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.
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.
While limited exclusion orders remain the default remedy, a recent Initial Determination issued by ALJ Bullock is a reminder that the ITC may issue a general exclusion order if it finds a limited exclusion order would be insufficient to protect a complainant’s domestic industry.
The Federal Circuit recently reversed the ITC’s finding of a Section 337 violation based on the ITC’s reliance on unrebutted expert testimony.
Economic Prong of Domestic Industry Requirement Is Not Evaluated in Relation to Complainant’s Overall Investments
The economic prong can be satisfied even when the percentage of complainant’s domestic investments in the patented products is small in relation to its overall domestic investments.
In a recent order, ALJ Bullock indicated that it is unsettled whether evidence related to unreleased products can be used to establish that a domestic industry exists.