" goods under section 337.
A decision to take no action in this case in no way will compromise
7
the position taken by the Justice Department, as the Treasury
Department's legal representative, in pending legal actions.
A letter to the Commission stating that your decision to take
no action in this case does not represent an endorsement of
the Commission's legal findings should prevent any misunder-
standing of your position. The Justice Department advises that
its ability to defend the Treasury Department in pending litigation
would not be seriously prejudiced if a letter of clarification
is sent to the Commission for the record.
The Commission is an independent Executive branch agency. It
defends itself in the CAFC, it is not represented by the Justice
Department. The Commission's arguments do not represent those
of the Administration. Commission determinations do not act
as precedents in U.S. courts. Lawyers opposing the Treasury
Department's regulations certainly will cite Commission findings
they view as favorable to their clients' interests. They also
are likely to cite the amicus brief submitted to the Court of
Appeals for the Second Circuit by the Justice Department in
which it takes a position opposite that taken in the current
litigation. Justice Department lawyers, I am certain, will
be prepared to respond in either case.
Finally, a decision to take no action in this case will not
result in a flood of future section 337 cases based upon the
same allegations. For the Commission to find a violation under
section 337, it must conclude that there is an unfair practice
(here it found six) and that the unfair practice is causing
or threatening substantial injury to an efficient and economically
operated U.S. industry. The latter requirement would prevent
many U.S. trademark owners that are exclusive distributors for
foreign manufacturers from obtaining a remedy from the Commission.
In addition, every affirmative determination under section 337
must be referred to the President for policy review. As in
the past, each will be reviewed carefully in light of foreign
and domestic policy. Any that affect consumers adversely, that
have anticompetitive effects in the U.S. market, or that raise
other policy issues not present here, can be disapproved. A
decision to take no action here will not narrow the President's
authority under section 337 in any way.
For these reasons, I recommend that you take no action to disapprove
the Commission's determination in this case and that you direct
me to send the attached letter to the Commission to be entered
in the record.
RECOMMENDATION TO DISAPPROVE
The Treasury Department has supplied this explanation of its
position. I have removed the citations to cases since the citations
are provided in the Trade Policy Staff Committee paper which
is included with this memorandum.
8
"The Treasury Department, the State Department, OMB and CEA
believe that you should disapprove the decision for the following
six reasons:
First, the Commission should not substitute its judgment for
that of the Treasury Department with respect to the regulatory
interpretation of 19 U.S.C. 1526 and 15 U.S.C. 1124;
Second, the Commission's interpretation of the law is contrary
to the position taken by the Administration through the Department
of the Treasury, with Department of Justice representation,
in various court cases which are currently in various stages
of litigation. Recent decisions of the U.S. District Court
for the District of Columbia and the Court of International
Trade explicitly support the Administration's position and uphold
the regulations;
Third, a decision not to disapprove would be a direct narrowing
of the authority of the President to decide these and related
cases. There is no sound reason for the President to, in effect,
send himself to court to argue his case when he has the authority
to decide the issue himself;
Fourth, the Treasury and Commerce Departments on behalf of the
Working Group on Intellectual Property (WGIP) of the Cabinet
Council on Commerce and Trade (CCCT) have solicited data from
the public concerning the issue of parallel market importation
and are currently reviewing in excess of 1,000 responses with
a view toward formulating a cohesive, well-developed policy
in this area. Failure by the President to disapprove the Commis-
sion's decision would effectively change the present U.S. policy
prior to the completion of this process;
Fifth, any approval of this decision by the President, whether
tacit or explicit, would send conflicting signals to U.S. trade
partners regarding the policy of the U.S. Government concerning
the issue of parallel market importation. Exclusion of grey
market goods would be inconsistent with the policies of our
trading partners on this issue making trade conflicts likely
with possible retaliation against U.S. exports;
Sixth, by excluding parallel imports, the precedential effect
of the ITC decision would necessarily reduce competition for
sales in the United States, hurting consumers, feeding inflation,
and would in effect aid multi-national corporations in efforts
to segment markets for their goods and price discriminate among
those markets to increase profits. For example, foreign owned
multi-national corporations could refuse to sell their goods
to discounters or others who seek to sell the goods at prices
below suggested retail price.
9
While the Treasury Department believes that the Commission possesses
broad authority to investigate a wide-range of unfair trading
practices, this authority should not be considered unlimited.
Specifically, the Commission should not exercise jurisdiction
in those instances where the resolution of the allegations raised
more properly resides with another federal agency. The Treasury
Department has been charged with interpreting, implementing
and enforcing 19 U.S.C. 1526 and 15 U.S.C. 1124. Pursuant to
this authority, Treasury and Customs have promulgated a comprehensive
regulatory scheme for the protection of certain American trademark
owners. The Commission, in exercising jurisdiction over Duracell's
section 1526 and 1124 claims, permitted Duracell to circumvent
the comprehensive scheme established by Treasury for the resolution
of these disputes. In doing so, the Commission unjustifiably
intruded into an area which Congress has entrusted to another
agency.
A second reason for disapproval by the President is that there
are three pending lawsuits directly challenging Treasury's inter-
pretation of 15 U.S.C. 1124 and 19 U.S.C. 1526. Treasury has
vigorously defended its regulatory scheme. The case of Vivitar
Corporation V. United States is currently on appeal before the
Court of Appeals for the Federal Circuit, the same court which
would hear any appeal of the Commission's decision in this case.
If the President were to allow the Commission's decision to
take effect, the Government could be placed in the anomalous
and untenable position of arguing conflicting views on the parallel
market issue in the same forum.
The case of Coalition to Preserve the Integrity of American
Trademarks, et al. V. United States et al., decided on December
5, 1984, by District Judge Norma Johnson, ratifies Treasury's
longstanding interpretation of both 15 U.S.C. 1124 and 19 U.S.C.
1526. The final case challenging Treasury's position is Olympus
Corporation V. United States et al. Briefs have been filed
by parties to this proceeding and oral argument has been scheduled
for January 4, 1985. It is important to note that the only
two courts to have directly addressed the parallel market goods
issue, to date, found Treasury's position to be legally correct
and wholly consistent with the intent of Congress. Since the
Commission has taken a conflicting view of 15 U.S.C. 1124, any
approval by the President of the Commission's decision would
make it far more difficult to sustain the position taken by
the Government in these cases. Indeed, the Department of Justice
has advised Treasury that the Government's continued defense
of these actions could prove difficult should the President
approve the Commission's determination.
The third reason for disapproval by the President is that allowing
the International Trade Commission decision to go into effect
would constitute a narrowing of the authority of the President.
There is no sound reason for the President to cause the Treasury
10
Department to argue its case in Federal Court when the President
has the authority to decide the matter himself. By such an
act the President would be acknowledging the authority of the
International Trade Commission to overrule the considered opinions
of his Executive Branch departments. It has been argued that
a decision to take no action "will preserve the rights of all
concerned" in this matter. This would not be the case in that
the position of the Treasury Department would be contradicted
by such a decision. The President's decision in this matter
is a policy decision. However, the practical effect of a decision
to take no action would be to allow the legal findings of the
International Trade Commission to stand and have the force and
effect of law. This is the case regardless of whatever language
is inserted into a side letter from the President. The President
would be putting himself and the Treasury Department in the
anomalous position of having to argue against the legal findings
that the President has allowed to stand. Indeed the decision
of the ITC has already been cited as legal authority against
the Government by an opposing party in the grey market litigation.
A fourth reason supporting disapproval by the President is that
on May 21, 1984, the Department of the Treasury and the Department
of Commerce published a notice in the Federal Register requesting
the public to comment on the complex issues raised by parallel
market imports. The reasons underlying this request are the
desire by the Administration to make an informed decision in
this matter. Any final policy decision in this area requires
consideration of the economic, trade and foreign policy ramifications
of any change in existing policy.
A fifth reason supporting disapproval is that the proper imple-
mentation of sound trade policy requires, at the very least,
that the United States speak in a consistent manner on important
trade issues. The issue of parallel market importation has
attracted considerable public attention in the last several
years. Thus far, the Department of the Treasury has taken the
position before the International Trade Commission and various
judicial tribunals, that United States policy permits parallel
market importation in those instances where the foreign and
U.S. trademark owners are "related" companies. If the President
were to approve the Commission's determination in this investigation,
particularly in light of the Government's continuing defense
in court of Treasury's position, it will appear that U.S. trade
policy in this area is in a state of confusion.
Finally, the precedential consequences of failing to reject
the exclusion order will almost assuredly result in higher prices
for U.S. consumers. Lower prices result not only from the parallel
imports themselves, but also their competitive effects. The
mere availability of such products to retailers acts as a restraint
on potential price increases and ensures market access by discount
chains. Estimates of the cost savings to the American consumer
11
run as high as 40 to 50 percent on a given product line. In
the past several years protectionist measures have been taken
with regard to commodities such as steel and textiles. In those
cases clear, articulable benefits existed and/or clear rules
of trade were violated. These factors are not present in this
case and therefore no justification exists for the economic
cost of protecting multi-national corporations from themselves."
For these reasons, the Department of Treasury, supported by
the Department of State, the Council of Economic Advisers, and
the Office of Management an Budget, recommends that you disapprove
the Commission's determination, sending the Commission a copy
of the attached letter and rationale.
OPTIONS
ACTION REQUIRED
Option 1 (my recommendation)
Take no action.
None, the determination will
become final automatically on
January 6, 1985. I will send
a letter of clarification to the
Commission for the record.
Option 2 (Treasury's recommendation)
Disapprove the deter-
Inform the Commission of your
mination.
disapproval by sending the attached
letter. The determination and
order will be without force or
effect when the Commission receives
notice.
Option 3 (Not recommended by any agency)
Approve the deter-
Inform the Commission of your
mination.
approval. The determination and
order will become final when the
Commission receives notice.
DECISION
OPTION 1: Take no action.
OPTION 2: Disapprove.
OPTION 3: Approve.
Attachments
For Option 1
January 5, 1985
The Honorable Paula Stern
Chairwoman
United States International Trade Commission
701 E Street, N.W.
Washington, D.C. 20436
Dear Madame Chairwoman:
The President has asked me to advise you that he has decided
to take no action regarding the Commission's determination in
Investigation No. 337-TA-165, Certain Alkaline Batteries. The
determination and the exclusion order, therefore, become final
on January 6, 1985.
The President also has directed me to advise the Commission,
on the record, that his decision to take no action in this case
does not represent an endorsement of the Commission's legal
findings. The President has decided only that there are no
policy reasons within the narrow facts of this case that call
for disapproval.
The President's decision to take no action in this case also
should not be understood to be an indication of his decision
in future cases involving the issues present here. As you know,
the Administration is studying the range of issues connected
with so-called "grey market" imports. The President's decision
in this case does not in any way prejudge the results of that
review.
In particular, the President has directed me to advise the Commission
of his concern with the Commission's interpretation of section
42 of the Lanham Act, one of several grounds for the Commission's
determination. The Commission's interpretation is at odds with
the interpretation of that section by the Department of the
Treasury, which the Administradion has advanced in a number
of court cases that are currently pending. The President's
decision not to disapprove the determination in this case should
not be viewed as altering that interpretation.
Very truly yours,
William E. Brock
WEB:
For Option 2
Dear Madame Chairwoman:
This is to inform you that I have disapproved the
Commission's determination in Investigation No. 337-TA-165,
Certain Alkaline Batteries.
This determination is based on the following policy
reasons:
1) The Commission should not exercise jurisdiction
in those instances where the resolution of the allegations
raised specifically resides with another federal agency.
The Treasury Department has been charged by the Congress
with interpretating, implementing and enforcing 19 U.S.C.
1526 and 15 U.S.C. 1124. Pursuant to this authority, the
Treasury Department and the Customs Service have promulgated
a comprehensive regulatory scheme for the protection of
trademark owners. The Commission, to the extent that it
has exercised jurisdiction over Duracell's section 1526 and
1124 claims, permitted Duracell to circumvent the comprehen-
sive scheme established by Treasury for the resolution of
these disputes. In doing so, the Commission unjustifiably
intruded into an area which Congress has entrusted to a
Cabinet-level department. As was stated by the two dis-
senting Compissioners in this case, "the impossibility of
reconciling the proper administration of section 526 [19
U.S.C. 1526] and section 42 [15 U.S.C. 1124] with the Com-
mission's administration of section 337 persuades us that
violations of these statutes are not the proper subject
matter for an action under section 337."
2) Recent decisions of the U.S. District Court for
the District of Columbia and the Court of International
Trade explicitly support the Administration's position
and uphold the regulations. Allowing the Commission's
decision to stand would conflict with the posture of the
Government in this litigation.
- 2 -
3) The Treasury and Commerce Departments on behalf
of the Cabinet Council on Commerce and Trade (CCCT) have
solicited data from the public concerning the issue of
parallel market importation and are currently reviewing
responses with a view toward formulating a cohesive policy
in this area. Failure to disapprove the Commission's deci-
sion would effectively change the present U.S. policy prior
to the completion of this process.
4) The precedential consequences of allowing the
Commission's decision to stand would necessarily reduce
competition for sales and would almost assuredly result in
higher prices for U.S. consumers.
Yours very truly,
Ronald R. Reagan
The Honorable Paula Stern
Chairwoman
United States International
Trade Commission
701 E Street, N.W.
Washington, D.C. 20436
swilleres
USTR DRAFT LETTER TO CHAIRWOMAN STERN
Dear Madame Chairwoman:
Pursuant to Section 337 (g) (2) of the Tariff Act of 1930, as
amended, I have decided to disapprove the Commission's determination
in Investigation No. 337-TA-165, Certain Alkaline Batteries.
Enclosed is a copy of my determination.
Sincerely,
RONALD REAGAN
THE WHITE HOUSE
WASHINGTON
March 18, 1985
MEMORANDUM FOR RICHARD A. HAUSER
FROM:
JOHN G. ROBERTS DR
SUBJECT:
Duracell V. U.S.
You requested information on the status of Duracell's
challenge to the President's disapproval of the Inter-
national Trade Commission decision in the gray market
case. The attached materials have been forwarded by
Justice. Briefly, Duracell filed an appeal before the
Court of Appeals for the Federal Circuit on January 28.
Justice has filed a motion to dismiss for lack of
jurisdiction, Duracell's reply is due later this week.
Attachment
Memorandum
DMC:VAMelnbrencis:peh
724-7309
Subject
Date
March 15, 1985
Duracell, Inc. V. United States
International Trade Commission,
Appeal No. 84-00390
To
From
Roger B. Clegg
fit
Stuart E. Schiffer
Associate Deputy
Deputy Assistant Attorney
Attorney General
General
Civil Division
1. Pursuant to 19 U.S.C. $ 1526, it is unlawful to import
into the United States any merchandise of foreign manufacture if
the merchandise bears a trademark owned by a corporation created
or organized within the United States, unless written consent of
the owner of the trademark is produced at the time of entry.
Pursuant to 15 U.S.C. § 1124, no article of imported merchandise
which copies or simulates a registered trademark can be admitted
to entry at any customhouse of the United States.
Since at least 1936, the Treasury Department (through the
Customs Service) has interpreted these two statutes as not
requiring the exclusion from entry of merchandise manufactured
abroad and bearing the genuine trademark if the foreign trademark
and the United States trademark are owned by the same person,
partnership, association, or corporation. For many years, the
Treasury Department has also interpreted the statutes as not
requiring exclusion from entry of foreign merchandise if its
foreign producer has been authorized by the American owner to
produce and sell goods abroad bearing the recorded trademark.
The long standing administrative interpretation of these two
statutes has been incorporated in current Customs regulations
contained in 19 C.F.R. $ 133.21 (c).
The validity of 19 C.F.R. § 133.21 (c) was sustained by the
Court of International Trade as a reasonable interpretation of 19
U.S.C. § 1526 in Vivitar Corporation V. United States, Court No.
84-1-00067, Appeal No. 84-1638 pending.1/
1/ The Vivatar case has been briefed and argued in the court of
appeals and is under submission.
- 2 -
On December 5, 1984, the District Court for the District of
Columbia held in Coalition to Preserve the Integrity of American
Trademarks V. United States, Civil Action No. 84-0390, Appeal No.
84-00390 pending, that 19 C.F.R. § 133.21 (c) constituted a
reasonable interpretation of 19 U.S.C. § 1526. It further held
that 15 U.S.C. § 1124 was inapplicable to genuine goods bearing
the genuine trademark.
3. Duracell, Inc. instituted a proceeding before the United
States Court of International Trade Commission, pursuant to 19
U.S.C. § 1337, contending that the importation of genuine
Duracell batteries bearing the Duracell trademark constituted an
unfair trade practice because, among other things, it violated 19
U.S.C. § 1526 and 15 U.S.C. § 1124. On November 5, 1985, the
Commission agreed with the Treasury Department's interpretation
of 19 U.S.C. § 1526, but found that there was a violation of 19
U.S.C. § 1337, among other things, because the importation was
unauthorized pursuant to 15 U.S.C. $ 1124. It determined that a
general exclusion order was the appropriate remedy.
On January 5, 1985, the President notified the Commission
that he disapproved its determination in Investigation No.
337-TA-165.
On January 28, 1985, Duracell filed an appeal in the Court
of Appeals for the Federal Circuit. We moved to dismiss the
appeal upon the grounds that the court lacks jurisdiction to
review the appeal. (Our motion papers are attached.) Duracell's
reply is due in one week.
UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT
DURACELL INC. ,
)
)
Petitioner-Appellant,
)
)
V.
)
Appeal No.
)
UNITED STATES INTERNATIONAL
)
TRADE COMMISSION,
)
)
Respondent-Appellee.
)
ORDER
Upon reading and filing the motion of the United States
International Trade Commission for dismissal of the appeal filed
by Duracell Inc., captioned "Petition for Review of a Final
Determination of the United States International Trade Commis-
sion" for lack of jurisdiction and the memorandum in support of
the motion, and upon all other papers and proceedings herein, it
is hereby
ORDERED that the motion be, and it hereby is, granted; and
it is further
ORDERED that the appeal filed by Duracell Inc., be, and it
hereby is, dismissed.
CIRCUIT JUDGE
Dated:
, 1985
Washington, D.C.
UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT
DURACELL INC.,
)
)
Petitioner-Appellant,
)
)
V.
)
Appeal No.
)
UNITED STATES INTERNATIONAL
)
TRADE COMMISSION,
)
)
Respondent-Appellee.
)
MOTION OF THE UNITED STATES INTERNATIONAL
TRADE COMMISSION FOR ORDER DISMISSING APPEAL
Pursuant to Rule 27 of the Federal Rules of Appellate
Procedure, the United States International Trade Commission
hereby moves this Court an order dismissing the appeal filed by
Duracell Inc., captioned "Petition for Review of a Final Determi-
nation of the United States International Trade Commission" for
lack of jurisdiction as set forth in greater detail in the
annexed memorandum.
Respectfully submitted,
RICHARD K. WILLARD
Acting Assistant Attorney General
DAVID M. COHEN
Director Velta A recember
VELTA A. MELNBRENCIS
Attorney
Commercial Litigation Branch
Civil Division
U.S. Department of Justice
550 11th Street, N.W.
Washington, D.C. 20530
Tele: (202) 724-7903
Attorneys for United States
International Trade Commission
UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT
DURACELL INC. ,
)
)
Petitioner-Appellant,
)
)
V.
)
Appeal No.
)
UNITED STATES INTERNATIONAL
)
TRADE COMMISSION,
)
)
Respondent-Appellee.
)
MEMORANDUM IN SUPPORT OF
MOTION FOR ORDER DISMISSING APPEAL
On or about January 28, 1985, Duracell Inc. filed a "Peti-
tion for Review of a Final Determination of the United States
International Trade Commission", in which it recited the follow-
ing:
Duracell Inc. hereby petitions the Court
for review of the determination of the United
States International Trade Commission in
Certain Alkaline Batteries, Inv. No.
337-TA-165 made final by disapproval of the
President on January 4, 1985.
As we demonstrate below, the appeal instituted by Duracell Inc.
should be dismissed because (1) there is currently no final
determination of the United States International Trade Commission
("Commission") in effect in Certain Alkaline Batteries, Inv. No.
337-TA-165, which can be appealed to this Court pursuant to 19
U.S.C. § 1337 and 28 U.S.C. § 1295 (a) (6); and (2) Duracell Inc.
is seeking to review the President's disapproval (pursuant to 19
U.S.C. § 1337 (g) (2)) of the determination of the Commission in
Certain Alkaline Batteries, Inv. No. 337-TA-165, despite the fact
that this Court does not possess jurisdiction to review the
President's disapproval (made pursuant to 19 U.S.C. $ 1337 (g) (2))
of a determination of the Commission.
I. BACKGROUND
On May 5, 1984, the United States International Trade
Commission ("Commission") determined that there was a violation
of section 337 of the Tariff Act of 1930, 19 U.S.C. § 1337, in
the importation and sale of certain alkaline batteries and that a
general exclusion order pursuant to section 337 (d), 19 U.S.C.
§ 1337 (d), was the appropriate remedy for the violation found to
exist. A notice of this determination was published in the
Federal Register (49 Fed. Reg. 45275-6) on November 15, 1984.
(See Exhibit 1).
On January 4, 1985, the President notified the Commission
that he disapproved its determination in Investigation No.
337-TA-165, Certain Alkaline Batteries. The Office of the United
States Trade Representative published a notice of this notifica-
tion along with a statement of the President's determination,
which was included with the notice to the Commission, in the
Federal Register (50 Fed. Reg. 1655) on January 11, 1985. (See
Exhibit 2).
II. APPLICABLE STATUTES
Section 1337 of title 19, United States Code ("section
337"), provides in pertinent part:
(a) Unfair methods of competition and
unfair acts in the importation of articles
into the United States, or in their sale by
the owner, importer, consignee, or agent of
either, the effect or tendency of which is to
destroy or substantially injure an industry,
efficiently and economically operated in the
- 2 -
United States,
...
are declared unlawful,
and when found by the Commission to exist
shall be dealt with, in addition to any other
provisions of law, as provided in this
section.
(b) (1)
The Commission shall investi-
gate any alleged violation of this section on
complaint under oath or upon its initia-
tive
(c) The Commission shall determine,
with respect to each investigation conducted
by it under this section, whether or not
there is a violation of this section. Each
determination under subsection (d) or (e) of
this section shall be made on the record
after notice and opportunity for a hearing in
conformity with the provisions of subchapter
II of chapter 5 of Title 5. All legal and
equitable defenses may be presented in all
cases. Any person adversely affected by a
final determination of the Commission under
subsection (d), (e), or (f) of this section
may appeal such determination to the United
States Court of Appeals for the Federal
Circuit for review in accordance with chapter
7 of Title 5. Notwithstanding the foregoing
provisions of this subsection, Commission
determinations under subsection (d), (e), and
(f) of this section with respect to its
findings on the public health and welfare,
competitive conditions in the United States
economy, the production of like or directly
competitive articles in the United States,
and United States consumers, the amount and
nature of bond, or the appropriate remedy
shall be reviewable in accordance with
section 706 of Title 5.
(d) If the Commission determines, as a
result of an investigation under this sec-
tion, that there is violation of this sec-
tion, it shall direct that the articles
concerned, imported by any person violating
the provision of this section, be excluded
from entry into the Untied States, unless
after considering the effect of such
exclusion upon the public health and welfare,
competitive condition in the United States
economy, the production of like or directly
competitive articles in the United States and
- 3 -
United States consumers, it finds that such
articles should not be excluded from
entry
(e) If, during the course of an inves-
tigation under this section, the Commission
determines that there is reason to believe
that there is a violation of this section, it
may direct that the articles concerned,
imported by any person with respect to whom
there is reason to believe that such person
is violating this section, be excluded from
entry into the United States
(f) (1) In lieu of taking action under
subsection (d) or (e) of this section, the
Commission may issue and cause to be served
on any person violating this section, or
believed to be violating this section, as the
case may be, an order directing such person
to cease and desist from engaging in the
unfair methods or acts involved
(g) (1) If the Commission determines
that there is a violation of this section, or
that, for purposes of subsection (e) of this
section, there is reason to believe that
there is such a violation, it shall--
(A) publish such determination in
the Federal Register, and
(B) transmit to the President a
copy of such determination and
the action taken under
subsection (d), (e), or (f) of
this section, with respect
thereto, together with the
record upon which such
determination is based.
(2)
If, before the close of the
60-day period beginning on the day after the
day on which he receives a copy of such
determination, the President, for policy
reasons, disapproves such determination and
notifies the Commission of his disapproval,
then, effective on the date of such notice,
such determination and the action taken under
subsection (d), (e), or (f) of this section
- 4 -
with respect thereto shall have no force or
effect.
(3)
Subject to the provisions of
paragraph (2), such determination shall,
except for purposes of subsection (c) of this
section, be effective upon publication
thereof in the Federal Register, and the
action taken under subsection (d), (e), or
(f) of this section with respect thereto
shall be effective as provided in such
subsections.
(4) If the President does not
disapprove such determination within such
60-day period, or if he notifies the Commis-
sion before the close of such period that he
approves such determination, then, for
purposes of paragraph (3) and subsection (c)
of this section such determination shall
become final on the day after the close of
such period or the day on which the President
notifies the Commission of his approval, as
the case may be.
Section 1295 of title 28, United States Code ("section
1295"), provides in pertinent part:
(a) The United States Court of Appeals
for the Federal Circuit shall have exclusive
jurisdiction--
*
*
*
*
(6) to review the final
determinations of the United States
International Trade Commission relating
to unfair practices in import trade,
made under section 337 of the Tariff Act
of 1930 (19 U.S.C. 1337);
III. ARGUMENT
A.
The Appeal Filed By Duracell
Inc. Must Be Dismissed Because
There Has Been No Final
Determination of the Commis-
sion
As is evident from the statutory language of section
1295 (a) (6), this Court possesses jurisdiction only to review the
- 5 -
final determinations of the Commission relating to unfair prac-
tices in import trade, made under section 337. The latter
section, in turn, makes it clear that a determination which has
been disapproved by the President, pursuant to section 337 (g) (4),
does not constitute a final determination of the Commission which
can be reviewed by this Court.
Thus, subsection (c) of section 337 specifically provides
that:
Any person adversely affected by a final
determination of the Commission under subsec-
tion (d), (e) or (f) of this section may
appeal such determination to the United
States Court of Appeals for the Federal
Circuit.
Subsection (g) (4) of section 337, in turn, specifies that
only a determination of the Commission made under subsection (d),
(e), or (f) of section 337, which has not been disapproved by the
President, constitutes a final determination which can be ap-
pealed to this Court pursuant to section 337 (c) :
If the President does not disapprove
such determination within such 60-day period,
or if he notifies the Commission before the
close of such period that he approves such
determination, then, for purposes of
subsection (c) of this section such determi-
nation shall become final on the day after
the close of such period or the day on which
the President notifies the Commission of his
approval, as the case may be.
In this case, the Commission made a determination pursuant
to subsection (d) of section 337. That determination, however,
never became a final determination for purposes of an appeal to
this Court, pursuant to subsection (c) of section 337, because,
prior to the expiration of the statutorily provided 60-day period
- 6 -
(see 19 U.S.C. § 1337 (g) (2)), the President disapproved the
Commission's determination. Import Motors Limited, Inc. V.
United States International Trade Commission, 530 F.2d 940, 945
(CCPA 1976).
Since there has been no final determination of the Commis-
sion pursuant to section 337 in Certain Alkaline Batteries, this
Court does not possess jurisdiction to entertain Duracell Inc.'s
Petition for Review and this appeal must be dismissed.
B. This Appeal Must Be Dismissed
Because This Court Does Not
Possess Jurisdiction to Review
The President's Disapproval of
a Determination Made by the
Commission Pursuant to Section
337.
Duracell Inc. may contend that it is seeking to review the
President's disapproval of the Commission's determination. It is
1/° Furthermore, since the President disapproved the
determination pursuant to subsection (g) (2) of section 317, it
became without force and effect on January 4, 1984, the day on
which the President notified the Commission of his disapproval.
Young Engineers, Inc. V. United States International Trade
Commission, 721 F.2d 1305, 1311-13 (Fed. Cir. 1983). This Court,
as a court established pursuant to Article III of the
Constitution, has no power to issue advisory opinions. Glidden
Company V. Zdanok, 370 U.S. 530 (1962). As a consequence, this
Court does not have power to review a determination which by
statute has become without force and effect. See also Chicago &
Southern Air Lines, Inc. V. Waterman Steamship Corp., 333 U.S.
103, 114 (1948), in which the Supreme Court held (1) that the
orders of the Civil Aeronautics Board as to certificates for
overseas or foreign air transportation were not mature and
susceptible of judicial review at any time before they were
finalized by Presidential approval; and (2) that after such
approval was given, the final orders embodied Presidential
discretion as to political matters and therefore were beyond the
competence of the courts to adjudicate.
- 7 -
clear from the statutory scheme that this Court does not possess
jurisdiction to review an appeal from the President's disapproval
of a determination made by the Commission pursuant to section
337.
Section 1295 grants to this Court only jurisdiction to
review final determinations of the Commission made under section
337. The President's disapproval does not constitute a
determination of the Commission. Moreover, section 337 (c)
specifically limits appeals to this Court to final determinations
of the Commission made under subsection (d), (e), or (f) of
section 337. The President's disapproval is made pursuant to
subsection (g) (2) of section 337, not pursuant to subsections
(d), (e), or (f).
Since this Court does not possess jurisdiction to review the
President's disapproval of a determination made by the Commission
pursuant to section 337, this appeal must be dismissed.
CONCLUSION
Inasmuch as this Court does not possess jurisdiction over
the subject matter of this appeal, the appeal should be dis-
missed.
Respectfully submitted,
RICHARD K. WILLARD
Acting Assistant Attorney General
and M.Cohn
DAVID M. COHEN
Director
- 8 -
Vilta A Milmunut
VELTA A. MELNBRENCIS
Attorney
Commercial Litigation Branch
Civil Division
U.S. Department of Justice
550 11th Street, N.W.
Washington, D.C. 20530
Tele: (202) 724-7903
Attorneys for United States
International Trade Commission
- 9 -
EXHIBIT 1
Federal Register / Vol. 49, No. 222 / Thursday. November 15, 1984 / Notices
45275
Commission in accordance with § 201.8
For further information concerning the
Written submissions.-Any person
of the rules (19 CFR 201.8). All written
conduct of this investigation and rules of
may submit to the Commission on or
submissions except for confidential
general application. consult the
before November 28, 1984 a written
business data will be available for
Commission's Rules of Practice and
statement of information pertinent to the
public inspection during regular
Procedure, Part 207, Subparts A and B
subject of the investigation, as provided
business hours (8:45 a.m. to 5:15 p.m.) in
(19 CFR Part 207). and Part 201, Subparts
in § 207.15 of the Commission's rules (19
the Office of the Secretary to the
A through E (19 CFR Part 201).
CFR 207.15). A signed original and
Commission.
EFFECTIVE DATE: November 2, 1984.
fourteen (14) copies of each submission
Any business information for which
must be filed with the Secretary to the
confidential treatment is desired must
FOR FURTHER INFORMATION CONTACT:
Commission in accordance with I 201.8
be submitted separately. The envelope
Lawrence Rausch (202-523 0286). Office
of the rules (19 CFR 201.8). All written
and all pages of such submissions must
of Investigations, U.S International
submissions except for confidential
be clearly labeled 'Confidential
Trade Commission 701 E Street. NW.,
business data will be available for
Business Information." Confidential
Washington, DC 20436.
public inspection during regular
submissions and requests for
SUPPLEMENTARY INFORMATION:
business hours (8:45 a.m. to 5:15 p.m.) in
confidential treatment must conform
Background.-This investigation is
the Office of the Secretary to the
with the requirements of § 201.6 of the
being instituted in response to a petition
Commission.
Commission's rules (19 CFR 201.6, as
filed on November 2, 1984 by counsel on
Any business information for which
amended by 49 FR 32569. Aug. 15, 1984).
behalf of members of The National Pork
confidential treatment is desired must
Authority: This investigation is being
Producers Council, Des Moines, Iowa.
be submitted separately The envelope
e
conducted under authority of the Tariff Act of
Participation in the investigation.-
and all pages of such submissions must
1930, title VII. This notice is published
Persons wishing to participate in the
be clearly labeled 'Confidential
pursuant to § 207.12 of the Commission's
investigation as parties must file an
Business Information." Confidential
rules (19 CFR 207.12).
entry of appearance with the Secretary
submissions and requests for
Issued: November 9. 1984.
to the Commission, as provided in
confidential treatment must conform
By order of the Commission.
§ 201.11 of the Commission's rules (19
with the requirements of $ 201.6 of the
Kenneth R. Mason,
CFR 201.11). not later than seven (7)
Commission's rules (19 CFR 201.6, as
Secretary.
days after publication of this notice in
amended by 49 FR 32569, Aug. 15, 1984).
the Federal Register. Any entry of
(FR Doc. 84-30059 Filed 11-14-84 8:15 am]
Authority: This investigation is being
appearance filed after this date will be
BILLING CODE 7020-02-M
conducted under authority of the Tariff Act of
referred to the Chairwoman, who will
1930. title VII. This notice is published
determine whether to accept the late
pursuant to § 207.1 of the Commission's
entry for good cause shown by the
rules (19 CFR 287.12).
Investigation No. 701-TA-224
person desiring to file the entry.
Issued: November 9, 1984.
(Preliminary)]
Service list-Pursuant to § 201.11(d)
By order of the Commission.
of the Commission's rules (19 CFR
Kenneth R. Mason,
Live Swine and Fresh, Chilled and
201.11(d)), the Secretary will prepare a
Secretary.
Frozen Pork From Canada
service list containing the names and
FR Doc. 84-30060 Filed 11-14-84. 8:45 am)
addresses of all persons, or their
BILLING CODE 7020-02-M
AGENCY: United States International
representatives, who are parties to this
Trade Commission.
investigation upon the expiration of the
ACTION: Institution of a preliminary
period for filing entries of appearance.
[Investigation No. 337-TA-165]
countervailing duty investigation and
In accordance with I 201.16(c) of the
rules (19 CFR 109 201.16(c)). each
Certain Alkaline Batteries; Issuance of
scheduling of a conference to be held in
document filed by a party to the
Exclusion Order
connection with the investigation.
investigation must be served on all other
AGENCY: U.S. International Trade
SUMMARY: The Commission hereby gives
parties to the investigation (as identified
Commission.
notice of the institution of preliminary
by the service list), and a certificate of
ACTION: Notice is hereby given that the
countervailing duty investigation No.
service must accompany the document.
Commission has issued a general
701-TA-224 (Preliminary) under section
The Secretary will not accept a
exclusion order in the above-captioned
703(a) of the Tariff Act of 1930 (19 U.S.C.
document for filing without a certificate
of service.
investigation.
1671b(a)) to determine whether there is
a reasonable indication that an industry
Conference.-The Commission's
in the United States is materially
Director of Operations has scheduled a
Authority: 419 U.S.C. 1337.
injured, or is threatened with material
conference in connection with this
injury, or the establishment of an
investigation for 9:30 a.m. on November
SUPPLEMENTARY INFORMATION: The
industry in the United States is
26, 1984 at the U.S. International Trade
Commission determined that there is a
materially retarded, by reason of
Commission Building, 701 E Street NW.,
violation of section 337 of the Tariff Act
imports from Canada of live swine and
Washington, DC. Parties wishing to
of 1930 (19 U.S.C. 1337) in the
of fresh, chilled and frozen meat (except
participate in the conference should
importation and sale of certain alkaline
meat offal) of swine, provided for in
contact Lawrence Rausch (202-523-
batteries. The Commission found that all
items 100.85 and 106.40, respectively. of
0286) not later than November 21, 1984
respondents had engaged in unfair acts
the Tariff Schedules of the United
to arrange for their appearance. Parties
by reason of registered trademark
States, which are alleged to be
in support of the imposition of
infringement, misappropriation of trade
subsidized by the Government of
countervailing duties in this
dress, and false designation of origin in
Canada. As provided in section 703(a),
investigation and parties in opposition
the unauthorized importation and sale of
the Commission must complete
to the imposition of such duties will
certain alkaline batteries with the
preliminary countervailing duty
each be collectively allocated one hour
DURACELL trademark and trade dress,
investigations in 45 days, or in this case
within which to make an oral
and that all respondents, except for
by December 17, 1984.
presentation at the conference.
respondent Continent-Wide Enterprises,
45276
Federal Register / Vol. 49, No. 222 / Thursday, November 15, 1984 / Notices
Ltd., had committed unfair acts by
determines that the threat of material
By order of the Commission.
reason of violation of the Fair Packaging
injury would not have led to a finding of
Kenneth R. Mason,
and Labeling Act (15 U.S.C. 1452 and
material injury but for the suspension of
Secretary.
1453.
liquidation under section 1673b(d)(1).
The Commission determined that a
On the basis of the record 1 developed
general exclusion order pursuant to
in investigation No. 731-TA-162 (Final).
[Investigation No. 337-TA-193]
section 337(d) is the appropriate remedy
for the violations of section 337 found to
the Commission determines, pursuant to
section 735(b) of the Tariff Act of 1930,
Certain Rowing Machines and
exist; that the public interest
that an industry in the United States is
Components Thereof; Prehearing
considerations enumerated in section
Conference
337(d) do not preclude such relief; and
not materially injured or threatened
that the amount of the bond during the
with material injury, nor is the
Notice is hereby given that the
Presidential review period under section
establishment of an industry in the
prehearing conference in this matter
337(g) shall be 75 percent of the entered
United States materially retarded. by
commence at 9:00 a.m. on December
value of the imported articles.
reason of imports from the United
1984, in Hearing Room 6311 at the
Copies of the Commission's Action
Kingdom of titanium sponge 3 which the
Interstate Commerce Commission
and Order, the Opinions issued in
Department of Commerce has found are
Building at 12th & Constitution Aven
connection therewith, and all other
being, or are likely to be, sold in the
NW., Washington, D.C., and the hear
nonconfidential documents filed in
United States at LTFV.
will commence immediately thereaft
connection with this investigation are
Background
The Secretary shall publish this no
available for inspection during official
in the Federal Register.
business hours (8:45 a.m. to 5:15 p.m.) in
The Commission instituted these final
Issued: November 2. 1984.
the Office of the Secretary. Docket
antidumping investigations. effective
Janet D. Saxon,
Section, U.S. International Trade
May 11, 1984, following preliminary
Commission, 701 E Street NW.,
Administrative Low Judge.
determinations by the Department of
Washington, D.C. 20436, telephone 202-
(FR Doc. 64-3063 Filed 11-14-04; 8:45 am)
Commerce that imports of titanium
523-0471.
BILLING CODE 7020-02-M
sponge from Japan and the United
FOR FURTHER INFORMATION CONTACT:
Kingdom are being, or are likely to be,
William E. Perry, Esq., Office of the
sold in the United States at LTFV 49 FR
Termination of Countervalling Duty
General Counsel, U.S. International
20042). Notice of the institution of the
Investigation Concerning Vitamin K
Trade Commission, telephone 202-523-
Commission's investigations and of a
From Spain
0499.
public hearing to be held in connection
Issued: November 5, 1984.
therewith was given by posting copies of
AGENCY: United States International
By order of the Commission.
the notice in the Office of the Secretary,
Trade Commission.
Kenneth R. Mason,
U.S. International Trade Commission,
ACTION: Termination of countervailing
Secretary.
Washington, DC, and by publishing the
duty investigation under section
[FR Doc. 84-30061 Filed 11-14-84: 8:45 am)
notice in the Federal Register of May 31,
104(b)(1) of the Trade Agreements Act
BILLING CODE 7020-02-M
1984 (49 FR 22724). Following a 60-day
1979, with regard to Vitamin K from
extension of its final determinations by
Spain.
the Department of Commerce, the
[Investigation Nos. 731-TA-161 and 162
EFFECTIVE DATE: November 8, 1984.
Commission revised its hearing date
(Finai)]
(Federal Register of July 18, 1984, 49 FR
FOR FURTHER INFORMATION CONTACT:
Titanium Sponge From Japan and the
29167). The hearing was held in
Ms. Vera Libeau, Office of
Washington, DC. on September 26, 1984,
Investigations, telephone number (202
United Kingdom
and all persons who requested the
523-0368.
Determinations
opportunity were permitted to appear in
SUPPLEMENTARY INFORMATION: The
On the basis of the record 1 developed
person or to be represented by counsel.
Trade Agreements Act of 1979,
in investigation No. 731-TA-161 (Final),
Commerce published its affirmative
subsection 104(b)(1). requires the
the Commission determines,2 pursuant
final LTFV determinations in the Federal
Commission in the case of a
to section 735(b) of the Tariff Act of 1930
Rogister on October 1, 1984 (49 FR
countervailing duty order issued unde
(19 U.S.C. 1673d(b)). that an industry in
38384). The Commission's
section 303 of the Tariff Act of 1930.
the United States is threatened with
determinations in these investigations
upon the request of a government or
material injury by reason of imports
were made in an open "Government in
group of exporters of merchandise
from Japan of titanium sponge,3 which
the Sunshine" meeting, held on October
covered by the order, to conduct an
the Department of Commerce has found
29, 1984.
investigation to determine whether an
are being, or are likely to be, sold in the
The Commission transmitted its report
industry in the United States would be
United States at less than fair value
on these in estigations to the Secretary
materially injured, or threatened with
(LTFV). Pursuant to section 736 of the
of Commerce on November 7, 1984. A
material injury, or whether the
Tariff Act/of 1930 (19 U.S.C. 1673e(b)
public version of the Commission's
establishment of such an industry wo
(1980)), the Commission further
report. Titenium Sponge from Japan and
be materially retarded if the order we
to be revoked. On June 17, 1982, the
the United Kingdom, (investigations
The "record" is defined in & 207.2(i) of the
Nos. 731-TA-161 and 162 (Final), USITC
Commission received a request from t
Commission's Rules of Practice and Procedure (19
Government of Spain for the review o
CFR 207.2(i)).
Publication 1600, November 1984)
= Chairwoman Stem and Vice Chairman Liebeler
contains the views of the Commission
the outstanding countervailing duty
order on Vitamin K from Spain. Notic
dissenting.
and information gathered during the
a Titanium sponge is provided for in items 629.14
of the countervailing duty order was
investigations.
and 833.00 of the Tariff Schedules of the United
published on November 16, 1976 in th
States.
Issued: November 7, 1904.
Federal Register (41 FR 50419).
EXHIBIT 2
Federal Register / Vol. 50, No. 8 / Friday. January 11, 1985 / Notices
1655
Test the manner and frequency with
D. Reporting Requirements
batteries on which the trademark is
which the procedures are applied.
Compliance Requirement: The State
used.
B. Eligibility
must submit a report of child nutrition
The President is authorized by Section
operations (FNS-10) quarterly specifying
337(g)(2) to disapprove a Commission
Compliance Requirement:
The State must prescribe engibility
the number of meals claimed, supported
determination for policy reasons. I have
standards in accordance with federally
by meal counts from School Food
notified the Commission today of my
published guidelines, and participants
Authorities (SFA), and the estimated
decision to disapprove its determination
number of meals served for which
in this case.
must meet family-size income standards
claims had not yet been received from
The Commission's interpretation of
for free and reduced-price meals. 17 CFR
245.1. 245.11. 245.13)
SFA's. (7 CFR 210.13. 14(g): 220.13(b))
section 42 of the Lanham Act (15 U.S.C.
The SFA must approve proper
Suggested Audit Procedures (State):
1124). one of several grounds for the
applications submitted in accordance
Obtain copies of submitted reports
Commission's determination. is at odds
with these stapdards. 17 CFR 245.6(b))
and review for completeness and
with the longstanding regulatory
Suggested Audit Procedures (State):
timeliness of submission.
interpretation by the Department of the
Examine the Federal Register or
Trace data in selected reports to
Treasury. which is responsible for
correspond with FNS to ascertain the
supporting documentation.
administering the provisions of that
Federal guidelines.
Compliance Requirement: The
section. The Administration has
Review the State's familysize and
following financial reports must be
advanced the Treasury Department's
income standards.
submitted periodically.
interpretation in a number of pending
-Financial Status Report (SF 269)
court cases. Recent decisions of the U.S.
Review the State's eligibility
determination and verification system
-Request for Advance or
District Court for the District of
and evaluate for adequacy.
Reimbursement (SF 270) or
Columbia and the court of International
Review selected applications and
-Request for Payment on Letter of
Trade explicitly uphold the Treasury
determine whether they were properly
Credit and Status of Funds Report (SF
Department's interpretation. Allowing
183)
the Commission's determination in this
approved.
Suggested Audit Procedures (School
Suggested Audit Procedures: See
case to stand could be viewed as an
Food Authority):
Federal Financial Reports (VI) in the
alteration of that interpretation. 1.
Review the SFA procedures for
GENERAL REQUIREMENTS section of
therefore. have decided to disapprove
complying with the published eligibility
this document.
the Commission's determination.
guidelines and evaluate for adequacy.
The Departments of Treasury and
Review selected case files and
E. Speciol Tests and Provisions
Commerce. on behalf of the Cabinet
determine whether there was adherence
There are no special tests and
Council on Commerce and Trade, have
the prescribed procedures. erify the
provisions for the auditor to perform.
solicited data from the public
conclusions regarding eligibility.
[FR Doc. 85 889 Filed 1-10-85: 8:45 am]
concerning the issue of parallel market
Determine the numbers of free and
importation and are reviewing
BILLING CODE 3110-01-M
reduced price meals claimed for
responses with a view toward
reimbursement in selected schools and
formulating a cohesive policy in this
determine whether it exceeds the
OFFICE OF THE UNITED STATES
area. Failure to disapprove the
number of approved applications.
Commission's determination could be
TRADE REPRESENTATIVE
viewed as a change in the current policy
C. Matching, Level of Effort. and/or
Determination of the President
prior to the completion of this process.
Earmarking Requirements
Regarding Certain Alkaline Batteries
[FR Doc. 85-921 Filed 1-10-85: 8:45 am)
Compliance Requirement (Applies to
On Friday, January 4. 1985. the
BILLING CODE 3190-01-M
Lunch Program Only):
The State is required to contribute,
President notified the United States
from State-appropriated sources, am
International Trade Commission that he
amount equal to at least 30 percent of all
disapproved its determination in
PACIFIC NORTHWEST ELECTRIC
General Assistance funds (commonly
Investigation No. 337-TA-165. Certain
POWER AND CONSERVATION
referred to as Section IV funds of the
Alkaline Batteries. A statement of the
PLANNING COUNCIL
National School Lunch Act as amended)
President's determination, which was
made available by FNS to the State in
included with the notice to the
Economic Forecasting Advisory
the last year. In certain States. whose
Commission, is printed below.
Committee Meeting
per capita income has been designated
William E. Brock,
AGENCY: Economic Forecasting Advisory
lower by FNS, the 30 percent match may
United States Trade Representative.
Committee of the Pacific Northwest
be proportionately lower. The listing of
the match for all States is available from
Disapproval of the Determination of the
Electric Power and Conservation
United States International Trade
Planning Council (Northwest Power
FNS on form SI-1 (untitled). (7 CFR
Commission in Investigation No. 337-
Planning Council)
210.6(a))
TA-165, Certain Alkaline Batteries
Suggested/Audi Procedures (State):
ACTION: Notice of meeting to be held
Correspond with FNS to ascertain
The United States International Trade
pursuant to the Federal Advisory
the amount of funds made available in
Commission. following a finding of a
Committee Act. 5 U.S.C. Appendix 1-1-
the preceding school year.
violation of Section 337 of the Tariff Act
4. Activities will include:
Correspond with FNS and
of 1930, as amended. has ordered
Approval of minutes
determine if the State has been
excluded from entry into the United
Discussion of Proposed Draft
designated a low per capita income
States imports of certain alkaline
Economic. Demographic and Fuel Price
State.
batteries that were found to infringe a
Assumptions and response to comments.
Ascertain the amount expended
U.S. registered trademark and to
Discussion of Issue Paper on
from State sources for the current year.
misappropriate the trade dress of the
Assumptions for Financial Variable.
CERTIFICATE OF SERVICE
I, Velta A. Melnbrencis, hereby declare that on this 11th
day of February, 1985, I caused to be placed in the United States
mail (first class, postage prepaid) copies of the annexed papers
addressed as follows:
James N. Bierman, Esq.
Foley & Lardner
1775 Pennsylvania Ave., N.W.
Washington, D.C 20006
Gregg A. Dwyer, Esq.
Vice President and General Counsel
Duracell Inc.
Berkshire Industrial Park
Bethel, Connecticut 06801
Charles E. Koob, Esq.
Simpson Thacher & Bartlett
One Battery Park Plaza
New York, New York 10004
Stephen M. Creskoff, Esq.
Baskin & Steingut
Suite 1100
1100 Fifteenth Street, N.W.
Washington, D.C. 20005
Velta A
VELTA A. MELNBRENCIS
THE WHITE HOUSE
WASHINGTON
(5
January 7, 1984
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS 822
SUBJECT:
Correspondence from Duracell Counsel
Concerning ITC Decision
James N. Bierman of Foley & Lardner wrote you on January 3
on behalf of his client, Duracell, reiterating the arguments
against Presidential disapproval of the ITC decision and
requesting an opportunity to meet with Messrs. Baker,
Fuller, Meese, Oglesby, Stockman, Svahn and yourself to
discuss the matter. I knew that you would have opposed any
such meeting; in light of the President's decision the
matter is now OBE and I see no need for any response. You
should, however, be aware that Mr. Bierman's letter contains
an implicit threat (second paragraph) to litigate the
question of the scope of Presidential review in a Section
337 case, to which I can only reply, in an Eastwoodian
fashion, "Go ahead. Make my day
"