CHAIRMAN
`
`UNITED STATES INTERNATIONAL TRADE COMMISSION
`
`Washington, D.C. 20436
`
`September 14, 2023
`
`The President
`The White House
`Washington, D.C. 20500
`
`Dear Mr. President:
`
`In accordance with subsection (j) of Section 337 of the Tariff Act of 1930, as amended
`(19 U.S.C. § 1337) (“Section 337”), and the July 21, 2005, Memorandum for the United States
`Trade Representative (70 Fed. Reg. 43251), I am transmitting to you and the United States Trade
`Representative copies of the Commission’s limited exclusion order and cease and desist orders,
`as described below, and the record upon which the Commission based its determination.
`
`On September 14, 2023, the United States International Trade Commission issued a
`limited exclusion order and cease and desist orders pursuant to Section 337 in USITC
`Investigation No. 337-TA-1270, Certain Casual Footwear and Packaging Thereof. The limited
`exclusion order prohibits respondents La Modish Boutique of West Covina, California (“La
`Modish”), Star Bay Group Inc. of Hackensack, New Jersey (“Star Bay”), Huizhou Xinshunzu
`Shoes Co., Ltd. of Huizhou City, China, and Jinjiang Anao Footwear Co., Ltd. of Jinjiang City,
`Fujian, China (collectively, “Respondents”) from importing into the United States certain casual
`footwear and packaging thereof that infringe one or more of United States Trademark Reg. Nos.
`5,149,328; 5,273,875; and 3,836,415 (“covered products”). The cease and desist orders prohibit
`respondents La Modis and Star Bay from further importing, selling, and distributing the covered
`products in the United States.
`
`The Commission concluded that the statutory public interest factors in subsections (g)(1)
`of Section 337 do not preclude the issuance of this remedy. The Commission also determined
`that, during the period of Presidential review, the covered products described above may be
`imported and sold in the United States with the posting of a bond in the amount of one hundred
`
`Confidential Removed SDB
`
`

`

`The President
`September 14, 2023
`page 2
`
`percent (100%) of their entered value.
`
`Sincerely,
`
`Enclosures
`
`David S. Johanson
`Chairman
`
`
`
`
`
`
`
`
`
`
`
`

`

`CHAIRMAN
`
`
`
`
`
`UNITED STATES INTERNATIONAL TRADE COMMISSION
`
`Washington, D.C. 20436
`
`September 14, 2023
`
`
`The Honorable Janet L. Yellen
`Secretary of the Treasury
`Washington, D.C. 20220
`
`Dear Secretary Yellen:
`
`In accordance with subsection (d) of Section 337 of the Tariff Act of 1930, as amended
`(19 U.S.C. § 1337) (“Section 337”), I am transmitting to you a copy of the Commission’s limited
`exclusion order, as described below, and the record upon which the Commission based its
`determination.
`
`On September 14, 2023, the United States International Trade Commission issued a
`limited exclusion order pursuant to Section 337 in USITC Investigation No. 337-TA-1270,
`Certain Casual Footwear and Packaging Thereof. The limited exclusion order prohibits
`respondents La Modish Boutique of West Covina, California, Star Bay Group Inc. of
`Hackensack, New Jersey, Huizhou Xinshunzu Shoes Co., Ltd. of Huizhou City, China, and
`Jinjiang Anao Footwear Co., Ltd. of Jinjiang City, Fujian, China from importing into the United
`States certain casual footwear and packaging thereof that infringe one or more of United States
`Trademark Reg. Nos. 5,149,328; 5,273,875; and 3,836,415 (“covered products”).
`
`The Commission concluded that the statutory public interest factors in subsection (g)(1)
`of Section 337 do not preclude the issuance of this remedy. The Commission also determined
`that, during the period of Presidential review, the covered products described above may be
`imported and sold in the United States with the posting of a bond in the amount of one hundred
`percent (100%) of their entered value.
`
`
`Sincerely,
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`David S. Johanson
`Chairman
`
`

`

`Secretary Yellen
`September 14, 2023
`page 2
`
`Enclosures
`
`Dax Terrill, Chief
`Exclusion Order Enforcement
`Office of International Trade
`Regulation and Rulings
`U.S. Customs and Border Protection
`90 K Street, N.E.
`Washington, D.C. 20229-1177
`
`cc:
`
`
`
`

`

`CHAIRMAN
`
`
`
`
`
`UNITED STATES INTERNATIONAL TRADE COMMISSION
`
`
`Washington, D.C. 20436
`
`September 14, 2023
`
`
`
`The Honorable Katherine Tai
`United States Trade Representative
`Washington, D.C. 20508
`
`Dear Ambassador Tai:
`
`In accordance with subsection (j) of Section 337 of the Tariff Act of 1930, as amended
`(19 U.S.C. § 1337) (“Section 337”), and the July 21, 2005, Memorandum for the United States
`Trade Representative (70 Fed. Reg. 43251), I am transmitting to you and the President copies of
`the Commission’s limited exclusion order and cease and desist orders, as described below, and
`the record upon which the Commission based its determination.
`
`On September 14, 2023, the United States International Trade Commission issued a
`limited exclusion order and cease and desist orders pursuant to Section 337 in USITC
`Investigation No. 337-TA-1270, Certain Casual Footwear and Packaging Thereof. The limited
`exclusion order prohibits respondents La Modish Boutique of West Covina, California (“La
`Modish”), Star Bay Group Inc. of Hackensack, New Jersey (“Star Bay”), Huizhou Xinshunzu
`Shoes Co., Ltd. of Huizhou City, China, and Jinjiang Anao Footwear Co., Ltd. of Jinjiang City,
`Fujian, China (collectively, “Respondents”) from importing into the United States certain casual
`footwear and packaging thereof that infringe one or more of United States Trademark Reg. Nos.
`5,149,328; 5,273,875; and 3,836,415 (“covered products”). The cease and desist orders prohibit
`respondents La Modis and Star Bay from further importing, selling, and distributing the covered
`products in the United States.
`
`The Commission concluded that the statutory public interest factors in subsections (g)(1)
`of Section 337 do not preclude the issuance of this remedy. The Commission also determined
`that, during the period of Presidential review, the covered products described above may be
`imported and sold in the United States with the posting of a bond in the amount of one hundred
`
`

`

`Ambassador Tai
`September 14,2023
`page 2
`
`percent (100%) of their entered value.
`
`Sincerely,
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`David S. Johanson
`Chairman
`
`Enclosures
`
`cc:
`
`
`
`Shannon M. Nestor, Esq.
`Office of the General Counsel
`Office of the United States Trade Representative
`
`

`

`UNITED STATES INTERNATIONAL TRADE COMMISSION
`Washington, D.C.
`
`In the Matter of
`CERTAIN CASUAL FOOTWEAR
`AND PACKAGING THEREOF
`
`
`
`Investigation No. 337-TA-1270
`
`
`
`
`
`
`NOTICE OF FINAL DETERMINATION OF NO VIOLATION BY ACTIVE
`RESPONDENTS; ISSUANCE OF DEFAULT REMEDIAL ORDERS;
`TERMINATION OF INVESTIGATION
`
`
`AGENCY: U.S. International Trade Commission.
`
`ACTION: Notice.
`
`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.
`
`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.
`
`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.
`
`

`

`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.
`
`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).
`
`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
`
`
`
`
`2
`
`

`

`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).
`
`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).
`
`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”).
`
`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.
`
`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).
`
`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
`
`
`
`
`3
`
`

`

`FR 21712-15 (Apr. 11, 2023). The Commission determined not to review the remaining findings
`in the ID.
`
`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.
`
`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.
`
`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.
`
`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).
`
`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.
`
`The investigation is hereby terminated.
`
`The Commission vote for this determination took place on September 14, 2023.
`
`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).
`
`By order of the Commission.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Lisa R. Barton
`Secretary to the Commission
`
`Issued: September 14, 2023
`
`
`
`
`4
`
`

`

`UNITED STATES INTERNATIONAL TRADE COMMISSION
`Washington, D.C.
`
`
`In the Matter of
`
`CERTAIN CASUAL FOOTWEAR
`AND PACKAGING THEREOF
`
`
`
`
`
`
`Investigation No. 337-TA-1270
`
`LIMITED EXCLUSION ORDER
`
`
`
`
`
`The United States International Trade Commission (“Commission”) has found
`
`respondents La Modish Boutique of West Covina, California (“La Modish”), Star Bay Group
`
`Inc. of Hackensack, New Jersey (“Star Bay”), Huizhou Xinshunzu Shoes Co., Ltd. of Huizhou
`
`City, China (“Huizhou”), and Jinjiang Anao Footwear Co., Ltd. of Jinjiang City, Fujian, China
`
`(“Anao”) (collectively, “Defaulting Respondents”) in default. Order No. 58 (May 20, 2022),
`
`unreviewed by Comm’n Notice (June 10, 2022).
`
`The First Amended Complaint, filed by Complainant Crocs, Inc. of Broomfield,
`
`Colorado, alleged a violation of section 337 of the Tariff Act of 1930, as amended, 19 U.S.C.
`
`§ 1337, in the unlawful importation, sale for importation, or sale within the United States after
`
`importation of certain casual footwear and packaging thereof that infringe one or more of U.S.
`
`Trademark Registration Nos. 5,149,328; 5,273,875; and 3,836,415 (collectively, the “Asserted
`
`Trademarks”). Because the conditions in 19 U.S.C. § 1337(g)(1)(A)-(E) have been satisfied, the
`
`Commission, upon the request of the Complainant, issues a limited exclusion order, based on the
`
`allegations regarding a violation of section 337 in the First Amended Complaint that are
`
`presumed to be true as to the Defaulting Respondents.
`
`Having reviewed the record in this investigation, including the written submissions of the
`
`parties, the Commission has made its determinations on the issues of remedy, the public interest,
`
`

`

`and bonding. The Commission has determined that the appropriate form of relief is a limited
`
`exclusion order prohibiting the unlicensed entry of infringing casual footwear and packaging
`
`thereof manufactured by or on behalf of Defaulting Respondents or any of their affiliated
`
`companies, parents, subsidiaries, agents, or other related business entities, or its successors or
`
`assigns.
`
`The Commission has also determined that the public interest factors enumerated in
`
`19 U.S.C. § 1337(g)(1) do not preclude the issuance of the limited exclusion order, and that the
`
`bond during the period of Presidential review shall be in the amount of one hundred percent
`
`(100%) of the entered value of the entered value of the articles subject to this Order.
`
`
`
`Accordingly, the Commission hereby ORDERS that:
`
`1.
`
`Certain casual footwear and packaging thereof that infringe one or more of the
`
`Asserted Trademarks and are manufactured abroad by, or on behalf of, or imported by or on
`
`behalf of Defaulting Respondents or any of their affiliated companies, parents, subsidiaries,
`
`agents, or other related business entities, or its successors or assigns, 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 trademarks have been abandoned, canceled, or rendered
`
`invalid or unenforceable.
`
`2.
`
`The casual footwear and packaging thereof subject to this exclusion order (i.e.,
`
`“covered articles”) are as follows: casual footwear with holes in the upper and such footwear’s
`
`packaging.
`
`3.
`
`For the purpose of assisting U.S. Customs and Border Protection (“CBP”) in the
`
`enforcement of this order, and without in any way limiting the scope of this Order, the
`
`
`
`2
`
`

`

`Commission has attached to this Order a copy of the relevant trademark registrations as Exhibits
`
`A-C.
`
`4.
`
`Notwithstanding paragraph 1 of this Order, covered articles are entitled to entry
`
`into the United States for consumption, entry for consumption from a foreign trade zone, or
`
`withdrawal from a warehouse for consumption, under bond in the amount of one hundred
`
`percent (100%) of their entered value, pursuant to subsection (j) of section 337 (19 U.S.C.
`
`§ 1337(j)) and the Presidential Memorandum for the United States Trade Representative of July
`
`21, 2005 (70 Fed. Reg. 43,251), from the day after this Order is received by the United States
`
`Trade Representative until such time as the United States Trade Representative notifies the
`
`Commission that this Order is approved or disapproved but, in any event, not later than sixty (60)
`
`days after the receipt of this Order. All entries of covered articles made pursuant to this
`
`paragraph are to be reported to U.S. Customs and Border Protection (“CBP”), in advance of the
`
`date of the entry, pursuant to procedures CBP establishes.
`
`5.
`
`At the discretion of CBP and pursuant to the procedures it establishes, persons
`
`seeking to import articles may be required to certify that they are familiar with the terms of this
`
`Order, that they have made appropriate inquiry, and thereupon state that, to the best of their
`
`knowledge and belief, the products being imported are not excluded from entry under paragraph
`
`1 of this Order. At its discretion, CBP may require persons who have provided the certification
`
`described in this paragraph to furnish such records or analyses as are necessary to substantiate
`
`the certification.
`
`6.
`
`Complainant shall file a written statement with the Commission, made under oath,
`
`each year on the anniversary of the issuance of this Order stating whether Complainant
`
`continues to use each of the Asserted Trademarks in commerce in the United States in
`
`
`
`3
`
`

`

`connection with the products at issue and whether any of the Asserted Trademarks have been
`
`abandoned, canceled, or rendered invalid or unenforceable.
`
`7.
`
`The Commission may modify this Order in accordance with the procedures
`
`described in Rule 210.76 of the Commission’s Rules of Practice and Procedure (19 C.F.R.
`
`§ 210.76).
`
`8.
`
`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 and upon CBP. 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 Complainant complete service of this Order for any party without a
`
`method of electronic service noted on the attached Certificate of Service and shall file proof of
`
`service on the Electronic Document Information System (EDIS).
`
`9.
`
`Notice of this Order shall be published in the Federal Register.
`
`By order of the Commission.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Issued: September 14, 2023
`
`
`
`
`Lisa R. Barton
`Secretary to the Commission
`
`
`
`4
`
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`UNITED STATES INTERNATIONAL TRADE COMMISSION
`Washington, D.C.
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`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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`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
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`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
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`As used in this order:
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`(A)
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`(B)
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`(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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` (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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`(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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`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
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`(A)
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`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
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`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
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`no other purpose, subject to any privilege recognized by the federal courts of the
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`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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`United States, and upon reasonable written notice by the Commission or its staff,
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`duly authorized representatives of the Commission shall be permitted access and
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`the right to inspect and copy, in Respondent’s principal offices during office
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`hours, and in the presence of counsel or other representatives if Respondent so
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`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
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`under subparagraph VI(A) of this Order.
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`VII.
`Servic