While ALJ McNamara’s recent order suggests that respondents may be permitted to add defenses in the midst of discovery if the complainant is aware of the defense, it remains important for respondents to coordinate with co-respondents so the pleadings reflect all applicable defenses as soon as possible.
In addition to stopping the importation of infringing articles, ITC remedies can be used to prevent certain domestic activities, including preventing the importation of replacement parts for domestic service and repair activities, and preventing the sale of articles already existing in domestic inventory.
2018 marked one of the busiest fiscal years at the International Trade Commission (“ITC”). It is currently handling more active investigations than ever before. The government shutdown may affect this trend in 2019.
A recent Commission opinion serves as a reminder to litigants of the public interest analysis conducted by the ITC before determining whether to issue remedial orders against a respondent.
In a recent decision, the Federal Circuit laid out a multifactor test for secondary meaning and clarified that registering a trademark creates a presumption that the mark is valid, which can include a presumption that the mark has achieved secondary meaning, but the presumption only begins from the time of registration.