UNITED STATES INTERNATIONAL TRADE COMMISSION
`Washington, D.C.
`
`I-=,
`L4
`
`21.3
`.7
` xi
`? f
`
`In the Matter of
`
`~~~
`
`~
`
`CERTAIN AGRICULTURAL
`VEHICLES AND COMPONENTS
`THEREOF
`
`Investigation No. 337-TA-487
`
`4 %
`
`--
`
`1
`I
`1
`1
`) 1
`Order No. 44 Initial Determination Granting Joint Motion No. 487-48 To Terminate The
`Investigation As To Jiangling
`
`On September 23,2003, pursuant to Commission rule 210.21(c), complainant Deere &
`
`Company and respondent Jiangling Tractor Co. Ltd. (Jiangling) moved to terminate this
`
`investigation as to respondent Jiangling based upon a Consent Order Stipulation and Proposed
`
`Consent Order (Consent Order) submitted with said motion. (Motion Docket No. 487-48).
`
`Movants represented that other than the Consent Order Stipulation and a Settlement
`
`Agreement between complainant and Jiangling attached to Motion No. 487-48, there are no other
`
`agreements, written or oral, express or implied between the parties concerning the subject matter
`
`of the investigation.
`
`The staff, in a response dated September 24,2003, argued that Motion No. 487-48 should
`
`be granted.
`
`No other party responded to Motion No. 487-48.
`
`The administrative law judge finds that the Consent Order Stipulation contains the
`
`admissions, waivers, statements, and other requirements set forth in Commission rule 21 0.21 (c).
`
`Thus, the Consent Order Stipulation on page 1 states that the Commission on February 7,2003
`
`(68 Fed. Reg. 7388 (Feb. 13,2003)) instituted the investigation under Section 337 of the Tariff
`Act of 1930, as amended (19 U.S.C. 0 1337), based on the allegations contained in the complaint
`
`

`
`filed by complainant, which alleged unfair acts in the importation into the United States, the sale
`
`for importation and the sale within the United States after importation of certain agricultural
`
`vehicles and components thereof (Agricultural Vehicles) by respondent Jiangling and that
`
`Jiangling is willing to accept entry of the Consent Order submitted concurrently with Motion No.
`
`487-48 by the Commission and to agree to all waivers and other provisions as required by
`
`Commission rule 2 10.2 1.
`
`It was also stipulated in the Consent Order Stipulation that complainant and Jiangling are
`
`in support of Motion No. 487-48 based upon a consent order which states that the signing of the
`
`Consent Order Stipulation is for settlement purposes only and does not constitute an admission
`
`by Jiangling that an unfair act has been committed (point 1); that the Commission has in rem
`
`jurisdiction over the Agricultural Vehicles which are the subject of the complaint in this
`
`investigation and the Commission has
`
`personam jurisdiction over Jiangling for purposes of
`
`~
`
`said Stipulation and Proposed Consent Order (point 2) and that Jiangling expressly waives all
`
`right to seek judicial review or otherwise challenge the validity of the Consent Order (point 2l);
`
`that the signatories to said Stipulation will cooperate with and will not seek to impede by
`
`litigation or other means the Commission’s efforts to gather information under subpart I of the
`
`Commission’s rules (19 C.F.R. Part 210) (point 3); that the enforcement, modification and
`
`revocation of the Consent Order will be carried out pursuant to subpart I of the Commission’s
`
`Rules of Practice and Procedure (1 9 C.F.R. Part 2 10) and in determining whether Jiangling is in
`
`violation of the Consent Order, the Commission may infer facts adverse to Jiangling if Jiangling
`
`* The Consent Order Stipulation has two points “2”.
`
`2
`
`

`
`fails to provide adequate or timely information and that the Commission may impose upon any
`
`person who violates the Consent Order a penalty of not more than the greater of $100,000 or
`
`twice the domestic value of any articles entered or sold for each day on the which the Consent
`
`Order is violated which assessment of any such penalty shall have the force of a judgment and
`
`liability for payment of such penalty shall accrue upon administrative assessment by the
`
`Commission (point 4); that the Consent Order shall not apply with respect to any claim of an
`
`intellectual property right that has expired or been found or adjudicated invalid or unenforceable
`
`by the Commission or a court or agency of competent jurisdiction, provided that such finding or
`
`judgment has become final and nonreviewable (point 5); that Jiangling will not seek to challenge
`
`the validity of the intellectual property rights that form the basis of the complaint, including U.S.
`
`Registered Trademark No. 1,254,339, No. 1,502,103, and No. 1,6503,576, in any administrative
`
`or judicial proceeding to enforce the Consent Order (point 6); that Jiangling stipulates that, as a
`
`condition of terminating the investigation as to Jiangling, it will not contest the legal conclusions
`
`or findings of fact determined by the Commission in any final determination in this Investigation
`
`or in any administrative or judicial proceeding to enforce the Consent Order (point 7); that
`
`Jiangling stipulates that it shall not import and/or sell for importation into the United States
`
`agricultural tractors bearing the color combinations as shown in Exhibits A and B to the Consent
`
`Order Stipulation and Jiangling further agrees not to import and/or sell for importation into the
`
`United States agricultural tractors and like products that consist of a color combination of green
`
`and yellow colors, except as provided in paragraphs 9 and 10 (point 8); that Jiangling and
`
`complainant stipulate that Jiangling may use a green color that is distinctly different from John
`
`Deere green on the body of the tractor, as long as yellow and colors not distinctly different from
`
`3
`
`

`
`yellow, are not used on the wheels andor stripe, seat accent or trim and Jiangling and
`
`complainant also stipulate that Jiangling may use a yellow color distinctively different from John
`
`Deere agricultural yellow on the wheels and/or a stripe, seat, accent or trim of the tractor as long
`
`as green is not used on the body and/or remainder of the tractor, other than incidental uses of
`
`green color distinctly different2 from John Deere green and Jiangling and complainant stipulate
`
`that Jiangling may continue to place safety/warning labels with yellow background and black
`
`lettering, such as the labels shown as Exhibit C attached to the Consent Order Stipulation, on
`
`standard locations on the equipment in standard sizes (point 9); and that complainant and
`
`Jiangling stipulate that Jiangling may use the color of the actual hood depicted in Exhibit A
`
`attached to the Consent Order Stipulation or the color of the hood which was identified at RPX-
`
`163, a photograph of which appears as Exhibit D to the Consent Order Stipulation4, provided
`
`The staff noted that the phrases “distinctly different” and “distinctively different” are
`not defined in the Consent Order Stipulation, Proposed Consent Order, or Settlement Agreement;
`that while the meaning of these phrases could, therefore, be an issue in a subsequent enforcement
`proceeding, the staff does not believe that the possibility that such an issue may arise in a
`potential enforcement action provides a sufficient basis for rejecting the consent order; and that
`the final determination in this investigation regarding the issue of infringement of the color
`trademarks may assist in the interpretation of these phrases if an enforcement proceeding were to
`later materialize.
`
`RPX- 16 refers to a physical exhibit of respondents Jiangling and Dongfeng Agricultural
`Machinery Group for the hearing in this investigation and which was identified as “samples
`showing color of Jiangling tractor (later version) (being obtained at complainant’s request, to
`extent available).” On September 23,2003, said respondents moved to withdraw their exhibits,
`including RPX-16, proffered by said respondents. (Motion Docket No. 487-49).
`
`In a letter dated September 25,2003 to the Secretary, complainant’s counsel stated:
`
`The Proposed Consent Order, which was submitted as part of the joint motion
`for termination, identified a photograph of RPX-16 as Exhibit D. Pursuant to
`the request of the Administrative Law Judge Luckern, counsel for Deere &
`Co. and counsel for Jiangling Tractor Co., Ltd. hereby specifically request that
`
`4
`
`

`
`yellow is not used on such tractors, except that Jiangling may continue to place safety/warning
`
`labels with yellow background and black lettering, such as the labels shown on Exhibit C to the
`
`Consent Order Stipulation, on standard locations on the equipment in standard sizes.
`
`The Proposed Consent Order parallels the Stipulation. It states that upon entry of the
`
`consent order, Jiangling shall not import and/or sell for importation into the United States
`
`agricultural tractors bearing the color combinations shown in Exhibit A or Exhibit B to the
`
`Proposed Consent Order, or import and/or sell for importation into the United States agricultural
`
`tractors and like products that consist of a color combination of green and yellow colors, with
`
`exceptions that mirror those set out in paragraphs 9 and 10 of the Stipulation. (Proposed Consent
`Order, 77 2-4). The Proposed Consent Order also states that Jiangling shall be precluded from
`
`seeking judicial review or otherwise challenging or contesting the validity of the Consent Order.
`(Proposed Consent Order, 7 5). The Proposed Consent Order further provides that the signatories
`
`to the Stipulation shall cooperate with and shall not seek to impede by litigation or other means
`
`the Commission’s efforts to gather information under Subpart I of the Commission’s Rules of
`Practice and Procedure, 19 C.F.R. Part 2 10 (Proposed Consent Order, 7 6); that Jiangling shall
`
`not seek to challenge and is precluded fiom making any challenges to the validity or
`
`enforceability of the intellectual property rights at issue in any administrative or judicial
`proceeding to enforce the Consent Order (Proposed Consent Order, 7 7); and that as a condition
`
`the Proposed Consent Order (along with the joint motion and stipulation as
`may be necessary) be modified to identifl the physical specimen RPX-16 that
`was submitted as Exhibit D’ (D Prime).
`
`The undersigned counsel for Deere and Co. represents that he
`requested and obtained authorization and consent earlier today from
`Jiangling’s counsel . .. for the requested modification.
`
`5
`
`

`
`to terminating the investigation as to Jiangling, it agrees not to contest the legal conclusions or
`
`findings of fact determined by the Commission in any final determination in this investigation in
`
`any administrative or judicial proceedings to enforce the Consent Order. (Proposed Consent
`Order, 7 8).
`
`In addition, in the Proposed Consent Order, Jiangling acknowledges that complainant
`
`may seek to introduce as evidence any information Jiangling provided in the course of discovery
`
`in this investigation, and Jiangling waives its right to object to, to rebut, or to otherwise address
`the introduction of such evidence into the record (Proposed Consent Order, 7 9), and also
`
`acknowledges that it will have waived its right to introduce evidence, cross-examine witnesses,
`or otherwise participate in the investigation (Proposed Consent Order, 7 10); that when the last of
`
`the trademarks at issue expires, the Consent Order shall become null and void (Proposed Consent
`Order, 7 11); that if any intellectual property right asserted by complainant in the complaint is
`
`held to be invalid or unenforceable by a court or agency of competent jurisdiction, in a final
`
`decision, the terms of the Consent Order as to such invalid or unenforceable intellectual property
`
`right shall be temporarily suspended during the pendency of any appeal of the final decision; that
`
`if such final decision becomes no longer subject to appeal, the Consent Order shall become null
`
`and void as to such invalid or unenforceable intellectual property right (Proposed Consent Order,
`7 12); and that the Proposed Consent Order terminates the investigation as to Jiangling, and
`
`Jiangling is dismissed as a named respondent in the investigation, provided that enforcement,
`
`modification, or revocation of the Consent Order shall be carried out pursuant to Subpart I of the
`
`6
`
`

`
`Commission’s Rules ofpractice and Procedure, 19 C.F.R. Part 210.5 (Proposed Consent Order, 7
`
`13).
`
`The Settlement Agreement entered into on September 23,2003, between Jiangling and
`
`complainant, referred to certain allegations in the pleadings. It then states, inter alia, that
`
`Jiangling represents that since its commencement of business it has manufactured for exportation
`
`into the United States approximately 49 agricultural tractors bearing the color combinations as
`
`shown in Exhibits A and B attached to said Settlement Agreement and represents that there are
`
`no such tractors bearing such color combinations remaining for sale in its current inventory nor
`
`in that of its authorized United States dealers or distributors to the best of its knowledge; that
`
`Jiangling has ceased, as of the end of 2002, all sale for exportation to the United States of
`
`Jiangling tractors bearing color combinations as shown in said Exhibits A and B; that Jiangling
`
`does not consent to a violation of 19 U.S.C. 3 1337 by reason of infringement and dilution of
`
`Deere’s Green and Yellow Trademarks; that Jiangling agrees that upon execution of the
`
`Settlement Agreement, it will not import and/or sell for importation into the United States
`
`agricultural tractors bearing the color combinations as show in said Exhibits A and B and
`
`Jiangling further agrees not to import and/or sell for importation into the United States,
`
`agricultural tractors and like products that consist of a combination of green and yellow colors,
`
`The Proposed Consent Order, like the Stipulation, states that the Commission may
`impose a penalty of not more than the greater of $100,000 or twice the domestic value of any
`articles entered or sold for each day on which the Consent Order is violated. Moreover, it is
`stated that the Commission’s assessment of such penalty shall have the force of a judgment and
`that liability for payment of such penalty shall accrue upon administrative assessment by the
`Commission. The Proposed Consent Order also states that the Commission may infer facts
`adverse to Jiangling if it fails to provide adequate or timely information. (Proposed Consent
`Order, 7 13).
`
`7
`
`

`
`except as provided in paragraph three of the Settlement Agreement and Deere agrees that it will
`
`not seek a limited exclusion order against Jiangling, and in the event that a general exclusion
`
`order is granted by the Commission, Jiangling will be exempted from such an order6; that Deere
`
`agrees that Jiangling may use a green color distinctively different from John Deere green on the
`
`body of the tractor, as long as yellow and colors not distinctively different from yellow, are not
`
`used on the wheels and/or stripe, seat, accent or trim of the tractors, and agrees that Jiangling
`
`may use a yellow color distinctively different from John Deere agricultural yellow on the wheels
`
`andor as a stripe, seat, accent or trim of the tractor as long as green is not used on the body
`
`and/or the remainder of the tractors, other than incidental uses of a green color distinctively
`
`different from John Deere green and Jiangling reserves the right to continue to place
`
`safety/warning labels with yellow background and black lettering, such as the labels shown on
`
`Exhibit C attached to the Settlement Agreement, on standard locations on the equipment in
`
`standard sizes, without such being considered a breach of said Settlement Agreement; that Deere
`
`shall not object to Jiangling tractors that are the color of the actual hood depicted in said Exhibit
`
`A or the color on the sample attached as Exhibit D (RPX- 16) provided yellow is not used on such
`
`tractors except as to the right to place safety/warning labels with yellow background and black
`
`lettering as set forth in paragraph three of the Settlement Agreement; and that provided Jiangling
`
`is in compliance with all the terms of the Settlement Agreement, Deere agrees that Jiangling may
`
`See Certain Acid-Washed Denim Garments and Accessories, Inv. No. 337-TA-324,
`USITC Pub.2576, Comm’n Op. At 26 n.75 (November 1992) (indicating that in drafting
`Consent Order agreements and settlement agreements parties should indicate their preference as
`to the inclusion or exclusion of the terminated respondents in any subsequent general exclusion
`order).
`
`8
`
`

`
`import into andor sell for importation into the United States agricultural tractors bearing the
`
`color on the wheels of the tractors as shown in said Exhibits A and B, as long as none of the
`
`tractor is green.
`
`Referring to Commission rule 210.50(b)(2), the administrative law judge, based on the
`
`present record, finds that the Proposed Consent Order does not impose any undue burden on the
`
`public interest and does not impose any undue burden on the public health and welfare,
`
`competitive conditions in the United States economy7, or Unites States consumers. See
`
`Commission rule 210.21 (c)(2)(ii). Further, the public interest favors settlement to avoid needless
`litigation and to conserve public resources. See Administrative Procedure Act, 5 U.S.C. $8 501
`
`et seq.'
`
`Motion No. 487-48 is granted.
`
`This initial determination, pursuant to Commission rule 21 0.42(c), is hereby CERTIFIED
`
`to the Commission. Pursuant to Commission rule 21 0.42(h)(3), this initial determination shall
`
`become the determination of the Commission, within thirty (30) days after the date of service
`
`hereof, unless the Commission grants a petition for review of this initial determination pursuant
`
`to Commission rule 210.43, or orders on its own motion a review of the initial determination or
`
`certain issues therein pursuant to Commission rule 210.44.
`
`The Settlement Agreement specifically provides that Jiangling may import agricultural
`
`tractors.
`
`See also Order No. 11 which is an initial determination terminating the investigation
`based on a stipulation and proposed consent order as to a respondent and which the Commission,
`on July 28,2003, determined not to review.
`
`9
`
`

`
`On September 26,2003, counseI for movants were notified about the issuance of this
`
`order.
`
`Issued: September 26,2003
`
`10
`
`

`
`CERTAIN AGRICULTURAL VEHICLES
`AND COMPONENTS THEREOF
`
`Investigation No. 337-TA-487
`
`CERTIFICATE OF SERVICE
`
`I, Marilyn R. Abbott, hereby certifj that the attached Order was served by hand upon
`Commission Investigative Attorney David 0. Lloyd, Esq. and upon the following parties via first
`class mail, and air mail where necessary, on September 26, 2003.
`
`Marilyn R. Agbott, Secretary
`U.S. International Trade Commission
`500 E Street, SW - Room 112
`Washington, DC 20436
`
`For Complainant Deere & Company:
`
`Robert S. Swecker, Esq.
`Bassam N. Ibrahim, Esq.
`Burns, Doane, Swecker & Mathis, LLP
`1737 King Street, Suite 500
`Alexandria, VA 223 14
`
`For Respondent Agracat, Inc. & Jiangsu Yueda Co. Ltd.:
`
`John D. Pellegrin, Esq.
`Law Offices of John D. Pellegrin, P.C.
`9306 Old Keene Mill Road
`Burke, VA 220 15
`
`For Respondent Agracat, Inc.:
`
`Kent R. Stevens, Esq.
`717 East Capitol St., SE
`Washington, DC 20003
`
`

`
`CERTAIN AGRICULTURAL VEHICLES
`AND COMPONENTS THEREOF
`
`Investigation No. 337-TA-487
`
`CERTIFICATE OF SERVICE page 2
`
`For Respondents Co-Ag LLC, Fitzpatrick Farms, Stanley Farm & J & T Farms:
`
`William A. Zeitler, Esq.
`David M. Schwartz, Esq.
`Mark L. Parsons, Esq.
`Ryan K. Manger, Esq.
`Thompson Coburn LLP
`1909 K Street, NW, Suite 600
`Washington, DC 20006
`
`For Respondents Bourdeau Bros., Inc., Erntetechnik Franz Becker & OK Enterprises & Sunova
`Implement Co. :
`
`Nicholas Mesiti, Esq.
`David P. Miranda, Esq.
`Heslin Rothenberg Farley & Mesiti P.C.
`5 Columbia Circle
`Albany, NY 12203
`
`For Respondents Dongfeng Agricultural Machinery Group & Jiangling Tractor Co. :
`
`Gary M. Hnath, Esq.
`Fei-Fei Chao, Esq.
`Venable, Baetjer, Howard & Civiletti, LLP
`575 7'h Street, NW
`Washington, DC 20004- 160 1
`
`

`
`CERTAIN AGRICULTURAL VEHICLES
`AND COMPONENTS THEREOF
`
`Investigation No. 337-TA-487
`
`CERTIFICATE OF SERVICE page 3
`
`Respondents :
`
`Agra-Infocentrum-Benelux
`Postbus 49
`5 1 10 AA Baarle-Nassau
`The Netherlands
`
`Agrideal
`Chemin des Perrines
`3550 Vitre
`France
`
`Bolten Power Equipment
`c/o Mr. Graham Slieker
`39 Whitcomb Road
`Bolton, MA 01740
`
`Davey-Joans Tractor and Chopper Supermarket
`980 SR 13 Box 173
`Williamstown, NY 13493
`
`Workhorse Tractors
`366 16 N. 27* Avenue
`Desert Hill, AZ 85086
`
`China America Imports
`33898 Adler Lane
`Creswell, OR 97426
`
`Lenar Equipment, LLC
`326 1 Northeast Alexander Lane
`Albany, OR 97321
`
`Pacific Avenue Equipment
`10 15 Pacific Avenue
`Yakima, WA 98901
`
`

`
`CERTAIN AGRICULTURAL VEHICLES
`AND COMPONENTS THEREOF
`
`Investigation No. 337-TA-487
`
`CERTIFICATE OF SERVICE page 4
`
`Respondents :
`
`Task Master Equipment LLC/Tractors Etc.
`83969 N. Pacific Highway 99
`Creswell, OR 97426
`
`SamTrac Tractor and Equipment
`3 199 Plummers Lane, No. 13
`Chico, CA 95973
`
`

`
`CERTAIN AGRICULTURAL VEHrCLES
`AND COMPONENTS THEREOF
`
`Investigation No. 337-TA-487
`
`PUBLIC MAILING LIST
`
`Sherry Robinson
`LEXIS-NEXIS
`8891 Gander Creek Drive
`Miamisburg, OH 45342
`
`Ronnita Green
`West Group
`Suite 230
`901 Fifteenth Street, N.W.
`Washington, D.C. 20005
`
`(PARTIES NEED NOT SERVE COPIES ON LEXIS OR WEST PUBLISHING)