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`UNITED STATES INTERNATIONAL TRADE COMMISSION
`Washington, D.C.
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`Before the Honorable Bryan F. Moore
`Administrative Law Judge
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`In the Matter of
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`CERTAIN CHOCOLATE MILK POWDER
`AND PACKAGING THEREOF
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`Inv. No. 337-TA-1232
`(Enforcement)
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`COMMISSION INVESTIGATIVE STAFF’S RESPONSE TO COMPLAINANT MEENAXI
`ENTERPRISE INC.’S MOTION FOR SUMMARY DETERMINATION OF VIOLATION
`BY THE DEFAULTING RESPONDENTS AND FOR RECOMMENDED
`DETERMINATION ON REMEDY
`[Mot. Dkt. No. 1232-019 (Enforcement)]
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`Margaret D. Macdonald, Director
`Jeffrey T. Hsu, Supervisory Attorney
`Jennifer M. Dienes, Investigative Attorney
`Office of Unfair Import Investigations
`U.S. International Trade Commission
`500 E Street SW, Suite 401
`Washington, DC 20436
`Tel: 202-708-5408
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`March 27, 2024
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`Table of Contents
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`I.
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`II.
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`INTRODUCTION ............................................................................................................... 1
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`BACKGROUND ................................................................................................................. 1
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`1.
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`2.
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`Summary of Violation Phase ...................................................................... 1
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`Enforcement ................................................................................................ 3
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`Complainant ............................................................................................................ 4
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`Enforcement Respondents ....................................................................................... 5
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`1.
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`2.
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`3.
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`4.
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`Organic Ingredients ..................................................................................... 5
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`New India .................................................................................................... 5
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`Bharat Bazar ................................................................................................ 5
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`Coconut Hill ................................................................................................ 5
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`The Asserted Trademark ......................................................................................... 6
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`The Products at Issue............................................................................................... 6
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`B.
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`C.
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`D.
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`E.
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`III.
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`IV.
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`LEGAL STANDARDS ....................................................................................................... 6
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`SUMMARY DETERMINATION ASSESSMENT............................................................ 7
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`A.
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`B.
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`C.
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`General Exclusion Order ......................................................................................... 7
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`Importation or Sale After Issuance of the GEO ...................................................... 8
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`Jurisdiction ............................................................................................................ 10
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`1.
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`2.
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`3.
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`Personal Jurisdiction ................................................................................. 10
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`In Rem Jurisdiction ................................................................................... 10
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`Statutory Authority .................................................................................... 10
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`D.
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`Trademark Infringement ....................................................................................... 11
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`1.
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`2.
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`Legal Standard........................................................................................... 11
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`Enforcement Respondents’ Unlawful Activities ....................................... 12
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`Staff’s Response to Meenaxi’s
`Motion for Summary Determination
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`3.
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`Analysis of the DuPont Factors ................................................................ 13
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`V.
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`REMEDY .......................................................................................................................... 18
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`A.
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`Cease and Desist Orders ........................................................................................ 19
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`VI.
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`CONCLUSION ................................................................................................................. 20
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`Table of Authorities
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`Cases
`Certain Electric Skin Care Devices, Brushes and Chargers Therefor, and Kits Containing the Same,
`Inv. No. 337-TA-959, Comm’n Op. (Feb. 13, 2017) ..................................................................... 19
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`Certain Footwear Products, Inv. No. 337-TA-936, Comm’n Op. (Remand) (Sept. 24, 2020) ........ 11
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`Certain Ground Fault Circuit Interrupters and Products Containing Same, Inv. No. 337-TA-739
`(Enforcement), Final Comm’n Determination (Dec. 2, 2013) ....................................................... 20
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`Certain Ground Fault Circuit Interrupters and Products Containing Same, Inv. No. 337-TA-739,
`Comm’n Op. (June 8, 2012) ........................................................................................................... 20
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`Certain Mobile Telephone Handsets, Wireless Communication Devices, and Components Thereof,
`Inv. 337-TA-578, USITC Pub. No. 4132, Final Initial Determination, 2010 WL 1436458 (March
`2010) (unreviewed) .......................................................................................................................... 7
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`Certain Motorized Vehicles and Components Thereof, Inv. No. 337-TA-1132, Comm’n Op.
`(Modification) (Jan. 4, 2021) ................................................................................................... 11, 12
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`Certain Motorized Vehicles and Components Thereof, Inv. No. 337-TA-1132, Initial Determination
`(Nov. 21, 2019) .............................................................................................................................. 11
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`Certain Mounting Apparatuses for Holding Portable Electronic Devices and Components Thereof,
`Inv. No. 337-TA-1086, Initial Determination (Dec. 11, 2018) ...................................................... 10
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`Certain Pocket Lighters, Inv. No. 337-TA-1142, ID, 2020 WL 2094127 (Feb. 12, 2020) ............... 11
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`Certain Pocket Lighters, Inv. No. 337-TA-1142, Initial Determination Granting Summary
`Determination of Violation, 2020 WL 2094127 (Feb. 12, 2020) ............................................ 10, 12
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`Certain Video Security Equipment & Sys., Related Software, Components Thereof, & Prods.
`Containing Same, Inv. No. 337-TA-1281, Comm’n Op. (Apr. 19, 2023) ..................................... 10
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`In re E.I. DuPont DeNemours & Co., 476 F.2d 1357 (C.C.P.A. 1973) ............................................. 11
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`Lucent Technologies, Inc. v. Gateway, 580 F.3d 1301 (Fed. Cir. 2009).............................................. 7
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`Specialty Brands, Inc. v. Coffee Bean Distributors, Inc., 748 F.2d 669 (Fed. Cir. 1984) ................. 17
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`Swagway, LLC v. Int’l Trade Comm’n, 934 F.3d 1332 (Fed. Cir. 2019) ..................................... 11, 12
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`Statutes
`19 U.S.C. § 1337(k)(1) ......................................................................................................................... 8
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`Staff’s Response to Meenaxi’s
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`Rules
`19 C.F.R. § 210.18(b) ........................................................................................................................... 7
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`19 C.F.R. § 210.49(c) ........................................................................................................................... 7
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`19 C.F.R. § 210.75(a)(4) .................................................................................................................... 19
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`I.
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`INTRODUCTION
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`On March 15, 2024, Complainant Meenaxi Enterprise Inc. (“Complainant” or “Meenaxi”)
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`moved for a summary determination of violation including (1) a determination that Organic
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`Ingredients Inc. d/b/a Namaste Plaza Indian Super Market (“Organic Ingredients”), New India
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`Bazar Inc. d/b/a New India (“New India”), Bharat Bazar Inc. (“Bharat Bazar”), and Coconut Hill
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`Inc. d/b/a Coconut Hill (“Coconut Hill”) (collectively, “Enforcement Respondents” or
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`“Enforcement Defaulting Respondents”), all of which have been found in default (see Order No. 8
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`(Feb. 13, 2024), unreviewed, Comm’n Notice (March 15, 2024)), have violated the general
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`exclusion order (“GEO”) that issued on November 15, 2022, and (2) a recommended determination
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`on appropriate enforcement measures including the issuance of cease and desist orders (“CDOs”)
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`(“Mot.” or “Motion”).
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`The Commission Investigative Staff (“Staff”) supports the motion for the reasons discussed
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`below.
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`II.
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`BACKGROUND
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`A.
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`Procedural History
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`1.
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`Summary of Violation Phase
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`On October 29, 2020, Meenaxi filed a complaint with the Commission (“Complaint”). See
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`EDIS Doc. ID 723620. A supplement to the Complaint was filed on November 10, 2020. EDIS
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`Doc. ID 724586. The Complaint, as supplemented, alleged violations of 19 U.S.C. § 1337 by
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`twenty-one proposed respondents, including New India, Coconut Hill, and Bharat Bazar, based on
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`the sale for importation, importation, and/or sale within the United States after importation of
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`certain chocolate milk powder and packaging thereof that infringe U.S. Trademark Registration No.
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`4,206,026 (“the ’026 Mark”). See EDIS Doc. ID 723620. On December 1, 2020, the Commission
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`instituted the investigation and named all twenty-one respondents. See 85 Fed. Reg. 77237-8 (Dec.
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`1, 2020). All respondents were found in default. See Order No. 6 (Feb. 10, 2021), unreviewed by
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`Comm’n Notice (Mar. 2, 2021); Order No. 23 (May 19, 2022), unreviewed by Comm’n Notice (Jun.
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`14, 2022).
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`On May 24, 2021, Meenaxi moved for summary determination of violation of Section 337
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`by the respondents found in default and requested a general exclusion order (“GEO”). See EDIS
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`Doc. ID 743229. On December 1, 2021, an initial determination issued granting Meenaxi’s motion,
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`but noting discrepancies with respect to one of the respondents, Organic Food d/b/a Namaste Plaza
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`India Super Market (“Organic Food”), that called into question whether the respondent was
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`properly served with the complaint, notice of investigation, and order to show cause. See Order No.
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`15 at 1, n. 1. The Commission determined sua sponte to review the initial determination and
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`ordered reconsideration of Order No. 6, the order to show cause, as to the aforementioned
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`respondent and any other respondents who may not have been properly served. See EDIS Doc. ID
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`760809. The investigation was remanded to the ALJ for further proceedings. Id.
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`On remand, Meenaxi moved to amend the complaint and notice of investigation to correct
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`the corporate entity name and address of Organic Food to Organic Ingredients Inc. d/b/a Namaste
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`Plaza Indian Supermarket (“Organic Ingredients”), correct the address of Bharat Bazar,1 and correct
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`the address for New India. EDIS Doc. ID 763824 at 7-9. Meenaxi’s motion was granted. Order
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`No. 18 at 1-5 (Mar. 11, 2022), unreviewed by Comm’n Notice, 87 FR 22940 (Apr. 18, 2020).
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`Remand proceedings were conducted as to Organic Ingredients and New India, both of which were
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`ordered to respond to the amended complaint and notice of investigation and when they did not so
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`1 Meenaxi demonstrated that Bharat Bazar had been served with all of the documents in the
`investigation despite a typographical error in its address. Order No. 18 at 4.
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`respond, they were also ordered to respond to an order to show cause why they should not be found
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`in default. See Order No. 27 at 3 (Aug. 3, 2022). On May 19, 2022, an initial determination issued
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`finding Organic Ingredients and New India in default (with the respondents previously found in
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`default). Order No. 23 (May 19, 2022), unreviewed by Comm’n Notice (June 14, 2022).
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`On June 15, 2022, Meenaxi again moved for summary determination of violation by the
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`defaulting respondents and requested a GEO. See EDIS Doc. ID 773207. On August 3, 2022, a
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`remand initial determination issued granting Meenaxi’s second motion for summary determination
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`and finding a violation of Section 337 with respect to the ’026 Mark. See EDIS Doc. ID 776941.
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`The remand initial determination also found that all of the defaulting respondents met the
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`importation requirement and that Meenaxi satisfied the domestic industry requirement. Id. Further,
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`the remand initial determination included the CALJ’s recommended determination on remedy and
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`bonding, which recommended the issuance of a GEO with respect to the ’026 Mark. Id. On
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`September 19, 2022, the Commission determined not to review the remand initial determination.
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`87 Fed. Reg. 58130-1 (Sept. 23, 2022). On November 15, 2022, the Commission issued a final
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`determination finding a violation, issuing a GEO prohibiting the unlicensed importation of
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`chocolate milk powder and packaging thereof that infringe the ’026 Mark, and terminating the
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`investigation. 87 Fed. Reg. 70864-5
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`Enforcement
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`2.
`On October 9, 2023,2 Meenaxi filed an enforcement complaint with the Commission
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`(“Enforcement Complaint”). See Enforcement Complaint (EDIS Doc. ID 805571). The
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`Enforcement Complaint alleges violations of the GEO by Organic Ingredients, New India, Bharat
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`2 The Enforcement Complaint was filed on October 9, 2023, which was a federal holiday, so the
`official EDIS received date was October 10, 2023.
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`Bazar, and Coconut Hill by the continued importation, sale for importation, advertisement,
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`marketing, distribution, offers to sell, and sales of “Bournvita” products that infringe the ’026 Mark.
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`Id. at ¶ 13. None of the Enforcement Respondents answered Meenaxi’s Enforcement Complaint.
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`On November 9, 2023, the Commission determined to institute a formal enforcement
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`proceeding as to all four Enforcement Respondents. See EDIS Doc. ID 808258 (Notice of
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`Investigation “NOI”); see also Comm’n Order (Nov. 13, 2023) (EDIS Doc. ID 808290); 88 Fed.
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`Reg. 78786-7 (Nov. 16, 2023).
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`On December 21, 2023, Meenaxi filed a motion for an order to show cause and for entry of
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`default as to the Enforcement Respondents. See EDIS Doc. ID 810827. The Staff filed a response
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`supporting Meenaxi’s motion on January 2, 2024. See EDIS Doc. ID 811150. On January 10,
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`2024, the ALJ issued an order for the Enforcement Respondents to show cause no later than
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`February 2, 2024 as to why they should not be found in default. Order No. 6 at 3 (January 10,
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`2024). On February 13, 2024, the ALJ issued an Initial Determination finding the Enforcement
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`Respondents in default. Order No. 8 (February 13, 2023), unreviewed, Comm’n Notice (March 14,
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`2024).
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`On March 15, 2024, Meenaxi filed a motion for summary determination of violation of the
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`GEO and for a recommendation that the Commission issue CDOs to each of the Enforcement
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`Respondents (“Motion” or “MSD”).
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`B.
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`Complainant
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`Complainant Meenaxi is a New Jersey corporation with its principal place of business at 86-
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`88 Executive Avenue in Edison, New Jersey. See Motion at 5. Meenaxi is “engaged in the
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`creation, research and development, refinement, production, marketing, importation and sale of a
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`wide variety of food products and commodities in the Unites States.” Id. Additionally, Meenaxi
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`has “the exclusive right in the United States to market and sell products covered by the ‘026 mark.”
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`Id.
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`C.
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`Enforcement Respondents
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`1.
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`Organic Ingredients
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`Organic Ingredients has a principal place of business at 12220 World Trade Dr. #200, San
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`Diego, CA 92128. Enforcement Compl. at ¶ 18. Organic Ingredients operates the website
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`namasteplaza.com and also owns and/or operates retail stores, including a retail store located at
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`3269 Walnut Ave., Fremont, VA 94538. Id. at ¶ 21, Exs. 5-7.
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`2.
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`New India
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`New India has a principal place of business at 885 Yosemite Way, Milpitas, CA 95035.
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`Enforcement Compl. at ¶ 22. New India operates the website www.newindiabazar.com and also
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`owns and/or operates retail stores. Id. at ¶ 25, Exs. 10-13.
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`3.
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`Bharat Bazar
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`Bharat Bazar has a principal place of business at 34301 Alvarado Niles Road, Union City,
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`CA 94086. Enforcement Compl. at ¶ 26. Bharat Bazar operates the website
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`www.shopbharatbazar.com and also owns and/or operates retail stores, including a retail store
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`located at 1165 Reed Avenue, Sunnyvale, CA 94086. Id. at ¶ 28, Exs. 14-17.
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`4.
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`Coconut Hill
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`Coconut Hill has a principal place of business at 554 Murphy Avenue, Sunnyvale, CA
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`94086. Enforcement Compl. at ¶ 29. Coconut Hill owns and/or operates retail stores, including a
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`retail store at 554 S. Murphy Avenue, Sunnyvale, CA 94086. Id. at ¶ 31, Exs. 18-20.
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`D.
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`The Asserted Trademark
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`The Asserted Trademark in this investigation is Trademark Registration No. 4,206,026 (“the
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`’026 Mark”) for the word BOURNVITA for “beverages having a milk base; chocolate milk; dried
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`milk powder; milk beverages containing fruits; milk drinks containing fruits; milk powder; milk-
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`based beverages with chocolate; milk-based beverages with high milk content; nut-based milk;
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`powdered milk; and strawberry milk” in International Class 29 and for “chocolate powder;
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`chocolate-based beverages; chocolate-based beverages with milk; cocoa; cocoa beverages with
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`milk; cocoa-based beverages; and cocoa-based condiments and seasonings for food and drink” in
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`International Class 30. Enforcement Compl. at ¶ 16, Ex. 3. The ’026 Mark has been federally
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`registered since September 11, 2012 and has become incontestable. Id. at ¶ 17, Ex. 3. There is no
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`dispute that Meenaxi is the owner of record.
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`E.
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`The Products at Issue
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`The General Exclusion Order that issued on November 15, 2022 identifies that products at
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`issue as “chocolate milk powder in consumer-sized container with the Bournvita label” (“Accused
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`Products”). See General Exclusion Order at ¶ 2 (November 15, 2022).
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`During the enforcement, the Accused Products were more specifically identified as
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`“chocolate flavors of the following: BournVita for Women; BournVita Inner Strength for Strength
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`Every Day; BournVita Lil Champs; BournVita; BournVita Badam Booster; and BournVita 5Star
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`Magic.” Joint Statement Identifying Accused Products (Jan. 24, 2024).
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`III. LEGAL STANDARDS
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`The relevant standard for a grant of summary determination is set forth below. Other
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`relevant legal standards (e.g., for trademark infringement) are provided in the sections specifically
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`addressing those issues.
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`Commission Rule 210.18(b) provides that a summary determination may be granted “if
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`pleadings and any depositions, answers to interrogatories, and admissions on file, together with the
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`affidavits, if any, show that there is no genuine issue as to any material fact and that the moving
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`party is entitled to summary determination as a matter of law.” 19 C.F.R. § 210.18(b). A party may
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`rely on circumstantial evidence to prove its claim. See, e.g., Lucent Technologies, Inc. v. Gateway,
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`580 F.3d 1301, 1318 (Fed. Cir. 2009); Certain Mobile Telephone Handsets, Wireless
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`Communication Devices, and Components Thereof, Inv. 337-TA-578, USITC Pub. No. 4132, Final
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`Initial Determination, 2010 WL 1436458 at *127 (March 2010) (unreviewed).
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`IV.
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`SUMMARY DETERMINATION ASSESSMENT
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`A.
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`General Exclusion Order
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`The Commission issued a General Exclusion Order on November 15, 2022 that provides:
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`Chocolate Milk Power and Packaging Thereof (as defined in paragraph 2 below)
`that infringe the Asserted Trademark are excluded from entry for consumption
`into the United States, entry for consumption from a foreign-trade zone, or
`withdrawal from a warehouse for consumption, except under license of the
`trademark owner or as provided by law until such date as the trademark has been
`abandoned, canceled, or rendered invalid or unenforceable.
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`See General Exclusion Order at ¶ 1 (November 15, 2022); 87 Fed. Reg. 70864-6 (Nov. 21, 2022).
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`The Chocolate Milk Powder and Packaging Thereof subject to the GEO are as follows “chocolate
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`milk powder in consumer-sized contained with the Bournvita label.” Id. at ¶ 2. Commission Rule
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`210.49(c) states “Exclusion orders and seizure and forfeiture orders shall be enforceable upon
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`receipt of notice thereof by the Secretary of the Treasury.”3 19 C.F.R. § 210.49(c). A letter
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`3 The Staff notes that U.S. Customs and Border Protection is no longer under the Secretary of the
`Treasury.
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`transmitting the GEO to U.S. Customs and BorderProtection was sent on November 15, 2022.
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`EDIS Doc. ID 784515. Accordingly, violations can only be found for acts thereafter.
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`Pursuant to 19 U.S.C. § 1337(k)(1), the GEO continuesin effect until the Commission finds
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`that “the conditions which led to such exclusion from entry or order no longer exist.” See 19 U.S.C.
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`§ 1337(kK)(1). Additionally, on November9, 2023, Meenaxi filed a statement of continued use
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`pursuant to paragraph 6 of the GEO,stating that Meenaxi “continues to use in the United States,
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`and in interstate commerce, the ‘026 trademark in connection with chocolate milk powder and
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`packaging thereof.” EDIS Doc. ID 808136.
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`B.
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`Importation or Sale After Issuance of the GEO
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`Meenaxi primarily relies on evidence of importation for the Enforcement Respondents that
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`wassubmitted with its Enforcement Complaint but has also offered additional evidence with respect
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`to Organic Ingredients. Mot. at 10-16. In the Staffs view, the evidence, summarizedin the table
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`below, showsthat the Enforcement Respondents imported and/or sold after importation chocolate
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`milk powder products bearing the asserted “BOURNVITA”trademarkin violation of the GEO.
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`The Staff is also of the view that the evidenceis substantial, reliable and probative regarding
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`importation andsale after importation by the Enforcement Respondents.
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`related to the purchase of the product.
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`Organic Ingredients
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`Meenaxi relies on Exhibit 6 to the Enforcement Complaint,
`whichis a receipt dated May 2, 2023 showing the purchase of
`BOURNVITAmarked chocolate milk powder products from
`Namaste Plaza‘ in Fremont, CA for $5.99 and $8.99. Thereis a
`photograph of one of the purchased products (Ex. 8 to the
`Enforcement Complaint) that shows a label with “Product of
`India,” and a declaration (Ex. 7 to the Enforcement Complaint)
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`4 Meenaxi provided evidence tying Organic Ingredients to Namaste Plaza during the violation phase
`of the investigation. See Mot. at 12; Amended Complaint, Exs. 9a-9c.
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`New India
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`Bharat Bazar
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`Coconut Hill
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`Meenaxi also provides export/import data from Volza.com, a
`website that provides shipping information from India Customs,
`as Ex. A to its Motion. See Mot. at 11-12. Ex. A shows
`shipments of “BOURNVITA” products in August 2023 and
`January 2024 from India to Organic Ingredients in the United
`States.
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`Meenaxi relies on Exhibits 11-13 to the Enforcement
`Complaint, which show the September 11, 2023 purchase of a
`BOURNVITA marked chocolate milk powder product from the
`website www.store2k.com for $9.99. There is a declaration
`related to the purchase of the product that provides inter alia the
`date of purchase and information showing that New India owns
`and operates the store2k.com website. Enforcement Compl.,
`Ex. 12, Annex. A. There are also photographs of the purchased
`product following its receipt in the US showing a label with
`“Product of India.” Id. at Ex. 12, Annex. C; Ex. 13.
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`Meenaxi relies on Exhibit 15 to the Enforcement Complaint,
`which is a receipt showing the May 2, 2023 purchase of two
`BOUNVITA marked chocolate milk powder products from
`Bharat Bazar in Sunnyvale, CA for $11.98. There is a
`photograph of one of the purchased products (Ex. 17 to the
`Enforcement Complaint) that shows a label with “Product of
`India,” and a declaration (Ex. 16 to the Enforcement Complaint)
`related to the purchase of the product.
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`Meenaxi relies on Exhibit 18 to the Enforcement Complaint,
`which is a receipt showing the May 2, 2023 purchase of two
`BOURNVITA marked chocolate milk powder products from
`Coconut Hill in Sunnyvale, CA for $17.98. There is a
`photograph of one of the purchased products (Ex. 20 to the
`Enforcement Complaint) that shows a label with “Product of
`India,” and a declaration (Ex. 19 to the Enforcement Complaint)
`related to the purchase of the product.
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`The foregoing evidence shows that the Enforcement Respondents have been selling the
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`accused products after importation into the United States.
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`Staff’s Response to Meenaxi’s
`Motion for Summary Determination
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`C.
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`Jurisdiction
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`1.
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`Personal Jurisdiction
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`The Commission has personal jurisdiction over the Enforcement Respondents, which are
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`located in the United States. See Certain Pocket Lighters, Inv. No. 337-TA-1142, Initial
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`Determination Granting Summary Determination of Violation, 2020 WL 2094127, at *6 (Feb. 12,
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`2020). Additionally, Complainant has shown that the Enforcement Respondents were properly
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`served at the correct addresses for service of process with the Enforcement Complaint, the Order to
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`Show Cause, the Initial Determination finding them in default, and all other pleadings. See, e.g.,
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`EDIS Doc. ID 808539, 814611.
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`Although personal jurisdiction over the Enforcement Respondents has been established in
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`this enforcement investigation, personal jurisdiction is not required so long as the products at issue
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`are being imported, sold for importation, or sold after importation. See Certain Mounting
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`Apparatuses for Holding Portable Electronic Devices and Components Thereof, Inv. No. 337-TA-
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`1086, Initial Determination, at 18 (Dec. 11, 2018) (EDIS Doc. ID 663879). As set forth above, the
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`evidence submitted with the Enforcement Complaint and Meenaxi’s Motion establishes that the
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`Enforcement Respondents sell after importation the accused products.
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`2.
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`In Rem Jurisdiction
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`
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`The Commission also has in rem jurisdiction over the accused products sold by the
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`Enforcement Respondents, given the proof of sales after importation set forth above.
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`3.
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`Statutory Authority
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`Finally, the Commission has statutory authority over this investigation. See Certain Video
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`Security Equipment & Sys., Related Software, Components Thereof, & Prods. Containing Same,
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`Inv. No. 337-TA-1281, Comm’n Op. at 9-10 (Apr. 19, 2023).
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`Staff’s Response to Meenaxi’s
`Motion for Summary Determination
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`D.
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`Trademark Infringement
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`1.
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`Legal Standard
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`The Federal Circuit has held that to establish trademark infringement under the Lanham Act,
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`one must prove “(1) it has a valid and legally protectable mark; (2) it owns the mark; and (3) the
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`defendant’s use of the mark to identify goods or services causes a likelihood of confusion.”
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`Converse, Inc. v. Int’l Trade Comm’n, 909 F.3d 1110, 1116 (Fed. Cir. 2018). For infringement
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`following registration, “the Lanham Act entitles the owner of the registered mark to a presumption
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`that the mark is valid…including that it has acquired secondary meaning.” Id. at 1117.
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`Whether an accused product infringes an asserted trademark or trade dress depends on the
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`likelihood of confusion. In determining whether there is a likelihood of confusion, the Commission
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`has stated that the thirteen factors set forth in In re E.I. DuPont DeNemours & Co., 476 F.2d 1357
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`(C.C.P.A. 1973) can be considered. See Certain Footwear Products, Inv. No. 337-TA-936,
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`Comm’n Op. (Remand) at 56, n. 325 (Sept. 24, 2020); see also Motorized Vehicles, Comm’n Op.
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`(Modification) at 7-8 (Jan. 4, 2021) (“Motorized Vehicles Modification”). The thirteen DuPont
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`factors are:
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`(1) The similarity or dissimilarity of the marks in their entireties as to appearance,
`sound, connotation and commercial impression;
`(2) The similarity or dissimilarity and nature of the goods or services as described in
`an application or registration or in connection with which a prior mark is in use;
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`5 In fn. 32 the Commission stated: “The Federal Circuit has recently applied the DuPont factors
`framework to the likelihood of confusion analysis in reviewing the Commission’s infringement
`determination. See Swagway, LLC v. Int’l Trade Comm’n, 934 F.3d 1332, 1338 n.2 (Fed. Cir. 2019)
`(citing In re E.I. DuPont DeNemours & Co., 476 F.2d 1357 (C.C.P.A. 1973)). That framework
`includes thirteen factors, many of which are similar to, or overlap with, the Restatement of Torts
`factors. Following the Swagway decision, the ALJs at the Commission have begun employing the
`DuPont factors and the Commission has approved the use of the DuPont framework. See Certain
`Pocket Lighters, Inv. No. 337-TA-1142, ID, 2020 WL 2094127, at *7, 10-13 (Feb. 12, 2020),
`unreviewed in relevant part by 82 Fed. Reg. 23528 (Apr. 28, 2020); Certain Motorized Vehicles
`and Components Thereof, Inv. No. 337-TA-1132, Initial Determination at 14-15 (Nov. 21, 2019),
`aff’d, Comm’n Op. at 24 (June 18, 2020).
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`Staff’s Response to Meenaxi’s
`Motion for Summary Determination
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`(3) The similarity or dissimilarity of established, likely-to-continue trade channels;
`(4) The conditions under which and buyers to whom sales are made, i.e. “impulse”
`vs. careful, sophisticated purchasing;
`(5) The fame of the prior mark (sales, advertising, length of use);
`(6) The number and nature of similar marks in use on similar goods;
`(7) The nature and extent of any actual confusion;
`(8) The length of time during and conditions under which there has been concurrent
`use without evidence of actual confusion;
`(9) The variety of goods on which a mark is or is not used (house mark, “family”
`mark, product mark);
`(10) The market interface between applicant and the owner of a prior mark . . .;
`(11) The extent to which applicant has a right to exclude others from use of its mark
`on its goods;
`(12) The extent of potential confusion, i.e., whether de minimis or substantial; and
`(13) Any other established fact probative of the effect of use.
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`Id. The DuPont factors, however, “cannot be reduced to a simple tally,” and the factors “are
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`accorded different weights in different circumstances.” Swagway, LLC v. Int’l Trade Comm’n, 934
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`F.3d 1332, 1340 (Fed. Cir. 2019).
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`During the violation phase, the following DuPont factors were addressed: similarity of
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`marks, similarity of goods, similarly of trade channels, conditions of sale, right of Meenaxi to
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`exclude. Order No. 15 (Initial ID) at 17-20 (see also fn. 6, listing the factors not addressed), Order
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`No. 27 (Remand ID) at 10-15; Certain Pocket Lighters, Inv. No. 337-TA-1142, Initial
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`Determination Granting Summary Determination of Violation, 2020 WL 2094127, at *7 (Feb. 12,
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`2020) (“not all of the DuPont factors will apply in every case; only those factors which are
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`supported by evidence in the record need to be considered”).
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`2.
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`Enforcement Respondents’ Unlawful Activities
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`Meenaxi accuses the Enforcement Respondents of violating the GEO by offering for sale,
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`selling, advertising, and aiding and abetting the sale and use of Cadbury’s “BOURNVITA”
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`products, which allegedly infringe the ’026 Mark. Mot. at 11-16.