UNITED STATES INTERNATIONAL TRADE COMMISSION
`Washington, D.C.
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`In the Matter of
`CERTAIN CASUAL FOOTWEAR
`AND PACKAGING THEREOF
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`Investigation No. 337-TA-1270
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`NOTICE OF A COMMISSION DETERMINATION TO EXTEND
`THE TARGET DATE FOR COMPLETION OF THIS INVESTIGATION
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`AGENCY: U.S. International Trade Commission.
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`ACTION: Notice.
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`SUMMARY: Notice is hereby given that the U.S. International Trade Commission
`(“Commission”) has determined to extend the target date for completion of this investigation to
`August 31, 2023.
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`FOR FURTHER INFORMATION CONTACT: Carl P. Bretscher, Esq., Office of the
`General Counsel, U.S. International Trade Commission, 500 E Street S.W., Washington, D.C.
`20436, telephone (202) 205-2382. Copies of non-confidential documents filed in connection
`with this investigation may be viewed on the Commission’s electronic docket (EDIS) at
`https://edis.usitc.gov. For help accessing EDIS, please email EDIS3Help@usitc.gov. General
`information concerning the Commission may also be obtained by accessing its Internet server at
`https://www.usitc.gov. Hearing-impaired persons are advised that information on this matter can
`be obtained by contacting the Commission’s TDD terminal on (202) 205-1810.
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`SUPPLEMENTARY INFORMATION: The Commission instituted this investigation on July
`9, 2021, based on a complaint filed by Crocs, Inc. of Broomfield, Colorado (“Crocs”). 86 FR
`36303-304 (July 9, 2021). The complaint, as supplemented, alleges violations of section 337 of
`the Tariff Act of 1930, as amended, 19 U.S.C. 1337, in the importation into the United States,
`sale for importation, or sale in the United States after importation of certain casual footwear and
`packaging thereof by reason of infringement, false designation of origin, and dilution of one or
`more of U.S. Trademark Registration Nos. 5,149,328; 5,273,875 (collectively, the “3D Marks”);
`and 3,836,415 (“the Word Mark”) (all collectively, “the Asserted Marks”). Id. The complaint
`alleges that a domestic industry exists, and that the threat or effect of certain alleged violations is
`to destroy or substantially injure an industry in the United States. Id.
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`The Commission’s notice of investigation named numerous respondents, including:
`Hobby Lobby Stores, Inc. of Oklahoma City, Oklahoma (“Hobby Lobby”); Quanzhou ZhengDe
`Network Corp. d/b/a Amoji of Quanzhou, Fujian Province, China (“Amoji”); Skechers USA,
`Inc. of Manhattan Beach, California (“Skechers”); SG Footwear Meser Grp. Inc. a/k/a S.
`Goldberg & Co. of Hackensack, New Jersey (“SG Footwear”); Cape Robbin Inc. of Pomona,
`California (“Cape Robbin”); Dr. Leonard’s Healthcare Corp. d/b/a Carol Wright of Edison, New
`Jersey (“Dr. Leonard’s”); Fullbeauty Brands Inc. d/b/a Kingsize of New York, New York
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`(“Fullbeauty”); Legend Footwear, Inc. d/b/a/ Wild Diva of City of Industry, California (“Wild
`Diva”); Fujian Huayuan Well Import and Export Trade Co., Ltd. of Fuzhou, Fujian Province,
`China (“Fujian”); Yoki Fashion International LLC of New York, New York (“Yoki”); Bijora,
`Inc. d/b/a Akira of Chicago, Illinois (“Akira”); Hawkins Footwear, Sports, Military & Dixie
`Store of Brunswick, Georgia (“Hawkins”); Shoe-Nami Inc. of Gretna, Louisiana (“Shoe-Nami”);
`PW Shoes, Inc. a/k/a P&W of Maspeth, New York (“PW”); 718 Closeouts of Brooklyn, New
`York (“718Closeouts”); Crocsky of Austin, Texas (“Crocsky”); Hobibear Shoes and Clothing
`Ltd. of Brighton, Colorado (“Hobibear”); Ink Tee of Los Angeles, California (“Ink Tee”);
`Maxhouse Rise Ltd. of Hong Kong, China (“Maxhouse”); La Modish Boutique of West Covina,
`California (“La Modish”); Loeffler Randall Inc. of New York, New York (“Loeffler Randall”);
`Star Bay Group Inc. of Hackensack, New Jersey (“Star Bay”); and Royal Deluxe Accessories,
`LLC of New Providence, New Jersey (“Royal Deluxe”). The Office of Unfair Import
`Investigations (“OUII”) is also participating as a party.
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`On November 17, 2021, the Commission amended the complaint and notice of
`investigation to add certain new respondents, including: Orly Shoe Corp. of New York, New
`York (“Orly”); Mould Industria de Matrizes Ltda. d/b/a/ Boaonda of Brazil (“Boaonda”);
`Dongguan Eastar Footwear Enterprises Co., Ltd. of Guangzhou City, China (“Eastar”); KGS
`Sourcing Ltd. of Hong Kong, China (“KGS”); Fujian Wanjiaxin Industrial Developing, Inc. a/k/a
`Fujian Wanjiaxin Light Industrial Developing, Inc. of Quanzhou City, China (“Wanjiaxin”);
`Jinjiang Anao Footwear Co., Ltd. (“Anao”); Walmart Inc. of Bentonville, Arkansas (“Walmart”);
`and Huizhou Xinshunzu Shoes Co., Ltd. of Huizhou City, China (“Huizhou”), and to terminate
`the investigation with respect to Crocsky, Hobibear, and Ink Tee. Order No. 30 (Oct. 21, 2021),
`unreviewed by Comm’n Notice (Nov. 17, 2021).
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`The Commission subsequently terminated the investigation with respect to various
`respondents on the basis of settlement agreements or consent orders. See Order No. 12 (Aug. 11,
`2021) (terminating Skechers), unreviewed by Comm’n Notice (Aug. 24, 2021); Order No. 16
`(Aug. 26, 2021) (SG Footwear) and Order No. 17 (Aug. 26, 2021) (Cape Robbin), unreviewed by
`Comm’n Notice (Sept. 24, 2021); Order No. 20 (Sept. 1, 2021) (Dr. Leonard’s), unreviewed by
`Comm’n Notice (Sept. 29, 2021); Order No. 22 (Sept. 9, 2021) (Fullbeauty) and Order No. 23
`(Sept. 9, 2021) (Wild Diva), unreviewed by Comm’n Notice (Oct. 7, 2021); Order No. 24 (Sept.
`17, 2021) (Fujian), unreviewed by Comm’n Notice (Oct. 7, 2021); Order No. 25 (Sept. 22, 2021)
`(Yoki), unreviewed by Comm’n Notice (Oct. 7, 2021); Order No. 26 (Sept. 28, 2021) (Akira),
`unreviewed by Comm’n Notice (Oct. 27, 2021); Order No. 27 (Oct. 6, 2021) (Hawkins),
`unreviewed by Comm’n Notice (Oct. 29, 2021); Order No. 32 (Nov. 1, 2021) (Shoe-Nami) and
`Order No. 33 (Nov. 1, 2021) (PW), unreviewed by Comm’n Notice (Nov. 29, 2021); Order No.
`34 (Nov. 10, 2021) (718 Closeouts), unreviewed by Comm’n Notice (Dec. 6, 2021); Order No.
`39 (Jan. 11, 2022) (Eastar), unreviewed by Comm’n Notice (Feb. 4, 2022); Order No. 46 (March
`3, 2022) (Maxhouse, Wanjiaxin), unreviewed by Comm'n Notice (March 18, 2022); Order No.
`49 (March 15, 2022) (Boaonda), unreviewed by Comm’n Notice (April 1, 2022); Order No. 54
`(April 22, 2022) (Royal Deluxe), unreviewed by Comm’n Notice (May 17, 2022); Order No. 56
`(May 6, 2022) (Loeffler Randall), unreviewed by Comm’n Notice (May 27, 2022); Order No. 81
`(Sept. 28, 2022) (Walmart), unreviewed by Comm’n Notice (Oct. 20, 2022). The Commission
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`also terminated the investigation with respect to KGS for good cause. Order No. 40 (Feb. 1,
`2022) (KGS), unreviewed by Comm’n Notice (Feb. 22, 2022).
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`On June 10, 2022, the Commission found respondents La Modish, Star Bay, Huizhou,
`and Anao (“Defaulting Respondents”) were in default and waived their rights to appear, to be
`served with documents, and to contest the allegations in this investigation, pursuant to 19 CFR
`210.16(b), 210.17(h). Order No. 58 (May 20, 2022), unreviewed by Comm’n notice (June 10,
`2022).
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`On September 13-16, 2022, the presiding administrative law judge (“ALJ”) held an
`evidentiary hearing. On September 30, 2022, Crocs, OUII, and the participating respondents
`(Orly, Hobby Lobby, and Amoji) filed their respective initial post-hearing briefs. On October 7,
`2022, the parties filed their post-hearing reply briefs.
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`On January 9, 2023, the ALJ issued the final initial determination (“ID”) finding no
`violation of section 337 because: (1) Crocs failed to prove that any of Respondents infringes the
`3D Marks; (2) Crocs failed to prove that Orly or Hobby Lobby infringes the Word Mark; (3)
`Crocs did not prove that any of Respondents falsely designated the origin (source) of their
`accused products or caused unfair competition; (4) Crocs did not prove that any of the
`Respondents diluted any of the Asserted Marks, either by blurring or tarnishment; (5) the 3D
`Marks were invalid prior to registration for lack of secondary meaning; and (6) Crocs waived its
`infringement contentions against Defaulting Respondents. ID at 71-72, 83-86, 148-49. The ID
`finds that Crocs has satisfied both the technical and economic prongs of the domestic industry
`requirement, and it takes no position on injury. Id. at 130, 149. The ID further finds that
`Respondents failed to prove the 3D Marks are invalid as functional or the Word Mark is invalid
`as generic, and it takes no position on Respondents’ “fair use” defense. Id. at 128-29, 149.
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`On April 5, 2023, the Commission determined to review the ID in part with respect to the
`ID’s findings that: (1) the Commission has subject matter jurisdiction; (2) Crocs waived its
`infringement contentions for the lined version of Orly’s Gators; (3) Crocs waived its
`infringement contentions against Defaulting Respondents; (4) Crocs failed to prove that
`consumers were likely to confuse the accused products with the Asserted Marks; (5) Crocs failed
`to prove that Respondents falsely designated the origin, or source, of the accused products; (6)
`Crocs failed to prove that Respondents improperly diluted the Asserted Marks, either by blurring
`or tarnishment; (7) the 3D Marks are not entitled to the presumption of validity and are invalid
`for lack of secondary meaning; and (8) Crocs satisfied the technical and economic prongs of
`domestic industry.
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`The Commission has determined to extend the target date for completion of this
`investigation to August 31, 2023.
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`The Commission vote for this determination took place on July 10, 2023.
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`The authority for the Commission’s determination is contained in section 337 of the
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`Tariff Act of 1930, as amended (19 U.S.C. 1337), and in Part 210 of the Commission’s Rules of
`Practice and Procedure (19 CFR Part 210).
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`By order of the Commission.
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`Lisa R. Barton
`Secretary to the Commission
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`Issued: July 10, 2023
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