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 FINAL DETERMINATION OF NO VIOLATION BY ACTIVE
`RESPONDENTS; ISSUANCE OF DEFAULT REMEDIAL ORDERS;
`TERMINATION OF 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 that there is no violation of section 337 of the Tariff Act of
`1930, as amended, in this investigation by active respondents Hobby Lobby Stores, Inc. (“Hobby
`Lobby”), Quanzhou ZhengDe Network Corp. d/b/a Amoji (“Amoji”), and Orly Shoe Corp.
`(“Orly”). The Commission has further determined to issue a limited exclusion order (“LEO”)
`against defaulting respondents La Modish Boutique (“La Modish”), Star Bay Group Inc. (“Star
`Bay”), Huizhou Xinshunzu Shoes Co., Ltd. (“Huizhou”), and Jinjiang Anao Footwear Co., Ltd.
`(“Anao”) and cease and desist orders against defaulting respondents La Modish and Star Bay.
`This investigation is hereby terminated.
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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 (“section 337”), 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 of 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 of Oklahoma City, Oklahoma; Amoji of Quanzhou, Fujian Province, China;
`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 (“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”); 718Closeouts 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 of West Covina,
`California; Loeffler Randall Inc. of New York, New York (“Loeffler Randall”); Star Bay of
`Hackensack, New Jersey; and Royal Deluxe Accessories, LLC of New Providence, New Jersey
`(“Royal Deluxe”). The Office of Unfair Import Investigations (“OUII”) was also named 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 of New York, New York; 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”); Anao of Jinjiang City,
`China; Walmart Inc. of Bentonville, Arkansas (“Walmart”); and Huizhou of Huizhou City,
`China, 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) (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
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`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
`also terminated the investigation with respect to KGS for good cause. Order No. 40 (Feb. 1,
`2022), unreviewed by Comm’n Notice (Feb. 22, 2022).
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`On June 10, 2022, the Commission found that 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). 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 with Crocs, OUII, and the remaining respondents Orly, Hobby Lobby
`(collectively, “the Orly Respondents”), and Amoji (all collectively, “Respondents”).
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`On January 9, 2023, the ALJ issued the subject final ID, finding no violation of section
`337 because: (1) Crocs did not prove that Respondents infringe the Asserted Marks; (2) Crocs
`did not prove that Respondents falsely designate the origin of their accused products or cause
`unfair competition; (3) Crocs did not prove that Respondents dilute the Asserted Marks by
`blurring or tarnishment; (4) the 3D Marks are invalid for lack of secondary meaning; and
`(5) Crocs waived its infringement contentions against Defaulting Respondents. ID at 71-72, 83-
`86, 148-49. The ID also finds that Crocs has satisfied both the technical and economic prongs of
`the domestic industry requirement. Id. at 130, 149. The ID further finds that Respondents failed
`to prove that the 3D Marks are invalid as functional or that the Word Mark is invalid as generic.
`Id. at 128-29, 149. The ID takes no position on Crocs’s alleged injury or Respondents’ fair use
`defense. Id. at 129-30.
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`On January 13, 2023, the Commission issued a notice soliciting submissions from the
`public on the public interest implications of any remedial orders the Commission may issue in
`this case. 88 FR 3437 (Jan. 19, 2023). On February 9, 2023, non-party Joybees, LLC, a U.S.
`seller of footwear, filed a statement opposing issuance of a general exclusion order, (“GEO”).
`EDIS Doc. ID 790010 (Feb. 9, 2023). The Commission also received a letter dated June 14,
`2023, from U.S. Representative Brittany Pettersen (CO-7), who represents the congressional
`district in which Crocs in headquartered. EDIS Doc. ID 798554 (June 14, 2023).
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`On April 5, 2023, the Commission determined to review the ID’s findings that: (1) Crocs
`waived its infringement contentions against the lined version of Orly’s Gators; (2) the 3D Marks
`are not entitled to the presumption of validity and are invalid for lack of secondary meaning;
`(3) Crocs waived its infringement contentions against Defaulting Respondents; (4) subject matter
`jurisdiction; (5) likelihood of confusion; (6) false designation of origin; (7) dilution; and (8) the
`technical and economic prongs of domestic industry. Comm’n Notice at 3-4 (Apr. 5, 2023); 88
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`FR 21712-15 (Apr. 11, 2023). The Commission determined not to review the remaining findings
`in the ID.
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`On April 19, 2023, Crocs, the Orly Respondents, and OUII filed their responses to the
`Commission’s notice of review. On April 26, 2023, the parties filed their respective replies.
`Amoji did not file its own response or join the briefing by the Orly Respondents.
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`Having reviewed the ID, the parties’ submissions, and the evidence of record, the
`Commission has determined to affirm and adopt the ID’s findings that Respondents have not
`infringed or diluted any of the Asserted Marks, falsely designated the origin of their Accused
`Products, or engaged in unfair competition. The Commission has determined to reverse the ID’s
`finding that Crocs waived its infringement contentions with respect to the lined versions of the
`accused Orly Gators and find instead that Crocs failed to prove infringement by the lined Orly
`Gators.
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`The Commission takes no position on Orly’s alleged first sale in April 2016, the
`presumption of validity, secondary meaning, injury, fair use, and the technical and economic
`prongs of the domestic industry requirement.
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`The Commission has further determined to issue an LEO to Defaulting Respondents and
`CDOs to defaulting respondents La Modish and Star Bay pursuant to section 337(g)(1). 19
`U.S.C. 1337(g)(1).
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`The Commission’s reasoning in support of its determinations is set forth more fully in its
`opinion issued herewith. Commissioner Kearns dissents from the Commission’s finding of no
`violation of section 337 for the reasons detailed in his dissenting views issued herewith.
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`The investigation is hereby terminated.
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`The Commission vote for this determination took place on September 14, 2023.
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`The authority for the Commission’s determination is contained in section 337 of the
`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: September 14, 2023
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