UNITED STATES INTERNATIONAL TRADE COMMISSION
`Washington, D.C.
`
`
`
`In the Matter of
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`
`
`Investigation No. 337-TA-1270
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`CERTAIN CASUAL FOOTWEAR
`AND PACKAGING THEREOF
`
`
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`CEASE AND DESIST ORDER
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`
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`IT IS HEREBY ORDERED THAT RESPONDENT La Modish Boutique of West
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`Covina, California (“La Modish”) cease and desist from conducting any of the following
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`activities in the United States: importing, selling, offering for sale, marketing, advertising,
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`distributing, transferring (except for exportation), soliciting United States agents or distributors,
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`and aiding or abetting other entities in the importation, sale for importation, sale after
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`importation, transfer (except for exportation), or distribution of certain casual footwear and
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`packaging thereof (as defined in Definition (G) below) that infringe one or more of U.S.
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`Trademarks, Registration Nos. 5,149,328; 5,273,875; and 3,836,415 (collectively, the “Asserted
`
`Trademarks”) in violation of section 337 of the Tariff Act of 1930, as amended (19 U.S.C.
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`§ 1337).
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`I.
`Definitions
`
`As used in this order:
`
`(A)
`
`(B)
`
`(C)
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`“Commission” shall mean the United States International Trade Commission.
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`“Complainant” shall mean Crocs, Inc. of Broomfield, Colorado.
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`“Respondent” shall mean La Modish Boutique of West Covina, California (“La
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`Modish”).
`
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`Washington, D.C.
`
`
`
`In the Matter of
`
`
`
`Investigation No. 337-TA-1270
`
`CERTAIN CASUAL FOOTWEAR
`AND PACKAGING THEREOF
`
`
`
`CEASE AND DESIST ORDER
`
`
`
`IT IS HEREBY ORDERED THAT RESPONDENT La Modish Boutique of West
`
`Covina, California (“La Modish”) cease and desist from conducting any of the following
`
`activities in the United States: importing, selling, offering for sale, marketing, advertising,
`
`distributing, transferring (except for exportation), soliciting United States agents or distributors,
`
`and aiding or abetting other entities in the importation, sale for importation, sale after
`
`importation, transfer (except for exportation), or distribution of certain casual footwear and
`
`packaging thereof (as defined in Definition (G) below) that infringe one or more of U.S.
`
`Trademarks, Registration Nos. 5,149,328; 5,273,875; and 3,836,415 (collectively, the “Asserted
`
`Trademarks”) in violation of section 337 of the Tariff Act of 1930, as amended (19 U.S.C.
`
`§ 1337).
`
`I.
`Definitions
`
`As used in this order:
`
`(A)
`
`(B)
`
`(C)
`
`“Commission” shall mean the United States International Trade Commission.
`
`“Complainant” shall mean Crocs, Inc. of Broomfield, Colorado.
`
`“Respondent” shall mean La Modish Boutique of West Covina, California (“La
`
`Modish”).
`
`
`
`
`
`
` (D)
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`“Person” shall mean an individual, or any non-governmental partnership, firm,
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`association, corporation, or other legal or business entity other than Respondent or
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`its majority-owned or controlled subsidiaries, successors, or assigns.
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`(E)
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`“United States” shall mean the fifty States, the District of Columbia, and
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`Puerto Rico.
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`(F)
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`The terms “import” and “importation” refer to importation for entry for
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`consumption under the Customs laws of the United States.
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`(G)
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`The term “covered products” shall mean casual footwear and packaging thereof
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`that infringe one or more of the Asserted Trademarks. The casual footwear and
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`packaging thereof subject to this order are as follows: casual footwear with holes
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`in the upper and such footwear’s packaging. Covered products shall not include
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`articles for which a provision of law or license avoids liability for infringement.
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`II.
`Applicability
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`The provisions of this Cease and Desist Order shall apply to Respondent and to any of its
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`principals, stockholders, officers, directors, employees, agents, distributors, controlled (whether
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`by stock ownership or otherwise) and majority-owned business entities, successors, and assigns,
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`and to each of them, insofar as they are engaging in conduct prohibited by section III, infra, for,
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`with, or otherwise on behalf of, Respondent.
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`III.
`Conduct Prohibited
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`Until such date as the Asserted Trademarks are abandoned, canceled, or rendered invalid
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`or unenforceable, Respondent shall not:
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`(A)
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`import or sell for importation into the United States covered products;
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`2
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`(B) market, distribute, sell, offer to sell, or otherwise transfer (except for exportation)
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`(C)
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`(D)
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`(E)
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`in the United States imported covered products;
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`advertise imported covered products;
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`solicit U.S. agents or distributors for imported covered products; or
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`aid or abet other entities in the importation, sale for importation, sale after
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`importation, transfer (except for exportation), or distribution of covered products.
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`IV.
`Conduct Permitted
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`Notwithstanding any other provision of this Order, specific conduct otherwise prohibited
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`by the terms of this Order shall be permitted if, in a written instrument, the owner of the Asserted
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`Trademarks licenses or authorizes such specific conduct.
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`V.
`Reporting
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`For purposes of this requirement, the reporting periods shall commence on January 1 of
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`each year and shall end on the subsequent December 31. The first report required under this
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`section shall cover the period from the date of issuance of this order through December 31, 2023.
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`This reporting requirement shall continue in force until such time as Respondent has truthfully
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`reported, in two consecutive timely filed reports, that it has no inventory (whether held in
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`warehouses or at customer sites) of covered products in the United States.
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`Within thirty (30) days of the last day of the reporting period, Respondent shall report to
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`the Commission: (a) the quantity in units and the value in dollars of covered products that it has
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`(i) imported and/or (ii) sold in the United States after importation during the reporting period,
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`and (b) the quantity in units and value in dollars of reported covered products that remain in
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`inventory in the United States at the end of the reporting period.
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`
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`3
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`
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`When filing written submissions, Respondent must file the original document
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`electronically on or before the deadlines stated above. Submissions should refer to the
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`investigation number (“Inv. No. 337-TA-1270”) in a prominent place on the cover pages and/or
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`the first page. See Handbook for Electronic Filing Procedures,
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`http://www.usitc.gov/secretary/fed_reg_notices/rules/handbook_on_electronic_filing.pdf.
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`Persons with questions regarding filing should contact the Secretary (202-205-2000). If
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`Respondent desires to submit a document to the Commission in confidence, it must file the
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`original and a public version of the original with the Office of the Secretary and must serve a
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`copy of the confidential version on Complainant’s counsel.1
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`Any failure to make the required report or the filing of any false or inaccurate report shall
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`constitute a violation of this Order, and the submission of a false or inaccurate report may be
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`referred to the U.S. Department of Justice as a possible criminal violation of 18 U.S.C. § 1001.
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`VI.
`Record-Keeping and Inspection
`
`(A)
`
`For the purpose of securing compliance with this Order, Respondent shall retain
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`any and all records relating to the sale, marketing, or distribution in the United
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`States of covered products, made and received in the usual and ordinary course of
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`business, whether in detail or in summary form, for a period of three (3) years
`
`from the close of the fiscal year to which they pertain.
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`(B)
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`For the purposes of determining or securing compliance with this Order and for
`
`no other purpose, subject to any privilege recognized by the federal courts of the
`
`
`1 Complainants must file a letter with the Secretary identifying the attorney to receive
`reports and bond information associated with this Order. The designated attorney must be on the
`protective order entered in the investigation.
`
`
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`4
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`
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`United States, and upon reasonable written notice by the Commission or its staff,
`
`duly authorized representatives of the Commission shall be permitted access and
`
`the right to inspect and copy, in Respondent’s principal offices during office
`
`hours, and in the presence of counsel or other representatives if Respondent so
`
`chooses, all books, ledgers, accounts, correspondence, memoranda, and other
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`records and documents, in detail and in summary form, that must be retained
`
`under subparagraph VI(A) of this Order.
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`VII.
`Service of Cease and Desist Order
`
`The Secretary shall serve copies of this Order upon each party of record in this
`
`investigation that has retained counsel or otherwise provided a point of contact for electronic
`
`service. While temporary remote operating procedures are in place in response to COVID-19,
`
`the Office of the Secretary is not able to serve parties that have not retained counsel or otherwise
`
`provided a point of contact for electronic service. Accordingly, pursuant to Commission Rules
`
`201.16(a) and 210.7(a)(1) (19 C.F.R. §§ 201.16(a), 210.7(a)(1)), the Commission orders that the
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`Complainant complete service of this Order for any party without a method of electronic service
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`noted on the attached Certificate of Service and shall file proof of service on the Electronic
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`Document Information System (EDIS).
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`Respondent is ordered and directed to:
`
`(A)
`
`Serve, within fifteen (15) days after the effective date of this Order, a copy of this
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`Order upon each of its respective officers, directors, managing agents, agents, and
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`employees who have any responsibility for the importation, marketing,
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`distribution, transfer, or sale of imported covered products in the United States;
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`
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`5
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`(B)
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`Serve, within fifteen (15) days after the succession of any persons referred to in
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`subparagraph VII(A) of this order, a copy of the Order upon each successor; and
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`(C) Maintain such records as will show the name, title, and address of each person
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`upon whom the Order has been served, as described in subparagraphs VII(A) and
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`VII(B) of this order, together with the date on which service was made.
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`The obligations set forth in subparagraphs VII(B) and VII(C) shall remain in effect until
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`such date as the last of the Asserted Trademarks is abandoned, canceled, or rendered invalid or
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`unenforceable.
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`VIII.
`Confidentiality
`
`Any request for confidential treatment of information obtained by the Commission
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`pursuant to section VI of this order should be made in accordance with section 201.6 of the
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`Commission’s Rules of Practice and Procedure (19 C.F.R. § 201.6). For all reports for which
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`confidential treatment is sought, Respondent must provide a public version of such report with
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`confidential information redacted.
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`IX.
`Enforcement
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`Violation of this order may result in any of the actions specified in section 210.75 of the
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`Commission’s Rules of Practice and Procedure (19 C.F.R. § 210.75), including an action for
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`civil penalties under section 337(f) of the Tariff Act of 1930 (19 U.S.C. § 1337(f)), as well as
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`any other action that the Commission deems appropriate. In determining whether Respondent is
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`in violation of this order, the Commission may infer facts adverse to Respondent if it fails to
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`provide adequate or timely information.
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`6
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`X.
`Modification
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`The Commission may amend this order on its own motion or in accordance with the
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`procedure described in section 210.76 of the Commission’s Rules of Practice and Procedure
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`(19 C.F.R. § 210.76).
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`XI.
`Bonding
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`The conduct prohibited by section III of this order may be continued during the sixty (60)
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`day period in which this Order is under review by the United States Trade Representative, as
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`delegated by the President (70 Fed. Reg. 43,251 (Jul. 21, 2005)), subject to Respondent’s posting
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`of a bond in the amount of one hundred percent (100%) of their entered value. This bond
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`provision does not apply to conduct that is otherwise permitted by section IV of this Order.
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`Covered products imported on or after the date of issuance of this Order are subject to the entry
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`bond as set forth in the exclusion order issued by the Commission, and are not subject to this
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`bond provision.
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`The bond is to be posted in accordance with the procedures established by the
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`Commission for the posting of bonds by complainants in connection with the issuance of
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`temporary exclusion orders. See 19 C.F.R. § 210.68. The bond and any accompanying
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`documentation are to be provided to and approved by the Commission prior to the
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`commencement of conduct that is otherwise prohibited by section III of this Order. Upon the
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`Secretary’s acceptance of the bond, (a) the Secretary will serve an acceptance letter on all
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`parties, and (b) Respondent must serve a copy of the bond and accompanying documentation on
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`Complainant’s counsel.2
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`2 See Footnote 1.
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`7
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`The bond is to be forfeited in the event that the United States Trade Representative
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`approves this Order (or does not disapprove it within the review period), unless (i) the U.S. Court
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`of Appeals for the Federal Circuit, in a final judgment, reverses any Commission final
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`determination and order as to Respondent on appeal, or (ii) Respondent exports or destroys the
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`products subject to this bond and provides certification to that effect that is satisfactory to the
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`Commission.
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`This bond is to be released in the event (i) the United States Trade Representative
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`disapproves this Order and no subsequent order is issued by the Commission and approved (or
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`not disapproved) by the United States Trade Representative, (ii) the U.S. Court of Appeals for
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`the Federal Circuit, in a final judgment, reverses any Commission final determination and order
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`as to Respondent on appeal, or (iii) Respondent exports or destroys the products subject to this
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`bond and provides certification to that effect that is satisfactory to the Commission, upon service
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`on Respondent of an order issued by the Commission based upon application therefor made by
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`Respondent to the Commission.
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`By order of the Commission.
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`Issued: September 14, 2023
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`
`Lisa R. Barton
`Secretary to the Commission
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`8
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