USITC Publication 5290

Texto completo

In the Matter of
CERTAIN FISH-HANDLING PLIERS AND
PACKAGING THEREOF
Investigation No. 337-TA-1169
Publication 5290 March 2022
U.S. International Trade Commission
Washington, DC 20436

U.S. International Trade Commission
Washington, DC 20436
www.usitc.gov
In the Matter of
CERTAIN FISH-HANDLING PLIERS AND
PACKAGING THEREOF
Investigation No. 337-TA-1169
Publication 5290 March2022

1
UNITED STATES INTERNATIONAL TRADE COMMISSION
Washington, D.C.
In the Matter of
CERTAIN FISH-HANDLING PLIERS
AND PACKAGING THEREOF
Investigation No. 337-TA-1169
ISSUANCE OF A CORRECTED GENERAL EXCLUSION ORDER
AGENCY: U.S. International Trade Commission.
ACTION: Notice.
SUMMARY: Notice is hereby given that the U.S. International Trade Commission has
determined to issue a corrected general exclusion order (“GEO”) in the above-captioned
investigation.
FOR FURTHER INFORMATION CONTACT: Robert Needham, Esq., Office of the
General Counsel, U.S. International Trade Commission, 500 E Street, S.W., Washington, D.C.
20436, telephone (202) 708-5468. 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
29, 2019, based on a complaint filed by complainant United Plastic Molders, Inc. of Jackson,
Mississippi (“UPM”). 84 FR 36620-21 (July 29, 2019). The complaint, as supplemented,
alleged violations of section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337, in the
importation into the United States, the sale for importation, or the sale within the United States
after importation of certain fish-handling pliers and packaging thereof by reason of infringement
of claims 1-11 of U.S. Patent No. 6,256,923 and U.S. Trademark Registration Nos. 4,980,923
(“the ’923 mark”) and 5,435,944 (“the ’944 mark”). Id. The complaint further alleged that a
domestic industry exists. Id. The Commission’s notice of investigation named as respondents
Yixing Five Union Industry & Trade Co., Ltd. of Yixing City, China; NOEBY Fishing Tackle
Co., Ltd. of Weihai, China (“NOEBY”); Weihai iLure Fishing Tackle Co., Ltd. of Weihai,

2
China; SamsFX of Yangzhou City, China (“SamsFX”); and Weihai Lotus Outdoor Co., Ltd. of
Weihai, China. 	Id. 	The Office of Unfair Import Investigations is participating in the
investigation. 	Id.
On August 10, 2020, the Commission determined that UPM has shown a violation of
section 337(a)(1)(C), 19 U.S.C. 1337(a)(1)(C), by NOEBY and SamsFX with respect to the ’923
and ’944 marks, and determined to issue a GEO with respect to those trademarks. 	That GEO,
however, inadvertently contained language referring to the duration of a patent. 	The
Commission has determined to issue a corrected GEO that removes that language.
The Commission vote for these determinations took place on September 16, 2020.
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).
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 CFR 201.16(a), 210.7(a)(1)), the Commission orders that the
Complainant(s) complete service for any party/parties 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).
By order of the Commission.
Lisa R. Barton
Secretary to the Commission
Issued: 	September 17, 2020

CERTAIN FISH-HANDLING PLIERS AND PACKAGING
THEREOF
Inv. No. 337-TA-1169
PUBLIC CERTIFICATE OF SERVICE
I, Lisa R. Barton, hereby certify that the attached NOTICE has been served via EDIS upon
the Commission Investigative Attorney, Thomas C. Chen, Esq., and the following parties as
indicated, on September 17, 2020.
Lisa R. Barton, Secretary
U.S. International Trade Commission
500 E Street, SW, Room 112
Washington, DC 20436
On Behalf of Complainant United Plastic Molders:
Rett Snotherly, Esq.
LEVI & SNOTHERLY, PLLC
1101 Connecticut Ave., NW, Suite 450
Washington, DC 20036
Email: rsnotherly@levisnotherly.com
☐ Via Hand Delivery
☐ Via Express Delivery
☐ Via First Class Mail
☒ Other: Email Notification of
Availability for Download
Respondents:
Yixing Five Union Industry & Trade Co., Ltd.
Building A1, Innovation Park of Yixing City
Jiangsu Province
China
☐ Via Hand Delivery
☐ Via Express Delivery
☐ Via First Class Mail
☒ Other: Service to Be
Completed by Complainants
NOEBY Fishing Tackle Co., Ltd.
No. 81 Bohai Road, Eco-zone
Weihai, Shandong
China
☐ Via Hand Delivery
☐ Via Express Delivery
☐ Via First Class Mail
☒ Other: Service to Be
Completed by Complainants
Weihai ILure Fishing Tackle Co., Ltd.
No. 01 ZhouNing Road,
LinGang District,
Weihai, Shandong
China
☐ Via Hand Delivery
☐ Via Express Delivery
☐ Via First Class Mail
☒ Other: Service to Be
Completed by Complainants

CERTAIN FISH-HANDLING PLIERS AND PACKAGING
THEREOF
Inv. No. 337-TA-1169
Certificate of Service – Page 2
SamsFX
No. 11, Shikefa Road, Yangzhou City, 225000
Jiangsu Province
China
☐ Via Hand Delivery
☐ Via Express Delivery
☐ Via First Class Mail
☒ Other: Service to Be
Completed by Complainants
Wehai Lotus Outdoor Co., Ltd.
Zhang CunTown, Weihai City
Shandong Pro.
China
☐ Via Hand Delivery
☐ Via Express Delivery
☐ Via First Class Mail
☒ Other: Service to Be
Completed by Complainants

1
UNITED STATES INTERNATIONAL TRADE COMMISSION
Washington, DC
Investigation No. 337-TA-1169
CORRECTED GENERAL EXCLUSION ORDER
The Commission has determined that there is 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 fish-handling pliers (i.e., pliers that aid
in the landing, weighing, and handling of fish by securely gripping the lip of a fish while the
hook is removed) and packaging thereof that infringe one or more of United States Trademark
Reg. Nos. 4,980,923 (“the ’923 mark”) and 5,435,944 (“the ’944 mark”).
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 pursuant to 19 U.S.C § 1337(d), that a
general exclusion from entry for consumption is necessary (1) to prevent circumvention of an
exclusion order limited to products of named persons and (2) because there is a pattern of
violation of section 337 and it is difficult to identify the source of the infringing products.
Accordingly, the Commission has determined to issue a general exclusion order prohibiting the
unlicensed importation of infringing fish-handling pliers and packaging thereof.
The Commission has also determined that the public interest factors enumerated in 19
U.S.C. § 1337(d)(1) do not preclude issuance of a general exclusion order and that the bond
In the Matter of
CERTAIN FISH-HANDLING
PLIERS AND PACKAGING
THEREOF

2
during the Presidential review period shall be in the amount of one hundred (100) percent of the
entered value for all covered products in question.
Accordingly, the Commission hereby ORDERS that:
1. Fish-handling pliers and packaging thereof that infringe the ’923 and ’944
marks (“covered articles”) are excluded from entry into the United States for consumption, entry
for consumption from a foreign-trade zone, and withdrawal from a warehouse for consumption,
except under license from, or with the permission 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. 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 the Order, the
Commission has attached to this Order copies of the relevant trademark registrations as Exhibit
1.
3. Notwithstanding paragraph 1 of this Order, the aforesaid covered articles are
entitled to entry into the United States for consumption, entry for consumption from a foreign-
trade zone, and withdrawal from a warehouse for consumption, under bond in the amount of one
hundred (100) percent of the entered value of the products 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. 43251), from the day after this Order is received by
the United States Trade Representative and 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 date of receipt of this Order. All entries of covered
articles made pursuant to this paragraph are to be reported to U.S. Customs and Border

3
Protection (“CBP”), in advance of the date of the entry, pursuant to procedures CBP establishes.
Note, however, this provision does not exempt infringing articles from seizures under trademark
laws enforced by Customs and Border Protection, most notably 19 U.S.C § 1526(e) and 19
U.S.C § 1595a(c)(2)(C) in connection with 15 U.S.C § 1124.
4. At the discretion of CBP and pursuant to procedures it establishes, persons
seeking to import articles that are potentially subject to this Order 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.
5. Complainant United Plastic Molders, Inc. (“UPM”) shall file a written
statement with the Commission, made under oath, each year on the anniversary of the
issuance of this Order stating whether UPM continues to use each of the aforesaid trademarks in
commerce in the United States in connection with fish-handling pliers and packaging thereof,
whether any of the aforesaid trademarks has been abandoned, canceled, or rendered invalid or
unenforceable, and whether UPM continues to satisfy the domestic industry requirements of
Section 337(a)(2) and (3).
6. The Commission may modify this Order in accordance with the procedures
described in section 210.76 of the Commission's Rules of Practice and Procedure (19 C.F.R.
§ 210.76).
7. The Commission Secretary shall serve copies of this Order upon each party of
record in this investigation and upon CBP.

4
8. 	Notice of this Order shall be published in the Federal Register.
By order of the Commission.
Lisa R. Barton
Secretary to the Commission
Issued: September 17, 2020

Exhibit 1

2042781 
UNITED STATES DEPARTMENT
OF COMMERCE
United States
Patent and
Trademark
Office
April 11, 2019
THE
ATTACHED U.S. TRADEMARK REGISTRATION 4,980,923 IS
CERTIFIED
TO
BE A TRUE COPY OF THE REGISTRATION ISSUED BY
THE
UNITED STATES PATENT AND TRADEMARK OFFICE WHICH
REGISTRATION IS IN FULL FORCE
AND EFFECT.
REGISTERED FOR
A
TERM OF
10 YEARS
FROM	
June 21, 2016
SAID RECORDS SHOW TITLE TO BE IN: 	Registrant
By Authority of the
Under Secretary of Commerce for Intellectual Property
and Director
of
the United States Patent and
Trademark
Office

Reg. No. 4,980,923
______________
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I I
I I
UNITED PLASTIC MOLDERS, INC. (MISSISSIPPI CORPORATION)
105 E. RANKIN STREET
Registered June 21, 2016 JACKSON,
Ms
39201
Int.
Cl.: 28 	FOR: SPORT FISHING
AccEssoRY,
NAMELY, A DEVICE WHICH HOLDS THE LIP
Of
A
FISH CAUGHT
BY
AN
ANGLER
FOR
EASE OF LANDING, WEIGHING AND RELEASE,
IN
CLASS
28
(U.S. CLS. 22, 23, 38 AND
SO).
TRADEMARK
PRINCIPAL REGISTER
Director of the United States
Patent and Trademark Office
FIRST USE4-1-2001;
INCOMMERCE4-l-2001.
THE MARK CONSISTS OF A HEART SHAPED OPENING
IN
THE THREE-DIMENSIONAL
CONFIGURATION OF THE SPORT FISHING DEVICE. THE BROKEN LINES ARE INTENDED
TO SHOW THE POSITION OF THE MARK BUT ARE NOT PART OF THE MARK.
SEC. 2(F).
SER. NO. 86-607,682, FILED 4-23-2015.
JOHN MUCHA, EXAMINING ATTORNEY

REQUIREMENTS
TO
MAINTAIN YOUR
FEDERAL
TRADEMARK REGISTRATION
WARNING:
YOUR REGISTRATION WILL
BE
CANCELLED IF
YOU DO
NOT
FILE
THE
DOCUMENTS
BELOW
DURING
THE
SPECIFIED
TIME
PERIODS.
Requirements in the First
Ton
Years*
What
and
When
to File:
Fust Fillng Deadlbre:
You
must
file
a Declaration of
Use
(or Excusable Nonuse)
between the
5th
and
6th years after the registration
date.
See
15
U
.S.C.
§§
1058, 114
lk.
If
the
declaration is
accepted, the registration will continue in
force for the remainder of the ten-year period, calculated
from
the
registration
date,
unless cancelled
by
an order of the Commissioner for
Trademarks
or a
federal court.
Second Fillng Deadllne:
You
must
file
a Declaration of Use (or Excusable
Nonuse) and an
Application for Renewal between the 9th
and
10th
years after
the
registration
date.*
See
15
U.S.C.
§1059.
Requirements
in
Successive
Ten-Year
Periods*
What
and When to File:
You
must
file
aDeclarationofUse (or Excusable
Nonuse) and
anApplicationfor
Renewal between
evecy
9th and 10th-year period, calculated from
the
registration
date.*
Grace Period Filings*
The above
documents will be accepted as timely if filed within six months after the deadlines listed
above
with
the
payment of an additional
fee.
*
ATTENTION MADRID PROTOCOL REGISTRANTS: The
holder of an international registration with
an extension of protection
to
the
United States under
the
Madrid Protocol must timely
file the Declarations
of Use (or Excusable Nonuse) referenced above directly with
the
United States Patent and Trademark
Office
(USPTO).
The time periods for filing are based
on
the
U.S.
registration
date (not the international registration
date). The
deadlines and grace periods for
the
Declarations of
Use
(or Excusable Nonuse) are
identical
to
those for nationally issued registrations. See
15
U.S.
C.
§§
1058, 114
lk.
However, owners
of international
registrations
do
not
file
renewal applications at the
USPTO.
Instead, the holder
must file a renewal of the
underlying international registration at
the International Bureau
of
the
World
Intellectnal Property Organization,
under Article 7 of
the
Madrid Protocol, before
the
expiration of each ten-year term of protection, calculated
from the date of the international registration. See
15
U.S.C.
§ll4lj.
For
more
information and
renewal
forms for the international registration, see http://www.wipo.int/madrid/en/.
NOTE: Fees and
requirements for maintaining registrations are subject to change. Please check the
USPTO website for further information. With the exception of renewal applications for registered
extensions of protection,
you can file the registration maintenance documents referenced above online
at http://www.uspto.gov.
NOTE:
A courtesy e-mail reminder of USPTO maintenance filing deadlines will be sent
to
trademark
owners/holders
who
authorize e-mail communication
and
maintain a current e-mail address with the
USPTO.
To
ensure that e-mail is authorized
and
your address
is
current, please use the Trademark
Electronic Application System (TEAS) Correspondence Address and Change of Owner Address Forms
available at http://www.uspto.gov.
Page: 2 /
RN
# 4,980,923

2042781
UNITED ST ATES DEPARTMENT
OF COMMERCE
United States
Patent
and
Trademark
Office
April 09, 2019
THE ATTACHED U.S.
TRADEMARK REGISTRATION 5,435,944 IS
CERTIFIED
TO
BE A TRUE COPY
OF THE REGISTRATION ISSUED BY
THE UNITED STATES PATENT AND TRADEMARK OFFICE WHICH
REGISTRATION IS IN FULL FORCE
AND EFFECT.
REGISTERED
FOR
A
TERM OF
10
YEARS
FROM April
03, 2018
SAID RECORDS SHOW TITLE TO
BE IN: 	Registrant
By Authority
of
the
Under Secretary
of
Commerce for Intellectual
Property
and Director of the United States
Patent and
Trademark
Office
:
WA
~ 	~Certifying Officer

Reg. No. 5,435,944
,,.	
.
~------•·
UNITED PLASTIC MOLDERS, INC. (MISSISSIPPI CORPORATION)
105 E. Rankin St.
Registered Apr. 03, 2018 	Jackson, MISSISSIPPI 39201
I 	t Cl 	28 	CLASS 28: Sport fishing accessory, namely, a feature
of
a sport fishing device which holds
D •	
•:	
the lip
of
a fish caught by an angler for ease
of
landing, weighing and release
Trademark
Principal Register
Director
of
the United States
Patent and Trademark
Office
FIRST USE 12-00-2002; IN COMMERCE 12-00-2002
The mark consists
of
a stylized gripper with heart-shaped opening.
SER. NO. 87-139,494, FILED 08-16-2016

REQUIREMENTS
TO
MAINTAIN YOUR FEDERAL TRADEMARK REGISTRATION
WARNING:
YOUR
REGISTRATION WILL BE CANCELLED IF YOU DO NOT FILE THE
DOCUMENTS BELOW DURING THE SPECIFIED TIME PERIODS.
Requirements in the First Ten Years*
What and When to File:
• First Fi/inf! Deadline: You must file a Declaration of Use (or Excusable Nonuse) between the 5th and 6th
years after the registration date. See
15
U.S.C.
§§
1058, 1141k. If the declaration is accepted, the
registration will continue in force for the remainder of the ten-year period, calculated from the registration
date, unless cancelled by an order
of
the Commissioner for Trademarks or a federal court.
• Second Filinf! Deadline: You must file a Declaration of Use (or Excusable Nonuse) and an Application
for Renewal between the 9th and 10th years after the registration date.* See
15
U.S.C. §1059.
Requirements in Successive Ten-Year Periods*
What and When to File:
• You must file a Declaration of Use (or Excusable Nonuse) and an Application for Renewal
between every 9th and 10th-year period, calculated from the registration date.*
Grace Period Filings*
The above documents will be accepted as timely
if
filed within six months after the deadlines listed above with
the payment
of
an additional fee.
*ATTENTION MADRID PROTOCOL REGISTRANTS: The holder
of
an international registration with an
extension
of
protection to the United States under the Madrid Protocol must timely file the Declarations
of
Use
(or Excusable Nonuse) referenced above directly with the United States Patent and Trademark Office (USPTO).
The time periods for filing are based on the U.S. registration date (not the international registration date). The
deadlines and grace periods for the Declarations
of
Use (or Excusable Nonuse) are identical to those for
nationally issued registrations. See
15
U.S.C. §§1058, 1141k. However, owners
of
international registrations
do not file renewal applications at the USPTO. Instead, the holder must file a renewal
of
the underlying
international registration at the International Bureau
of
the World Intellectual Property Organization, under
Article 7
of
the Madrid Protocol, before the expiration
of
each ten-year term
of
protection, calculated from the
date
of
the international registration. See
15
U.S.C. §l 141j. For more information and renewal forms for the
international registration, see http://www.wipo.int/madrid/en/.
NOTE: Fees and requirements for maintaining registrations are subject to change. Please check the
USPTO website for further information. With the exception
of
renewal applications for registered
extensions of protection, you can file the registration maintenance documents referenced above online at h
ttp://www.uspto.gov.
NOTE: A courtesy e-mail reminder of USPTO maintenance filing deadlines will be sent to trademark
owners/holders who authorize e-mail communication and maintain a current e-mail address with the
USPTO. To ensure that e-mail is authorized and your address is current, please use the Trademark
Electronic Application System (TEAS) Correspondence Address and Change of Owner Address Forms
available at http://www.uspto.gov.
Page: 2 of 2
/RN#
5435944

CERTAIN FISH-HANDLING PLIERS AND PACKAGING
THEREOF
Inv. No. 337-TA-1169
PUBLIC CERTIFICATE OF SERVICE
I, Lisa R. Barton, hereby certify that the attached ORDER has been served via EDIS upon
the Commission Investigative Attorney, Thomas C. Chen, Esq., and the following parties as
indicated, on September 17, 2020.
Lisa R. Barton, Secretary
U.S. International Trade Commission
500 E Street, SW, Room 112
Washington, DC 20436
On Behalf of Complainant United Plastic Molders:
Rett Snotherly, Esq.
LEVI & SNOTHERLY, PLLC
1101 Connecticut Ave., NW, Suite 450
Washington, DC 20036
Email: rsnotherly@levisnotherly.com
☐ Via Hand Delivery
☐ Via Express Delivery
☐ Via First Class Mail
☒ Other: Email Notification of
Availability for Download
Respondents:
Yixing Five Union Industry & Trade Co., Ltd.
Building A1, Innovation Park of Yixing City
Jiangsu Province
China
☐ Via Hand Delivery
☐ Via Express Delivery
☐ Via First Class Mail
☒ Other: Service to Be
Completed by Complainants
NOEBY Fishing Tackle Co., Ltd.
No. 81 Bohai Road, Eco-zone
Weihai, Shandong
China
☐ Via Hand Delivery
☐ Via Express Delivery
☐ Via First Class Mail
☒ Other: Service to Be
Completed by Complainants
Weihai ILure Fishing Tackle Co., Ltd.
No. 01 ZhouNing Road,
LinGang District,
Weihai, Shandong
China
☐ Via Hand Delivery
☐ Via Express Delivery
☐ Via First Class Mail
☒ Other: Service to Be
Completed by Complainants

CERTAIN FISH-HANDLING PLIERS AND PACKAGING
THEREOF
Inv. No. 337-TA-1169
Certificate of Service – Page 2
SamsFX
No. 11, Shikefa Road, Yangzhou City, 225000
Jiangsu Province
China
☐ Via Hand Delivery
☐ Via Express Delivery
☐ Via First Class Mail
☒ Other: Service to Be
Completed by Complainants
Wehai Lotus Outdoor Co., Ltd.
Zhang CunTown, Weihai City
Shandong Pro.
China
☐ Via Hand Delivery
☐ Via Express Delivery
☐ Via First Class Mail
☒ Other: Service to Be
Completed by Complainants

1
UNITED STATES INTERNATIONAL TRADE COMMISSION
Washington, D.C.
In the Matter of
CERTAIN FISH-HANDLING PLIERS
AND PACKAGING THEREOF
Investigation No. 337-TA-1169
NOTICE OF A COMMISSION FINAL DETERMINATION OF VIOLATION OF
SECTION 337; ISSUANCE OF A GENERAL EXCLUSION ORDER; TERMINATION
OF INVESTIGATION
AGENCY: U.S. International Trade Commission.
ACTION: Notice.
SUMMARY: Notice is hereby given that the U.S. International Trade Commission has
determined that there is a violation of section 337 of the Tariff Act of 1930, as amended, in the
above-captioned investigation. The Commission has issued a general exclusion order (“GEO”)
barring entry of certain fish-handling pliers and packaging thereof that infringe the two
trademarks asserted in this investigation. The investigation is terminated.
FOR FURTHER INFORMATION CONTACT: Robert Needham, Esq., Office of the
General Counsel, U.S. International Trade Commission, 500 E Street, S.W., Washington, D.C.
20436, telephone (202) 708-5468. 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
29, 2019, based on a complaint filed by complainant United Plastic Molders, Inc. of Jackson,
Mississippi (“UPM”). 84 FR 36620-21 (July 29, 2019). The complaint, as supplemented,
alleges violations of section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337, in the
importation into the United States, the sale for importation, or the sale within the United States
after importation of certain fish-handling pliers and packaging thereof by reason of infringement
of claims 1-11 of U.S. Patent No. 6,256,923 (“the ’923 patent”) and U.S. Trademark Registration

2
Nos. 4,980,923 (“the ’923 mark”) and 5,435,944 (“the ’944 mark”). Id. The complaint further
alleges that a domestic industry exists. Id. The Commission’s notice of investigation named as
respondents Yixing Five Union Industry & Trade Co., Ltd. of Yixing City, China (“Five
Union”); NOEBY Fishing Tackle Co., Ltd. of Weihai, China (“NOEBY”); Weihai iLure Fishing
Tackle Co., Ltd. of Weihai, China (“iLure”); SamsFX of Yangzhou City, China (“SamsFX”);
and Weihai Lotus Outdoor Co., Ltd. of Weihai, China (“Lotus”) (collectively, “Respondents”).
Id. The Office of Unfair Import Investigations (“OUII”) is participating in the investigation.
Id.
All five Respondents defaulted. On December 18, 2019, the Commission found
NOEBY, iLure, Weihai Lotus, and Five Union in default for failing to respond to the complaint
and notice of investigation. Order No. 11 (Nov. 19, 2019), not reviewed, Notice (Dec. 18,
2019). Also on December 18, 2019, the Commission found SamsFX in default for failing to
respond to the complaint and notice of investigation. Order No. 12 (Nov. 25, 2019), not
reviewed, Notice (Dec. 18, 2019).
On December 5, 2019, UPM moved for a summary determination of violation and for a
recommendation for the issuance of a general exclusion order (“GEO”). In its motion, UPM
dropped its allegations with respect to claims 2-6 and 8-11 of the ’923 patent, but continued to
assert claims 1 and 7 of the ’923 patent. On January 3, 2020, OUII filed a motion that largely
supported UPM’s motion.
On April 10, 2020, the ALJ issued the subject ID, Order No. 14, granting in part UPM’s
motion. Specifically, the ALJ issued a summary of determination of violation finding that
SamsFX, Lotus, and NOEBY violated section 337 with respect to claims 1 and 7 of the ’923
patent, as well as the ’923 and ’944 marks; that iLure violated section 337 with respect to claims
1 and 7 of the ’923 patent; and that Five Union violated section 337 with respect to the ’923
mark. The ALJ also found that UPM failed to show that iLure violated section 337 with respect
to the ’923 and ’944 marks, as the only evidence of importation predates the registration of those
marks. No petitions for review of the ID were filed.
On May 27, 2020, the Commission determined to review in part the ID granting
summary determination of a section 337 violation. 85 FR 33705-07 (Jun. 2, 2020). Specifically,
the Commission determined to review the ID’s finding of violation with respect to the ’923
patent, the ID’s finding that UPM satisfied the economic prong of the domestic industry
requirement, and the ID’s finding of violation with respect to Lotus and Five Union.
The Commission also requested written submissions on certain questions and the issues
of remedy, the public interest, and bonding. 83 FR 51706 (Oct. 12, 2018). UPM and OUII filed
initial written submissions, and OUII also filed a reply to UPM’s submission. No other
submissions were filed in response to the Commission notice.

3
Having reviewed the written submissions and the evidentiary record, the Commission has
determined to: 	(1) vacate the ID’s finding of violation with respect to the ’923 patent, as well as
all other findings related solely to the ’923 patent, based on that patent’s expiration; (2) affirm
the ALJ’s findings on the economic prong of the domestic industry requirement; and (3) reverse
the ID’s findings of violation with respect to Five Union and Lotus based on UPM’s failure to
provide substantial, reliable, and probative evidence that those entities manufacture the accused
SamsFX products. 	Based on the findings in the ID as modified above, the Commission has
determined that UPM has shown a violation of section 337(a)(1)(C), 19 U.S.C. 1337(a)(1)(C), by
NOEBY and SamsFX with respect to the ’923 and ’944 marks. 	The Commission finds that
UPM failed to show a violation by the remaining defaulted respondents.
The Commission has determined that the appropriate remedy in this investigation is a
GEO prohibiting the unlicensed importation of certain fish-handling pliers and packaging thereof
that infringe the ’923 and ’944 marks. 	The Commission has further determined that the public
interest factors enumerated in section 337(d) (19 U.S.C. 1337(d)) do not preclude issuance of the
GEO. 	Finally, the Commission has determined that a bond in the amount of one hundred (100)
percent of the entered value of the imported articles that are subject to the GEO is required to
permit temporary importation of the articles in question during the period of Presidential review
(19 U.S.C. 1337(j)). 	The investigation is hereby terminated in its entirety.
The Commission’s order and opinion were delivered to the President and to the United
States Trade Representative on the day of their issuance. 	The Commission has also notified the
Secretary of the Treasury and Customs and Border Protection of the order.
The Commission vote for these determinations took place on August 10, 2020.
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).
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 CFR 201.16(a), 210.7(a)(1)), the Commission orders that the
Complainant(s) complete service for any party/parties 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).

4
By order of the Commission.
Lisa R. Barton
Secretary to the Commission
Issued: 	August 10, 2020

CERTAIN FISH-HANDLING PLIERS AND PACKAGING
THEREOF
Inv. No. 337-TA-1169
PUBLIC CERTIFICATE OF SERVICE
I, Lisa R. Barton, hereby certify that the attached NOTICE has been served via EDIS upon
the Commission Investigative Attorney, Thomas C. Chen, Esq., and the following parties as
indicated, on August 10, 2020.
Lisa R. Barton, Secretary
U.S. International Trade Commission
500 E Street, SW, Room 112
Washington, DC 20436
On Behalf of Complainant United Plastic Molders:
Rett Snotherly, Esq.
LEVI & SNOTHERLY, PLLC
1101 Connecticut Ave., NW, Suite 450
Washington, DC 20036
Email: rsnotherly@levisnotherly.com
☐ Via Hand Delivery
☐ Via Express Delivery
☐ Via First Class Mail
☒ Other: Email Notification of
Availability for Download
Respondents:
Yixing Five Union Industry & Trade Co., Ltd.
Building A1, Innovation Park of Yixing City
Jiangsu Province
China
☐ Via Hand Delivery
☐ Via Express Delivery
☐ Via First Class Mail
☒ Other: Service to Be
Completed by Complainants
NOEBY Fishing Tackle Co., Ltd.
No. 81 Bohai Road, Eco-zone
Weihai, Shandong
China
☐ Via Hand Delivery
☐ Via Express Delivery
☐ Via First Class Mail
☒ Other: Service to Be
Completed by Complainants
Weihai ILure Fishing Tackle Co., Ltd.
No. 01 ZhouNing Road,
LinGang District,
Weihai, Shandong
China
☐ Via Hand Delivery
☐ Via Express Delivery
☐ Via First Class Mail
☒ Other: Service to Be
Completed by Complainants

CERTAIN FISH-HANDLING PLIERS AND PACKAGING
THEREOF
Inv. No. 337-TA-1169
Certificate of Service – Page 2
SamsFX
No. 11, Shikefa Road, Yangzhou City, 225000
Jiangsu Province
China
☐ Via Hand Delivery
☐ Via Express Delivery
☐ Via First Class Mail
☒ Other: Service to Be
Completed by Complainants
Wehai Lotus Outdoor Co., Ltd.
Zhang CunTown, Weihai City
Shandong Pro.
China
☐ Via Hand Delivery
☐ Via Express Delivery
☐ Via First Class Mail
☒ Other: Service to Be
Completed by Complainants

1
UNITED STATES INTERNATIONAL TRADE COMMISSION
Washington, DC
Investigation No. 337-TA-1169
GENERAL EXCLUSION ORDER
The Commission has determined that there is 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 fish-handling pliers (i.e., pliers that aid
in the landing, weighing, and handling of fish by securely gripping the lip of a fish while the
hook is removed) and packaging thereof that infringe one or more of United States Trademark
Reg. Nos. 4,980,923 (“the ’923 mark”) and 5,435,944 (“the ’944 mark”).
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 pursuant to 19 U.S.C § 1337(d), that a
general exclusion from entry for consumption is necessary (1) to prevent circumvention of an
exclusion order limited to products of named persons and (2) because there is a pattern of
violation of section 337 and it is difficult to identify the source of the infringing products.
Accordingly, the Commission has determined to issue a general exclusion order prohibiting the
unlicensed importation of infringing fish-handling pliers and packaging thereof.
The Commission has also determined that the public interest factors enumerated in 19
U.S.C. § 1337(d)(1) do not preclude issuance of a general exclusion order and that the bond
In the Matter of
CERTAIN FISH-HANDLING
PLIERS AND PACKAGING
THEREOF

2
during the Presidential review period shall be in the amount of one hundred (100) percent of the
entered value for all covered products in question.
Accordingly, the Commission hereby ORDERS that:
1. Fish-handling pliers and packaging thereof that infringe the ’923 and ’944
marks (“covered articles”) are excluded from entry into the United States for consumption, entry
for consumption from a foreign-trade zone, and withdrawal from a warehouse for consumption
for the remaining term of the patent, except under license from, or with the permission of, the
patent owner or as provided by law until such date as the trademarks have been abandoned,
canceled, or rendered invalid or unenforceable.
2. 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 the Order, the
Commission has attached to this Order copies of the relevant trademark
registrations as Exhibit 1.
3. Notwithstanding paragraph 1 of this Order, the aforesaid covered articles are
entitled to entry into the United States for consumption, entry for consumption from a foreign-
trade zone, and withdrawal from a warehouse for consumption, under bond in the amount of one
hundred (100) percent of the entered value of the products 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. 43251), from the day after this Order is received by
the United States Trade Representative and 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 date of receipt of this Order. All entries of covered
articles made pursuant to this paragraph are to be reported to U.S. Customs and Border

4
8. 	Notice of this Order shall be published in the Federal Register.
By order of the Commission.
Lisa R. Barton
Secretary to the Commission
Issued: 	August 10, 2020

CERTAIN FISH-HANDLING PLIERS AND PACKAGING
THEREOF
Inv. No. 337-TA-1169
PUBLIC CERTIFICATE OF SERVICE
I, Lisa R. Barton, hereby certify that the attached ORDER has been served via EDIS upon
the Commission Investigative Attorney, Thomas C. Chen, Esq., and the following parties as
indicated, on August 10, 2020.
Lisa R. Barton, Secretary
U.S. International Trade Commission
500 E Street, SW, Room 112
Washington, DC 20436
On Behalf of Complainant United Plastic Molders:
Rett Snotherly, Esq.
LEVI & SNOTHERLY, PLLC
1101 Connecticut Ave., NW, Suite 450
Washington, DC 20036
Email: rsnotherly@levisnotherly.com
☐ Via Hand Delivery
☐ Via Express Delivery
☐ Via First Class Mail
☒ Other: Email Notification of
Availability for Download
Respondents:
Yixing Five Union Industry & Trade Co., Ltd.
Building A1, Innovation Park of Yixing City
Jiangsu Province
China
☐ Via Hand Delivery
☐ Via Express Delivery
☐ Via First Class Mail
☒ Other: Service to Be
Completed by Complainants
NOEBY Fishing Tackle Co., Ltd.
No. 81 Bohai Road, Eco-zone
Weihai, Shandong
China
☐ Via Hand Delivery
☐ Via Express Delivery
☐ Via First Class Mail
☒ Other: Service to Be
Completed by Complainants
Weihai ILure Fishing Tackle Co., Ltd.
No. 01 ZhouNing Road,
LinGang District,
Weihai, Shandong
China
☐ Via Hand Delivery
☐ Via Express Delivery
☐ Via First Class Mail
☒ Other: Service to Be
Completed by Complainants

CERTAIN FISH-HANDLING PLIERS AND PACKAGING
THEREOF
Inv. No. 337-TA-1169
Certificate of Service – Page 2
SamsFX
No. 11, Shikefa Road, Yangzhou City, 225000
Jiangsu Province
China
☐ Via Hand Delivery
☐ Via Express Delivery
☐ Via First Class Mail
☒ Other: Service to Be
Completed by Complainants
Wehai Lotus Outdoor Co., Ltd.
Zhang CunTown, Weihai City
Shandong Pro.
China
☐ Via Hand Delivery
☐ Via Express Delivery
☐ Via First Class Mail
☒ Other: Service to Be
Completed by Complainants

Public Version
1
UNITED STATES INTERNATIONAL TRADE COMMISSION
Washington, DC
In the Matter of
CERTAIN FISH-HANDLING PLIERS
AND PACKAGING THEREOF
Investigation No. 337-TA-1169
COMMISSION OPINION
The Commission has determined that there has been a violation of section 337 of the
Tariff Act of 1930, as amended, 19 U.S.C. § 1337, with respect to U.S. Trademark Registration
Nos. 4,980,923 (“the ’923 trademark”) and 5,435,944 (“the ’944 trademark”) on review of an
initial determination (“ID”) (Order No. 14) of the presiding administrative law judge (“ALJ”).
This opinion sets forth the Commission’s reasoning in support of that determination. In addition,
the Commission adopts the findings in the ID that are not inconsistent with this opinion.
I. 	BACKGROUND
A. 	Procedural History
On July 29, 2019, the Commission instituted this investigation based on a complaint filed
by United Plastic Molders, Inc. of Jackson, Mississippi (“UPM”). 84 Fed. Reg. 36620-21. The
complaint alleged violations of section 337 in the importation into the United States, the sale for
importation, and the sale after importation within the United States of certain fish-handling pliers
and packaging thereof by reason of infringement of one or more of claims 1-11 of U.S. Patent
No. 6,256,923 (“the ’923 patent”) and infringement of one or more of the ’923 and ’944
trademarks. Id. at 36621. The notice of investigation named as respondents Yixing Five Union

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Industry & Trade Co., Ltd. of Yixing City, China (“Five Union”); NOEBY Fishing Tackle Co.,
Ltd. of Weihai, China (“NOEBY”); Weihai iLure Fishing Tackle Co., Ltd. of Weihai, China
(“iLure”); SamsFX of Yangzhou City, China (“SamsFX”); and Weihai Lotus Outdoor Co., Ltd.
of Weihai, China (“Lotus”) (collectively, “Respondents”). Id. The Office of Unfair Import
Investigations (“OUII”) is a party to the investigation. Id.
All five respondents defaulted. On December 18, 2019, the Commission found NOEBY,
iLure, Weihai Lotus, and Five Union in default for failing to respond to the complaint and notice
of investigation. Order No. 11 (Nov. 19, 2019), not reviewed, Notice (Dec. 18, 2019). Also on
December 18, 2019, the Commission found SamsFX in default for failing to respond to the
complaint and notice of investigation. Order No. 12 (Nov. 25, 2019), not reviewed, Notice (Dec.
18, 2019).
On December 5, 2019, UPM moved for a summary determination of violation and for a
recommendation for the issuance of a general exclusion order. On January 3, 2020, OUII filed a
response that generally supported UPM’s motion except OUII believed that UPM had not shown
that iLure infringed the ’923 and ’944 trademarks because the only evidence of iLure’s
importation predated the registration of the trademarks.
On April 10, 2020, the ALJ issued an ID granting in part UPM’s motion for summary
determination on violation. Specifically, the ALJ found that: (1) UPM established importation
against all respondents; (2) UPM established infringement of claims 1 and 7 of the ’923 patent
by SamsFX/Lotus, NOEBY, and iLure; (3) UPM satisfied the technical prong of the domestic
industry requirement with respect to claim 1 of the ’923 patent; (4) UPM established
infringement of the ’923 and ’944 trademarks by NOEBY, SamsFX, Lotus, and Five Union;
(5) UPM failed to establish infringement of the ’923 and ’944 trademarks by iLure because all

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alleged acts of importation occurred prior to the registration of those trademarks; (6) UPM
satisfied the technical prong of the domestic industry requirement with respect to the ’923
and ’944 trademarks; and (7) UPM satisfied the economic prong of the domestic industry
requirement through substantial investments in plant and equipment and labor and capital with
respect to its domestic industry products. The ALJ’s recommended determination (“RD”)1
found that there was widespread violation and that a limited exclusion order was likely to be
circumvented, and recommended that the Commission issue a general exclusion order (“GEO”)
and set the bond rate during the period of Presidential review at one hundred percent (100%) of
the entered value of the infringing products subject to the GEO.
The Commission did not receive any petitions for review of the ID. On May 29, 2020,
the Commission sua sponte determined to review the ID’s finding of violation with respect to the
’923 patent; the ID’s findings of trademark infringement; the ID’s finding that UPM satisfied the
economic prong of the domestic industry requirement; and the ID’s finding of violation with
respect to Lotus and Five Union. The Commission requested briefing from the parties on two
topics and invited the parties to the investigation, interested government agencies, and any other
interested parties to file written submissions on the issues of remedy, the public interest, and
bonding.
On June 10, 2020, UPM2 and OUII3 provided submissions in response to the notice. On
1 The RD and ID are contained in the same document.
2 Response of UPM to the Commission’s Request for Written Submissions Regarding the
Issues Under Review and Remedy, the Public Interest, and Bonding (Jun. 10, 2020) (“UPM
Sub.”).
3 Response of the Office of Unfair Import Investigations to the Commission’s Request for
Written Submissions on the Issues Under Review, Remedy, the Public Interest, and Bonding
(Jun. 10, 2020) (“OUII Sub.”).

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4
June 17, 2020, OUII provided a reply submission4 in response to UPM’s submission. UPM
declined to provide a reply submission. No government agency or other interested party
responded to the notice.
B. 	The Asserted Patent and Trademarks
This investigation relates to intellectual property covering pliers for handling fish. The
’923 patent is entitled “Fish Handling Pliers,” and claims priority to its filing date, February 25,
2000. The patent term was not extended or adjusted by the U.S. Patent and Trademark Office,
and thus expired on February 25, 2020.
The ’923 trademark is for use with a “sport fishing accessory, namely, a feature of a sport
fishing device which holds the lip of a fish caught by an angler for ease of landing, weighing,
and release,” and “consists of a heart shaped opening in the three-dimensional configuration of
the sport fishing device.” ’923 trademark. The trademark is depicted as follows:
4 Reply of the Office of Unfair Import Investigations to the Commission’s Request for
Written Submissions on the Issues Under Review, Remedy, the Public Interest, and Bonding
(Jun. 17, 2020) (“OUII Rep.”).

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5
Id. The ’923 trademark was registered on June 21, 2016, and states that its first use in commerce
was April 1, 2001.
The ’944 trademark is for use with a “sport fishing accessory, namely, a feature of a sport
fishing device which holds the lip of a fish caught by an angler for ease of landing, weighing,
and release,” and “consists of a stylized gripper with heart-shaped opening.” ’944 trademark.
The trademark is depicted as follows:
Id. The ’944 trademark was registered on April 3, 2018, and states that its first use in commerce
was “12-00-2002.”

Public Version
6
C. 	The Accused Products
The accused products are fish-handling pliers (i.e., “pliers that aid in the landing,
weighing, and handling of fish by securely gripping the lip of a fish while the hook is removed”).
See 84 Fed. Reg. at 36621. Specifically, UPM accused the following respondents of infringing
the following asserted intellectual property:
ID at 4. UPM alleges that Five Union manufactures the 9-inch SamsFX product and that Lotus
manufactures the 6-inch SamsFX product.
D. 	The Domestic Industry Products
The asserted domestic industry articles are UPM’s fish-handling plier products. UPM
asserts that its investments in plant and equipment and labor and capital regarding its Fish Grip,
Fish Grip Jr, and Fish Grip Mini satisfy the domestic industry requirement.
II. 	STANDARD OF REVIEW
With respect to the issues under review, “the Commission may affirm, reverse, modify,
set aside or remand for further proceedings, in whole or in part, the initial determination of the
administrative law judge.” 19 C.F.R. § 210.45(c). The Commission also “may take no position

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7
on specific issues or portions of the initial determination,” and “may make any finding or
conclusions that in its judgment are proper based on the record in the proceeding.” Id.
III. ANALYSIS
The Commission determines to make the findings, conclusions, and supporting analysis
set forth below. Any findings, conclusions, and supporting analysis in the ID regarding the
issues under review that are not inconsistent with these findings, conclusions, and supporting
analysis are affirmed and adopted herein.
A. The ’923 Patent
The ID found that NOEBY, iLure, SamsFX, and Lotus violated section 337 with respect
to claims 1 and 7 of the ’923 patent. Section 337(a)(1)(B)(i), however, requires “a valid and
enforceable United States patent,” and both UPM and OUII acknowledge in their submissions on
review of the ID that the ’923 patent is no longer valid and enforceable because it expired on
February 25, 2020. UPM Sub. at 4; OUII Sub. at 4. The Commission has no statutory authority
to find a violation and issue a remedy with respect to an expired patent. Accordingly, the
Commission determines to reverse the ID’s finding of violation with respect to the ’923 patent,
and therefore finds that UPM failed to show that any respondent violated section 337 with
respect to the ’923 patent. Because the ID found that iLure violated section 337 solely with
respect to the expired ’923 patent, the Commission finds that UPM has failed to show that iLure
violated section 337.
UPM and OUII differ on how the Commission should dispose of the ID’s subsidiary
findings regarding infringement of the ’923 patent. UPM contends that the Commission should
not vacate those findings, and should instead take no position on those findings, because the
parties and ALJ spent time and resources on those findings. UPM Sub. at 4. OUII contends that,

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8
consistent with Federal Circuit and Commission precedent, the Commission should vacate all
findings relating solely to the expired ’923 patent. OUII Rep. at 2.
The Commission has determined to vacate all of the ID’s findings relating solely to
the ’923 patent because there is no dispute that the patent expired on February 25, 2020, prior to
the issuance of the ALJ’s ID. Once the ’923 patent expired, there was no “valid and enforceable
United States patent” to adjudicate in the ID. For this reason, the ID’s findings related to
the ’923 patent are vacated.
B. The Economic Prong of the Domestic Industry Requirement
The ID found that UPM’s Fish Grip Mini practices the ’923 patent and ’923 trademark,
and that the Fish Grip and Fish Grip Jr. practice the ’923 patent, ’923 trademark and the ’944
trademark. ID at 78. The ID also found that UPM established that its investments in plant and
equipment and labor with respect to these products were significant. Id. at 81-83. UPM argues
that the expiration of the ’923 patent has no impact on the economic prong findings because the
ALJ analyzed the economic prong separately for the trademarks and the patent. UPM Sub. at 4-
5. OUII agrees that the expiration of the ’923 patent does not impact the economic prong
findings because the investments are related to the domestic industry products (which are
unchanged) rather than intellectual property rights. OUII Sub. at 5. Because the investments are
directed to the same domestic industry products that are protected by the ’923 trademark and
the ’944 trademark, the Commission finds that the expiration of the ’923 patent does not require
modification of the ID’s economic prong findings, and therefore affirms the ID’s findings on the
economic prong of the domestic industry requirement.
C. Violation by Five Union and Lotus
The ID found that the importation requirement is satisfied with respect to Lotus and Five

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9
Union. ID at 10-11, 13-14. Specifically, the ID found that the 6-inch SamsFX product is
manufactured by Lotus and the 9-inch SamsFX product is manufactured by Five Union, and that
those entities knew or should have known that SamsFX was selling and shipping the products to
the United States based on SamsFX’s Amazon.com sales account. Id. In support of the finding
that the SamsFX products are manufactured by Lotus and Five Union, the ALJ relied upon the
testimony of UPM’s employee, William C. Hoge III, that certain fish pliers imported and sold by
SamsFX are manufactured by Five Union and Lotus. Complaint, Exhibit 26C, Declaration of
William C. Hoge III at ¶ 26, 30.
UPM and OUII both argue that the ALJ correctly found that Five Union and Lotus
violated section 337 through their manufacture of SamsFX’s infringing products. UPM Sub. at
6-7; OUII Sub. at 6-7. Both argued that the ALJ reasonably relied on Mr. Hoge’s testimony to
show that Five Union and Lotus sold the products to SamsFX and knew or should have known
that the products would be imported and sold in the United States. Id.
In order to obtain a general exclusion order, UPM is required to show that “a violation is
established by substantial, reliable, and probative evidence.” 19 U.S.C. § 1337(g)(2)(B). 5 Here,
the only evidence connecting Five Union and Lotus to the accused products is the testimony of
Mr. Hoge. See Complaint, Exhibit 26C, Declaration of William C. Hoge III at ¶ 26, 30. Mr.
Hoge testified that Five Union and Lotus manufactured the SamsFX products because he had
5 The Commission’s assessment is governed by section 337(g)(2)—not by the
presumptions applicable under section 337(g)(1)—because UPM seeks a general exclusion order
rather than an exclusion order limited to the defaulting Respondents. See 19 U.S.C.
§ 1337(g)(1)(E), (g)(2); Complainant UPM’s Motion for Summary Determination of Violation of
Section 337 and for a Recommendation of a General Exclusion Order (Dec. 5, 2019). Section
337(g)(2) requires that, for the Commission to issue a general exclusion order, a violation must
be proven based on “substantial, reliable, and probative evidence.” 19 U.S.C. § 1337(g)(2)(B).

Public Version
10
previously seen those companies’ products and “[b]ased in part on my extensive experience in
plastic molding manufacturing, I concluded from the tool marks and other indicia that the two
products came from the same source, i.e., Five Union [and Lotus].” Id. Mr. Hoge, however, did
not specify which “tool marks and other indicia” are the same, and provided no evidence in
support of his assertion. The Commission finds that Mr. Hoge’s unsupported allegation that Five
Union and Lotus manufacture the products in question does not satisfy the requirement for
“substantial, reliable, and probative evidence.” Accordingly, the Commission reverses the ID’s
finding that UPM established a violation with respect to Five Union or Lotus.6
OUII argues that the facts here are analogous to those in Certain Powered Cover Plates,
Inv. No. 337-TA-1124, Initial Determination at 9-10 (Jul. 10, 2019) not reviewed, Notice (Aug.
12, 2019). OUII Sub. at 8. In that investigation, however, the complainant established that one
respondent manufactured another respondent’s product based in part on nine pages of side-by-
side pictures demonstrating how the products had identical scratches, imprints, and other
features. See SnapPower’s Motion for Summary Determination Regarding Importation, Certain
Powered Cover Plates, Inv. No. 337-TA-1124, at Ex. 1 (Nov. 28, 2018). In contrast, Mr. Hoge
failed to explain which “tool marks and other indicia” he asserts are the same and failed to
supply any pictures or other evidence in support of his assertion. The Commission finds that Mr.
Hoge’s testimony falls short of the evidence found sufficient in Certain Powered Cover Plates.
IV. REMEDY, THE PUBLIC INTEREST, AND BONDING
A. Remedy
Section 337(g)(2) provides that:
6 The Commission has determined to affirm the ID’s finding that UPM demonstrated a
violation by NOEBY and SamsFX, and not by iLure, with respect to the ’923 and ’944
trademarks by substantial, reliable, and probative evidence.

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11
In addition to the authority of the Commission to issue a general
exclusion from entry of articles when a respondent appears to
contest an investigation concerning a violation of the provisions of
this section, a general exclusion from entry of articles, regardless
of the source or importer of the articles, may be issued if—
(A) 	no person appears to contest an investigation
concerning a violation of the provisions of this
section,
(B) 	such a violation is established by substantial,
reliable, and probative evidence, and
(C) 	the requirements of subsection (d)(2) of this section
are met.
19 U.S.C. § 1337(g)(2). Section 337(d)(2) provides that “[t]he authority of the Commission to
order an exclusion from entry of articles shall be limited to persons determined by the
Commission to be violating this section unless the Commission determines that— (A) a general
exclusion from entry of articles is necessary to prevent circumvention of an exclusion order
limited to products of named persons; or (B) there is a pattern of violation of this section and it is
difficult to identify the source of infringing products.” 19 U.S.C. § 1337(d)(2); see also 19
C.F.R. § 210.50(c).
The RD recommends that the Commission issue a general exclusion order with respect to
the ’923 patent and the ’923 and ’944 trademarks. RD at 85. The ALJ found that a general
exclusion order was necessary to prevent circumvention of a limited exclusion order because the
evidence shows that infringing products are sold in generic packaging without logos or other
indication of origin, and the respondents’ refusal to participate in the investigation suggests that
they would not abide by an LEO. Id. at 86. The ALJ also found a widespread pattern of
violation with difficulty in identifying the sources based on evidence showing eight infringing
products available for sale on Amazon.com, ten infringing products available for sale on
AliExpress, and two infringing products available for sale on Wal-Mart.com. Id. at 89. The ALJ

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12
did not recommend the issuance of cease and desist orders because UPM did not request them.
Id. at 90. UPM and OUII agree that the issuance of a GEO is appropriate. UPM Sub. at 9-14;
OUII Init. Sub. at 9-13.
The Commission finds that the appropriate remedy is the issuance of a GEO with respect
to the ’923 and ’944 trademarks. Here, as required by section 337(g)(2), no person appeared to
contest the investigation, and the Commission finds that UPM demonstrated a violation by
NOEBY and SamsFX with respect to the ’923 and ’944 trademarks by substantial, reliable, and
probative evidence for the reasons set forth in the ID.7
The remaining element is a demonstration that “the requirements of subsection (d)(2),”
are met, which requires a showing that:
(A) a general exclusion from entry of articles is necessary to
prevent circumvention of an exclusion order limited to
products of named persons; or
(B) there is a pattern of violation of this section and it is difficult
to identify the source of infringing products.
19 U.S.C. § 1337(d)(2).
The Commission finds that the evidence shows that a GEO is necessary to prevent the
circumvention of a GEO. First, the Commission finds that the infringing articles are sold via
numerous anonymous sellers in online marketplaces, so NOEBY and SamsFX could circumvent
an LEO by similarly anonymously selling their articles on the Internet.8 See UPM Summary
7 The Commission finds that UPM failed to establish a violation with respect to the ’923
patent and by respondents iLure, Five Union, and Lotus for the reasons discussed above.
Because the Commission finds that the statutory requirements for a GEO have been satisfied
with respect to the ‘923 and ‘944 trademarks, however, any future imports of infringing articles
by these respondents will be subject to the GEO.
8 See Certain Loom Kits for Creating Linked Articles, Inv. No. 337-TA-923, Comm’n
Op., 2015 WL 5000874, at *8 (June 26, 2015) (“[T]he record shows that infringing loom kits are
widely offered for sale online by anonymous sellers . . . . If the Commission entered an exclusion

Public Version
13
Determination Motion at Attachments F-G. Second, the Commission finds that the infringing
articles are sold in nondescript packaging that does not indicate origin, which increases the
difficulty of enforcing an LEO.9 See Complaint at Exs. 29-33. Third, NOEBY and SamsFX
failed to respond to the complaint and notice of investigation and failed to participate in this
investigation, suggesting they are unlikely to abide by a Commission remedy limited to NOEBY
and SamsFX.
The Commission also finds that there is widespread infringement and that it is difficult to
ascertain the infringing products’ source. The Commission has found that these requirements
may be satisfied by showing numerous anonymous Internet sales.10 The Commission finds that
there is a widespread pattern of infringement based on evidence of twenty instances of
nondescript entities selling products infringing the ’923 and ’944 trademarks via online
marketplaces. UPM Summary Determination Motion at Attachments F-G. The Commission
finds that it is difficult to ascertain the source of those products based on evidence those products
have been sold in anonymous packaging. See Complaint at Exs. 29-33. Accordingly, the
order limited to the products of the defaulting respondents, the defaulting respondents could
circumvent the order via anonymous sales on the internet.”); see also Certain Mounting
Apparatuses for Holding Portable Electronic Devices and Components Thereof, Inv. No. 337-
TA-1086, Comm’n Op. at 9 (Jun. 24, 2019) (determining to issue a GEO in part because of
numerous infringing sales by non-respondents over the Internet).
9 See Certain Water Filters and Components Thereof, Inv. No. 337-TA-1126, Comm’n
Op. at 7 (Nov. 12, 2019) (finding likelihood of circumvention of an LEO by defaulting
respondents where, inter alia, “[t]he record evidence shows numerous internet seller listings on
Amazon and eBay as well as generic, unmarked product shipments.”); see also Certain Mounting
Apparatuses for Holding Portable Electronic Devices and Components Thereof, Inv. No. 337-
TA-1086, Comm’n Op. at 7, 9 (Jun. 24, 2019) (determining to issue a GEO in part because
infringing products are shipped in packaging that lacks manufacturer identification).
10 See, e.g., Certain Loom Kits for Creating Linked Articles, Inv. No. 337-TA-923,
Comm’n Op. at 14 (June 26, 2015) (“The Commission has found in other investigations that
numerous online sales of infringing imported goods can constitute a pattern of violation of
section 337.”).

Public Version
14
Commission finds that the appropriate relief is a GEO with respect to the ’923 and ’944
trademarks.
B. 	The Public Interest
Section 337 requires the Commission, upon finding a violation of section 337, to issue a
remedy “unless, after considering the effect of such exclusion upon the public health and
welfare, competitive conditions in the United States economy, the production of like or directly
competitive articles in the United States, and United States consumers, it finds that such articles
should not be excluded from entry.” 19 U.S.C. § 1337(d)(l); see also 19 U.S.C. § 1337(g)(1).
Under appropriate facts and circumstances, the Commission may determine that no
remedy should issue because of the adverse impacts on the public interest. See, e.g., Certain
Fluidized Supporting Apparatus & Components Thereof, Inv. Nos. 337-TA-182/188, USITC
Pub. 1667, Comm’n Op. at 1–2, 23–25 (Oct. 1984) (finding that the public interest warranted
denying complainant’s requested relief). Moreover, when the circumstances of a particular
investigation require, the Commission has tailored its relief in light of the statutory public
interest factors. For example, the Commission has allowed continued importation for ongoing
medical research, exempted service parts, grandfathered certain infringing products, and delayed
the imposition of remedies to allow affected third-party consumers to transition to non-infringing
products. E.g., Certain Microfluidic Devices, Inv. No. 337-TA-1068 Comm’n Op. at 1, 22–48,
53–54 (analyzing the public interest, discussing applicable precedent, and ultimately issuing a
tailored LEO and a tailored CDO); Certain Road Milling Machines & Components Thereof, Inv.
No. 337-TA-1067, Comm’n Op. at 32–33 (July 18, 2019) (exempting service parts); Certain
Baseband Processor Chips & Chipsets, Transmitter, & Receiver (Radio) Chips, Power Control
Chips, & Prods. Containing Same, Including Cellular Tel. Handsets, 337-TA-543, USITC Pub.

Public Version
15
No. 4258, Comm’n Op. at 150–51 (Oct. 2011) (grandfathering certain products); Certain
Personal Data & Mobile Comm’n Devices & Related Software, 337-TA-710, USITC Pub. No.
4331, Comm’n Op., at 72–73, 80–81 (June 2012) (delaying imposition of remedy).
The statute requires the Commission to consider and make findings on the public interest
in every case in which a violation is found regardless of the quality or quantity of public interest
information supplied by the parties. 19 U.S.C. § 1337(d)(l). Thus, the Commission publishes a
notice inviting the parties as well as interested members of the public and interested government
agencies to gather and present evidence on the public interest at multiple junctures in the
proceeding. 19 U.S.C. § 1337(d)(l).
Both UPM and OUII contend that the statutory public interest factors do not warrant
denying a remedy. UPM Statement on the Public Interest (May 8, 2020); OUII Sub. at 13-14.
The Commission did not receive any comments from the public or interested government
agencies on this issue in response to its notice of review.
The Commission finds no evidence in the record indicating that a general exclusion order
would have an adverse impact on the public health and welfare, competitive conditions in the
United States economy, the production of like or directly competitive articles in the United
States, or United States consumers. The record in this investigation contains no evidence that the
products at issue, pliers to handle fish upon capture, would have an adverse impact on the public
health and welfare concerns. Moreover, trademarks are necessarily nonfunctional,11 so the GEO
will not prevent competitors from importing and selling fish-handling pliers with identical
functionality as long as they avoid the nonfunctional trademarked features at issue. Moreover,
11 E.g., Qualitex Co. v. Jacobson Products Co., 514 US 159, 164 (1995); 15 U.S.C.
§ 1064(3).

Public Version
16
UPM’s domestic industry products are manufactured in the United States whereas the accused
products are imported from overseas. As such, the Commission finds that the GEO would not
adversely impact production of the fish-handling pliers in the United States. Accordingly, the
Commission finds that the statutory public interest factors do not preclude issuance of a GEO.
C. 	Bonding
When the Commission enters an exclusion order or a cease and desist order, a respondent
may continue to import and sell its products during the 60-day period of Presidential review
under a bond in an amount determined by the Commission to be “sufficient to protect the
complainant from any injury.” 19 U.S.C. § 1337(j)(3); see also 19 C.F.R. § 210.50(a)(3). When
reliable price information is available in the record, the Commission has often set the bond in an
amount that would eliminate the price differential between the domestic product and the
imported, infringing product. See Certain Microsphere Adhesives, Processes for Making Same,
& Prods. Containing Same, Including Self-stick Repositionable Notes, Inv. No. 337-TA-366,
USITC Pub. No. 2949, Comm’n Op. at 24 (Jan. 16, 1996). The Commission also has used a
reasonable royalty rate to set the bond amount where a reasonable royalty rate could be
ascertained from the evidence in the record. See, e.g., Certain Audio Digital-to-Analog
Converters & Prods. Containing Same, Inv. No. 337-TA-499, Comm’n Op. at 25 (Mar. 3, 2005).
Where the record establishes that the calculation of a price differential is impractical or there is
insufficient evidence in the record to determine a reasonable royalty, the Commission has
imposed a 100 percent bond. See, e.g., Certain Liquid Crystal Display Modules, Prods.
Containing Same, & Methods Using the Same, Inv. No. 337-TA-634, Comm’n Op. at 6-7 (Nov.
24, 2009). The complainant, however, bears the burden of establishing the need for a bond.

Public Version
17
Certain Rubber Antidegradants, Components Thereof & Prods. Containing Same, Inv. No. 337-
TA-533, USITC Pub. No. 3975, Comm’n Op. at 40 (July 21, 2006).
The ALJ recommends that the Commission set the bond rate at one hundred percent
(100%) of the entered value. RD at 91. The ALJ found that UPM showed that a price
differential would be difficult to calculate because the infringing products are sold at a variety of
price points and quantities. Id. The ALJ also found that a one hundred percent (100%) bond was
appropriate due to the respondents’ default and failure to provide discovery. Id. UPM and OUII
both agree with the ALJ’s recommendation. UPM Sub. at 15; OUII Sub. at 14-15.
The Commission finds that the defaulting respondents’ failure to appear and participate in
the investigation prevents the Commission from determining a price differential or other basis
for a bond. Accordingly, the Commission has determined to set the bond during the period of
Presidential review in the amount of one hundred percent (100%) of the entered value of the
infringing products subject to the GEO.
V. CONCLUSION
For the reasons set forth herein, the Commission determines that UPM has established a
violation of Section 337(a)(1)(C) by NOEBY and SamsFX with respect to the ’923 and ’944
trademarks. Accordingly, the investigation is terminated with a finding of a violation of section
337. The Commission determines that the appropriate remedy is a general exclusion order, the
public interest does not preclude that remedy, and the bond during the period of Presidential
review is set in the amount of one hundred percent (100%) of the entered value of the infringing
products subject to the GEO.

Public Version
18
By order of the Commission.
Lisa R. Barton
Secretary to the Commission
Issued: 	September 29, 2020

CERTAIN FISH-HANDLING PLIERS AND PACKAGING
THEREOF
Inv. No. 337-TA-1169
PUBLIC CERTIFICATE OF SERVICE
I, Lisa R. Barton, hereby certify that the attached Order, Commission has been served via
EDIS upon the Commission Investigative Attorney, Thomas C. Chen, Esq., and the following
parties as indicated, on September 29, 2020.
Lisa R. Barton, Secretary
U.S. International Trade Commission
500 E Street, SW, Room 112
Washington, DC 20436
On Behalf of Complainant United Plastic Molders:
Rett Snotherly, Esq.
LEVI & SNOTHERLY, PLLC
1101 Connecticut Ave., NW, Suite 450
Washington, DC 20036
Email: rsnotherly@levisnotherly.com
☐ Via Hand Delivery
☐ Via Express Delivery
☐ Via First Class Mail
☒ Other: Email Notification of
Availability for Download
Respondents:
Yixing Five Union Industry & Trade Co., Ltd.
Building A1, Innovation Park of Yixing City
Jiangsu Province
China
☐ Via Hand Delivery
☐ Via Express Delivery
☐ Via First Class Mail
☒ Other: Service to Be
Completed by Complainants
NOEBY Fishing Tackle Co., Ltd.
No. 81 Bohai Road, Eco-zone
Weihai, Shandong
China
☐ Via Hand Delivery
☐ Via Express Delivery
☐ Via First Class Mail
☒ Other: Service to Be
Completed by Complainants
Weihai ILure Fishing Tackle Co., Ltd.
No. 01 ZhouNing Road,
LinGang District,
Weihai, Shandong
China
☐ Via Hand Delivery
☐ Via Express Delivery
☐ Via First Class Mail
☒ Other: Service to Be
Completed by Complainants

CERTAIN FISH-HANDLING PLIERS AND PACKAGING
THEREOF
Inv. No. 337-TA-1169
Certificate of Service – Page 2
SamsFX
No. 11, Shikefa Road, Yangzhou City, 225000
Jiangsu Province
China
☐ Via Hand Delivery
☐ Via Express Delivery
☐ Via First Class Mail
☒ Other: Service to Be
Completed by Complainants
Wehai Lotus Outdoor Co., Ltd.
Zhang CunTown, Weihai City
Shandong Pro.
China
☐ Via Hand Delivery
☐ Via Express Delivery
☐ Via First Class Mail
☒ Other: Service to Be
Completed by Complainants

UNITED STATES INTERNATIONAL TRADE COMMISSION
Washington, D.C.
In the Matter of
CERTAIN FISH-HANDLING PLIERS
AND PACKAGING THEREOF
Investigation No. 337-TA-1169
NOTICE OF A COMMISSION DETERMINATION TO REVIEW-IN-PART
AN INITIAL DETERMINATION FINDING A VIOLATION OF SECTION 337;
SCHEDULE FOR FILING WRITTEN SUBMISSIONS ON THE ISSUES UNDER
REVIEW AND ON REMEDY, THE PUBLIC INTEREST, AND BONDING
AGENCY: U.S. International Trade Commission.
ACTION: Notice.
SUMMARY: Notice is hereby given that the U.S. International Trade Commission
(“Commission”) has determined to review-in-part an initial determination (“ID”) (Order No. 14)
of the presiding administrative law judge (“ALJ”). The Commission requests briefing from the
parties on certain issues under review, as indicated in this notice. The Commission also requests
briefing from the parties, interested government agencies, and interested persons on the issues of
remedy, the public interest, and bonding.
FOR FURTHER INFORMATION CONTACT: Robert Needham, Esq., Office of the
General Counsel, U.S. International Trade Commission, 500 E Street S.W., Washington, D.C.
20436, telephone (202) 205-2392. 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. The public record for this investigation may be viewed on the
Commission's electronic docket (EDIS) at https://edis.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
29, 2020, based on a complaint filed by complainant United Plastic Molders, Inc. of Jackson,
Mississippi (“UPM”). 84 FR 36620-21 (July 29, 2020). The complaint, as supplemented,
alleges violations of section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337, in the
importation into the United States, the sale for importation, or the sale within the United States
after importation of certain fish-handling pliers and packaging thereof by reason of infringement

2
of claims 1-11 of U.S. Patent No. 6,256,923 (“the ’923 patent”) and U.S. Trademark
Registration Nos. 4,980,923 (“the ’923 mark”) and 5,435,944 (“the ’944 mark”). Id. The
complaint further alleges that a domestic industry exists. Id. The Commission’s notice of
investigation named as respondents Yixing Five Union Industry & Trade Co., Ltd. of Yixing
City, China (“Five Union”); NOEBY Fishing Tackle Co., Ltd. of Weihai, China (“NOEBY”);
Weihai iLure Fishing Tackle Co., Ltd. of Weihai, China (“iLure”); SamsFX of Yangzhou City,
China (“SamsFX”); and Weihai Lotus Outdoor Co., Ltd. of Weihai, China (“Lotus”)
(collectively, “Respondents”). Id. The Office of Unfair Import Investigations (“OUII”) is
participating in the investigation. Id.
All five Respondents defaulted. On December 18, 2019, the Commission found
NOEBY, iLure, Weihai Lotus, and Five Union in default for failing to respond to the complaint
and notice of investigation. Order No. 11 (Nov. 19, 2019), not reviewed Notice (Dec. 18, 2019).
Also on December 18, 2019, the Commission found SamsFX in default for failing to respond to
the complaint and notice of investigation. Order No. 12 (Nov. 25, 2019), not reviewed Notice
(Dec. 18, 2019).
On December 5, 2019, UPM moved for a summary determination of violation based on
infringement of the ’923 patent, the ’923 mark, and the ’944 mark and for a recommendation for
the issuance of a general exclusion order (“GEO”). In its motion, UPM withdrew its
infringement allegations with respect to claims 2-6 and 8-11 of the ’923 patent, but continued to
assert claims 1 and 7 of the ’923 patent. On January 3, 2020, OUII filed a response that largely
supported UPM’s motion.
On April 10, 2020, the ALJ issued the subject ID, Order No. 14, granting-in-part UPM’s
motion. Specifically, the ALJ issued a summary of determination of violation finding that
SamsFX, Lotus, and NOEBY violated section 337 with respect to claims 1 and 7 of the ’923
patent, as well as the ’923 and ’944 marks; that iLure violated section 337 with respect to claims
1 and 7 of the ’923 patent; and that Five Union violated section 337 with respect to the ’923
mark. The ALJ also found that UPM failed to show that iLure violated section 337 with respect
to the ’923 and ’944 marks, as the only evidence of importation predates the registration of those
marks. No petitions for review of the ID were filed.
The Commission has determined to review the subject ID in part. Specifically, the
Commission has determined to review the ID’s finding of violation with respect to the ’923
patent; the ID’s findings of trademark infringement; the ID’s finding that UPM satisfied the
economic prong of the domestic industry requirement; and the ID’s finding of violation with
respect to Lotus and Five Union. The Commission has not determined to review any other
findings in the ID.

3
In connection with its review, the Commission is interested in briefing on the following
issues:
1. 	In view of UPM’s acknowledgment that the ’923 patent expired on February 25, 2020
(Complaint ¶ 23), how does that expiration impact the findings in the ID? Please
specifically address any impact on the ID’s findings on the economic prong of the
domestic industry requirement.
2. 	Please identify all evidence in the record that demonstrates that Lotus and Five Union
are involved in “the importation into the United States, the sale for importation, or the
sale within the United States after importation by the owner, importer, or consignee”
of infringing articles. 19 U.S.C. 1337(a)(1)(C). Please explain how that evidence
constitutes “substantial, reliable, and probative evidence.” 19 U.S.C. 1337(g)(2)(B).
The parties are invited to brief only the discrete issues described above, with reference to the
applicable law and evidentiary record. The parties are not to brief other issues on review, which
are adequately presented in the parties’ existing filings.
In connection with the final disposition of this investigation, the statute authorizes
issuance of (1) an order that could result in the exclusion of the subject articles from entry into
the United States, and/or (2) cease and desist orders that could result in the respondents being
required to cease and desist from engaging in unfair acts in the importation and sale of such
articles. Accordingly, the Commission is interested in receiving written submissions that address
the form of remedy, if any, that should be ordered. If a party seeks exclusion of an article from
entry into the United States for purposes other than entry for consumption, the party should so
indicate and provide information establishing that activities involving other types of entry either
are adversely affecting it or likely to do so. For background, see Certain Devices for Connecting
Computers via Telephone Lines, Inv. No. 337-TA-360, USITC Pub. No. 2843, Comm’n Op. at 7-
10 (December 1994).
The statute requires the Commission to consider the effects of any remedy upon the
public interest. The public interest factors the Commission will consider include the effect that
an exclusion order and/or a cease and desist order would have on (1) the public health and
welfare, (2) competitive conditions in the U.S. economy, (3) U.S. production of articles that are
like or directly competitive with those that are subject to investigation, and (4) U.S. consumers.
The Commission is therefore interested in receiving written submissions that address the
aforementioned public interest factors in the context of this investigation.
If the Commission orders some form of remedy, the U.S. Trade Representative, as
delegated by the President, has 60 days to approve, disapprove, or take no action on the
Commission’s determination. See Presidential Memorandum of July 21, 2005, 70 FR 43251
(July 26, 2005). During this period, the subject articles would be entitled to enter the United
States under bond, in an amount determined by the Commission and prescribed by the Secretary

4
of the Treasury. The Commission is therefore interested in receiving submissions concerning the
amount of the bond that should be imposed if a remedy is ordered.
WRITTEN SUBMISSIONS: The Commission requests that the parties to the investigation file
written submissions on the issues identified in this notice. Parties to the investigation, interested
government agencies, and any other interested parties are encouraged to file written submissions
on the issues of remedy, the public interest, and bonding. Such initial submissions should include
views on the recommended determination by the ALJ on remedy and bonding.
In their initial submissions, Complainant and OUII are also requested to identify the
remedy sought and to submit proposed remedial orders for the Commission’s consideration.
Complainant is also requested to state the HTSUS subheadings under which the accused
products are imported and to supply the identification information for all known importers of the
products at issue in this investigation. The initial written submissions and proposed remedial
orders must be filed no later than close of business on June 10, 2020. Reply submissions must be
filed no later than the close of business on June 17, 2020. No further submissions on these issues
will be permitted unless otherwise ordered by the Commission.
Persons filing written submissions must file the original document electronically on or
before the deadlines stated above. The Commission’s paper filing requirements in 19 C.F.R.
210.4(f) are currently waived. 85 FR 15798 (March 19, 2020). Submissions should refer to the
investigation number (Inv. No. 337-TA-1169) in a prominent place on the cover page and/or the
first page. (See Handbook for Electronic Filing Procedures,
https://www.usitc.gov/documents/handbook_on_filing_procedures.pdf ). Persons with questions
regarding filing should contact the Secretary, (202) 205-2000.
Any person desiring to submit a document to the Commission in confidence must request
confidential treatment. All such requests should be directed to the Secretary to the Commission
and must include a full statement of the reasons why the Commission should grant such
treatment. See 19 CFR 201.6. Documents for which confidential treatment by the Commission is
properly sought will be treated accordingly. A redacted non-confidential version of the document
must also be filed simultaneously with any confidential filing. All information, including
confidential business information and documents for which confidential treatment is properly
sought, submitted to the Commission for purposes of this investigation may be disclosed to and
used: (i) by the Commission, its employees and Offices, and contract personnel (a) for
developing or maintaining the records of this or a related proceeding, or (b) in internal
investigations, audits, reviews, and evaluations relating to the programs, personnel, and
operations of the Commission including under 5 U.S.C. Appendix 3; or (ii) by U.S. government
employees and contract personnel, solely for cybersecurity purposes. All contract personnel will
sign appropriate nondisclosure agreements. All nonconfidential written submissions will be
available for public inspection on EDIS.

5
The Commission vote for these determinations took place on May 27, 2020.
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: 	May 27, 2020

CERTAIN FISH-HANDLING PLIERS AND PACKAGING
THEREOF
Inv. No. 337-TA-1169
PUBLIC CERTIFICATE OF SERVICE
I, Lisa R. Barton, hereby certify that the attached NOTICE has been served via EDIS
upon the Commission Investigative Attorney, Thomas C. Chen, Esq., and the following
parties as indicated, on May 27, 2020.
Lisa R. Barton, Secretary
U.S. International Trade Commission
500 E Street, SW, Room 112
Washington, DC 20436
On Behalf of Complainant United Plastic Molders:
Rett Snotherly, Esq.
LEVI & SNOTHERLY, PLLC
1101 Connecticut Ave., NW, Suite 450
Washington, DC 20036
Email: rsnotherly@levisnotherly.com
☐ Via Hand Delivery
☐ Via Express Delivery
☐ Via First Class Mail
☒ Other: Email Notification of
Availability for Download

PUBLIC VERSION
UNITED STATES INTERNATIONAL TRADE COMMISSION
WASHINGTON, D.C. 20436
In the Matter of
CERTAIN FISH-HANDLING PLIERS
AND PACKAGING THEREOF
Inv. No. 337-TA-1169
Order No. 14
INITIAL DETERMINATION
Granting in Part Complainant’s Motion for Summary Determination
of Violation by the Defaulting Respondents
And
RECOMMENDED DETERMINATION
On Remedy and Bonding

PUBLIC VERSION
TABLE OF CONTENTS
I. 	Background ……………………………………………………………….…. 	1
A. 	Institution of the Investigation; Procedural History …………..……... 	1
B. 	The Parties ………………………….……………….….…………….. 	3
C. 	The Accused Products ………………………………………………. 	4
D. 	Technological Background ………………………………………….. 	5
II. 	Jurisdiction …………………………….………………………………….….. 	7
III. 	Importation …………………………….………………………………….….. 	8
IV. 	General Principles of Applicable Law …..………………………………..…. 	15
V. 	United States Patent No. 6,256,923 …………………….……………...….….. 	23
VI. 	United States Trademark Registration Nos. 4,980,923 and 5,435,944 ..….….. 	34
VII. 	Domestic Industry (Economic Prong) ………..……………………….………. 	77
VIII. 	Remedy and Bonding ………………………………………………….……… 	83
IX. 	Conclusions of Law ………………………………………………….……….. 	92
X. 	Initial Determination and Order ……………………………………..……….. 	92

PUBLIC VERSION
ii
The following abbreviations may be used in this Initial Determination:
ALJ 	- 	Administrative Law Judge
EDIS 	- 	Electronic Document Imaging System

PUBLIC VERSION
I. 	Background
A. 	Institution of the Investigation; Procedural History
By publication of a notice in the Federal Register on July 29, 2019, pursuant to
subsection (b) of section 337 of the Tariff Act of 1930, as amended, the Commission
instituted this investigation to determine:
(a) Whether there is a violation of subsection (a)(1)(B) of
section 337 in the importation into the United States, the
sale for importation, or the sale within the United States
after importation of certain products identified in paragraph
(2) by reason of infringement of one or more claims 1-11 of
the ‘923 patent [U.S. Patent No. 6,256,923], and whether
an industry in the United States exists as required by
subsection (a)(2) of section 337; and
(b) Whether there is a violation of subsection (a)(1)(C) of
section 337 in the importation into the United States, the
sale for importation, or the sale within the United States
after importation of certain products identified in paragraph
(2) by reason of infringement of one or more of the ‘923
mark [U.S. Trademark Registration No. 4,980,923] and the
‘944 mark [U.S. Trademark Registration No. 5,435,944],
and whether an industry in the United States exists as
required by subsection (a)(2) of section 337.
84 Fed. Reg. 36620 (July 29, 2019).
Pursuant to section 210.10(b)(1) of the Commission’s Rules of Practice and
Procedure, 19 CFR 210.10(b)(1):
[T]he plain language description of the accused products
or category of accused products, which defines the scope
of the investigation, is “pliers that aid in the landing,
weighing, and handling of fish by securely gripping the
lip of a fish while the hook is removed.”
Id.

PUBLIC VERSION
2
The complainant is United Plastic Molders, Inc. of Jackson, Mississippi. The
named respondents are:
1. 	Yixing Five Union Industry & Trade Co., Ltd. of Jiangsu Province,
China;
2. 	NOEBY Fishing Tackle Co., Ltd. of Weihai, Shandong, China;
3. 	Weihai iLure Fishing Tackle Co., Ltd. of Weihai, Shandong, China;
4. 	SamsFX of Jiangsu Province, China; and
5. 	Weihai Lotus Outdoor Co., Ltd. of Shandong Province, China.
The Office of Unfair Import Investigations (“OUII” or “Staff”) is a party to this
investigation. Id.
The target date for completion of this investigation was originally set at August 7,
2020, which is approximately twelve months and one week after institution of the
investigation. See Order No. 3 (Sept. 9, 2019). Accordingly, the due date for the Initial
Determination on violation was April 7, 2020.
On December 18, 2019, the Commission determined not to review an initial
determination finding the following four respondents in default pursuant to 19 C.F.R.
§ 210.16: (1) Yixing Five Union Industry & Trade Co., Ltd.; (2) NOEBY Fishing Tackle
Co., Ltd.; (3) Weihai iLure Fishing Tackle Co., Ltd.; and (4) Wehai Lotus Outdoor Co.,
Ltd.. Order No. 11 (Nov. 19, 2019), aff’d, Commission Determination Not to Review an
Initial Determination Finding Four Respondents in Default (Dec. 18, 2019).
On the same day, the Commission determined not to review an initial
determination finding respondent SamsFX in default pursuant to 19 C.F.R. § 210.16.
Order No. 12 (Nov. 25, 2019), aff’d, Commission Determination Not to Review an Initial
Determination Finding a Respondent in Default (Dec. 18, 2019).

PUBLIC VERSION
3
On December 5, 2019, complainant United Plastic Molders, Inc. (“UPM” or
“complainant”) filed a motion for “a summary determination of violation of Section 337
by the Respondents and a recommendation that the Commission issue a general exclusion
order.” Motion Docket No. 1169-7.
On December 13, 2019, and December 31, 2019, UPM filed supplemental
documents at the request of the Staff. See EDIS Doc. ID Nos. 697222 (Dec. 13, 2019)
(“Dec. 13 Supplement”) and 698163 (Dec. 31, 2019) (“Dec. 31 Supplement”).
On January 10, 2019, the Staff filed a response supporting the motion in part. See
Staff Resp. at 1-2.
On April 6, 2020, the undersigned issued Order No. 13 extending the target date.
The administrative law judge determined to extend the target date by three days, to
August 10, 2020, and thus the violation phase of the investigation before the
administrative law judge shall be completed by April 10, 2020. See Order No. 13 (Apr.
6, 2020).
B. The Parties
Complainant UPM is a Mississippi corporation that was launched in 1978 with six
employees and four machines. See Mem. Ex. A (Hoge Decl., ¶ 2). The company now
has 36 employees operating over 96,000 square feet of factory, all located in Jackson,
Mississippi. Id. It is a family-owned business with three generations of the Hoge family
currently working at the company. Id., ¶ 3. UPM domestically manufactures and sells
the Fish Grip™, the Fish Grip Jr, and the Fish Grip Mini, the products relied upon to
satisfy the domestic industry requirement (collectively, the “Domestic Industry
Products”). Id., ¶ 5.

PUBLIC VERSION
5
D. 	Technological Background
United States Patent No. 6,256,923 (“the ‘923 patent), entitled “Fish handling
pliers,” issued on July 10, 2001, to named inventor Don S. Norton. See Complaint, Ex. 1
(‘923 Patent). The ‘923 patent issued from Application No. 09/512,795, filed on
February 25, 2000. See id. The ‘923 patent relates to “fish gripping and handling tools.
More specifically, the present invention relates to pliers which are especially adapted to
grip the lower lip of a fish.” Complaint, Ex. 1 (‘923 Patent) at 1:4-7. The ‘923 patent has
a total of 11 claims.
The invention disclosed in the ‘923 patent includes a tongue and groove in the
mouth of the pliers to limit lateral motion that could cause damage to the fish’s lip as well
as a “stop boss” located between the upper and lower handle sections which limits the
range of motion of the jaws beyond the open and closed positions. See Complaint, Ex. 1
(‘923 Patent) at 1:30-34; 3:38-50. An embodiment of the invention is shown in Figure 1
below:

PUBLIC VERSION
6
U .S. Trademark Registration No. 4,980,923 (“the ‘923 Mark” or “the ‘923
Trademark” or “the ‘923 trademark”) is registered on the Principal Register of the U.S.
Patent and Trademark Office (“PTO”) and is a trade dress consisting of an opening in
fish-handling pliers as shown below:
See Complaint, Ex 2.
U.S. Trademark Registration No. 5,435,944 (“the ‘944 Mark” or “the ‘944
Trademark” or “the ‘944 trademark”) is registered on the Principal Register and consists
of a stylized gripper with an opening as shown below:

PUBLIC VERSION
7
See Complaint, Ex 3.
UPM is the owner of the ‘923 patent, the ‘923 Mark and the ‘944 Mark. See
Complaint, Exs. 2-4.
II. 	Jurisdiction
As indicated in the Commission’s notice of investigation, discussed above, this
investigation involves the importation of products alleged to infringe United States patent
and trademarks in a manner that violates section 337 of the Tariff Act, as amended. No
party has contested the Commission’s jurisdiction over the subject matter of this
investigation. It is found that the Commission has subject matter jurisdiction over this
investigation.
No party has contested the Commission’s personal jurisdiction over it. In
particular, respondents have been given notice of this investigation at least through
service of the complaint and notice of investigation. It is therefore found that the
Commission has personal jurisdiction over all parties.
No party has contested the Commission’s in rem jurisdiction over the accused
products. Evidence of specific instances of importation of the accused products was
provided in the complaint and accompanying exhibits. See Complaint, ¶¶ 48-53;
Complaint, Exs. 15-18, 26C (¶¶ 21-30). Additionally, evidence of specific instances of
importation of the accused products is discussed in the importation section of this initial
determination. Accordingly, it is found that the Commission has in rem jurisdiction over
the accused products.

PUBLIC VERSION
8
III. 	Importation
Section 337 prohibits “[t]he importation into the United States, the sale for
importation, or the sale within the United States after importation by the owner, importer,
or consignee, of articles that – (i) infringe a valid and enforceable United States
patent . . . .” 19 U.S.C. § 1337(a)(1)(B). Section 337 also prohibits “[t]he importation
into the United States, the sale for importation, or the sale within the United States after
importation by the owner, importer, or consignee, of articles that infringe a valid and
enforceable United States trademark . . . .” 19 U.S.C. § 1337(a)(1)(C).
A complainant “need only prove importation of a single accused product to satisfy
the importation element.” Certain Purple Protective Gloves, Inv. No. 337-TA-500,
Order No. 17 at 5 (Sept. 23, 2004); Certain Trolley Wheel Assemblies, Inv. No. 337-TA-
161, Views of the Commission at 7-8 (Aug. 29, 1984), USITC Pub. No. 1605
(Nov. 1984), available as 1984 WL 951859 (importation of product sample sufficient to
establish violation, even though sample “had no commercial value and had not been sold
in the United States”).
As discussed below, UPM has presented substantial, reliable, and probative
evidence of importation as to each of the defaulting respondents. See Mem. at 13-14.
See Staff Resp. at 8-15.
iLure
UPM relies on Exhibit 15 to the complaint to satisfy the importation requirement
as to respondent iLure. See Mem. at 13; Complaint, ¶ 50. Exhibit 15 includes an email
order confirmation dated March 13, 2016, showing the purchase of yellow fish-handling
pliers from eBay. Exhibit 15 also contains an email shipping confirmation dated March

PUBLIC VERSION
9
14, 2016, indicating that the order has shipped, and noting that shipping is available via
“Economy Shipping from China/Hong Kong/Taiwan to worldwide.” Finally, Exhibit 15
includes photographs of the packaging and shipping label received by the purchaser,
showing that the package was shipped from an address in China to a United States
address in Chantilly, VA. The yellow fish-handling pliers inside the package bear a
white “iLure” logo printed on the surface of the pliers.
The evidence in Exhibit 15 is substantial, reliable, and probative evidence that
iLure has sold for importation the accused iLure product. Exhibit 15 indicates that the
accused iLure product was available for purchase online at eBay, a well-known sales
platform from which sales to U.S. customers is foreseeable and likely.
Additionally, although not cited in UPM’s memorandum, the Staff notes that
Exhibits 11 and 14 to the complaint also contain screenshots from an Alibaba website
establishing respondent iLure (Weihai iLure) is directly involved in making the accused
fish-handling pliers available for sale and shipment to customers in the United States.
See Staff Resp. at 9 (citing Complaint, Exs. 11 & 14, referencing the following website
address: https://www.alibaba.com/product-detail/ILURE-125g-25-6cm-Lip-
Grip_60322306200.html?spm=a2700.7724857.normalList.17.2ca8V). This website lists
“Weihai iLure Fishing Tackle Co. as the manufacturer and supplier, and provides for
shipping “to United States.”

PUBLIC VERSION
10
Furthermore, iLure has defaulted in this investigation and thus has not identified
any contrary evidence or genuine disputes of material fact as to importation.
Thus, the importation requirement of section 337 has been satisfied as to
respondent iLure.
SamsFX/Five Union
UPM relies on Exhibit 18 to the complaint to satisfy the importation requirement
as to respondents SamsFX and Five Union. See Dec. 31 Supplement, EDIS Doc. ID No.
698163. Exhibit 18 includes an Amazon order and delivery confirmation indicating that
on February 5, 2019, a pair of blue and black 9” fish-handling pliers was ordered from
“SAMSFX Sports&Outdoors Co., Ltd.” and delivered to an address in the United States.
UPM further relies on Exhibit 26C, an employee declaration from William C. Hoge, III,
to explain how UPM determined that the accused pliers shown in Exhibit 18 were

PUBLIC VERSION
11
manufactured by respondent Five Union. See Complaint, Ex. 26C (Declaration of
William C. Hoge, III), ¶¶ 21-29.1
This evidence presented by UPM is substantial, reliable, and probative evidence
that the accused SamsFX 9” product was manufactured by Five Union and sold for
importation into the United States by respondent SamsFX. Based on this evidence, the
respondent SamsFX “knew or should have known that those articles would be
subsequently exported to the United States.” Certain Inkjet Ink Cartridges, 2011 WL
3489151 at *8. Inasmuch as the accused pliers specifically include the SamsFX logo,
Five Union (as the manufacturer of those pliers) also knew or should have known that
SamsFX was selling and shipping its products to U.S. customers, based on the sales
information that was readily available on the Amazon website.
Furthermore, both Five Union and SamsFX have defaulted in this investigation
and thus have not identified any contrary evidence or genuine disputes of material fact as
to importation.
Thus, the importation requirement of section 337 has been satisfied as to
defaulting respondents SamsFX and Five Union.
1 Mr. Hoge explained that two of UPM’s authorized sellers, Line Cutterz, Inc. and
YakGear Inc., previously received sales solicitations and/or samples from a
representative of Five Union inquiring whether they were interested in selling fishing
pliers manufactured by Five Union. After comparing the Five Union sample with the
blue/black SamsFX pliers shown in Exhibits 10 and 18 to the complaint, Mr. Hoge
concluded that those SamsFX pliers were manufactured by Five Union based on his
experience with plastic molding, the tooling marks, and other indicia.

PUBLIC VERSION
12
NOEBY
UPM relies on Exhibit 17 to the complaint to satisfy the importation requirement
as to respondent NOEBY. See Mem. at 13, Complaint, ¶ 52. Exhibit 17 includes a
screenshot from the website AliExpress.com showing that the NOEBY brand-name fish-
handling pliers are available for sale, with “Free Shipping to the United States.” Exhibit
17 also includes a sales invoice dated April 30, 2019, reflecting the purchase of the
accused NOEBY fish-handling pliers. The photograph of the packaging and shipping
label included with Exhibit 17 further indicates that the package was shipped from an
address in China to a United States address in Washington, DC. The red fish-handling
pliers received in the package match the fish-handling pliers depicted on the website.
The evidence in Exhibit 17 is substantial, reliable, and probative evidence that
NOEBY has sold for importation the accused NOEBY product. Although Exhibit 17
does not establish that NOEBY was directly involved in the sales and/or importation of
the accused pliers to U.S. customers, the evidence establishes that NOEBY knew or
should have known that its accused fish-handling pliers were the subject of such sales
and/or importation. Specifically, Exhibit 17 demonstrates that the accused NOEBY-brand
products had been made available for sale online using only the English language, with
the sales price listed only in U.S dollars, and with the United States identified as the only
available shipping destination/method. In addition, although not cited in UPM’s
memorandum, Exhibit 18 to the complaint establishes an instance of a direct sale by
NOEBY to a U.S. customer in Washington, DC:

PUBLIC VERSION
13
See Staff Resp. at 12-13. Thus, respondent NOEBY knew or should have known that its
accused products would reach the United States.
Furthermore, NOEBY has defaulted in this investigation and thus has not
identified any contrary evidence or genuine disputes of material fact as to importation.
Thus, the importation requirement of section 337 has been satisfied as to
respondent NOEBY.
SamsFX/Lotus
UPM relies on Exhibit 18 to the complaint to satisfy the importation requirement
as to respondents SamsFX and Lotus. See Mem. at 13-14; Complaint, ¶ 53. Exhibit 18
includes an Amazon order summary indicating that the accused SamsFX 6” product
(green) was ordered on February 7, 2019 and delivered to a United States address in
Washington, DC on February 9, 2019. The invoice indicates that the product was “Sold
by: SAMSFX Sports&Outdoors Co., Ltd.” 	UPM further relies on Exhibit 26C, an

PUBLIC VERSION
14
employee declaration from William C. Hoge, III, to explain how UPM determined that
the accused pliers shown in Exhibit 18 were manufactured by respondent Lotus. See
Complaint, Ex. 26C (Declaration of William C. Hoge, III), ¶ 30.2
The evidence in Exhibits 18 and 26C is substantial, reliable, and probative
evidence that the accused SamsFX product was manufactured by Lotus and sold for
importation by respondent SamsFX. That evidence shows that SamsFX sold the accused
fish-handling pliers to U.S customers via Amazon.com, using the English language and
U.S. pricing, thus making it reasonable to conclude that SamsFX knew or should have
known that its product would reach the United States. Furthermore, inasmuch as the
accused pliers depicted in Exhibit 18 specifically include the SamsFX logo, Lotus (as the
manufacturer of those pliers) also knew or should have known that SamsFX was selling
and shipping its products to U.S. customers, based on the sales information readily
available on Amazon.com.
Furthermore, both SamsFX and Lotus have defaulted in this investigation and
thus have not identified any contrary evidence or genuine disputes of material fact as to
importation.
Thus, the the importation requirement of section 337 has been satisfied as to
defaulting respondents SamsFX and Lotus.
2 Mr. Hoge explained that he compared the accused SamsFX plier identified in the
complaint with fishing pliers manufactured by Lotus (depicted in Exhibit 35 to the
complaint). Based on his experience with plastic molding and similarities in the tooling
marks and other indicia, Mr. Hoge concluded that the accused SamsFX 6” pliers were
manufactured by Lotus. Exhibit 35 is a screen capture of a website depicting yellow fish-
handling pliers, and identifies the supplier/manufacturer as “Wehai Lotus Outdoor Co.,
Ltd.”

PUBLIC VERSION
15
* 	* 	*
For the reasons discussed above, UPM has presented substantial, reliable, and
probative evidence of importation as to each of the defaulting respondents. Accordingly,
the importation requirement for finding a violation of section 337 has been satisfied for
each defaulting respondent.
IV. 	General Principles of Applicable Law
A. 	Summary Determination
Section 337 prohibits “[t]he importation into the United States, the sale for
importation, or the sale within the United States after importation by the owner, importer,
or consignee, of articles that (i) infringe a valid and enforceable United States patent ….”
19 U.S.C. § 1337(a)(1)(B). A complainant need only prove importation of a single
accused product to satisfy the importation element. See Certain Trolley Wheel
Assemblies, Inv. No. 337-TA-161, Comm’n Op. at 7-8, USITC Pub. No. 1605 (Nov.
1984).
The Commission Rules provide that “[a]ny party may move with any necessary
supporting affidavits for a summary determination in its favor upon all or part of the
issues to be determined in the investigation. 19 C.F.R. § 210.18(a). Summary
determination “shall be rendered if pleadings and any depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving party is entitled to
summary determination as a matter of law.” 19 C.F.R. § 210.18(b).

PUBLIC VERSION
16
B. 	Patent Claim Construction
Claim construction begins with the plain language of the claim.3 Claims should
be given their ordinary and customary meaning as understood by a person of ordinary
skill in the art, viewing the claim terms in the context of the entire patent.4 Phillips v.
AWH Corp., 415 F.3d 1303, 1312-13 (Fed. Cir. 2005), cert. denied, 546 U.S. 1170
(2006).
In some instances, claim terms do not have particular meaning in a field of art,
and claim construction involves little more than the application of the widely accepted
meaning of commonly understood words. Phillips, 415 F.3d at 1314. “In such
circumstances, general purpose dictionaries may be helpful.” Id.
In many cases, claim terms have a specialized meaning, and it is necessary to
determine what a person of skill in the art would have understood the disputed claim
language to mean. “Because the meaning of a claim term as understood by persons of
skill in the art is often not immediately apparent, and because patentees frequently use
terms idiosyncratically, the court looks to ‘those sources available to the public that show
what a person of skill in the art would have understood disputed claim language to
mean.’” Phillips, 415 F.3d at 1314 (quoting Innova/Pure Water, Inc. v. Safari Water
3 Only those claim terms that are in controversy need to be construed, and only to the
extent necessary to resolve the controversy. Vanderlande Indus. Nederland BV v. Int’l
Trade Comm., 366 F.3d 1311, 1323 (Fed. Cir. 2004); Vivid Tech., Inc. v. American Sci. &
Eng’g, Inc., 200 F.3d 795, 803 (Fed. Cir. 1999).
4 Factors that may be considered when determining the level of ordinary skill in the art
include: “(1) the educational level of the inventor; (2) type of problems encountered in
the art; (3) prior art solutions to those problems; (4) rapidity with which innovations are
made; (5) sophistication of the technology; and (6) educational level of active workers in
the field.” Environmental Designs, Ltd. v. Union Oil Co., 713 F.2d 693, 696 (Fed. Cir.
1983), cert. denied, 464 U.S. 1043 (1984).

PUBLIC VERSION
17
Filtration Sys., Inc., 381 F.3d 1111, 1116 (Fed. Cir. 2004)). The public sources identified
in Phillips include “the words of the claims themselves, the remainder of the
specification, the prosecution history, and extrinsic evidence concerning relevant
scientific principles, the meaning of technical terms, and the state of the art.” Id. (quoting
Innova, 381 F.3d at 1116).
In cases in which the meaning of a claim term is uncertain, the specification
usually is the best guide to the meaning of the term. Phillips, 415 F.3d at 1315. As a
general rule, the particular examples or embodiments discussed in the specification are
not to be read into the claims as limitations. Markman v. Westview Instruments, Inc., 52
F.3d 967, 979 (Fed. Cir. 1995) (en banc), aff’d, 517 U.S. 370 (1996). The specification
is, however, always highly relevant to the claim construction analysis, and is usually
dispositive. Phillips, 415 F.3d at 1315 (quoting Vitronics Corp. v. Conceptronic, Inc., 90
F.3d 1576, 1582 (Fed. Cir. 1996)). Moreover, “[t]he construction that stays true to the
claim language and most naturally aligns with the patent’s description of the invention
will be, in the end, the correct construction.” Id. at 1316.
C. 	Patent Infringement
Under 35 U.S.C. §271(a), direct infringement consists of making, using, offering
to sell, or selling a patented invention without consent of the patent owner. The
complainant in a section 337 investigation bears the burden of proving infringement of
the asserted patent claims by a “preponderance of the evidence.” Certain Flooring
Products, Inv. No. 337-TA-443, Comm’n Notice of Final Determination of No Violation
of Section 337, 2002 WL 448690, at *59, (Mar. 22, 2002); Enercon GmbH v. Int’l Trade
Comm’n, 151 F.3d 1376 (Fed. Cir. 1998).

PUBLIC VERSION
18
Literal infringement of a claim occurs when every limitation recited in the claim
appears in the accused device, i.e., when the properly construed claim reads on the
accused device exactly.5 Amhil Enters., Ltd. v. Wawa, Inc., 81 F.3d 1554, 1562 (Fed.
Cir. 1996); Southwall Tech. v. Cardinal IG Co., 54 F.3d 1570, 1575 (Fed Cir. 1995).
C. 	Trademarks
“To establish infringement of a trademark under the Lanham Act, [Complainant]
must prove (1) that it has a valid and legally protectable mark; (2) it owns the mark; and
(3) the [Respondent’s] use of the mark to identify goods or services causes a likelihood of
confusion.” Converse Inc. v. Int’l Trade Comm’n, 909 F.3d 1110, 1116 (Fed. Cir. 2018)
(“Converse”); see also Certain Protective Cases and Components Thereof, Inv. No. 337-
TA-780 (“Protective Cases”), Final Initial Determination at 84-85 (June 29, 2012)
(unreviewed in relevant parts, Aug. 30, 2012).
Federal registration of a mark is prima facie evidence of the validity of a
trademark, as well as of the registrant’s ownership of and exclusive right to use the mark.
15 U.S.C. §§ 1057(b), 1115(a); Certain Handbags, Luggage, Accessories, and Packaging
Thereof, Inv. No. 337-TA-754 (“Handbags”), Order No. 16 (Initial Determination
Granting Complainants’ Motion for Summary Determination of Violation) at 6 (Mar. 5,
2012) (unreviewed, Apr. 12, 2012). This presumption “shift[s] the burden of production
to the defendant.” See Apple Inc. v. Samsung Elec. Co., 786 F.3d 983, 995 (Fed. Cir.
5 Each patent claim element or limitation is considered material and essential. London v.
Carson Pirie Scott & Co., 946 F.2d 1534, 1538 (Fed. Cir. 1991). If an accused device
lacks a limitation of an independent claim, the device cannot infringe a dependent claim.
See Wahpeton Canvas Co. v. Frontier, Inc., 870 F.2d 1546, 1552 n.9 (Fed. Cir. 1989).

PUBLIC VERSION
19
2015) (internal citations omitted). If this presumption is overcome, however, the
registration loses its legal significance. Id.
Although actual confusion is not required to prevail on a claim of trademark
infringement, “actual confusion is routinely considered by the Commission as proof of
trademark infringement as it is ‘undoubtedly the best evidence of likelihood of
confusion.’” Handbags, Order No. 16 (Initial Determination) at 14 (citing Daddy’s
Junky Music Stores, Inc. v. Big Daddy’s Family Music Center, 109 F.3d 275, 284 (6th
Cir. 1997); Certain Strip Lights, Inv. No. 337-TA-287, 1989 WL 608725 (Jun. 27, 1989))
(unreviewed, Apr. 12, 2012).
In determining whether any consumer confusion is likely, the Commission may
balance the following factors: (1) the degree of similarity between the designation and the
trademark in appearance, the pronunciation of words used, verbal translation of pictures
or designs involved, and suggestion; (2) the intent of the actor in adopting the
designation; (3) the relation in use and manner of marketing between the goods and
services marked by the actor and those by the other; and (4) the degree of care likely to
be exercised by purchasers. Protective Cases, Final Initial Determination at 85-86. The
Commission may also consider additional factors, such as the strength of the mark or
actual confusion, and all factors must be evaluated in the context of the ultimate question
of likelihood of confusion as to the source or sponsorship of the product. Certain Purple
Protective Gloves, Inv. No. 337-TA-500, Order No. 17 (Initial Determination) at 13
(Sept. 23, 2004) (unreviewed, Oct. 19, 2004); Certain Hair Irons and Packaging Thereof,
Inv. No. 337-TA-637, Order No. 14 (Initial Determination) at 22 (Mar. 10, 2009)
(unreviewed, Apr. 23, 2009).

PUBLIC VERSION
20
D. 	Domestic Industry
A violation of section 337(a)(1)(B), (C), (D), or (E) can be found “only if an
industry in the United States, with respect to the articles protected by the patent,
copyright, trademark, mask work, or design concerned, exists or is in the process of being
established.” 19 U.S.C. § 1337(a)(2). Section 337(a) further provides:
(3) For purposes of paragraph (2), an industry in the United States
shall be considered to exist if there is in the United States, with
respect to the articles protected by the patent, copyright, trademark,
mask work, or design concerned—
(A) significant investment in plant and equipment;
(B) significant employment of labor or capital; or
(C) substantial investment in its exploitation, including
engineering, research and development, or licensing.
19 U.S.C. § 1337(a)(3).
These statutory requirements consist of an economic prong (which requires
certain activities)6 and a technical prong (which requires that these activities relate to the
intellectual property being protected). Certain Stringed Musical Instruments and
Components Thereof, Inv. No. 337-TA-586, Comm’n Op. at 13 (May 16, 2008)
6 The Commission practice is usually to assess the facts relating to the economic prong at
the time that the complaint was filed. See Certain Coaxial Cable Connectors and
Components Thereof and Products Containing Same, Inv. No. 337-TA-560, Comm’n Op.
at 39 n.17 (Apr. 14, 2010) (“We note that only activities that occurred before the filing of
a complaint with the Commission are relevant to whether a domestic industry exists or is
in the process of being established under sections 337(a)(2)-(3).”) (citing Bally/Midway
Mfg. Co. v. U.S. Int’l Trade Comm’n, 714 F.2d 1117, 1121 (Fed. Cir. 1983)). In some
cases, however, the Commission will consider later developments in the alleged industry,
such as “when a significant and unusual development occurred after the complaint has
been filed.” See Certain Video Game Systems and Controllers, Inv. No. 337-TA-743,
Comm’n Op., at 5-6 (Jan. 20, 2012) (“[I]n appropriate situations based on the specific
facts and circumstances of an investigation, the Commission may consider activities and
investments beyond the filing of the complaint.”).

PUBLIC VERSION
21
(“Stringed Musical Instruments”). The burden is on the complainant to show by a
preponderance of the evidence that the domestic industry requirement is satisfied.
Certain Multimedia Display and Navigation Devices and Systems, Components Thereof,
and Products Containing Same, Inv. No. 337-TA-694, Comm’n Op. at 5 (July 22, 2011).
“With respect to section 337(a)(3)(A) and (B), the technical prong is the
requirement that the investments in plant or equipment and employment in labor or
capital are actually related to ‘articles protected by’ the intellectual property right which
forms the basis of the complaint.” Stringed Musical Instruments, Comm’n Op. at 13-14.
“The test for satisfying the ‘technical prong’ of the industry requirement is essentially
same as that for infringement, i.e., a comparison of domestic products to the asserted
claims.” Alloc, Inc. v. Int’l Trade Comm’n, 342 F.3d 1361, 1375 (Fed. Cir. 2003). “With
respect to section 337(a)(3)(C), the technical prong is the requirement that the activities
of engineering, research and development, and licensing are actually related to the
asserted intellectual property right.” Stringed Musical Instruments, Comm’n Op. at 13.
With respect to the economic prong, and whether or not section 337(a)(3)(A) or
(B) is satisfied, the Commission has held that “whether a complainant has established that
its investment and/or employment activities are significant with respect to the articles
protected by the intellectual property right concerned is not evaluated according to any
rigid mathematical formula.” Certain Printing and Imaging Devices and Components
Thereof, Inv. No. 337-TA-690, Comm’n Op. at 27 (Feb. 17, 2011) (“Printing and
Imaging Devices”) (citing Certain Male Prophylactic Devices, Inv. No. 337 TA-546,
Comm’n Op. at 39 (Aug. 1, 2007)). Rather, the Commission examines “the facts in each
investigation, the article of commerce, and the realities of the marketplace.” Id. “The

PUBLIC VERSION
22
determination takes into account the nature of the investment and/or employment
activities, ‘the industry in question, and the complainant’s relative size.’” Id. (citing
Stringed Musical Instruments at 26).
The Commission has rejected a finding of quantitative significance based solely
on the absolute value of the domestic industry investments devoid of any context. A
contextual analysis is required. The analysis may include a discussion of the value of
domestic investments in the context of the relevant marketplace, such as by comparing a
complainant’s domestic expenditures to its foreign expenditures or considering the value
added to the product from a complainant’s activities in the United States. See Certain
Carburetors and Products Containing Such Carburetors, Inv. No. 337-TA-1123,
Comm’n Op. at 18 (Oct. 28, 2019).
E. Default
“In any motion requesting the entry of default or the termination of the
investigation with respect to the last remaining respondent in the investigation, the
complainant shall declare whether it is seeking a general exclusion order.” 19 C.F.R.
§ 210.16(b)(4)(2). “A party found in default shall be deemed to have waived its right to
appear, to be served with documents, and to contest the allegations at issue in the
investigation.” 19 C.F.R. § 210.16(b)(4). After a respondent has been found in default
by the Commission, “[t]he facts alleged in the complaint will be presumed to be true with
respect to the defaulting respondent.” 19 C.F.R. § 210.16(c).

PUBLIC VERSION
23
V. U.S. Patent No. 6,256,923
United States Patent No. 6,256,923 (“the ‘923 patent), entitled “Fish handling
pliers,” issued on July 10, 2001, to named inventor Don S. Norton. See Complaint, Ex. 1
(‘923 Patent). The ‘923 patent issued from Application No. 09/512,795, filed on
February 25, 2000. See id. The ‘923 patent relates to “fish gripping and handling tools.
More specifically, the present invention relates to pliers which are especially adapted to
grip the lower lip of a fish.” Complaint, Ex. 1 (‘923 Patent) at 1:4-7. The ‘923 patent has
a total of 11 claims.
Complainant asserts independent apparatus claims 1 and 77 of the ‘923 patent
against respondents SamsFX/Lotus, NOEBY, and iLure.
A. Claim Construction
1. A Person of Ordinary Skill in the Art
Complainant argues that although Mr. Hoge is an interested party, expert
testimony from such witnesses has been relied upon in prior investigations, with the
witness’s interest an issue of weight rather than admissibility. Mem. at 16 n.2 (citing
Certain Arrowheads with Arcuate Blades and Components Thereof, Inv. No. 337-TA-
1033, Initial Determination, 2017 WL 5990007, at *9 (Nov. 8, 2017)).
The Staff argues that although Mr. Hoge’s expert opinion regarding patent
infringement largely consists of a single sentence indicating his agreement that various
accused products infringe based on his review of the corresponding claim charts (see
Mem. Attachment A (Declaration of William C. Hoge, III), ¶¶ 12-15), the claim charts
7 UPM is no longer asserting dependent claims 2-6, 8-11. See Mem. at 16 n.1.

PUBLIC VERSION
24
are sufficient alone to demonstrate infringement and Mr. Hoge’s expertise is not required
to establish infringement, as the technology here involves “relatively simple technology”
that is “easily understandable without the need for expert explanatory testimony.” Staff
Resp. at 19-20 n.4 (citing K-TEC, Inc. v. Vita-Mix Corp., 696 F.3d 1364, 1374 (Fed. Cir.
2012)).
The administrative law judge has determined that a person of ordinary skill in the
art at the time of the claimed invention would have experience and/or education in design
and manufacture of simple plastic molded products. Mr. Hoge meets and exceeds that
requirement. See Mem. Attachment A (Declaration of William C. Hoge, III), ¶¶ 1-7.
2. 	Claim Construction
The ‘923 patent specification states that the “present invention relates generally to
fish gripping and handling tools. More specifically, the present invention relates to pliers
which are especially adapted to grip the lower lip of a fish.” Complaint, Ex. 1 (‘923
Patent) at at 1:4-7. The ‘923 patent includes various figures that depict embodiments of
the claimed invention, as reproduced below:

PUBLIC VERSION
25
As noted above, UPM asserts independent apparatus claims 1 and 7 of the ‘923
patent against respondents SamsFX/Lotus, NOEBY, and iLure. Claims 1 and 7 are
recited below:
1. Fish handling pliers comprising upper and lower members pivotally
connected to one another and having respective upper and lower opposed
jaws, wherein said upper and lower members have a lengthwise mated
tongue and groove coupling when said upper and lower opposed jaws are
in a closed condition, whereby lateral movement between said upper and
lower members is resisted;
an upper handle section immovably connected to said upper member;
and
a lower handle section pivotally connected at a forward end thereof to
a rearward end of said lower member such that pivotal movements of
said lower handle section between open and closed conditions
responsively pivotally moves said lower member away from and
towards said upper member to open and close said opposed jaws,
respectively; and wherein

PUBLIC VERSION
26
said lower member includes a stop boss having convergent upper and
lower surfaces which respectively establish said open and closed
conditions, respectively, of said lower handle section, and wherein said
stop boss is positioned such that said upper surface contacts said upper
handle section and said lower surface is spaced from said lower handle
section when said lower handle section is in said open condition, and
said lower surface contacts said lower handle section and said upper
surface is spaced from said upper handle section when said lower
handle section is in said closed condition, whereby pivotal movements
of said lower handle section beyond said open and closed conditions is
limited.
7. Fish handling pliers comprising:
an upper member having an upper handle section at a rearward end
thereof, and an upper jaw at a forward end thereof;
a lower member having a lower jaw at a forward end thereof which
is opposed to said upper jaw, and having a rearward end pivotally
connected to said upper member to allow for pivotal movements
towards and away from said upper member to thereby close and
open said opposed upper and lower jaws;
said upper handle section immovably connected to said upper
member; and
a lower handle section pivotally connected at a forward end thereof
to said rearward end of said lower member such that pivotal
movements of said lower handle section between open and closed
conditions responsively pivotally moves said lower member away
from and towards said upper member to open and close said
opposed jaws, respectively; wherein
said lower member includes a stop boss having convergent upper
and lower surfaces which respectively establish said open and
closed conditions, respectively, of said lower handle section, and
wherein said stop boss is positioned such that said upper surface
contacts said upper handle section and said lower surface is spaced
from said lower handle section when said lower handle section is
in said open condition, and said lower surface contacts said lower
handle section and said upper surface is spaced from said upper
handle section when said lower handle section is in said closed
condition, whereby pivotal movements of said lower handle
section beyond said open and closed conditions is limited, and
wherein
said upper member defines a lengthwise-extending groove; and
said lower member includes a lengthwise extending tongue in
opposition to said groove, said tongue being seated within said

PUBLIC VERSION
27
groove when said upper and lower jaws are closed by movement of
said lower handle section from said open condition to said closed
condition thereof.
Complaint, Ex. 1 (‘923 Patent) at 4:20-49, 5:5 - 6:13.
With one exception, UPM argues that the claim language should be interpreted
consistent with its plain and ordinary meaning, and thus does not propose any specific
constructions for the asserted claim language. See Mem. at 14. The Staff agrees. See
Staff Resp. at 18.
The sole exception noted by UPM is the “stop boss” limitation recited in both
claim 1 and claim 7. As UPM explains in its memorandum, the recited “stop boss”
structure “prevents the plier from being overextended in either the open or closed
position thereby avoiding damage to the pliers that could occur from such
overextension,” and on that basis, argues that the “stop boss” limitation be construed as
“a protrusion on the lower member section of the pliers that establishes the open-most
and closed-most positions of the pliers by limiting pivotal movements of the handles.”
Mem. at 14-15. UPM provides an annotated version of Fig. 2B identifying the position
of the recited “stop boss” structure, as reproduced below:

PUBLIC VERSION
28
Claim 1 describes the stop boss as follows:
a stop boss having convergent upper and lower surfaces which
respectively establish said open and closed conditions, respectively, of
said lower handle section, and wherein said stop boss is positioned
such that said upper surface contacts said upper handle section and said
lower surface is spaced from said lower handle section when said
lower handle section is in said open condition, and said lower surface
contacts said lower handle section and said upper surface is spaced
from said upper handle section when said lower handle section is in
said closed condition, whereby pivotal movements of said lower
handle section beyond said open and closed conditions is limited.
Complaint, Ex. 1 (‘923 Patent) at 4:37-49. The stop boss prevents the plier from
being overextended in either the open or closed position. Id. at 3:37-58.
UPM’s and the Staff’s proposed construction for the “stop boss” limitation is
consistent with a plain reading of the claim language in which that limitation appears, as
well as the embodiments depicted in the Figures of the ‘923 patent, including Fig. 2B.
See Staff Resp. at 19.
Accordingly, as proposed by UPM and the Staff, the administrative law judge
construes the claim term “stop boss” as “ a protrusion on the lower member section of
the pliers that establishes the open-most and closed-most positions of the pliers by
limiting pivotal movements of the handles.”
B. Infringement Analysis of the ‘923 Patent
To establish infringement of the ‘923 patent, UPM relies on various claim charts
attached as exhibits to the complaint, as well as the opinions of employee William C.
Hoge, III, who has offered opinions regarding infringement based on his review of the
claim charts attached to the complaint. See Mem. at 16-18; Complaint, Exs. 5-7 (claim
charts); and Mem. Attachment A (Declaration of William C. Hoge, III). An infringement

PUBLIC VERSION
29
analysis for each of the defaulting respondents accused of infringing the ‘923 patent is
discussed below.
SamsFX/Lotus (SamsFX 6” Fish Grip)
UPM relies on Exhibit 5 to the complaint to establish infringement of the ‘923
patent by the accused SamsFX 6” product, which is sold by SamsFX and manufactured
by Lotus, as evidenced by Exhibits 18 and 26C. See Mem. at 16; Complaint, Ex. 26C
(Declaration of William C. Hoge, III), ¶ 30; Dec. 31 Supplement (EDIS Doc. ID No.
698163) (noting that “Exhibit 18 to the Complaint shows delivery confirmation in the
U.S. of the green SamsFX 6” product . . . This is the same SamsFX product depicted in
Exhibits 5, 9, and 13 to the Complaint.”). The Staff analyzed infringement with respect
to this product, and the administrative law judge adopts its undisputed analysis. See Staff
Resp. at 20. Exhibit 5 contains claim charts that include annotated photographs to
illustrate and explain, on a limitation-by-limitation basis, how and why the accused
SamsFX 6” product meets every limitation of independent claims 1 and 7 of the ‘923
patent. In addition, Mr. Hoge has also provided his expert opinion that based on his
review of the claim charts, the accused SamsFX 6” product infringes claims 1 and 7 of
the ‘923 patent. See Mem. Attachment A (Declaration of William C. Hoge, III), ¶ 13.
Respondents SamsFX and Lotus have defaulted and thus have not presented any
contrary evidence or otherwise raised any genuine disputes of material fact regarding
UPM’s evidence of infringement.
Thus, summary determination of infringement of claims 1 and 7 of the ‘923 patent
is appropriate as to respondents SamsFX and Lotus.

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30
NOEBY
UPM relies on Exhibit 6 to the complaint to establish infringement of the ‘923
patent by the accused NOEBY product imported into the United States. See Mem. at 17;
Complaint, Ex. 6. The Staff analyzed infringement with respect to this product, and the
administrative law judge adopts its undisputed analysis. See Staff Resp. at 21;
Complaint, Exs. 6, 17, and Physical Ex. D. Exhibit 6 contains claim charts that include
annotated photographs to illustrate and explain, on a limitation-by-limitation basis, how
and why the accused NOEBY product meets every limitation of independent claims 1
and 7 of the ‘923 patent.8 	In addition, Mr. Hoge has also provided his expert opinion
that based on his review of the claim charts, the accused NOEBY product infringes
claims 1 and 7 of the ‘923 patent. See Mem. Attachment A (Declaration of William C.
Hoge, III), ¶ 14.
Respondent NOEBY has defaulted and thus has not presented any contrary
evidence or otherwise raised any genuine disputes of material fact regarding UPM’s
evidence of infringement.
Thus, summary determination of infringement of claims 1 and 7 of the ‘923 patent
is appropriate as to respondent NOEBY.
iLure
UPM relies on Exhibit 7 to the complaint to establish infringement of the ‘923
patent by the accused iLure product imported into the United States. See Mem. at 17-18;
8 On July 19, 2019, UPM submitted a revised version of Exhibit 6 to the complaint,
which contains complete claim charts for claims 1 and 7 of the ‘923 patent. See EDIS
Doc ID No. 682355.

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31
Complaint, Exs. 7 and 15. The Staff analyzed infringement with respect to this product,
and the administrative law judge adopts its undisputed analysis. See Staff Resp. at 21-22.
Exhibit 7 contains claim charts that include annotated photographs to illustrate and
explain, on a limitation-by-limitation basis, how and why the accused iLure product
meets every limitation of independent claims 1 and 7 of the ‘923 patent. In addition, Mr.
Hoge has also provided his expert opinion that based on his review of the claim charts,
the accused iLure product infringes claims 1 and 7 of the ‘923 patent. See Mem.
Attachment A (Declaration of William C. Hoge, III), ¶ 15.
Respondent iLure has defaulted and thus has not presented any contrary evidence
or otherwise raised any genuine disputes of material fact regarding UPM’s evidence of
infringement.
Thus, summary determination of infringement of claims 1 and 7 of the ‘923 patent
is appropriate as to respondent iLure.
C. Domestic Industry (Technical Prong)
“With respect to section 337(a)(3)(A) and (B), the technical prong is the
requirement that the investments in plant or equipment and employment in labor or
capital are actually related to ‘articles protected by’ the intellectual property right which
forms the basis of the complaint.” Stringed Musical Instruments, Comm’n Op. at 13-14.
“The test for satisfying the ‘technical prong’ of the industry requirement is essentially
same as that for infringement, i.e., a comparison of domestic products to the asserted
claims.” Alloc, Inc. v. Int’l Trade Comm’n, 342 F.3d 1361, 1375 (Fed. Cir. 2003). “With
respect to section 337(a)(3)(C), the technical prong is the requirement that the activities
of engineering, research and development, and licensing are actually related to the

PUBLIC VERSION
32
asserted intellectual property right.” Stringed Musical Instruments, Comm’n Op. at 13.
UPM relies on three products to meet the technical prong of the domestic industry
requirement: (1) The Fish Grip (introduced in 2002); (2) the Fish Grip Jr. (introduced in
2014); and (3) the Fish Grip Mini (introduced in 2016) (collectively, the “Domestic
Industry Products.”). See Mem. at 39.

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33
The evidence demonstrates that each of the Domestic Industry Products satisfies
the technical prong of the domestic industry requirement by practicing the asserted claims
of the ‘923 patent.
UPM argues that the claim chart attached as Exhibit 20 to the complaint
demonstrates that the Fish Grip meets every element of claim 1 of the ‘923 patent. Mem.
at 40. UPM further argues that the claim chart included as Attachment B to its
memorandum demonstrates that the Fish Grip Jr. meets every element of claim 1 of the
‘923 patent. Id. UPM also relies on the opinion of employee William Hoge that the Fish
Grip and Fish Grip Jr. both meet every element of claim 1. Id. (citing Mem. Attachment
A (Declaration of William C. Hoge, III), ¶¶ 39-40).
The Staff analyzed the technical prong with respect to the ‘923 patent, and the
administrative law judge adopts its undisputed analysis. See Staff Resp. at 56.
The evidence shown in the cited claim charts supports summary determination
that UPM has satisfied the technical prong with respect to the ‘923 patent. Defaulting
respondents have not identified any contrary evidence or raised any genuine factual
disputes that would preclude summary determination.

PUBLIC VERSION
34
D. 	Validity of the ‘923 Patent
The patent at issue is presumed valid as a matter of law. 35 U.S.C. § 282. This
resumption of validity may be overcome only by “clear and convincing evidence.”
Pfizer, Inc. v. Apotex, Inc., 480 F.3d 1348, 1359 (Fed. Cir. 2007).
The evidence establishes that UPM is the owner by assignment of the ‘923 patent.
Specifically, the face page of the ‘923 patent lists UPM as the assignee and Exhibit 4 to
the complaint is a certified assignment record reflecting the assignment of the ‘923 patent
from the named inventor, Don S. Norton, to UPM.
No party has challenged the validity or enforceability of the ‘923 patent. Thus,
there is no issue of material fact as to the validity or enforceability of the asserted patents.
See Lannom Mfg. Co., Inc. v. Int’l Trade Comm’n, 799 F.2d 1572, 1580 (Fed. Cir. 1986)
(Commission did not have authority to redetermine patent validity when no defense of
invalidity had been raised).
VI. 	United States Trademark Registration Nos. 4,980,923 and 5,435,944
U .S. Trademark Registration No. 4,980,923 (“the ‘923 Mark” or “the ‘923
Trademark” or “the ‘923 trademark”) is registered on the Principal Register of the PTO
and is a trade dress consisting of an opening in fish-handling pliers as shown below:

PUBLIC VERSION
35
See Complaint, Ex 2.
U.S. Trademark Registration No. 5,435,944 (“the ‘944 Mark” or “the ‘944
Trademark” or “the ‘944 trademark”) is registered on the Principal Register and consists
of a stylized gripper with an opening as shown below:
See Complaint, Ex 3.
UPM is the owner of the ‘923 trademark and the ‘944 trademark. See Complaint,
Exs. 2-4.

PUBLIC VERSION
36
A. 	Infringement Analysis for the ‘923 Trademark
The ‘923 trademark is registered on the Principal Register of the U.S. Patent and
Trademark Office, with a registration date of June 21, 2016. See Complaint, Ex. 2.
According to the registration, the ‘923 trademark “consists of a heart shaped opening in
the three-dimensional configuration of [a] sport fishing device” (i.e., fish-handling
pliers), as reproduced below:
To establish infringement of the ‘923 trademark, UPM relies on various claim
charts included in its memorandum, exhibits attached to the complaint, and the opinions
of employee William C. Hoge, III. See Mem. at 18-29; Complaint, Exs. 8-11 (claim
charts); Mem. Attachment A (Declaration of William C. Hoge, III), ¶¶ 20-24.9 An
9 The Staff argues that although Mr. Hoge’s expert opinion regarding likelihood of
confusion largely consists of a single sentence indicating his agreement that the accused
products infringe based on his review of the corresponding claim charts (see Attachment
A (Declaration of William C. Hoge, III), ¶¶ 20-24), a detailed expert analysis is not
necessary here to establish likelihood of confusion, given the relatively simple nature of
the accused products at issue. Staff Resp. at 23 n.6 (citing McCarthy on Trademarks and

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38
https://www.amazon.com/gp/product/B07H9NYD
CK/
Degree of Similarity Between the Trademark and Accused Product
The claim chart included in UPM’s memorandum shows that the mouth of the
accused NOEBY product has the same heart-shaped opening depicted and described in
the ‘923 trademark. See Mem. at 18. The Staff analyzed the similarity between the ‘923
trademark and the accused product, and the administrative law judge adopts its
undisputed analysis. See Staff Resp. at 23-24; Complaint, Ex. 8 and Physical Ex. D.
Respondent NOEBY has defaulted and thus has not presented any contrary
evidence or otherwise raised any genuine disputes of material fact regarding UPM’s
evidence.
Intent of the Actor in Adopting the Designation
According to UPM, the shape of the ‘923 trademark is a “non-functional,
ornamental feature” that supports the inference that NOEBY’s intent in adopting the

PUBLIC VERSION
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same shape for its accused product was to create confusion as to the source of its product,
due to the strength of UPM’s heart-shaped ‘923 trademark in the relevant consumer
market. See Mem. at 19; Complaint, Ex. 2. UPM further notes that discovery into
NOEBY’s intent was not possible due to NOEBY’s default and non-participation in this
investigation. Id.
This factor supports a finding of likelihood of confusion, due to the conspicuous
similarity and overlap in the overall shape and appearance between the ‘923 trademark
and the accused NOEBY product. Respondent NOEBY has defaulted, and therefore has
not presented any contrary evidence or raised any genuine disputes of material fact
regarding this factor.
Relation in Use and Manner of Marketing
According to UPM, the accused NOEBY product and UPM’s domestic industry
products are both sold and marketed online in the same distribution channels. See Mem.
at 19-20. Specifically, UPM has provided evidence that the accused NOEBY product
and UPM’s domestic industry product are both available for sale online. See Mem. at 20;
Complaint, Ex. 12. Exhibit 12 to the complaint shows that the accused NOEBY product
is also available for sale on Amazon.com, and UPM’s Dec. 13, 2019 supplement
indicates that at least two domestic industry products are available for sale online at
Amazon.com. This factor supports a finding of likelihood of confusion. See Certain
Footwear Products, Inv. No. 337-TA-936, Initial Determination, 2015 WL 13808550, at
*45 (Nov. 17, 2015) (unreviewed in relevant parts, June 23, 2016) (“[T]his factor weighs
in favor of a finding of likelihood of confusion. The evidence shows that Walmart sells
both [complainant’s] shoes and the Accused Products on its website.”).

PUBLIC VERSION
40
Degree of Care Likely to Be Exercised by Purchasers
According to UPM, this factor supports a finding of likelihood of confusion
because the accused NOEBY products are “low-dollar plastic consumer goods,” sold at
price points at which “consumers are more likely to buy on impulse and without
additional research”—in other words, consumers are likely to exercise a relatively low
degree of care. See Mem. at 20. In these circumstances, UPM reasons that “consumers
are likely to assume that a plastic fish-handling plier with a heart-shaped opening comes
from the original source of the design, UPM.” Id. UPM has also presented purported
evidence of actual consumer confusion, in the form of Amazon customer reviews in
which verified purchasers expressed their surprise that the purchased product was not
made by UPM. See id., Attachment J.
Respondent NOEBY has defaulted and thus has not presented any contrary
evidence or raised any genuine disputes of material fact as to this factor. Thus, this factor
supports a finding of likelihood of confusion. See Recot, Inc. v. Becton, 214 F.3d 1322,
1329 (Fed. Cir. 2000) (“When products are relatively low-priced and subject to impulse
buying, the risk of likelihood of confusion is increased because purchasers of such
products are held to a lesser standard of purchasing care.”); Certain Footwear Products,
Initial Determination, 2015 WL 13808550, at *41 (noting that purchasers of relatively
inexpensive sporting goods are not likely to exercise a great degree of care in
distinguishing between trademarks when purchasing such goods).
2. SamsFX 6” Pliers (manufactured by Lotus)
UPM has provided a claim chart comparing the ‘923 trademark with the accused
SamsFX/Lotus 6” pliers, sold by SamsFX and manufactured by Lotus. See Complaint,

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https://www.amazon.com/gp/product/B01CGAOUS
O/ref=ppx_od_dt_b_asin_title_s00?ie=UTF8&psc=1
Degree of Similarity Between the Trademark and Accused Product
The claim chart included in UPM’s memorandum shows that the mouth of the
accused SamsFX 6” pliers has the same heart-shaped opening depicted and described in
the ‘923 trademark. See Mem. at 21. The Staff analyzed the similarity between the ‘923
trademark and the accused product, and the administrative law judge adopts its
undisputed analysis. See Staff Resp. at 26-27; Complaint, Ex. 9 and Physical Ex. F.
Respondents SamsFX and Lotus have defaulted and thus have not presented any
contrary evidence or otherwise raised any genuine disputes of material fact regarding
UPM’s evidence. Thus, this factor favors summary determination as to respondents
SamsFX and Lotus.
Intent of the Actor in Adopting the Designation
According to UPM, the shape of the ‘923 trademark is a “non-functional,
ornamental feature” that supports the inference that SamsFX’s and Lotus’s intent in
adopting the same shape for its accused product was to create confusion as to the source
of its product, due to the strength of UPM’s heart-shaped ‘923 trademark in the relevant
consumer market. See Mem. at 22. UPM further notes that discovery into both
respondents’ intent was not possible due to their default and non-participation in this
investigation. Id.
This factor supports a finding of likelihood of confusion due to the striking
similarity and overlap in the overall shape and appearance between the ‘923 trademark

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43
and the accused SamsFX 6” product. Respondents SamsFX and Lotus have defaulted
and thus have not presented any contrary evidence or raised any genuine disputes of
material fact regarding this factor.
Relation in Use and Manner of Marketing
According to UPM, the accused SamsFX 6” pliers and UPM’s domestic industry
products are both sold and marketed online in the same distribution channels. See Mem.
at 22-23. Specifically, UPM has provided evidence that the accused SamsFX 6” product
and UPM’s domestic industry product are both available for sale online. See Mem. at 22;
Complaint, Ex. 9. Exhibit 9 to the complaint shows that the accused SamsFX/Lotus 6”
product is also available for sale on Amazon.com, and UPM’s Dec. 13, 2019 supplement
indicates that at least two domestic industry products are available for sale online at
Amazon.com. This factor supports a finding of likelihood of confusion.
Degree of Care Likely to Be Exercised by Purchasers
According to UPM, this factor supports a finding of likelihood of confusion
because the accused SamsFX 6” products are “low-dollar plastic consumer goods,” sold
at price points at which “consumers are more likely to buy on impulse and without
additional research”—in other words, consumers are likely to exercise a relatively low
degree of care. See Mem. at 23. In these circumstances, UPM reasons that “consumers
are likely to assume that a plastic fish-handling plier with a heart-shaped opening comes
from the original source of the design, viz., UPM.” Id.

PUBLIC VERSION
44
Respondents SamsFX and Lotus have defaulted and thus have not presented any
contrary evidence or raised any genuine disputes of material fact as to this factor. Thus,
this factor supports a finding of likelihood of confusion. See Recot, 214 F.3d at 1329.
3. 	SamsFX 9” Pliers (manufactured by Five Union)
UPM has provided a claim chart comparing the ‘923 trademark with the accused
SamsFX/Five Union 9” pliers imported into the United States, which are sold by SamsFX
and manufactured by Five Union. See Complaint, Exs. 10 and 18; Dec. 31, 2019
Supplement (EDIS Doc. ID No. 698163) (“The SamsFX 9” product shown in Exhibit 10
to the Complaint . . . is the same SamsFX 9” product model depicted in Exhibit 18 to the
Complaint that was purchased by counsel for UPM . . . . This product was manufactured
by Five Union in China and imported from abroad.”).

PUBLIC VERSION
46
Degree of Similarity Between the Trademark and Accused Product
The claim chart included in UPM’s memorandum shows that the mouth of the
accused SamsFX/Five Union 9” pliers has the same heart-shaped opening depicted and
described in the ‘923 trademark. See Mem. at 25. The Staff analyzed the similarity
between the ‘923 trademark and the accused product, and the administrative law judge
adopts its undisputed analysis. See Staff Resp. at 29-30; Complaint, Ex. 10 and Physical
Ex. C.
Respondents SamsFX and Five Union have defaulted and thus have not presented
any contrary evidence or otherwise raised any genuine disputes of material fact regarding
UPM’s evidence. Thus, this factor favors summary determination as to respondents
SamsFX and Five Union.
Intent of the Actor in Adopting the Designation
According to UPM, the shape of the ‘923 trademark is a “non-functional,
ornamental feature” that supports the inference that SamsFX’s and Five Union’s intent in
adopting the same shape for its accused product was to create confusion as to the source
of its product, due to the strength of UPM’s heart-shaped ‘923 trademark in the relevant
consumer market. See Mem. at 22. UPM further notes that discovery into both
respondents’ intent was not possible due to their default and non-participation in this
investigation. Id.
This factor supports a finding of likelihood of confusion, due to the striking
similarity and overlap in the overall shape and appearance between the ‘923 trademark
and the accused SamsFX 9” product. Respondents SamsFX and Five Union have

PUBLIC VERSION
47
defaulted and thus have not presented any contrary evidence or raised any genuine
disputes of material fact regarding this factor.
Relation in Use and Manner of Marketing
According to UPM, the accused SamsFX/Five Union 9” pliers and UPM’s
domestic industry products are both sold and marketed online in the same distribution
channels. See Mem. at 26. Exhibit 18 to the complaint indicates that the SamsFX 9”
pliers have been sold an amazon.com, while the Dec. 13 Supplement indicates that at
least two domestic industry products are also available for sale on Amazon.com. This
factor supports a finding of likelihood of confusion. See Certain Footwear Products,
Initial Determination, 2015 WL 13808550, at *45.
Degree of Care Likely to Be Exercised by Purchasers
According to UPM, this factor supports a finding of likelihood of confusion
because the accused SamsFX/Five Union 9” products are “low-dollar plastic consumer
goods,” sold at price points at which “consumers are more likely to buy on impulse and
without additional research”—in other words, consumers are likely to exercise a
relatively low degree of care. See Mem. at 26. In these circumstances, UPM reasons that
“consumers are likely to assume that a plastic fish-handling plier with a heart-shaped
opening comes from the original source of the design, viz., UPM.” Id.
Respondents SamsFX and Lotus have defaulted and thus have not presented any
contrary evidence or raised any genuine disputes of material fact as to this factor. Thus,
this factor supports a finding of likelihood of confusion. See Recot, 214 F.3d at 1329.

PUBLIC VERSION
49
https://www.alibaba.com/product-detail/ILURE-125g-
25-6cm-Lip-
Grip_60322306200.html?spm=a2700.7724857.normal
List.17.2ca825e7wLsvCV

PUBLIC VERSION
50
Degree of Similarity Between the Trademark and Accused Product
The claim chart included in UPM’s memorandum shows that the mouth of the
accused iLure product has the same heart-shaped opening depicted and described in the
‘923 trademark. See Mem. at 27. The Staff analyzed the similarity between the ‘923
trademark and the accused product, and the administrative law judge adopts its
undisputed analysis. See Staff Resp. at 32-33; Complaint, Ex. 11 and Physical Ex. E.
Respondent iLure has defaulted and thus has not presented any contrary evidence
or otherwise raised any genuine disputes of material fact regarding UPM’s evidence.
This factor favors summary determination of likelihood of confusion as to iLure.
Intent of the Actor in Adopting the Designation
According to UPM, the shape of the ‘923 trademark is a “non-functional,
ornamental feature” that supports the inference that iLure’s intent in adopting the same
shape for its accused product was to create confusion as to the source of its product, due
to the strength of UPM’s heart-shaped ‘923 trademark in the relevant consumer market.
See Mem. at 28. UPM further notes that discovery into iLure’s intent was not possible
due to its default and non-participation in this investigation. Id.
This factor supports a finding of likelihood of confusion, due to the conspicuous
similarity and overlap in the overall shape and appearance between the ‘923 trademark
and the accused iLure product. Respondent iLure has defaulted and thus has not
presented any contrary evidence or raised any genuine disputes of material fact regarding
this factor.

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Relation in Use and Manner of Marketing
According to UPM, the accused iLure pliers and UPM’s domestic industry
products are both sold and marketed online in the same distribution channels. See Mem.
at 28-29. UPM notes in its Dec. 13, 2019 supplemental filing that the accused iLure
product is available for sale on Amazon.com, and that at least one domestic industry
product is also available for sale online at Amazon.com. See EDIS Doc. ID No. 697222.
This factor supports a likelihood of confusion.
Degree of Care Likely to Be Exercised by Purchasers
According to UPM, this factor supports a finding of likelihood of confusion
because the accused iLure products are “low-dollar plastic consumer goods,” sold at price
points at which “consumers are more likely to buy on impulse and without much if any
research”—in other words, consumers are likely to exercise a relatively low degree of
care. See Mem. at 29. In these circumstances, UPM reasons that “consumers are likely
to assume that a plastic fish-handling plier with a heart-shaped opening comes from the
original source of the design, viz., UPM.” Id.
Respondent iLure has defaulted and thus has not presented any contrary evidence
or raised any genuine disputes of material fact as to this factor. This factor supports a
finding of likelihood of confusion. See Recot, 214 F.3d at 1329.
B. Infringement Analysis for the ‘944 Trademark
The ‘944 trademark is registered on the Principal Register of the U.S. Patent and
Trademark Office, with a registration date of April 3, 2018. See Complaint, Ex. 3.
According to the registration, the ‘944 trademark “consists of a stylized gripper with

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heart-shaped opening,” as reproduced below:
The ‘944 trademark is a two-dimensional silhouette or logo mark, as opposed to a
trademark protecting the trade dress of the three-dimensional product. Indeed, in the
prosecution history the applicant, in response to the May 12, 2017 office action, describes
the mark as a silhouette design that appears on the product packaging and distinguishes
this silhouette design from the goods themselves which also appear in the submitted
specimen of use in commerce. See Appendix D to the Complaint (“Submitted herewith is
a photo of the entire package for applicant’s goods which displays the Silhouette Design
and clearly shows the goods themselves placed on the backer and beneath a clear plastic
overlay. The substitute specimen was in actual use in commerce at least as early as the
filing date of the application.”).
To establish infringement of the ‘944 trademark, UPM relies on various claim
charts included in its memorandum, exhibits attached to the complaint, and the opinions
of employee William C. Hoge, III. See Mem. at 29-39; Complaint, Exs. 12-14 (claim

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charts); Mem. Attachment A (Declaration of William C. Hoge, III), ¶¶ 25-28.10 An
infringement analysis for each respondent accused of infringing the ‘944 trademark is
discussed below.
Point-of-Sale Websites
UPM’s infringement allegations involving the ‘944 trademark are directed to
“point-of-sale” websites; the trademark does not appear anywhere on the accused
products themselves or their packaging. In other words, the allegedly infringing mark in
question here (the two-dimensional photographs of the respondents’ products) appears on
point-of-sale websites such as Amazon.com and Alibaba.com, but the accused fish-
handling pliers that are actually imported and delivered into the United States do not
themselves bear the allegedly infringing photographs appearing on the website. UPM
argues that “because the trademark is a silhouette of the product, the display of the
accused product and the trademark are one and the same,” based on the holding in In re
Sones, 590 F.3d 1282, 1288-89 (Fed. Cir. 2009). Mem. at 29. However, Sones arose in
the trademark registration context and addressed the requirements for a website-based
specimen of use, and did not specifically address the precise scenario presented here—
allegations of trademark infringement flowing from a point-of-sale website using an
10 Although Mr. Hoge’s expert opinion regarding likelihood of confusion largely consists
of a single sentence indicating his agreement that the accused products infringe based on
his review of the corresponding claim charts (see Attachment A (Declaration of William
C. Hoge, III), ¶¶ 26-28), a detailed expert analysis is not necessary here to establish
likelihood of confusion, given the relatively simple nature of the accused products at
issue. See, e.g., McCarthy on Trademarks and Unfair Competition (5th Ed.) § 23:2.75
(“Especially if the goods or services involved are ordinary consumer items familiar to
most people, a [factfinder] does not need an expert’s opinion . . . .”).

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allegedly infringing mark in connection with the sales of accused products that do not
themselves bear the asserted mark.
The point in Sones, that the display of a mark closely associated with goods
available for purchase on a website constitutes “use in commerce,” is also consistent with
the cases cited below in the context of infringement under the Lanham Act. As argued by
the Staff, the below-cited cases are persuasive and supports UPM’s position.
Specifically, courts confronting similar scenarios have held that an asserted trademark is
infringed when used in connection with the sale of products or goods, even if the physical
products or goods themselves do not bear the asserted mark. See, e.g., Chloe SAS v.
Sawabeh Info. Servs. Co., No. CV 110-4147, 2014 WL 4402218, at *7 (C.D. Cal. Sept. 5,
2014) (holding that under 15 U.S.C. § 1114, “a protected mark need not appear ‘on’ the
good offered for sale; it must only be used ‘in connection with’ the sale”); Tiffany & Co.
v. Costco Wholesale Corp., 127 F.Supp.3d 241, 255 (S.D.N.Y. 2015) (“There is no
statutory requirement that the counterfeit mark be placed on the product itself.”); Ent’mt
One UK Ltd. v. 2012Shiliang, 384 F.Supp.3d 941, 949-50 (N.D. Ill. 2019) (“[A] protected
mark need not appear on an item to render it counterfeit; rather, the Lanham Act only
requires that the protected mark be used ‘in connection with’ the sale.”); Jae Enterprises,
Inc. v. Oxgord Inc., No. 5:15-CV-228-TBR, 2016 WL 865328, at *4 (W.D. Ky. Mar. 2,
2016) (holding that trademark owner had plausibly alleged trademark infringement where
defendants had used mark “to advertise and sell products using the Eagle Flight mark to
consumers,” even though the products actually sold “did not bear the Eagle Flight
mark.”). What is required is that the point-of-sale website “(1) contains a picture or
textual description of the identified goods; (2) shows the mark in association with the

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https://www.amazon.com/gp/product/B07H9N
YDCK/
Degree of Similarity Between the Trademark and Accused Product
According to UPM, there are a “multitude” of “striking” similarities between the
‘944 trademark and the image of the NOEBY product shown at the point-of-sale:
the heart-shaped opening of the mouth of the pliers, the tilt of the pliers
are at similar angles, the four pin openings in the handles are at very
similar locations, the shape of the opening in the center of the pins are
similar, the lower handle is ribbed to foster gripping, the ends of the
handles both curve outward to help prevent dropping, and there is a

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circular ball at the end of a lanyard that is attached to the end of the top
handle. In fact, the overall shape of the NOEBY product and the ‘944
Mark are virtually identical – perhaps the only noticeable difference
appears to be the curl of the lanyard.
Mem. at 31. In addition, Mr. Hoge has provided his opinion that “a consumer looking at
the website with the NOEBY product displayed on it as shown in Exhibit 12 to the
complaint would likely be confused as to the product’s source or origin.” Mem.
Attachment A (Declaration of William C. Hoge, III), ¶ 26. The Staff analyzed the
similarity between the ‘944 trademark and the accused product, and the administrative
law judge adopts its undisputed analysis. See Staff Resp. at 38-39.
Respondent NOEBY has defaulted and thus has not presented any contrary
evidence or otherwise raised any genuine disputes of material fact regarding UPM’s
evidence of infringement. This factor favors summary determination of likelihood of
confusion as to NOEBY.
Intent of the Actor in Adopting the Designation
UPM argues that “[t]here is no explanation for the similarities in the NOEBY
product and the ‘944 Mark other than to provide the impression that the source of its
product is the same as that of the Domestic Industry Products,” and emphasizes the
strength of its ‘944 trademark to infer NOEBY’s bad faith intent in utilizing a
confusingly similar design at the point-of-sale for its product. Mem. at 31. UPM further
argues that discovery into NOEBY’s intent was not possible due to its default and non-
participation in this investigation. Id.
This factor supports a finding of likelihood of confusion, due to the similarity and
overlap in the overall shape and appearance between the ‘944 trademark and the

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photograph of the accused NOEBY product that appears at the point-of-sale, coupled
with NOEBY’s lack of good-faith explanation for such similarities. See Samara Bros. v.
Wal-Mart Stores, Inc., 165 F.3d 120, 128 (2d Cir. 1998) (“In light of the extensive
copying, Wal-Mart was required to come forward with some explanation of its conduct,
which it has utterly failed to do.”). Here, respondent NOEBY has defaulted and thus has
not provided any good-faith explanation for the prominent similarities between the
photograph of its accused product appearing at the point-of-sale website and the ‘944
trademark, or otherwise presented any contrary evidence or raised any genuine disputes
of material fact regarding this factor.
Relation in Use and Manner of Marketing
UPM notes that its domestic industry products and the accused NOEBY product
are sold and marketed online, and has presented evidence that both are available for sale
on Amazon.com. See Mem. at 32; Complaint, Ex. 12; Dec. 13, 2019 Supplement to
Motion for Summary Determination (EDIS Doc. ID No. 697222). This factor supports a
likelihood of confusion.
Degree of Care Likely to Be Exercised by Purchasers
According to UPM, this factor supports a finding of likelihood of confusion
because the accused NOEBY products are “low-dollar plastic consumer goods,” sold at
price points at which “consumers are more likely to buy on impulse and without any
additional research”—in other words, consumers are likely to exercise a relatively low
degree of care. See Mem. at 32. In these circumstances, UPM reasons that “consumers
are likely to assume that a plastic fish-handling plier with features strikingly similar to the

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https://www.amazon.com/gp/product/B01CGAOU
SO/ref=ppx_od_dt_b_asin_title_s00?ie=UTF8&psc
=1

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Degree of Similarity Between the Trademark and Accused Product
According to UPM, there are a “multitude” of “striking” similarities between the
‘944 trademark and the image of the SamsFX 6” product shown at the point-of-sale:
the heart-shaped opening of the mouth, the four pin openings in the
handles are at very similar locations, the lower handle is ribbed to foster
gripping, a component that connects the two handles at the two rearmost
pins, the ends of the handles both curve outward to help prevent dropping,
and there is a circular ball at the end of a lanyard that is attached to the end
of the top handle. In fact, the overall shape of the SamsFX 6” and the ‘944
Mark are virtually identical -- the only noticeable difference appears to be
the curl of the lanyard.
Mem. at 34. In addition, Mr. Hoge has provided his opinion that “a consumer looking at
the website with the SamsFX product displayed on it as shown in Exhibit 13 to the
complaint would likely be confused as to the product’s source or origin.” Mem.
Attachment A (Declaration of William C. Hoge, III), ¶ 27. The Staff analyzed the
similarity between the ‘944 trademark and the accused product, and the administrative
law judge adopts its undisputed analysis. See Staff Resp. at 42-43.
Respondents SamsFX and Lotus have defaulted and thus have not presented any
contrary evidence or otherwise raised any genuine disputes of material fact regarding
UPM’s evidence of infringement. This factor favors summary determination of
likelihood of confusion as to the SamsFX 6” pliers sold by SamsFX and manufactured by
Lotus.
Intent of the Actor in Adopting the Designation
UPM argues that “[t]here is no explanation for the similarities in the
SamsFX/Lotus 6” grip and the ‘944 Mark other than to provide the impression that the
source of the SamsFX product is the same as that of the Domestic Industry Products,”

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and emphasizes the strength of its ‘944 trademark to infer SamsFX’s and Lotus’s bad
faith intent in utilizing a confusingly similar design at the point-of-sale for the accused
product. Mem. at 34. UPM further notes that discovery into both respondents’ intent
was not possible due to their default and non-participation in this investigation. Id.
This factor supports a finding of likelihood of confusion, due to the similarity and
overlap in the overall shape and appearance between the ‘944 trademark and the
photograph of the accused SamsFX 6” product that appears at the point-of-sale, coupled
with respondents’ lack of good-faith explanation for such similarities. See Samara Bros.,
165 F.3d at 128 (“In light of the extensive copying, Wal-Mart was required to come
forward with some explanation of its conduct, which it has utterly failed to do.”). Here,
respondents SamsFX and Lotus have defaulted and thus have not provided any good-faith
explanation for the similarities between the photograph of its accused product appearing
at the point-of-sale website and the ‘944 trademark, or otherwise presented any contrary
evidence or raised any genuine disputes of material fact regarding this factor.
Relation in Use and Manner of Marketing
UPM notes that its domestic industry products and the accused SamsFX/Lotus 6”
product are sold and marketed online, and also has presented evidence that both are
available on Amazon.com. See Mem. at 35; Complaint, Ex. 13; Dec. 13, 2019
Supplement to Motion for Summary Determination (EDIS Doc. ID No. 697222). This
factor supports a likelihood of confusion.
Degree of Care Likely to Be Exercised by Purchasers
According to UPM, this factor supports a finding of likelihood of confusion

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because the accused SamsFX/Lotus 6” products are “low-dollar plastic consumer goods,”
sold at price points at which “consumers are more likely to buy on impulse and without
additional research”—in other words, consumers are likely to exercise a relatively low
degree of care. See Mem. at 35. In these circumstances, UPM reasons that “consumers
are likely to assume that a plastic fish-handling plier with features strikingly similar to the
‘944 Mark comes from the original source of the design, UPM.” Id. The administrative
law judge finds that a reasonable conclusion.
Respondents SamsFX and Lotus have defaulted and thus have not presented any
contrary evidence or raised any genuine disputes of material fact as to this factor. This
factor supports a finding of likelihood of confusion.
3. iLure
As an initial matter, the only evidence of importation and alleged infringement for
the accused iLure prodcucts set forth in UPM’s complaint is dated March 13, 2016,
before the ‘944 trademark was registered on the Principal Register. See Complaint, Ex.
15. Inasmuch as UPM has not presented affirmative evidence demonstrating that the
‘944 trademark had acquired secondary meaning at the time of iLure’s alleged violation,
it has not shown infringement of a “valid and enforceable trademark” with respect to
iLure, as required by section 337(a)(1)(C). See Converse, 909 F.3d at 1118 (“[W]ith
respect to infringement by [any] respondents whose first uses came before the
registration,” a Complainant “must establish without the benefit of the presumption that
its mark had acquired secondary meaning before the first infringing use by each
respondent.”).

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Nonetheless, infringement analysis for the accused iLure prodcucts with respect
to the ‘944 trademark is provided below.
UPM has provided a claim chart comparing the ‘944 trademark with the accused
iLure product, which was purchased on the Alibaba.com website and imported into the
United States, reproduced below. See also Complaint, Exs. 14, 15.
As noted above, the website constitutes a “use in commerce” because it (1)
contains a picture of the accused product, (2) uses the allegedly infringing mark in
association with the accused product, and (3) provides a means for ordering the accused
product.

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the heart-shaped opening of the mouth, the four pin openings in the
handles are at very similar locations, the lower handle is ribbed to foster
gripping, a bridge component that connects the two handles at the two
rearmost pins, the ends of the handles both curve outward to help prevent
dropping, and there is a circular ball at the end of a lanyard that is attached
to the end of the top handle. In fact, the overall shape of the iLure Product
and the ‘944 Mark are very similar -- the only noticeable difference
appears to be the curl of the lanyard.
Mem. at 37. 	In addition, Mr. Hoge has provided his opinion that “a consumer looking at
the website with the iLure product displayed on it as shown in Exhibit 14 to the
complaint would likely be confused as to the product’s source or origin.” Mem.
Attachment A (Declaration of William C. Hoge, III), ¶ 28. The Staff analyzed the
similarity between the ‘944 trademark and the accused product, and the administrative
law judge adopts its undisputed analysis. See Staff Resp. at 45-46.
Respondent iLure has defaulted and thus has not presented any contrary evidence
or otherwise raised any genuine disputes of material fact regarding UPM’s evidence of
infringement. This factor favors summary determination of likelihood of confusion as to
the accused iLure product.
Intent of the Actor in Adopting the Designation
UPM argues that “[t]here is no explanation for the similarities in the iLure
Product and the ‘944 Mark other than to provide the impression that the source of its
product is the same as that of the Domestic Products,” and emphasizes the strength of its
‘944 trademark to infer iLure’s bad faith intent in utilizing a confusingly similar design at
the point-of-sale for the accused product. Mem. at 37. UPM further notes that discovery
into iLure’s intent was not possible due to its default and non-participation in this
investigation. Id. at 38.

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This factor supports a finding of likelihood of confusion, due to the similarity and
overlap in the overall shape and appearance between the ‘944 trademark and the
photograph of the accused iLure product that appears at the point-of-sale, coupled with
iLure’s lack of good-faith explanation for such similarities. See Samara Bros., 165 F.3d
at 128 (“In light of the extensive copying, Wal-Mart was required to come forward with
some explanation of its conduct, which it has utterly failed to do.”). Here, respondent
iLure has defaulted and thus has not provided any good-faith explanation for the
similarities between the photograph of its accused product appearing at the point-of-sale
website and the ‘944 trademark, or otherwise presented any contrary evidence or raised
any genuine disputes of material fact regarding this factor.
Relation in Use and Manner of Marketing
UPM notes that its domestic industry products and the accused iLure product are
sold and marketed online, and has presented evidence that both are available for sale on
Amazon.com. See Dec. 13, Supplement (EDIS Doc. ID No. 697222). This factor
supports a likelihood of confusion.
Degree of Care Likely to Be Exercised by Purchasers
According to UPM, this factor supports a finding of likelihood of confusion
because the accused iLure products are “low-dollar plastic consumer goods,” sold at price
points at which “consumers are more likely to buy on impulse and without additional
research”—in other words, consumers are likely to exercise a relatively low degree of
care. See Mem. at 38. In these circumstances, UPM reasons that “consumers are likely
to assume that a plastic fish-handling plier with features strikingly similar to the ‘944

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Mark comes from the original source of the design, UPM.” Id.
Respondents iLure has defaulted and thus has not presented any contrary evidence
or raised any genuine disputes of material fact as to this factor. This factor supports a
finding of likelihood of confusion.
The Use of Respondents’ Own Logos and/or the Absence of UPM’s Logo on
the Accused Products
Although not specifically addressed in UPM’s memorandum, the Staff considered
whether and to what extent the respondents’ use of their own logos and/or the absence of
UPM’s logo on the accused products (or the corresponding point-of-sale websites) would
affect the likelihood of confusion analysis with respect to such products.12 The Staff
argues that neither factor should preclude summary determination of likelihood of
infringement. See Staff Resp. at 48-49.
The “majority view is that labeling or use of a word mark does not avoid what
would otherwise be an infringing trade dress.” McCarthy on Trademarks and Unfair
Competition, § 23:53 (5th ed.).13 Conversely, the mere absence of UPM’s “Fish Grip”
12 Specifically, the SamsFX logos appears on the point-of-sale website for the accused
SamsFX 9” pliers manufactured by Five Union. See Complaint, Ex. 10. Similarly, the
iLure logo appears both at the point-of-sale website (see Complaint, Exs. 7, 11, 14, 15)
and on the physical product itself. See Staff Resp. at 48 n.9; Complaint, Physical Ex. E.
For the SamsFX 6” pliers, the SamsFX logo also appears on both the point-of-sale
website (see Complaint, Exs. 5, 9, 13) and the physical product itself. See Staff Resp. at
48 n.9; Complaint, Physical Ex. F. By contrast, the NOEBY product is unmarked, both
at the point-of-sale website and the physical product delivered to the consumer. See Staff
Resp. at 48 n.9; Complaint, Exs. 6, 8, 12 and Physical Ex. D.
13 See also McNeil Nutritionals, LLC v. Heartland Sweeteners, LLC, 511 F.3d 350, 360
(3d Cir. 2007) (“The majority of cases hold that labeling an otherwise infringing look-
alike product does not prevent infringement.”); T & T Mfg. Co. v. A.T. Cross Co., 449
F.Supp. 813, 822 (D.D.R. 1978) (“In fact, display of the housename generally does not
excuse infringement of a valid trademark.”); Tas-T-Nut Co. v. Variety Nut & Date Co.,

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logo from the accused products does not insulate respondents from infringement. See
Certain Hand Dryers & Housings for Hand Dryers, Inv. No. 337-TA-1015, Order No. 27
(Initial Determination), 2017 WL 2709424 (“the distinctiveness of the shape of the cover
is itself sufficient to conclude that the degree of similarity factor weighs in favor of a
likelihood of confusion, even if that weight may be somewhat less significant than if the
US air dryer also included the nameplate and arrow-shaped label of the [Complainant’s
product].”) (unreviewed in relevant parts, Comm’n Op. (Oct. 30, 2017)).
The addition of an accused infringer’s logo typically is helpful in avoiding
likelihood of confusion only where there is persuasive evidence that the logo is famous or
well-known. See McCarthy, § 23:53 (“The issue here is whether a junior user who
infringes upon the shape trademark or trade dress can avoid causing a likelihood of
confusion by placing its own name or mark on a label on the shape. Whether such a
word mark will be successful in avoiding infringement will largely turn upon,” inter alia,
“the fame and prominence of the word mark used by the accused.”). Here, the relevant
defaulting respondents have not presented any record evidence that the “SamsFX” and/or
245 F.2d 3, 7 (6th Cir. 1957) (“This court has consistently held that when the unfair
competition complained of is the marketing of a product in containers or labels
deceptively similar to the first comer’s containers or labels which have acquired a
secondary meaning, the competitor cannot avoid liability merely by affixing his own
name.”); Ralston Purina Co. v. Thomas J. Lipton, Inc., 341 F.Supp. 129, 135-36
(S.D.N.Y. 1972) (Use of a house name will generally not excuse infringement of a valid
trademark); Source Perrier, S.A. v. Waters of Saratoga Springs, Inc., No. 81-CV-178,
1982 WL 51044, at *3 (S.D.N.Y. Dec. 9, 1982) (“The addition of a second trademark
(here the Saratoga Springs label) to the infringing trademark (the bottle shape) does not
dissipate the confusion engendered through the use of the infringing trademark. . . . Here
the near identity of the bottle shapes, even with different labels, is likely to lead to
purchaser confusion as to origin.”).

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“iLure” logos appearing on those accused products and/or point-of-sale websites are
sufficiently famous or well-known to negate consumer confusion.
The addition of an accused infringer’s own logo will not negate likelihood of
confusion where, as here, the products at issue are “relatively inexpensive and [thus]
consumers cannot be expected to examine the labels carefully.” Scott Paper Co. v.
Scott’s Liquid Gold, Inc., 589 F.2d 1225, 1230 (3d Cir. 1978). 	Here, UPM has presented
uncontroverted evidence that the fish-handling pliers at issue are inexpensive, and thus
purchased by consumers without close scrutiny. See Mem. at 20 (“The products at issue
in this investigation are low-dollar plastic consumer goods, and at these price points
consumers are more likely to buy on impulse and without additional research.”).
* 	* 	*
Accordingly, substantial, reliable, and probative evidence discussed above
supports summary determination of likelihood of confusion against each defaulting
respondent.
C. 	Domestic Industry (Technical Prong)
“Where registered trademark rights are asserted, the test for determining whether
the technical prong is met through the practice of a trademark is plain use of the
trademark on products and packaging.” Certain Mounting Apparatuses for Holding
Portable Elec. Devices and Components Thereof, Inv. No. 337-TA-1086 (“Mounting
Apparatuses”), Initial Determination, 2018 WL 6837931, at *12 (Nov. 28, 2018)
(unreviewed in relevant part, June 24, 2019).

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UPM relies on three products to meet the technical prong of the domestic industry
requirement: (1) The Fish Grip (introduced in 2002); (2) the Fish Grip Jr. (introduced in
2014); and (3) the Fish Grip Mini (introduced in 2016) (collectively, the “Domestic
Industry Products.”). Mem. at 39.

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For the reasons discussed below, each of the Domestic Industry Products satisfies
the technical prong of the domestic industry requirement, by practicing the ‘923
trademark, and/or ‘944 trademark.
The ‘923 Trademark
UPM argues that the claim charts submitted with the complaint demonstrate that
the Fish Grip (Exhibit 21 to complaint), Fish Grip Jr. (Exhibit 22 to complaint), and Fish
Grip Mini (Exhibit 23 to complaint) each practice the ‘923 trademark, because each
product is “advertised, offered for sale, and sold in packaging that prominently displays”
the “distinctive heart-shaped opening in the mouth of the pliers.” Mem. at 40; see also
Mem. Attachments C-E. The Staff analyzed the technical prong with respect to the ‘923
trademark, and the administrative law judge adopts its undisputed analysis. See Staff
Resp. at 57-58.

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The undisputed evidence shown in the cited claim charts and Attachments
supports summary determination that UPM’s Domestic Industry Products satisfy the

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technical prong with respect to the ‘923 Trademark. Defaulting respondents have not
identified any contrary evidence or factual disputes that would preclude summary
determination.
The ‘944 Trademark
UPM argues that the claim charts provided with the complaint demonstrate that
the Fish Grip (Exhibit 24 to complaint) and the Fish Grip Jr. (Exhibit 25 to complaint)
practice the ‘944 Trademark, because “each of the two products is advertised, offered for
sale, and sold in packaging that prominently displays” the “distinctive silhouette of the
pliers with a heart-shaped opening on the packaging.” Mem. at 41. The Staff analyzed
the technical prong with respect to the ‘944 trademark, and the administrative law judge
adopts its undisputed analysis. See Staff Resp. at 58-59.

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The undisputed evidence shown in the cited claim charts supports summary
determination that UPM has satisfied the technical prong with respect to the ‘944
Trademark. 	Defaulting respondents have not identified any contrary evidence or factual
disputes that would preclude summary determination.
D. 	Validity of the Trademarks
For trademarks registered on the Principal Register, “[t]rademark registration
certificates for the asserted trademarks create a statutory presumption that each of the
marks is valid, that [Complainant] is the owner of the mark, and that [Complainant] has
the exclusive right to use the registered mark.” Certain Indus. Automation Sys. &
Components Thereof, Inv. No. 337-TA-1074, Initial Determination, 2018 WL 6119536,
at *10 (Oct. 23, 2018).14
“However, under the statute, the registration and its accompanying presumption
of validity operate only prospectively from the date of registration, i.e., the date on which
14 See also 15 U.S.C. 1115(a) (noting that registration of a trademark on the Principal
Register “shall be prima facie evidence of the validity of the registered mark . . . of the
registrant’s ownership of the mark, and of the registrant’s exclusive right to use the
registered mark in commerce on or in connection with the goods or services specified in
the registration . . . .”).

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the Patent and Trademark Office (‘PTO’) determined that secondary meaning had been
acquired.” Converse, Inc. v. Int’l Trade Comm’n, 909 F.3d 1110, 1117 (Fed. Cir. 2018)
(emphasis added). “Thus, with respect to infringement by those respondents whose first
uses came before the registration,” UPM “must establish without the benefit of the
presumption that its mark had acquired secondary meaning before the first infringing use
by each respondent.” Id. at 1118.
The evidence establishes that UPM is the owner of the asserted trademarks.
Specifically, Exhibits 2 and 3 to the complaint indicate that the ‘923 trademark and the
‘944 trademark are each registered to UPM. Complaint, Exs. 2, 3.
Both the ‘923 trademark and the ‘944 trademark are registered on the Principal
Register. See Complaint, Exs. 2, 3. UPM argues that the ‘923 trademark and ‘944
trademark are valid in view of the statutory presumption of validity for such trademarks,
and the fact that the validity of those trademarks has not been challenged in any U.S.
court or administrative proceeding. See Mem. at 45; 15 U.S.C. § 1115(a).
Exhibits 2 and 3 to the complaint show that UPM registered the ‘923 trademark
and ‘944 trademark on the Principal Register on June 21, 2016, and April 3, 2018,
respectively. Summary determination of validity is therefore appropriate as to
respondents NOEBY, SamsFX, Five Union, and Lotus, because the first allegedly
infringing use by those respondents occurred at various dates in 2019, after the respective
registration dates for the asserted trademarks. See Complaint, Ex. 17 (NOEBY); Ex. 18
(SamsFX/Five Union); Ex. 16 (SamsFX/Lotus).15
15 As discussed above in the infringement section, the only evidence of importation and
alleged infringement for the accused iLure prodcucts set forth in UPM’s complaint is

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VII. Domestic Industry (Economic Prong)
With respect to the economic prong, and whether or not section 337(a)(3)(A) or
(B) is satisfied, the Commission has held that “whether a complainant has established that
its investment and/or employment activities are significant with respect to the articles
protected by the intellectual property right concerned is not evaluated according to any
rigid mathematical formula.” Printing and Imaging Devices, Comm’n Op. at 27 (Feb.
17, 2011) (citing Certain Male Prophylactic Devices, Inv. No. 337 TA-546, Comm’n Op.
at 39 (Aug. 1, 2007)). Rather, the Commission examines “the facts in each investigation,
the article of commerce, and the realities of the marketplace.” Id. “The determination
takes into account the nature of the investment and/or employment activities, ‘the
industry in question, and the complainant’s relative size.’” Id. (citing Stringed Musical
Instruments at 26).
The Commission has rejected a finding of quantitative significance based solely
on the absolute value of the domestic industry investments devoid of any context. A
contextual analysis is required. The analysis may include a discussion of the value of
domestic investments in the context of the relevant marketplace, such as by comparing a
complainant’s domestic expenditures to its foreign expenditures or considering the value
added to the product from a complainant’s activities in the United States. See Certain
dated March 13, 2016, before either asserted trademark was registered on the Principal
Register. See Complaint, Ex. 15. Inasmuch as UPM has not presented affirmative
evidence demonstrating that the ‘923 trademark and/or ‘944 trademark had acquired
secondary meaning at the time of iLure’s alleged violation, it has not shown infringement
of a “valid and enforceable trademark” with respect to iLure, as required by section
337(a)(1)(C). See Converse, 909 F.3d at 1118 (“[W]ith respect to infringement by [any]
respondents whose first uses came before the registration,” a Complainant “must
establish without the benefit of the presumption that its mark had acquired secondary
meaning before the first infringing use by each respondent.”).

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Carburetors and Products Containing Such Carburetors, Inv. No. 337-TA-1123,
Comm’n Op. at 18 (Oct. 28, 2019).
As discussed above with respect to the technical prong analysis, the ‘923 patent
and the ‘923 trademark is practiced by all three Domestic Industry Products, while the
‘944 trademark is practiced by only two Domestic Industry Products – the Fish Grip and
Fish Grip Jr. (but not the Fish Grip Mini). See Mem. at 41.
According to UPM, total annual sales for all three Domestic Industry Products
since the year 2016 have totaled [ 	] (FY2016); [ 	] (FY2017); [ 	]
(FY2018); and [ 	] (FY2019, year to date). See Mem. at 41 (citing Complaint, Ex.
26C (Declaration of William C. Hoge, III), ¶ 8). Sales for the Fish Grip Mini were
[ 	] (FY2016); [ 	] (FY2017); [ 	] (FY2018), and [ 	] (FY2019 YTD).16
Thus, for the individual fiscal years from 2016 through 2019, the annual sales for the Fish
Grip Mini have ranged from approximately [ 	] of total annual sales for all three
Domestic Industry Products. Mem. at 41; Mem. Attachment A (Declaration of William
C. Hoge, III), ¶ 47. Based on these revenue figures and percentages, UPM calculates that
“100% of all domestic activities . . . can be credited to the ‘923 Trademark while at least
[ 	] of the activities can be credited to the ‘923 Patent and ‘944 Trademark.” Mem. at
41.17
UPM states that “all of the Domestic Industry Products are manufactured in
16 The figures for the Fish Grip Mini are included for the ‘923 patent and the ‘923
trademark.
17 Although UPM calculated the 96% figure for purposes of allocating domestic industry
activities to the ‘923 patent and ‘944 trademark, UPM does not appear to have actually
applied the 96% figure in performing its domestic industry analysis. However, the 96%
and 100% figures are not substantially different. See Staff Resp. at 60 n.12.

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UPM’s factory located in Jackson, Mississippi,” and further emphasizes that “all
activities performed by UPM in connection with Domestic Industry Products take place
at the Jackson Facility.” Mem. at 41-42 (citing Complaint, Ex. 26C (Declaration of
William C. Hoge, III), ¶ 9).
For purposes of determining the costs at its Jackson Facility attributable to the
Domestic Industry Products, UPM calculates that its Domestic Industry Products have
accounted for the following percentages of UPM’s total revenues for the following years:
[ 	] (FY2015); [ 	] (FY2016); [ 	] (FY2017); [ 	] (FY2018); and
[ 	] (FY2019 YTD). Mem. at 42 (citing Complaint, Ex. 26C (Declaration of
William C. Hoge, III), ¶ 11).
Plant and Equipment
UPM states that it has invested in machines and fixtures at its Jackson facility that
are currently valued at [ 	]. Mem. at 42 (citing Complaint, Ex. 26C (Declaration
of William C. Hoge, III), ¶ 13). Using the FY2017 sales apportionment [ 	],18
UPM calculates that [ 	] of the value of the machines and fixtures in Jackson is
attributable to the Domestic Industry Products.
UPM further states that in 2015, it spent [ 	] to purchase the 96,700 square
foot property in which the Domestic Industry Products are manufactured. Id. Using the
FY2017 sales apportionment [ 	], UPM calculates that [ 	] of that property
value is attributable to the Domestic Industry Products.
18 UPM applied the data from FY2017, even though figures from FY2019(YTD) were
also available and would have been the more appropriate basis for calculating UPM’s
investments. However, the figures for FY2017 and FY2019(YTD) do not appear to be
substantially different. See Staff Resp. at 61 n.13.

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UPM also states that it initially incurred [ 	] in tooling costs attributable to
the Domestic Industry Products, and since that time has incurred additional tooling costs
of [ 	] attributable to the Domestic Industry Products. Mem. at 42 (citing
Complaint, Ex. 26C (Declaration of William C. Hoge, III), ¶ 14).
Finally, UPM states that from FY2002 to FY2019(YTD), it incurred [ 	] in
repair and maintenance costs attributable to the Domestic Industry Products. Mem. at 42
(citing Complaint, Ex. 26C (Declaration of William C. Hoge, III), ¶ 15). UPM further
states that it incurred [ 	] in repair and maintenance costs of molds that is
attributable to the Domestic Industry Products from FY2002 to FY2018. Mem. at 43; Ex.
26C (Declaration of William C. Hoge, III), ¶ 15.
Labor and Capital
UPM argues that it employs [ 	] individuals in various positions, with total
headcount remaining stable over the past few years. Mem. at 43 (citing Attachment A
(Declaration of William C. Hoge, III), ¶ 50). For these employees, UPM calculates that it
has incurred payroll costs in the following amounts attributable to the Domestic Industry
Products: a cumulative total of [ 	] for FY 2002-2018, with payroll costs of
[ 	] (FY2016); [ 	] (FY2017); [ 	] (FY2018), and [ 	] (FY2019
YTD). Mem. at 43 (citing Complaint, Ex. 26C (Declaration of William C. Hoge, III), ¶
18).
UPM also states that it subcontracts with third parties for additional labor
performed at the Jackson Facility in producing the Domestic Industry Products in the
following amounts: a cumulative total of [ 	] for FY2002 to FY2018; [ 	]
(FY2016); [ 	] (FY2017); [ 	] (FY2018); and [ 	] (FY2019 YTD).

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Mem. at 43.19
Contextual Analysis of UPM’s Domestic Industry Figures
UPM makes several arguments in support of its position that its asserted domestic
industry activities are “significant” as required by section 337(a)(3)(A) and (B). Mem. at
43-44.
UPM argues that its alleged domestic industry activities “are of critical
importance to the Domestic Industry Products given that every facet of their production
and sale takes place in the United States.” Mem. at 44 (citing Complaint, Ex. 26C
(Declaration of William C. Hoge, III), ¶ 9). UPM argues that the ratio of its annual
domestic activities to annual sales “reinforces their importance to the protected articles.”
Mem. at 44. Specifically, UPM calculates that for its Domestic Industry Products, its
labor costs (for employees and contractors) were [ 	] of sales revenue for FY2016;
[ 	] for FY2017; [ 	] for FY2018; and [ 	] for FY2019YTD. Id.; see also
Dec. 31, 2019 Supplement.
19 The Staff states that it does not agree that UPM’s subcontracting costs are properly
credited to labor and capital, inasmuch as UPM only states those costs in general without
specifically explaining how and what percentage of those expenditures relate to the
domestic industry products at issue. See Staff Resp. at 62 n.14 (citing Certain
Collapsible Sockets for Mobile Electronic Devices and Components Thereof, Inv. No.
337-TA-1056, Comm’n Op. at 18-20 (July 9, 2018) (“Since Lelo, the Commission has
found evidence insufficient where the complainant relied on supplier payments without
providing evidence regarding its suppliers’ relevant investments in the complainant’s
products. . . . [Complainant’s] payments to Amazon.com, vendors with physical retail
stores, and website hosting services and/or website developers also are not credited for a
similar reason. [Complainant] has not shown what portion of these investments pertains
to the employment of labor or capital.”)).

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investments in plant and equipment, and/or labor and capital, are significant “given [that
UPM’s] domestic industry products would not exist without these investments.” Certain
Water Filters & Components Thereof, Inv. No. 337-TA-1126 (“Water Filters”), Order
No. 17 (Initial Determination), 2019 WL 4072337, at *33 (July 11, 2019) (unreviewed in
relevant parts, Comm’n Op. (Nov. 15, 2019)).
Accordingly, the record evidence supports a finding that UPM’s domestic
activities add significant value to its domestic industry products, and are significant in the
context of its entire operations in view of (1) the quantitative levels of activity in the
United States discussed above, (2) the importance of those activities to the Domestic
Industry Products; and (3) the fact that all activities relevant to the Domestic Industry
Products occur solely within the United States. The evidence shows that UPM has made
and continues to make significant U.S. investments in plant, equipment, labor and capital
under 19 U.S.C. § 1337(a)(3)(A) and (B).
VIII. 	Remedy and Bonding
The Commission has broad discretion in selecting the form of the remedy in a
section 337 proceeding. See Fuji Photo Film v. International Trade Comm’n, 386 F.3d
1095, 1106-07 (Fed. Cir. 2004); Certain Hydraulic Excavators and Components Thereof,
Inv. No. 337-TA-582, Comm’n Op. at 15 (Feb. 3, 2009), USITC Pub. No. 4115 (Dec.
2009). Where a violation is found, the Commission generally issues a limited exclusion
order directed against products imported by persons found in violation of the statute. In
certain circumstances, however, the Commission may issue a general exclusion order
directed against all infringing products. 19 U.S.C. § 1337(d)(2).
UPM requests, along with a finding of violation, that the administrative law judge

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recommend a remedy in the form of a general exclusion order (GEO) with respect to each
of the asserted patent and trademarks. See Mem. at 45-49. Complainant requests that
bond during the presidential review period be set at 100% of the value of the accused
products. See Mem. at 50.
The Staff supports complainant’s request for a GEO, and request for a 100%
bond. See Staff Resp. at 65-70.
A. 	General Exclusion Order
Under 19 U.S.C. § 1337(g)(2), “a general exclusion from entry of articles,
regardless of the source or importer of the articles, may be issued if --- (A) no person
appears to contest an investigation concerning a violation of the provisions of this
section, (B) such a violation is established by substantial, reliable, and probative
evidence, and (C) the requirements of subsection (d)(2) are met.” 19 U.S.C. §
1337(g)(2).
Section 337(d)(2) states in relevant part:
(d) Exclusion of articles from entry . . .
(2) The authority of the Commission to order an exclusion from
entry of articles shall be limited to persons determined by the
Commission to be violating this section unless the Commission
determines that –
(A) a general exclusion from entry of articles is necessary
to prevent circumvention of an exclusion order limited
to products of named persons; or
(B) there is a pattern of violation of this section and it is
difficult to identify the source of infringing products.
19 U.S.C. § 1337(d)(2).
Thus, a GEO is warranted when “a general exclusion from entry of articles is

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necessary to prevent circumvention of an exclusion order limited to products of named
persons” or “there is a pattern of violation of this section and it is difficult to identify the
source of infringing products.” 19 U.S.C. § 1337(d)(2)(A); 19 U.S.C. § 1337(d)(2)(B).
Satisfaction of either criterion is sufficient for imposition of a GEO. Certain Cigarettes
and Packaging Thereof, Inv. No. 337-TA-643, Comm’n Op. at 24 (Oct. 1, 2009). The
Commission “now focus[es] principally on the statutory language itself” when
determining whether a GEO is warranted. Certain Ground Fault Circuit Interrupters and
Products Containing Same, Inv. No. 337-TA-615, Comm’n Op. at 25 (Mar. 27, 2009).
The Commission may look not only to the activities of active respondents, but also to
those of non-respondents as well as respondents who have defaulted or been terminated
from an investigation. See, e.g., Certain Coaxial Cable Connectors and Components
Thereof and Products Containing Same, Inv. No. 337-TA-650, Comm’n Op. at 59 (Apr.
14, 2010).
As discussed above, in this investigation, each named respondent has defaulted,
and a violation has been shown as to the ‘923 patent, ‘923 trademark, and/or ‘944
trademark by multiple respondents. A GEO is warranted in this investigation both to
prevent circumvention of an exclusion order limited to products of named entities, and
because there is a pattern of violation of section 337 and it is difficult if not impossible to
identify the source of infringing products, as discussed below.
In the event the Commission does not issue a GEO, the administrative law judge
finds that the default determination is sufficient to establish a violation for the purpose of

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issuing limited exclusion orders directed to the defaulting respondents.21 See 19 C.F.R.
§ 210.16(c)(1).
Necessary to Prevent Circumvention of LEO
UPM argues that a GEO is necessary to prevent circumvention of an LEO for
several reasons. See Mem. 45-47. The Staff agrees that the evidence supports UPM’s
position. See Staff Resp. at 66-67.
UPM cites evidence that the accused products are sold online anonymously and
by multiple sellers, such that the issuance of an LEO against only the named defaulting
respondents would fail to stop the flow of infringing products into the United States.
Mem. at 45-46. This evidence supports issuance of a GEO to prevent circumvention an
LEO. See Certain Loom Kits for Creating Linked Articles, Inv. No. 337-TA-923,
Comm’n Op., 2015 WL 5000874, at *8 (June 26, 2015) (“[T]he record shows that
infringing loom kits are widely offered for sale online by anonymous sellers. . . . If the
Commission entered an exclusion order limited to the products of the defaulting
respondents, the defaulting respondents could circumvent the order via anonymous sales
on the internet.”).
UPM has presented evidence that the infringing products are “mailed in generic
packaging often with no logos” or “any other indication as to their source of origin.”
21 “After a respondent has been found in default by the Commission, the complainant
may file with the Commission a declaration that it is seeking immediate entry of relief
against the respondent in default. The facts alleged in the complaint will be presumed to
be true with respect to the defaulting respondent. The Commission may issue an
exclusion order, a cease and desist order, or both, affecting the defaulting respondent only
after considering the effect of such order(s) upon the public [interest.]” 19 C.F.R.
§ 210.16(c)(1).

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Mem. at 46 (citing Complaint, Exs. 29-33). This further supports issuance of a GEO.
See Water Filters, Order No. 17 (Initial Determination), 2019 WL 4072337, at *41 (July
11, 2019) (“The evidence showing . . . generic, unmarked product shipments illustrates a
clear risk of circumvention of any LEO in the absence of a GEO.”) (unreviewed in
relevant parts, Comm’n Op. (Nov. 15, 2019)).
UPM argues that defaulting respondents’ failure to participate in this investigation
is further evidence that they “would not abide by the terms of a limited exclusion order.”
Mem. at 46. Respondents’ lack of participation in this investigation also supports
issuance of a GEO. See Certain Self-Anchoring Beverage Containers, Inv. No. 337-TA-
1092, Initial Determination, 2018 WL 4357626, at * (Aug. 27, 2018) (“Moreover, the
fact that the Defaulting Respondents have ignored proceedings in this Investigation
(which resulted in them being found in default) suggests that they would not abide by the
terms of any limited exclusion order the Commission may impose.”).
Accordingly, a GEO is warranted as to each of the ‘923 patent, ‘923 trademark,
and ‘944 trademark, due to the likelihood of circumvention of an LEO.
Widespread Pattern of Violation and Difficulty Identifying the Source(s) of
Infringing Products
The record evidence supports issuance of a GEO under section 337(d)(2)(B)
because there is a widespread pattern of violation, and it is difficult to identify the source
of infringing products.
Under Commission precedent, UPM’s evidence discussed above in connection
with “circumvention” under section 337(d)(2)(A) is also relevant to establishing
difficulty in identifying the source(s) of infringing products under section 337(d)(2)(B).

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See Certain Loom Kits, Comm’n Op., 2015 WL 5000875, at *8 (June 26, 2015) (“We
note that many of the facts described above in connection with subparagraph (A) are also
relevant to subparagraph (B).”).
The record evidence demonstrates that “there are dozens of infringing products
offered on eBay, Amazon, Wal-Mart, and AliExpress,” and that “[t]hese products are
shipped in generic packaging that does not identify the manufacturers, retailers, or the
source of the infringing products.” See Mem. at 47. This evidence supports issuance of a
GEO under section 337(d)(2)(B). See Certain Ink Cartridges and Components Thereof,
Inv. No. 337-TA-946, Initial Determination, 2015 WL 8641224, at *55 (Oct. 28, 2015)
(“GEO authorized under section 19 U.S.C. § 1337(d)(2)(B) when there are a multitude of
existing sources of infringing products and low barriers to entry for future participants,
and where products are packaged in unmarked, generic packaging . . . making it difficult
to identify the source of infringing goods.”) (unreviewed in relevant parts, June 29,
2016); Certain Personal Transporters, Inv. No. 337-TA-935, Comm’n Op., 2019 WL
4010936, at *15 (June 1, 2019) (“The Commission has recognized that the anonymity
over the Internet increases the difficulty in identifying the sources of infringing
products.”).
UPM argues that its prior “difficulties in serving two of the five respondents with
the Complaint further indicates that it is difficult to identify the source of the infringing
products.” Mem. at 48. This evidence supports UPM’s requested GEO under section
337(d)(2)(B). See Mounting Apparatuses, Initial Determination, 2018 WL 6837931, at
*37 (Nov. 28, 2018) (“Furthermore, the difficulty in serving some respondents (with
some being unlocatable) demonstrates that it is difficult to identify the sources of the

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products.”) (unreviewed in relevant part, June 24, 2019).
UPM’s unrebutted evidence regarding widespread online sales establishes a
pattern of violation warranting a GEO under section 337(d)(2)(B). Specifically, UPM
has presented evidence of widespread internet sales activities extending beyond the
named defaulting respondents in this investigation. For example, Attachment F shows at
least eight infringing products available for sale on Amazon; Attachment G shows at least
nine infringing products available for sale on eBay; Attachment H shows at least ten
infringing products available for sale on AliExpress; and Attachment I shows at least two
infringing products available for sale on Wal-Mart. A review of those Attachments
indicates that many of those infringing products are shipped from China. Under
Commission precedent, UPM’s evidence of extensive online sales by both the named
respondents and unnamed parties supports finding a pattern of violation and issuance of a
GEO. See Water Filters, Order No. 17 (Initial Determination), 2019 WL 4072337, at *43
(July 11, 2019) (“The Commission has found that such evidence of numerous online sales
of infringing imported goods can demonstrate a violation of section 337.”) (unreviewed
in relevant parts, Comm’n Op. (Nov. 15, 2019)).
The evidence shows that UPM’s prior efforts in enforcing its intellectual property
have failed to stop the flow of infringing products into the United States. See Mem. at
49. This evidence further supports a finding of widespread violation and issuance of a
GEO. See Handbags, Order No. 16 (Initial Determination) at 21 (“The undersigned finds
that a pattern of violation of section 337 is further evinced by [complainant’s]
extensive . . . enforcement activities within the United States. . . . Continued
infringement despite [complainant’s] diligence in policing its marks provides ample

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support for a finding of widespread violation.”) (unreviewed, Apr. 12, 2012).
Accordingly, the issuance of a GEO under 19 U.S.C. § 1337(d)(2)(B) is
appropriate with respect to the asserted patent and trademarks.
B. 	Cease and Desist Orders
UPM argues:
Under the Commission’s current interpretation of the Section 337,
cease and desist orders typically do not issue against defaulting
Respondents where, as here, a complainant is unable to ascertain whether
the Respondents maintained commercially significant inventory of the
accused products in the United States. Accordingly, UPM does not
request that C&Ds issue against the Respondents.
Mem. at 49-50; see Staff Resp. at 65.
Thus, UPM has not requested entry of any cease and desist orders.
C. 	Bond
Pursuant to section 337(j)(3), the administrative law judge and the Commission
must determine the amount of bond to be required of a respondent, during the 60-day
Presidential review period following the issuance of permanent relief, in the event that
the Commission determines to issue a remedy. The purpose of the bond is to protect the
complainant from any injury. 19 U.S.C. § 1337(j)(3); 19 C.F.R. §§ 210.42(a)(1)(ii),
When reliable price information is available, the Commission has often set bond
by eliminating the differential between the domestic product and the imported, infringing
product. See Certain Microsphere Adhesives, Processes for Making Same, and Products
Containing Same, Including Self-Stick Repositionable Notes, Inv. No. 337-TA-366,
Comm’n Op. at 24 (1995). In other cases, the Commission has turned to alternative
approaches, especially when the level of a reasonable royalty rate could be ascertained.

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See Certain Integrated Circuit Telecommunication Chips and Products Containing Same,
Including Dialing Apparatus, Inv. No. 337-TA-337, Comm’n Op. at 41 (1995). A 100
percent bond has been required when no effective alternative existed. See Certain Flash
Memory Circuits and Products Containing Same, Inv. No. 337-TA-382, USITC Pub. No.
3046, Comm’n Op. at 26-27 (July 1997) (a 100% bond imposed when price comparison
was not practical because the parties sold products at different levels of commerce, and
the proposed royalty rate appeared to be de minimis and without adequate support in the
record).
UPM argues:
The typical retail price for UPM’s Fish Grip is $14.95.
Attachment A hereto (Hoge Decl. ¶ 32). While the range of retail prices
for the competing infringing products varies, it is typically about half the
price of the Fish Grip. Id. at ¶ 31. The typical retail price for UPM’s Fish
Grip, Jr. is $11.99. Id. at ¶ 32. While the range of retail price for the
competing infringing products varies, it is typically less than half the price
of the Fish Grip Jr. Id. Given these values, UPM submits that the
appropriate bond to be assessed during the Presidential Review Period is
100% of entered value.
Mem. at 50.
The Staff agrees. See Staff Resp. at 70.
A bond of 100% is appropriate in this investigation. Inasmuch as the evidence
shows that the sales were made online at various price points and quantities, calculating
an average price would be difficult. Given this state of the evidentiary record, and the
fact that all of the affected respondents have defaulted rather than provide discovery, a
bond value of 100% is appropriate. Under these circumstances, the administrative law
judge recommends that the defaulting respondents be required to post a bond of 100% of

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entered value during the 60-day Presidential review period. This amount should be
sufficient to prevent any harm to complainant during the Presidential review period.
IX. 	Conclusions of Law
1. 	The Commission has subject matter, personal, and in rem jurisdiction in
this investigation.
2. 	The accused products have been imported or sold for importation into the
United States.
3. 	The accused products infringe the asserted claims of U.S. Patent No.
6,256,923.
4. 	The domestic industry requirement has been satisfied with respect to U.S.
Patent No. 6,256,923.
5. 	The accused products except iLure products have been shown to infringe
the asserted U.S. Trademark Registration No. 4,980,923.
6. 	The domestic industry requirement has been satisfied with respect to U.S.
Trademark Registration No. 4,980,923.
7. 	The accused products except iLure products have been shown to infringe
the asserted U.S. Trademark Registration No. 5,435,944.
8. 	The domestic industry requirement has been satisfied with respect to U.S.
Trademark Registration No. 5,435,944.
X. 	Initial Determination and Order
It is the initial determination of the administrative law judge that complainant’s
Motion No. 1169-7 for summary determination of violation of section 337 by the

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defaulting respondents is granted in part as indicated in this initial determination and as
summarized in the Conclusions of Law.
Pursuant to 19 C.F.R. § 210.42(h), this initial determination shall become the
determination of the Commission unless a party files a petition for review of the initial
determination pursuant to 19 C.F.R. § 210.43(a), or the Commission, pursuant to 19
C.F.R. § 210.44, orders on its own motion a review of the initial determination or certain
issues contained herein.
Further, it is recommended that the Commission issue a GEO, and that a 100
percent bond be established for importation during the Presidential review period.
All issues delegated to the administrative law judge, pursuant to the notice of
investigation, have been decided, with dispositions as to all respondents. Accordingly,
this investigation before the administrative law judge is concluded in its entirety.
* * *
To expedite service of the public version, each party is hereby ordered to file with
the Commission Secretary no later than April 20, 2020, a copy of this initial
determination with brackets to show any portion considered by the party (or its suppliers
of information) to be confidential, accompanied by a list indicating each page on which
such a bracket is to be found. At least one copy of such a filing shall be served upon the
office of the undersigned, and the brackets shall be marked in red. If a party (and its
suppliers of information) considers nothing in the initial determination to be confidential,

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and thus makes no request that any portion be redacted from the public version, then a
statement to that effect shall be filed.22
David P. Shaw
Administrative Law Judge
Issued: April 10, 2020
22 Confidential business information (“CBI”) is defined in accordance with 19 C.F.R. §
201.6(a) and § 210.5(a). When redacting CBI or bracketing portions of documents to
indicate CBI, a high level of care must be exercised in order to ensure that non-CBI
portions are not redacted or indicated. Other than in extremely rare circumstances, block-
redaction and block-bracketing are prohibited. In most cases, redaction or bracketing of
only discrete CBI words and phrases will be permitted.

CERTAIN FISH-HANDLING PLIERS AND PACKAGING
THEREOF
Inv. No. 337-TA-1169
PUBLIC CERTIFICATE OF SERVICE
I, Lisa R. Barton, hereby certify that the attached Initial Determination has been served
via EDIS upon the Commission Investigative Attorney, Thomas C. Chen, Esq., and the following
parties as indicated, on August 7, 2020.
Lisa R. Barton, Secretary
U.S. International Trade Commission
500 E Street, SW, Room 112
Washington, DC 20436
On Behalf of Complainant United Plastic Molders:
Rett Snotherly, Esq.
LEVI & SNOTHERLY, PLLC
1101 Connecticut Ave., NW, Suite 450
Washington, DC 20036
Email: rsnotherly@levisnotherly.com
☐ Via Hand Delivery
☐ Via Express Delivery
☐ Via First Class Mail
☒ Other: Email Notification of
Availability for Download

3 printed pages contain little extracted OCR body text; searchable legal-body completeness has not been established for those pages.

OCR transcription for search; preserved printed pages are authoritative

In the Matter of

CERTAIN FISH-HANDLING PLIERS AND
PACKAGING THEREOF

Investigation No. 337-TA-1169

Publication 5290 March 2022

U.S. International Trade Commission

=
————

Washington, DC 20436

U.S. International Trade Commission

COMMISSIONERS

Jason E. Kearns, Chair
Randolph J. Stayin, Vice Chair
David S. Johanson, Commissioner
Rhonda K. Schmidtlein, Commissioner
Amy A. Karpel, Commissioner

Address all communications to
Secretary to the Commission
United States International Trade Commission
Washington, DC 20436

U.S. International Trade Commission
Washington, DC 20436
www.usitc.gov
In the Matter of
CERTAIN FISH-HANDLING PLIERS AND
PACKAGING THEREOF
Investigation No. 337-TA-1169
Publication 5290 March2022

2
China; SamsFX of Yangzhou City, China (“SamsFX”); and Weihai Lotus Outdoor Co., Ltd. of
Weihai, China. Id. The Office of Unfair Import Investigations is participating in the
investigation. Id.
On August 10, 2020, the Commission determined that UPM has shown a violation of
section 337(a)(1)(C), 19 U.S.C. 1337(a)(1)(C), by NOEBY and SamsFX with respect to the ’923
and ’944 marks, and determined to issue a GEO with respect to those trademarks. That GEO,
however, inadvertently contained language referring to the duration of a patent. The
Commission has determined to issue a corrected GEO that removes that language.
The Commission vote for these determinations took place on September 16, 2020.
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).
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 CFR 201.16(a), 210.7(a)(1)), the Commission orders that the
Complainant(s) complete service for any party/parties 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).
By order of the Commission.
Lisa R. Barton
Secretary to the Commission
Issued: September 17, 2020

CERTAIN FISH-HANDLING PLIERS AND PACKAGING
THEREOF
Inv. No. 337-TA-1169
PUBLIC CERTIFICATE OF SERVICE
I, Lisa R. Barton, hereby certify that the attached NOTICE has been served via EDIS upon
the Commission Investigative Attorney, Thomas C. Chen, Esq., and the following parties as
indicated, on September 17, 2020.
Lisa R. Barton, Secretary
U.S. International Trade Commission
500 E Street, SW, Room 112
Washington, DC 20436
On Behalf of Complainant United Plastic Molders:
Rett Snotherly, Esq.
LEVI & SNOTHERLY, PLLC
1101 Connecticut Ave., NW, Suite 450
Washington, DC 20036
Email: rsnotherly@levisnotherly.com
☐ Via Hand Delivery
☐ Via Express Delivery
☐ Via First Class Mail
☒ Other: Email Notification of
Availability for Download
Respondents:
Yixing Five Union Industry & Trade Co., Ltd.
Building A1, Innovation Park of Yixing City
Jiangsu Province
China
☐ Via Hand Delivery
☐ Via Express Delivery
☐ Via First Class Mail
☒ Other: Service to Be
Completed by Complainants
NOEBY Fishing Tackle Co., Ltd.
No. 81 Bohai Road, Eco-zone
Weihai, Shandong
China
☐ Via Hand Delivery
☐ Via Express Delivery
☐ Via First Class Mail
☒ Other: Service to Be
Completed by Complainants
Weihai ILure Fishing Tackle Co., Ltd.
No. 01 ZhouNing Road,
LinGang District,
Weihai, Shandong
China
☐ Via Hand Delivery
☐ Via Express Delivery
☐ Via First Class Mail
☒ Other: Service to Be
Completed by Complainants

CERTAIN FISH-HANDLING PLIERS AND PACKAGING
THEREOF
Inv. No. 337-TA-1169
Certificate of Service – Page 2
SamsFX
No. 11, Shikefa Road, Yangzhou City, 225000
Jiangsu Province
China
☐ Via Hand Delivery
☐ Via Express Delivery
☐ Via First Class Mail
☒ Other: Service to Be
Completed by Complainants
Wehai Lotus Outdoor Co., Ltd.
Zhang CunTown, Weihai City
Shandong Pro.
China
☐ Via Hand Delivery
☐ Via Express Delivery
☐ Via First Class Mail
☒ Other: Service to Be
Completed by Complainants

4
8. Notice of this Order shall be published in the Federal Register.
By order of the Commission.
Lisa R. Barton
Secretary to the Commission
Issued: September 17, 2020

Exhibit 1

2042781
UNITED STATES DEPARTMENT
OF COMMERCE
United States
Patent and
Trademark
Office
April 11, 2019
THE
ATTACHED U.S. TRADEMARK REGISTRATION 4,980,923 IS
CERTIFIED
TO
BE A TRUE COPY OF THE REGISTRATION ISSUED BY
THE
UNITED STATES PATENT AND TRADEMARK OFFICE WHICH
REGISTRATION IS IN FULL FORCE
AND EFFECT.
REGISTERED FOR
A
TERM OF
10 YEARS
FROM
June 21, 2016
SAID RECORDS SHOW TITLE TO BE IN: Registrant
By Authority of the
Under Secretary of Commerce for Intellectual Property
and Director
of
the United States Patent and
Trademark
Office

Reg. No. 4,980,923
______________
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I I
UNITED PLASTIC MOLDERS, INC. (MISSISSIPPI CORPORATION)
105 E. RANKIN STREET
Registered June 21, 2016 JACKSON,
Ms
39201
Int.
Cl.: 28 FOR: SPORT FISHING
AccEssoRY,
NAMELY, A DEVICE WHICH HOLDS THE LIP
Of
A
FISH CAUGHT
BY
AN
ANGLER
FOR
EASE OF LANDING, WEIGHING AND RELEASE,
IN
CLASS
28
(U.S. CLS. 22, 23, 38 AND
SO).
TRADEMARK
PRINCIPAL REGISTER
Director of the United States
Patent and Trademark Office
FIRST USE4-1-2001;
INCOMMERCE4-l-2001.
THE MARK CONSISTS OF A HEART SHAPED OPENING
IN
THE THREE-DIMENSIONAL
CONFIGURATION OF THE SPORT FISHING DEVICE. THE BROKEN LINES ARE INTENDED
TO SHOW THE POSITION OF THE MARK BUT ARE NOT PART OF THE MARK.
SEC. 2(F).
SER. NO. 86-607,682, FILED 4-23-2015.
JOHN MUCHA, EXAMINING ATTORNEY

EPARTMENT OF COMM
Hva30 S'n . PATENT OFFICE IT & TRADEMARK OF R

2042781
UNITED ST ATES DEPARTMENT
OF COMMERCE
United States
Patent
and
Trademark
Office
April 09, 2019
THE ATTACHED U.S.
TRADEMARK REGISTRATION 5,435,944 IS
CERTIFIED
TO
BE A TRUE COPY
OF THE REGISTRATION ISSUED BY
THE UNITED STATES PATENT AND TRADEMARK OFFICE WHICH
REGISTRATION IS IN FULL FORCE
AND EFFECT.
REGISTERED
FOR
A
TERM OF
10
YEARS
FROM April
03, 2018
SAID RECORDS SHOW TITLE TO
BE IN: Registrant
By Authority
of
the
Under Secretary
of
Commerce for Intellectual
Property
and Director of the United States
Patent and
Trademark
Office
:
WA
~ ~Certifying Officer

Reg. No. 5,435,944
,,.
.
~------•·
UNITED PLASTIC MOLDERS, INC. (MISSISSIPPI CORPORATION)
105 E. Rankin St.
Registered Apr. 03, 2018 Jackson, MISSISSIPPI 39201
I t Cl 28 CLASS 28: Sport fishing accessory, namely, a feature
of
a sport fishing device which holds
D •
•:
the lip
of
a fish caught by an angler for ease
of
landing, weighing and release
Trademark
Principal Register
Director
of
the United States
Patent and Trademark
Office
FIRST USE 12-00-2002; IN COMMERCE 12-00-2002
The mark consists
of
a stylized gripper with heart-shaped opening.
SER. NO. 87-139,494, FILED 08-16-2016

REQUIREMENTS
TO
MAINTAIN YOUR FEDERAL TRADEMARK REGISTRATION
WARNING:
YOUR
REGISTRATION WILL BE CANCELLED IF YOU DO NOT FILE THE
DOCUMENTS BELOW DURING THE SPECIFIED TIME PERIODS.
Requirements in the First Ten Years*
What and When to File:
• First Fi/inf! Deadline: You must file a Declaration of Use (or Excusable Nonuse) between the 5th and 6th
years after the registration date. See
15
U.S.C.
§§
1058, 1141k. If the declaration is accepted, the
registration will continue in force for the remainder of the ten-year period, calculated from the registration
date, unless cancelled by an order
of
the Commissioner for Trademarks or a federal court.
• Second Filinf! Deadline: You must file a Declaration of Use (or Excusable Nonuse) and an Application
for Renewal between the 9th and 10th years after the registration date.* See
15
U.S.C. §1059.
Requirements in Successive Ten-Year Periods*
What and When to File:
• You must file a Declaration of Use (or Excusable Nonuse) and an Application for Renewal
between every 9th and 10th-year period, calculated from the registration date.*
Grace Period Filings*
The above documents will be accepted as timely
if
filed within six months after the deadlines listed above with
the payment
of
an additional fee.
*ATTENTION MADRID PROTOCOL REGISTRANTS: The holder
of
an international registration with an
extension
of
protection to the United States under the Madrid Protocol must timely file the Declarations
of
Use
(or Excusable Nonuse) referenced above directly with the United States Patent and Trademark Office (USPTO).
The time periods for filing are based on the U.S. registration date (not the international registration date). The
deadlines and grace periods for the Declarations
of
Use (or Excusable Nonuse) are identical to those for
nationally issued registrations. See
15
U.S.C. §§1058, 1141k. However, owners
of
international registrations
do not file renewal applications at the USPTO. Instead, the holder must file a renewal
of
the underlying
international registration at the International Bureau
of
the World Intellectual Property Organization, under
Article 7
of
the Madrid Protocol, before the expiration
of
each ten-year term
of
protection, calculated from the
date
of
the international registration. See
15
U.S.C. §l 141j. For more information and renewal forms for the
international registration, see http://www.wipo.int/madrid/en/.
NOTE: Fees and requirements for maintaining registrations are subject to change. Please check the
USPTO website for further information. With the exception
of
renewal applications for registered
extensions of protection, you can file the registration maintenance documents referenced above online at h
ttp://www.uspto.gov.
NOTE: A courtesy e-mail reminder of USPTO maintenance filing deadlines will be sent to trademark
owners/holders who authorize e-mail communication and maintain a current e-mail address with the
USPTO. To ensure that e-mail is authorized and your address is current, please use the Trademark
Electronic Application System (TEAS) Correspondence Address and Change of Owner Address Forms
available at http://www.uspto.gov.
Page: 2 of 2
/RN#
5435944

TM NT SOMMERO
FFICE
TRADEMARK

CERTAIN FISH-HANDLING PLIERS AND PACKAGING
THEREOF
Inv. No. 337-TA-1169
PUBLIC CERTIFICATE OF SERVICE
I, Lisa R. Barton, hereby certify that the attached ORDER has been served via EDIS upon
the Commission Investigative Attorney, Thomas C. Chen, Esq., and the following parties as
indicated, on September 17, 2020.
Lisa R. Barton, Secretary
U.S. International Trade Commission
500 E Street, SW, Room 112
Washington, DC 20436
On Behalf of Complainant United Plastic Molders:
Rett Snotherly, Esq.
LEVI & SNOTHERLY, PLLC
1101 Connecticut Ave., NW, Suite 450
Washington, DC 20036
Email: rsnotherly@levisnotherly.com
☐ Via Hand Delivery
☐ Via Express Delivery
☐ Via First Class Mail
☒ Other: Email Notification of
Availability for Download
Respondents:
Yixing Five Union Industry & Trade Co., Ltd.
Building A1, Innovation Park of Yixing City
Jiangsu Province
China
☐ Via Hand Delivery
☐ Via Express Delivery
☐ Via First Class Mail
☒ Other: Service to Be
Completed by Complainants
NOEBY Fishing Tackle Co., Ltd.
No. 81 Bohai Road, Eco-zone
Weihai, Shandong
China
☐ Via Hand Delivery
☐ Via Express Delivery
☐ Via First Class Mail
☒ Other: Service to Be
Completed by Complainants
Weihai ILure Fishing Tackle Co., Ltd.
No. 01 ZhouNing Road,
LinGang District,
Weihai, Shandong
China
☐ Via Hand Delivery
☐ Via Express Delivery
☐ Via First Class Mail
☒ Other: Service to Be
Completed by Complainants

3
Having reviewed the written submissions and the evidentiary record, the Commission has
determined to: (1) vacate the ID’s finding of violation with respect to the ’923 patent, as well as
all other findings related solely to the ’923 patent, based on that patent’s expiration; (2) affirm
the ALJ’s findings on the economic prong of the domestic industry requirement; and (3) reverse
the ID’s findings of violation with respect to Five Union and Lotus based on UPM’s failure to
provide substantial, reliable, and probative evidence that those entities manufacture the accused
SamsFX products. Based on the findings in the ID as modified above, the Commission has
determined that UPM has shown a violation of section 337(a)(1)(C), 19 U.S.C. 1337(a)(1)(C), by
NOEBY and SamsFX with respect to the ’923 and ’944 marks. The Commission finds that
UPM failed to show a violation by the remaining defaulted respondents.
The Commission has determined that the appropriate remedy in this investigation is a
GEO prohibiting the unlicensed importation of certain fish-handling pliers and packaging thereof
that infringe the ’923 and ’944 marks. The Commission has further determined that the public
interest factors enumerated in section 337(d) (19 U.S.C. 1337(d)) do not preclude issuance of the
GEO. Finally, the Commission has determined that a bond in the amount of one hundred (100)
percent of the entered value of the imported articles that are subject to the GEO is required to
permit temporary importation of the articles in question during the period of Presidential review
(19 U.S.C. 1337(j)). The investigation is hereby terminated in its entirety.
The Commission’s order and opinion were delivered to the President and to the United
States Trade Representative on the day of their issuance. The Commission has also notified the
Secretary of the Treasury and Customs and Border Protection of the order.
The Commission vote for these determinations took place on August 10, 2020.
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).
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 CFR 201.16(a), 210.7(a)(1)), the Commission orders that the
Complainant(s) complete service for any party/parties 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).

4
By order of the Commission.
Lisa R. Barton
Secretary to the Commission
Issued: August 10, 2020

CERTAIN FISH-HANDLING PLIERS AND PACKAGING
THEREOF
Inv. No. 337-TA-1169
PUBLIC CERTIFICATE OF SERVICE
I, Lisa R. Barton, hereby certify that the attached NOTICE has been served via EDIS upon
the Commission Investigative Attorney, Thomas C. Chen, Esq., and the following parties as
indicated, on August 10, 2020.
Lisa R. Barton, Secretary
U.S. International Trade Commission
500 E Street, SW, Room 112
Washington, DC 20436
On Behalf of Complainant United Plastic Molders:
Rett Snotherly, Esq.
LEVI & SNOTHERLY, PLLC
1101 Connecticut Ave., NW, Suite 450
Washington, DC 20036
Email: rsnotherly@levisnotherly.com
☐ Via Hand Delivery
☐ Via Express Delivery
☐ Via First Class Mail
☒ Other: Email Notification of
Availability for Download
Respondents:
Yixing Five Union Industry & Trade Co., Ltd.
Building A1, Innovation Park of Yixing City
Jiangsu Province
China
☐ Via Hand Delivery
☐ Via Express Delivery
☐ Via First Class Mail
☒ Other: Service to Be
Completed by Complainants
NOEBY Fishing Tackle Co., Ltd.
No. 81 Bohai Road, Eco-zone
Weihai, Shandong
China
☐ Via Hand Delivery
☐ Via Express Delivery
☐ Via First Class Mail
☒ Other: Service to Be
Completed by Complainants
Weihai ILure Fishing Tackle Co., Ltd.
No. 01 ZhouNing Road,
LinGang District,
Weihai, Shandong
China
☐ Via Hand Delivery
☐ Via Express Delivery
☐ Via First Class Mail
☒ Other: Service to Be
Completed by Complainants

2
during the Presidential review period shall be in the amount of one hundred (100) percent of the
entered value for all covered products in question.
Accordingly, the Commission hereby ORDERS that:
1. Fish-handling pliers and packaging thereof that infringe the ’923 and ’944
marks (“covered articles”) are excluded from entry into the United States for consumption, entry
for consumption from a foreign-trade zone, and withdrawal from a warehouse for consumption
for the remaining term of the patent, except under license from, or with the permission of, the
patent owner or as provided by law until such date as the trademarks have been abandoned,
canceled, or rendered invalid or unenforceable.
2. 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 the Order, the
Commission has attached to this Order copies of the relevant trademark
registrations as Exhibit 1.
3. Notwithstanding paragraph 1 of this Order, the aforesaid covered articles are
entitled to entry into the United States for consumption, entry for consumption from a foreign-
trade zone, and withdrawal from a warehouse for consumption, under bond in the amount of one
hundred (100) percent of the entered value of the products 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. 43251), from the day after this Order is received by
the United States Trade Representative and 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 date of receipt of this Order. All entries of covered
articles made pursuant to this paragraph are to be reported to U.S. Customs and Border

4
8. Notice of this Order shall be published in the Federal Register.
By order of the Commission.
Lisa R. Barton
Secretary to the Commission
Issued: August 10, 2020

CERTAIN FISH-HANDLING PLIERS AND PACKAGING
THEREOF
Inv. No. 337-TA-1169
PUBLIC CERTIFICATE OF SERVICE
I, Lisa R. Barton, hereby certify that the attached ORDER has been served via EDIS upon
the Commission Investigative Attorney, Thomas C. Chen, Esq., and the following parties as
indicated, on August 10, 2020.
Lisa R. Barton, Secretary
U.S. International Trade Commission
500 E Street, SW, Room 112
Washington, DC 20436
On Behalf of Complainant United Plastic Molders:
Rett Snotherly, Esq.
LEVI & SNOTHERLY, PLLC
1101 Connecticut Ave., NW, Suite 450
Washington, DC 20036
Email: rsnotherly@levisnotherly.com
☐ Via Hand Delivery
☐ Via Express Delivery
☐ Via First Class Mail
☒ Other: Email Notification of
Availability for Download
Respondents:
Yixing Five Union Industry & Trade Co., Ltd.
Building A1, Innovation Park of Yixing City
Jiangsu Province
China
☐ Via Hand Delivery
☐ Via Express Delivery
☐ Via First Class Mail
☒ Other: Service to Be
Completed by Complainants
NOEBY Fishing Tackle Co., Ltd.
No. 81 Bohai Road, Eco-zone
Weihai, Shandong
China
☐ Via Hand Delivery
☐ Via Express Delivery
☐ Via First Class Mail
☒ Other: Service to Be
Completed by Complainants
Weihai ILure Fishing Tackle Co., Ltd.
No. 01 ZhouNing Road,
LinGang District,
Weihai, Shandong
China
☐ Via Hand Delivery
☐ Via Express Delivery
☐ Via First Class Mail
☒ Other: Service to Be
Completed by Complainants

Public Version
1
UNITED STATES INTERNATIONAL TRADE COMMISSION
Washington, DC
In the Matter of
CERTAIN FISH-HANDLING PLIERS
AND PACKAGING THEREOF
Investigation No. 337-TA-1169
COMMISSION OPINION
The Commission has determined that there has been a violation of section 337 of the
Tariff Act of 1930, as amended, 19 U.S.C. § 1337, with respect to U.S. Trademark Registration
Nos. 4,980,923 (“the ’923 trademark”) and 5,435,944 (“the ’944 trademark”) on review of an
initial determination (“ID”) (Order No. 14) of the presiding administrative law judge (“ALJ”).
This opinion sets forth the Commission’s reasoning in support of that determination. In addition,
the Commission adopts the findings in the ID that are not inconsistent with this opinion.
I. BACKGROUND
A. Procedural History
On July 29, 2019, the Commission instituted this investigation based on a complaint filed
by United Plastic Molders, Inc. of Jackson, Mississippi (“UPM”). 84 Fed. Reg. 36620-21. The
complaint alleged violations of section 337 in the importation into the United States, the sale for
importation, and the sale after importation within the United States of certain fish-handling pliers
and packaging thereof by reason of infringement of one or more of claims 1-11 of U.S. Patent
No. 6,256,923 (“the ’923 patent”) and infringement of one or more of the ’923 and ’944
trademarks. Id. at 36621. The notice of investigation named as respondents Yixing Five Union

Public Version
2
Industry & Trade Co., Ltd. of Yixing City, China (“Five Union”); NOEBY Fishing Tackle Co.,
Ltd. of Weihai, China (“NOEBY”); Weihai iLure Fishing Tackle Co., Ltd. of Weihai, China
(“iLure”); SamsFX of Yangzhou City, China (“SamsFX”); and Weihai Lotus Outdoor Co., Ltd.
of Weihai, China (“Lotus”) (collectively, “Respondents”). Id. The Office of Unfair Import
Investigations (“OUII”) is a party to the investigation. Id.
All five respondents defaulted. On December 18, 2019, the Commission found NOEBY,
iLure, Weihai Lotus, and Five Union in default for failing to respond to the complaint and notice
of investigation. Order No. 11 (Nov. 19, 2019), not reviewed, Notice (Dec. 18, 2019). Also on
December 18, 2019, the Commission found SamsFX in default for failing to respond to the
complaint and notice of investigation. Order No. 12 (Nov. 25, 2019), not reviewed, Notice (Dec.
18, 2019).
On December 5, 2019, UPM moved for a summary determination of violation and for a
recommendation for the issuance of a general exclusion order. On January 3, 2020, OUII filed a
response that generally supported UPM’s motion except OUII believed that UPM had not shown
that iLure infringed the ’923 and ’944 trademarks because the only evidence of iLure’s
importation predated the registration of the trademarks.
On April 10, 2020, the ALJ issued an ID granting in part UPM’s motion for summary
determination on violation. Specifically, the ALJ found that: (1) UPM established importation
against all respondents; (2) UPM established infringement of claims 1 and 7 of the ’923 patent
by SamsFX/Lotus, NOEBY, and iLure; (3) UPM satisfied the technical prong of the domestic
industry requirement with respect to claim 1 of the ’923 patent; (4) UPM established
infringement of the ’923 and ’944 trademarks by NOEBY, SamsFX, Lotus, and Five Union;
(5) UPM failed to establish infringement of the ’923 and ’944 trademarks by iLure because all

Public Version
3
alleged acts of importation occurred prior to the registration of those trademarks; (6) UPM
satisfied the technical prong of the domestic industry requirement with respect to the ’923
and ’944 trademarks; and (7) UPM satisfied the economic prong of the domestic industry
requirement through substantial investments in plant and equipment and labor and capital with
respect to its domestic industry products. The ALJ’s recommended determination (“RD”)1
found that there was widespread violation and that a limited exclusion order was likely to be
circumvented, and recommended that the Commission issue a general exclusion order (“GEO”)
and set the bond rate during the period of Presidential review at one hundred percent (100%) of
the entered value of the infringing products subject to the GEO.
The Commission did not receive any petitions for review of the ID. On May 29, 2020,
the Commission sua sponte determined to review the ID’s finding of violation with respect to the
’923 patent; the ID’s findings of trademark infringement; the ID’s finding that UPM satisfied the
economic prong of the domestic industry requirement; and the ID’s finding of violation with
respect to Lotus and Five Union. The Commission requested briefing from the parties on two
topics and invited the parties to the investigation, interested government agencies, and any other
interested parties to file written submissions on the issues of remedy, the public interest, and
bonding.
On June 10, 2020, UPM2 and OUII3 provided submissions in response to the notice. On
1 The RD and ID are contained in the same document.
2 Response of UPM to the Commission’s Request for Written Submissions Regarding the
Issues Under Review and Remedy, the Public Interest, and Bonding (Jun. 10, 2020) (“UPM
Sub.”).
3 Response of the Office of Unfair Import Investigations to the Commission’s Request for
Written Submissions on the Issues Under Review, Remedy, the Public Interest, and Bonding
(Jun. 10, 2020) (“OUII Sub.”).

Public Version
4
June 17, 2020, OUII provided a reply submission4 in response to UPM’s submission. UPM
declined to provide a reply submission. No government agency or other interested party
responded to the notice.
B. The Asserted Patent and Trademarks
This investigation relates to intellectual property covering pliers for handling fish. The
’923 patent is entitled “Fish Handling Pliers,” and claims priority to its filing date, February 25,
2000. The patent term was not extended or adjusted by the U.S. Patent and Trademark Office,
and thus expired on February 25, 2020.
The ’923 trademark is for use with a “sport fishing accessory, namely, a feature of a sport
fishing device which holds the lip of a fish caught by an angler for ease of landing, weighing,
and release,” and “consists of a heart shaped opening in the three-dimensional configuration of
the sport fishing device.” ’923 trademark. The trademark is depicted as follows:
4 Reply of the Office of Unfair Import Investigations to the Commission’s Request for
Written Submissions on the Issues Under Review, Remedy, the Public Interest, and Bonding
(Jun. 17, 2020) (“OUII Rep.”).

Public Version
5
Id. The ’923 trademark was registered on June 21, 2016, and states that its first use in commerce
was April 1, 2001.
The ’944 trademark is for use with a “sport fishing accessory, namely, a feature of a sport
fishing device which holds the lip of a fish caught by an angler for ease of landing, weighing,
and release,” and “consists of a stylized gripper with heart-shaped opening.” ’944 trademark.
The trademark is depicted as follows:
Id. The ’944 trademark was registered on April 3, 2018, and states that its first use in commerce
was “12-00-2002.”

Public Version
6
C. The Accused Products
The accused products are fish-handling pliers (i.e., “pliers that aid in the landing,
weighing, and handling of fish by securely gripping the lip of a fish while the hook is removed”).
See 84 Fed. Reg. at 36621. Specifically, UPM accused the following respondents of infringing
the following asserted intellectual property:
ID at 4. UPM alleges that Five Union manufactures the 9-inch SamsFX product and that Lotus
manufactures the 6-inch SamsFX product.
D. The Domestic Industry Products
The asserted domestic industry articles are UPM’s fish-handling plier products. UPM
asserts that its investments in plant and equipment and labor and capital regarding its Fish Grip,
Fish Grip Jr, and Fish Grip Mini satisfy the domestic industry requirement.
II. STANDARD OF REVIEW
With respect to the issues under review, “the Commission may affirm, reverse, modify,
set aside or remand for further proceedings, in whole or in part, the initial determination of the
administrative law judge.” 19 C.F.R. § 210.45(c). The Commission also “may take no position

Public Version
9
Union. ID at 10-11, 13-14. Specifically, the ID found that the 6-inch SamsFX product is
manufactured by Lotus and the 9-inch SamsFX product is manufactured by Five Union, and that
those entities knew or should have known that SamsFX was selling and shipping the products to
the United States based on SamsFX’s Amazon.com sales account. Id. In support of the finding
that the SamsFX products are manufactured by Lotus and Five Union, the ALJ relied upon the
testimony of UPM’s employee, William C. Hoge III, that certain fish pliers imported and sold by
SamsFX are manufactured by Five Union and Lotus. Complaint, Exhibit 26C, Declaration of
William C. Hoge III at ¶ 26, 30.
UPM and OUII both argue that the ALJ correctly found that Five Union and Lotus
violated section 337 through their manufacture of SamsFX’s infringing products. UPM Sub. at
6-7; OUII Sub. at 6-7. Both argued that the ALJ reasonably relied on Mr. Hoge’s testimony to
show that Five Union and Lotus sold the products to SamsFX and knew or should have known
that the products would be imported and sold in the United States. Id.
In order to obtain a general exclusion order, UPM is required to show that “a violation is
established by substantial, reliable, and probative evidence.” 19 U.S.C. § 1337(g)(2)(B). 5 Here,
the only evidence connecting Five Union and Lotus to the accused products is the testimony of
Mr. Hoge. See Complaint, Exhibit 26C, Declaration of William C. Hoge III at ¶ 26, 30. Mr.
Hoge testified that Five Union and Lotus manufactured the SamsFX products because he had
5 The Commission’s assessment is governed by section 337(g)(2)—not by the
presumptions applicable under section 337(g)(1)—because UPM seeks a general exclusion order
rather than an exclusion order limited to the defaulting Respondents. See 19 U.S.C.
§ 1337(g)(1)(E), (g)(2); Complainant UPM’s Motion for Summary Determination of Violation of
Section 337 and for a Recommendation of a General Exclusion Order (Dec. 5, 2019). Section
337(g)(2) requires that, for the Commission to issue a general exclusion order, a violation must
be proven based on “substantial, reliable, and probative evidence.” 19 U.S.C. § 1337(g)(2)(B).

Public Version
11
In addition to the authority of the Commission to issue a general
exclusion from entry of articles when a respondent appears to
contest an investigation concerning a violation of the provisions of
this section, a general exclusion from entry of articles, regardless
of the source or importer of the articles, may be issued if—
(A) no person appears to contest an investigation
concerning a violation of the provisions of this
section,
(B) such a violation is established by substantial,
reliable, and probative evidence, and
(C) the requirements of subsection (d)(2) of this section
are met.
19 U.S.C. § 1337(g)(2). Section 337(d)(2) provides that “[t]he authority of the Commission to
order an exclusion from entry of articles shall be limited to persons determined by the
Commission to be violating this section unless the Commission determines that— (A) a general
exclusion from entry of articles is necessary to prevent circumvention of an exclusion order
limited to products of named persons; or (B) there is a pattern of violation of this section and it is
difficult to identify the source of infringing products.” 19 U.S.C. § 1337(d)(2); see also 19
C.F.R. § 210.50(c).
The RD recommends that the Commission issue a general exclusion order with respect to
the ’923 patent and the ’923 and ’944 trademarks. RD at 85. The ALJ found that a general
exclusion order was necessary to prevent circumvention of a limited exclusion order because the
evidence shows that infringing products are sold in generic packaging without logos or other
indication of origin, and the respondents’ refusal to participate in the investigation suggests that
they would not abide by an LEO. Id. at 86. The ALJ also found a widespread pattern of
violation with difficulty in identifying the sources based on evidence showing eight infringing
products available for sale on Amazon.com, ten infringing products available for sale on
AliExpress, and two infringing products available for sale on Wal-Mart.com. Id. at 89. The ALJ

Public Version
14
Commission finds that the appropriate relief is a GEO with respect to the ’923 and ’944
trademarks.
B. The Public Interest
Section 337 requires the Commission, upon finding a violation of section 337, to issue a
remedy “unless, after considering the effect of such exclusion upon the public health and
welfare, competitive conditions in the United States economy, the production of like or directly
competitive articles in the United States, and United States consumers, it finds that such articles
should not be excluded from entry.” 19 U.S.C. § 1337(d)(l); see also 19 U.S.C. § 1337(g)(1).
Under appropriate facts and circumstances, the Commission may determine that no
remedy should issue because of the adverse impacts on the public interest. See, e.g., Certain
Fluidized Supporting Apparatus & Components Thereof, Inv. Nos. 337-TA-182/188, USITC
Pub. 1667, Comm’n Op. at 1–2, 23–25 (Oct. 1984) (finding that the public interest warranted
denying complainant’s requested relief). Moreover, when the circumstances of a particular
investigation require, the Commission has tailored its relief in light of the statutory public
interest factors. For example, the Commission has allowed continued importation for ongoing
medical research, exempted service parts, grandfathered certain infringing products, and delayed
the imposition of remedies to allow affected third-party consumers to transition to non-infringing
products. E.g., Certain Microfluidic Devices, Inv. No. 337-TA-1068 Comm’n Op. at 1, 22–48,
53–54 (analyzing the public interest, discussing applicable precedent, and ultimately issuing a
tailored LEO and a tailored CDO); Certain Road Milling Machines & Components Thereof, Inv.
No. 337-TA-1067, Comm’n Op. at 32–33 (July 18, 2019) (exempting service parts); Certain
Baseband Processor Chips & Chipsets, Transmitter, & Receiver (Radio) Chips, Power Control
Chips, & Prods. Containing Same, Including Cellular Tel. Handsets, 337-TA-543, USITC Pub.

Public Version
15
No. 4258, Comm’n Op. at 150–51 (Oct. 2011) (grandfathering certain products); Certain
Personal Data & Mobile Comm’n Devices & Related Software, 337-TA-710, USITC Pub. No.
4331, Comm’n Op., at 72–73, 80–81 (June 2012) (delaying imposition of remedy).
The statute requires the Commission to consider and make findings on the public interest
in every case in which a violation is found regardless of the quality or quantity of public interest
information supplied by the parties. 19 U.S.C. § 1337(d)(l). Thus, the Commission publishes a
notice inviting the parties as well as interested members of the public and interested government
agencies to gather and present evidence on the public interest at multiple junctures in the
proceeding. 19 U.S.C. § 1337(d)(l).
Both UPM and OUII contend that the statutory public interest factors do not warrant
denying a remedy. UPM Statement on the Public Interest (May 8, 2020); OUII Sub. at 13-14.
The Commission did not receive any comments from the public or interested government
agencies on this issue in response to its notice of review.
The Commission finds no evidence in the record indicating that a general exclusion order
would have an adverse impact on the public health and welfare, competitive conditions in the
United States economy, the production of like or directly competitive articles in the United
States, or United States consumers. The record in this investigation contains no evidence that the
products at issue, pliers to handle fish upon capture, would have an adverse impact on the public
health and welfare concerns. Moreover, trademarks are necessarily nonfunctional,11 so the GEO
will not prevent competitors from importing and selling fish-handling pliers with identical
functionality as long as they avoid the nonfunctional trademarked features at issue. Moreover,
11 E.g., Qualitex Co. v. Jacobson Products Co., 514 US 159, 164 (1995); 15 U.S.C.
§ 1064(3).

Public Version
16
UPM’s domestic industry products are manufactured in the United States whereas the accused
products are imported from overseas. As such, the Commission finds that the GEO would not
adversely impact production of the fish-handling pliers in the United States. Accordingly, the
Commission finds that the statutory public interest factors do not preclude issuance of a GEO.
C. Bonding
When the Commission enters an exclusion order or a cease and desist order, a respondent
may continue to import and sell its products during the 60-day period of Presidential review
under a bond in an amount determined by the Commission to be “sufficient to protect the
complainant from any injury.” 19 U.S.C. § 1337(j)(3); see also 19 C.F.R. § 210.50(a)(3). When
reliable price information is available in the record, the Commission has often set the bond in an
amount that would eliminate the price differential between the domestic product and the
imported, infringing product. See Certain Microsphere Adhesives, Processes for Making Same,
& Prods. Containing Same, Including Self-stick Repositionable Notes, Inv. No. 337-TA-366,
USITC Pub. No. 2949, Comm’n Op. at 24 (Jan. 16, 1996). The Commission also has used a
reasonable royalty rate to set the bond amount where a reasonable royalty rate could be
ascertained from the evidence in the record. See, e.g., Certain Audio Digital-to-Analog
Converters & Prods. Containing Same, Inv. No. 337-TA-499, Comm’n Op. at 25 (Mar. 3, 2005).
Where the record establishes that the calculation of a price differential is impractical or there is
insufficient evidence in the record to determine a reasonable royalty, the Commission has
imposed a 100 percent bond. See, e.g., Certain Liquid Crystal Display Modules, Prods.
Containing Same, & Methods Using the Same, Inv. No. 337-TA-634, Comm’n Op. at 6-7 (Nov.
24, 2009). The complainant, however, bears the burden of establishing the need for a bond.

Public Version
18
By order of the Commission.
Lisa R. Barton
Secretary to the Commission
Issued: September 29, 2020

CERTAIN FISH-HANDLING PLIERS AND PACKAGING
THEREOF
Inv. No. 337-TA-1169
PUBLIC CERTIFICATE OF SERVICE
I, Lisa R. Barton, hereby certify that the attached Order, Commission has been served via
EDIS upon the Commission Investigative Attorney, Thomas C. Chen, Esq., and the following
parties as indicated, on September 29, 2020.
Lisa R. Barton, Secretary
U.S. International Trade Commission
500 E Street, SW, Room 112
Washington, DC 20436
On Behalf of Complainant United Plastic Molders:
Rett Snotherly, Esq.
LEVI & SNOTHERLY, PLLC
1101 Connecticut Ave., NW, Suite 450
Washington, DC 20036
Email: rsnotherly@levisnotherly.com
☐ Via Hand Delivery
☐ Via Express Delivery
☐ Via First Class Mail
☒ Other: Email Notification of
Availability for Download
Respondents:
Yixing Five Union Industry & Trade Co., Ltd.
Building A1, Innovation Park of Yixing City
Jiangsu Province
China
☐ Via Hand Delivery
☐ Via Express Delivery
☐ Via First Class Mail
☒ Other: Service to Be
Completed by Complainants
NOEBY Fishing Tackle Co., Ltd.
No. 81 Bohai Road, Eco-zone
Weihai, Shandong
China
☐ Via Hand Delivery
☐ Via Express Delivery
☐ Via First Class Mail
☒ Other: Service to Be
Completed by Complainants
Weihai ILure Fishing Tackle Co., Ltd.
No. 01 ZhouNing Road,
LinGang District,
Weihai, Shandong
China
☐ Via Hand Delivery
☐ Via Express Delivery
☐ Via First Class Mail
☒ Other: Service to Be
Completed by Complainants

3
In connection with its review, the Commission is interested in briefing on the following
issues:
1. In view of UPM’s acknowledgment that the ’923 patent expired on February 25, 2020
(Complaint ¶ 23), how does that expiration impact the findings in the ID? Please
specifically address any impact on the ID’s findings on the economic prong of the
domestic industry requirement.
2. Please identify all evidence in the record that demonstrates that Lotus and Five Union
are involved in “the importation into the United States, the sale for importation, or the
sale within the United States after importation by the owner, importer, or consignee”
of infringing articles. 19 U.S.C. 1337(a)(1)(C). Please explain how that evidence
constitutes “substantial, reliable, and probative evidence.” 19 U.S.C. 1337(g)(2)(B).
The parties are invited to brief only the discrete issues described above, with reference to the
applicable law and evidentiary record. The parties are not to brief other issues on review, which
are adequately presented in the parties’ existing filings.
In connection with the final disposition of this investigation, the statute authorizes
issuance of (1) an order that could result in the exclusion of the subject articles from entry into
the United States, and/or (2) cease and desist orders that could result in the respondents being
required to cease and desist from engaging in unfair acts in the importation and sale of such
articles. Accordingly, the Commission is interested in receiving written submissions that address
the form of remedy, if any, that should be ordered. If a party seeks exclusion of an article from
entry into the United States for purposes other than entry for consumption, the party should so
indicate and provide information establishing that activities involving other types of entry either
are adversely affecting it or likely to do so. For background, see Certain Devices for Connecting
Computers via Telephone Lines, Inv. No. 337-TA-360, USITC Pub. No. 2843, Comm’n Op. at 7-
10 (December 1994).
The statute requires the Commission to consider the effects of any remedy upon the
public interest. The public interest factors the Commission will consider include the effect that
an exclusion order and/or a cease and desist order would have on (1) the public health and
welfare, (2) competitive conditions in the U.S. economy, (3) U.S. production of articles that are
like or directly competitive with those that are subject to investigation, and (4) U.S. consumers.
The Commission is therefore interested in receiving written submissions that address the
aforementioned public interest factors in the context of this investigation.
If the Commission orders some form of remedy, the U.S. Trade Representative, as
delegated by the President, has 60 days to approve, disapprove, or take no action on the
Commission’s determination. See Presidential Memorandum of July 21, 2005, 70 FR 43251
(July 26, 2005). During this period, the subject articles would be entitled to enter the United
States under bond, in an amount determined by the Commission and prescribed by the Secretary

5
The Commission vote for these determinations took place on May 27, 2020.
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: May 27, 2020

PUBLIC VERSION
UNITED STATES INTERNATIONAL TRADE COMMISSION
WASHINGTON, D.C. 20436
In the Matter of
CERTAIN FISH-HANDLING PLIERS
AND PACKAGING THEREOF
Inv. No. 337-TA-1169
Order No. 14
INITIAL DETERMINATION
Granting in Part Complainant’s Motion for Summary Determination
of Violation by the Defaulting Respondents
And
RECOMMENDED DETERMINATION
On Remedy and Bonding

PUBLIC VERSION
TABLE OF CONTENTS
I. Background ……………………………………………………………….…. 1
A. Institution of the Investigation; Procedural History …………..……... 1
B. The Parties ………………………….……………….….…………….. 3
C. The Accused Products ………………………………………………. 4
D. Technological Background ………………………………………….. 5
II. Jurisdiction …………………………….………………………………….….. 7
III. Importation …………………………….………………………………….….. 8
IV. General Principles of Applicable Law …..………………………………..…. 15
V. United States Patent No. 6,256,923 …………………….……………...….….. 23
VI. United States Trademark Registration Nos. 4,980,923 and 5,435,944 ..….….. 34
VII. Domestic Industry (Economic Prong) ………..……………………….………. 77
VIII. Remedy and Bonding ………………………………………………….……… 83
IX. Conclusions of Law ………………………………………………….……….. 92
X. Initial Determination and Order ……………………………………..……….. 92

PUBLIC VERSION
ii
The following abbreviations may be used in this Initial Determination:
ALJ - Administrative Law Judge
EDIS - Electronic Document Imaging System

PUBLIC VERSION
I. Background
A. Institution of the Investigation; Procedural History
By publication of a notice in the Federal Register on July 29, 2019, pursuant to
subsection (b) of section 337 of the Tariff Act of 1930, as amended, the Commission
instituted this investigation to determine:
(a) Whether there is a violation of subsection (a)(1)(B) of
section 337 in the importation into the United States, the
sale for importation, or the sale within the United States
after importation of certain products identified in paragraph
(2) by reason of infringement of one or more claims 1-11 of
the ‘923 patent [U.S. Patent No. 6,256,923], and whether
an industry in the United States exists as required by
subsection (a)(2) of section 337; and
(b) Whether there is a violation of subsection (a)(1)(C) of
section 337 in the importation into the United States, the
sale for importation, or the sale within the United States
after importation of certain products identified in paragraph
(2) by reason of infringement of one or more of the ‘923
mark [U.S. Trademark Registration No. 4,980,923] and the
‘944 mark [U.S. Trademark Registration No. 5,435,944],
and whether an industry in the United States exists as
required by subsection (a)(2) of section 337.
84 Fed. Reg. 36620 (July 29, 2019).
Pursuant to section 210.10(b)(1) of the Commission’s Rules of Practice and
Procedure, 19 CFR 210.10(b)(1):
[T]he plain language description of the accused products
or category of accused products, which defines the scope
of the investigation, is “pliers that aid in the landing,
weighing, and handling of fish by securely gripping the
lip of a fish while the hook is removed.”
Id.

PUBLIC VERSION
2
The complainant is United Plastic Molders, Inc. of Jackson, Mississippi. The
named respondents are:
1. Yixing Five Union Industry & Trade Co., Ltd. of Jiangsu Province,
China;
2. NOEBY Fishing Tackle Co., Ltd. of Weihai, Shandong, China;
3. Weihai iLure Fishing Tackle Co., Ltd. of Weihai, Shandong, China;
4. SamsFX of Jiangsu Province, China; and
5. Weihai Lotus Outdoor Co., Ltd. of Shandong Province, China.
The Office of Unfair Import Investigations (“OUII” or “Staff”) is a party to this
investigation. Id.
The target date for completion of this investigation was originally set at August 7,
2020, which is approximately twelve months and one week after institution of the
investigation. See Order No. 3 (Sept. 9, 2019). Accordingly, the due date for the Initial
Determination on violation was April 7, 2020.
On December 18, 2019, the Commission determined not to review an initial
determination finding the following four respondents in default pursuant to 19 C.F.R.
§ 210.16: (1) Yixing Five Union Industry & Trade Co., Ltd.; (2) NOEBY Fishing Tackle
Co., Ltd.; (3) Weihai iLure Fishing Tackle Co., Ltd.; and (4) Wehai Lotus Outdoor Co.,
Ltd.. Order No. 11 (Nov. 19, 2019), aff’d, Commission Determination Not to Review an
Initial Determination Finding Four Respondents in Default (Dec. 18, 2019).
On the same day, the Commission determined not to review an initial
determination finding respondent SamsFX in default pursuant to 19 C.F.R. § 210.16.
Order No. 12 (Nov. 25, 2019), aff’d, Commission Determination Not to Review an Initial
Determination Finding a Respondent in Default (Dec. 18, 2019).

PUBLIC VERSION

As noted above, the named respondents are (1) Yixing Five Union Industry &
Trade Co., Ltd. (“Five Union”); (2) NOEBY Fishing Tackle Co., Ltd. (“(NOEBY”); (3)
Weihai iLure Fishing Tackle Co., Ltd. (“iLure”); (4) SamsFX (“SamsFX’’); and (5)
Wehai Lotus Outdoor Co., Ltd. (“Lotus”). UPM argues that respondents sell for
importation into the United States, import, and/or sell after importation into the United
States, fish-handling pliers that are accused of infringing UPM’s patent and trademarks.
See Complaint, f¥ 12-19.

The Office of Unfair Import Investigations was also named a party to this

investigation. 84 Fed. Reg. 36620 (July 29, 2019).

Cc. The Accused Products
The Table below summarizes the intellectual property asserted by UPM against

each defaulting respondent and their corresponding accused products (as indicated by a

ee)
*923 *923 “944
Accused Product Respondent(s) Patent Trademark Trademark
SamsFX 9” Fish Grip | 5#™sFX/Five v
Union
NOEBY Fishing Lip Vv VY Vv
Grip NOEBY
iLure Fish Gripper iLure v v
SamsFX 6” Fish Grip | SamsFX/Lotus

Staff Resp. at 4.

PUBLIC VERSION
5
D. Technological Background
United States Patent No. 6,256,923 (“the ‘923 patent), entitled “Fish handling
pliers,” issued on July 10, 2001, to named inventor Don S. Norton. See Complaint, Ex. 1
(‘923 Patent). The ‘923 patent issued from Application No. 09/512,795, filed on
February 25, 2000. See id. The ‘923 patent relates to “fish gripping and handling tools.
More specifically, the present invention relates to pliers which are especially adapted to
grip the lower lip of a fish.” Complaint, Ex. 1 (‘923 Patent) at 1:4-7. The ‘923 patent has
a total of 11 claims.
The invention disclosed in the ‘923 patent includes a tongue and groove in the
mouth of the pliers to limit lateral motion that could cause damage to the fish’s lip as well
as a “stop boss” located between the upper and lower handle sections which limits the
range of motion of the jaws beyond the open and closed positions. See Complaint, Ex. 1
(‘923 Patent) at 1:30-34; 3:38-50. An embodiment of the invention is shown in Figure 1
below:

PUBLIC VERSION
6
U .S. Trademark Registration No. 4,980,923 (“the ‘923 Mark” or “the ‘923
Trademark” or “the ‘923 trademark”) is registered on the Principal Register of the U.S.
Patent and Trademark Office (“PTO”) and is a trade dress consisting of an opening in
fish-handling pliers as shown below:
See Complaint, Ex 2.
U.S. Trademark Registration No. 5,435,944 (“the ‘944 Mark” or “the ‘944
Trademark” or “the ‘944 trademark”) is registered on the Principal Register and consists
of a stylized gripper with an opening as shown below:

PUBLIC VERSION
7
See Complaint, Ex 3.
UPM is the owner of the ‘923 patent, the ‘923 Mark and the ‘944 Mark. See
Complaint, Exs. 2-4.
II. Jurisdiction
As indicated in the Commission’s notice of investigation, discussed above, this
investigation involves the importation of products alleged to infringe United States patent
and trademarks in a manner that violates section 337 of the Tariff Act, as amended. No
party has contested the Commission’s jurisdiction over the subject matter of this
investigation. It is found that the Commission has subject matter jurisdiction over this
investigation.
No party has contested the Commission’s personal jurisdiction over it. In
particular, respondents have been given notice of this investigation at least through
service of the complaint and notice of investigation. It is therefore found that the
Commission has personal jurisdiction over all parties.
No party has contested the Commission’s in rem jurisdiction over the accused
products. Evidence of specific instances of importation of the accused products was
provided in the complaint and accompanying exhibits. See Complaint, ¶¶ 48-53;
Complaint, Exs. 15-18, 26C (¶¶ 21-30). Additionally, evidence of specific instances of
importation of the accused products is discussed in the importation section of this initial
determination. Accordingly, it is found that the Commission has in rem jurisdiction over
the accused products.

PUBLIC VERSION
8
III. Importation
Section 337 prohibits “[t]he importation into the United States, the sale for
importation, or the sale within the United States after importation by the owner, importer,
or consignee, of articles that – (i) infringe a valid and enforceable United States
patent . . . .” 19 U.S.C. § 1337(a)(1)(B). Section 337 also prohibits “[t]he importation
into the United States, the sale for importation, or the sale within the United States after
importation by the owner, importer, or consignee, of articles that infringe a valid and
enforceable United States trademark . . . .” 19 U.S.C. § 1337(a)(1)(C).
A complainant “need only prove importation of a single accused product to satisfy
the importation element.” Certain Purple Protective Gloves, Inv. No. 337-TA-500,
Order No. 17 at 5 (Sept. 23, 2004); Certain Trolley Wheel Assemblies, Inv. No. 337-TA-
161, Views of the Commission at 7-8 (Aug. 29, 1984), USITC Pub. No. 1605
(Nov. 1984), available as 1984 WL 951859 (importation of product sample sufficient to
establish violation, even though sample “had no commercial value and had not been sold
in the United States”).
As discussed below, UPM has presented substantial, reliable, and probative
evidence of importation as to each of the defaulting respondents. See Mem. at 13-14.
See Staff Resp. at 8-15.
iLure
UPM relies on Exhibit 15 to the complaint to satisfy the importation requirement
as to respondent iLure. See Mem. at 13; Complaint, ¶ 50. Exhibit 15 includes an email
order confirmation dated March 13, 2016, showing the purchase of yellow fish-handling
pliers from eBay. Exhibit 15 also contains an email shipping confirmation dated March

PUBLIC VERSION
9
14, 2016, indicating that the order has shipped, and noting that shipping is available via
“Economy Shipping from China/Hong Kong/Taiwan to worldwide.” Finally, Exhibit 15
includes photographs of the packaging and shipping label received by the purchaser,
showing that the package was shipped from an address in China to a United States
address in Chantilly, VA. The yellow fish-handling pliers inside the package bear a
white “iLure” logo printed on the surface of the pliers.
The evidence in Exhibit 15 is substantial, reliable, and probative evidence that
iLure has sold for importation the accused iLure product. Exhibit 15 indicates that the
accused iLure product was available for purchase online at eBay, a well-known sales
platform from which sales to U.S. customers is foreseeable and likely.
Additionally, although not cited in UPM’s memorandum, the Staff notes that
Exhibits 11 and 14 to the complaint also contain screenshots from an Alibaba website
establishing respondent iLure (Weihai iLure) is directly involved in making the accused
fish-handling pliers available for sale and shipment to customers in the United States.
See Staff Resp. at 9 (citing Complaint, Exs. 11 & 14, referencing the following website
address: https://www.alibaba.com/product-detail/ILURE-125g-25-6cm-Lip-
Grip_60322306200.html?spm=a2700.7724857.normalList.17.2ca8V). This website lists
“Weihai iLure Fishing Tackle Co. as the manufacturer and supplier, and provides for
shipping “to United States.”

PUBLIC VERSION
10
Furthermore, iLure has defaulted in this investigation and thus has not identified
any contrary evidence or genuine disputes of material fact as to importation.
Thus, the importation requirement of section 337 has been satisfied as to
respondent iLure.
SamsFX/Five Union
UPM relies on Exhibit 18 to the complaint to satisfy the importation requirement
as to respondents SamsFX and Five Union. See Dec. 31 Supplement, EDIS Doc. ID No.
698163. Exhibit 18 includes an Amazon order and delivery confirmation indicating that
on February 5, 2019, a pair of blue and black 9” fish-handling pliers was ordered from
“SAMSFX Sports&Outdoors Co., Ltd.” and delivered to an address in the United States.
UPM further relies on Exhibit 26C, an employee declaration from William C. Hoge, III,
to explain how UPM determined that the accused pliers shown in Exhibit 18 were

PUBLIC VERSION
12
NOEBY
UPM relies on Exhibit 17 to the complaint to satisfy the importation requirement
as to respondent NOEBY. See Mem. at 13, Complaint, ¶ 52. Exhibit 17 includes a
screenshot from the website AliExpress.com showing that the NOEBY brand-name fish-
handling pliers are available for sale, with “Free Shipping to the United States.” Exhibit
17 also includes a sales invoice dated April 30, 2019, reflecting the purchase of the
accused NOEBY fish-handling pliers. The photograph of the packaging and shipping
label included with Exhibit 17 further indicates that the package was shipped from an
address in China to a United States address in Washington, DC. The red fish-handling
pliers received in the package match the fish-handling pliers depicted on the website.
The evidence in Exhibit 17 is substantial, reliable, and probative evidence that
NOEBY has sold for importation the accused NOEBY product. Although Exhibit 17
does not establish that NOEBY was directly involved in the sales and/or importation of
the accused pliers to U.S. customers, the evidence establishes that NOEBY knew or
should have known that its accused fish-handling pliers were the subject of such sales
and/or importation. Specifically, Exhibit 17 demonstrates that the accused NOEBY-brand
products had been made available for sale online using only the English language, with
the sales price listed only in U.S dollars, and with the United States identified as the only
available shipping destination/method. In addition, although not cited in UPM’s
memorandum, Exhibit 18 to the complaint establishes an instance of a direct sale by
NOEBY to a U.S. customer in Washington, DC:

PUBLIC VERSION
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See Staff Resp. at 12-13. Thus, respondent NOEBY knew or should have known that its
accused products would reach the United States.
Furthermore, NOEBY has defaulted in this investigation and thus has not
identified any contrary evidence or genuine disputes of material fact as to importation.
Thus, the importation requirement of section 337 has been satisfied as to
respondent NOEBY.
SamsFX/Lotus
UPM relies on Exhibit 18 to the complaint to satisfy the importation requirement
as to respondents SamsFX and Lotus. See Mem. at 13-14; Complaint, ¶ 53. Exhibit 18
includes an Amazon order summary indicating that the accused SamsFX 6” product
(green) was ordered on February 7, 2019 and delivered to a United States address in
Washington, DC on February 9, 2019. The invoice indicates that the product was “Sold
by: SAMSFX Sports&Outdoors Co., Ltd.” UPM further relies on Exhibit 26C, an

PUBLIC VERSION
14
employee declaration from William C. Hoge, III, to explain how UPM determined that
the accused pliers shown in Exhibit 18 were manufactured by respondent Lotus. See
Complaint, Ex. 26C (Declaration of William C. Hoge, III), ¶ 30.2
The evidence in Exhibits 18 and 26C is substantial, reliable, and probative
evidence that the accused SamsFX product was manufactured by Lotus and sold for
importation by respondent SamsFX. That evidence shows that SamsFX sold the accused
fish-handling pliers to U.S customers via Amazon.com, using the English language and
U.S. pricing, thus making it reasonable to conclude that SamsFX knew or should have
known that its product would reach the United States. Furthermore, inasmuch as the
accused pliers depicted in Exhibit 18 specifically include the SamsFX logo, Lotus (as the
manufacturer of those pliers) also knew or should have known that SamsFX was selling
and shipping its products to U.S. customers, based on the sales information readily
available on Amazon.com.
Furthermore, both SamsFX and Lotus have defaulted in this investigation and
thus have not identified any contrary evidence or genuine disputes of material fact as to
importation.
Thus, the the importation requirement of section 337 has been satisfied as to
defaulting respondents SamsFX and Lotus.
2 Mr. Hoge explained that he compared the accused SamsFX plier identified in the
complaint with fishing pliers manufactured by Lotus (depicted in Exhibit 35 to the
complaint). Based on his experience with plastic molding and similarities in the tooling
marks and other indicia, Mr. Hoge concluded that the accused SamsFX 6” pliers were
manufactured by Lotus. Exhibit 35 is a screen capture of a website depicting yellow fish-
handling pliers, and identifies the supplier/manufacturer as “Wehai Lotus Outdoor Co.,
Ltd.”

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* * *
For the reasons discussed above, UPM has presented substantial, reliable, and
probative evidence of importation as to each of the defaulting respondents. Accordingly,
the importation requirement for finding a violation of section 337 has been satisfied for
each defaulting respondent.
IV. General Principles of Applicable Law
A. Summary Determination
Section 337 prohibits “[t]he importation into the United States, the sale for
importation, or the sale within the United States after importation by the owner, importer,
or consignee, of articles that (i) infringe a valid and enforceable United States patent ….”
19 U.S.C. § 1337(a)(1)(B). A complainant need only prove importation of a single
accused product to satisfy the importation element. See Certain Trolley Wheel
Assemblies, Inv. No. 337-TA-161, Comm’n Op. at 7-8, USITC Pub. No. 1605 (Nov.
1984).
The Commission Rules provide that “[a]ny party may move with any necessary
supporting affidavits for a summary determination in its favor upon all or part of the
issues to be determined in the investigation. 19 C.F.R. § 210.18(a). Summary
determination “shall be rendered if pleadings and any depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving party is entitled to
summary determination as a matter of law.” 19 C.F.R. § 210.18(b).

PUBLIC VERSION
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B. Patent Claim Construction
Claim construction begins with the plain language of the claim.3 Claims should
be given their ordinary and customary meaning as understood by a person of ordinary
skill in the art, viewing the claim terms in the context of the entire patent.4 Phillips v.
AWH Corp., 415 F.3d 1303, 1312-13 (Fed. Cir. 2005), cert. denied, 546 U.S. 1170
(2006).
In some instances, claim terms do not have particular meaning in a field of art,
and claim construction involves little more than the application of the widely accepted
meaning of commonly understood words. Phillips, 415 F.3d at 1314. “In such
circumstances, general purpose dictionaries may be helpful.” Id.
In many cases, claim terms have a specialized meaning, and it is necessary to
determine what a person of skill in the art would have understood the disputed claim
language to mean. “Because the meaning of a claim term as understood by persons of
skill in the art is often not immediately apparent, and because patentees frequently use
terms idiosyncratically, the court looks to ‘those sources available to the public that show
what a person of skill in the art would have understood disputed claim language to
mean.’” Phillips, 415 F.3d at 1314 (quoting Innova/Pure Water, Inc. v. Safari Water
3 Only those claim terms that are in controversy need to be construed, and only to the
extent necessary to resolve the controversy. Vanderlande Indus. Nederland BV v. Int’l
Trade Comm., 366 F.3d 1311, 1323 (Fed. Cir. 2004); Vivid Tech., Inc. v. American Sci. &
Eng’g, Inc., 200 F.3d 795, 803 (Fed. Cir. 1999).
4 Factors that may be considered when determining the level of ordinary skill in the art
include: “(1) the educational level of the inventor; (2) type of problems encountered in
the art; (3) prior art solutions to those problems; (4) rapidity with which innovations are
made; (5) sophistication of the technology; and (6) educational level of active workers in
the field.” Environmental Designs, Ltd. v. Union Oil Co., 713 F.2d 693, 696 (Fed. Cir.
1983), cert. denied, 464 U.S. 1043 (1984).

PUBLIC VERSION
17
Filtration Sys., Inc., 381 F.3d 1111, 1116 (Fed. Cir. 2004)). The public sources identified
in Phillips include “the words of the claims themselves, the remainder of the
specification, the prosecution history, and extrinsic evidence concerning relevant
scientific principles, the meaning of technical terms, and the state of the art.” Id. (quoting
Innova, 381 F.3d at 1116).
In cases in which the meaning of a claim term is uncertain, the specification
usually is the best guide to the meaning of the term. Phillips, 415 F.3d at 1315. As a
general rule, the particular examples or embodiments discussed in the specification are
not to be read into the claims as limitations. Markman v. Westview Instruments, Inc., 52
F.3d 967, 979 (Fed. Cir. 1995) (en banc), aff’d, 517 U.S. 370 (1996). The specification
is, however, always highly relevant to the claim construction analysis, and is usually
dispositive. Phillips, 415 F.3d at 1315 (quoting Vitronics Corp. v. Conceptronic, Inc., 90
F.3d 1576, 1582 (Fed. Cir. 1996)). Moreover, “[t]he construction that stays true to the
claim language and most naturally aligns with the patent’s description of the invention
will be, in the end, the correct construction.” Id. at 1316.
C. Patent Infringement
Under 35 U.S.C. §271(a), direct infringement consists of making, using, offering
to sell, or selling a patented invention without consent of the patent owner. The
complainant in a section 337 investigation bears the burden of proving infringement of
the asserted patent claims by a “preponderance of the evidence.” Certain Flooring
Products, Inv. No. 337-TA-443, Comm’n Notice of Final Determination of No Violation
of Section 337, 2002 WL 448690, at *59, (Mar. 22, 2002); Enercon GmbH v. Int’l Trade
Comm’n, 151 F.3d 1376 (Fed. Cir. 1998).

PUBLIC VERSION
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Literal infringement of a claim occurs when every limitation recited in the claim
appears in the accused device, i.e., when the properly construed claim reads on the
accused device exactly.5 Amhil Enters., Ltd. v. Wawa, Inc., 81 F.3d 1554, 1562 (Fed.
Cir. 1996); Southwall Tech. v. Cardinal IG Co., 54 F.3d 1570, 1575 (Fed Cir. 1995).
C. Trademarks
“To establish infringement of a trademark under the Lanham Act, [Complainant]
must prove (1) that it has a valid and legally protectable mark; (2) it owns the mark; and
(3) the [Respondent’s] use of the mark to identify goods or services causes a likelihood of
confusion.” Converse Inc. v. Int’l Trade Comm’n, 909 F.3d 1110, 1116 (Fed. Cir. 2018)
(“Converse”); see also Certain Protective Cases and Components Thereof, Inv. No. 337-
TA-780 (“Protective Cases”), Final Initial Determination at 84-85 (June 29, 2012)
(unreviewed in relevant parts, Aug. 30, 2012).
Federal registration of a mark is prima facie evidence of the validity of a
trademark, as well as of the registrant’s ownership of and exclusive right to use the mark.
15 U.S.C. §§ 1057(b), 1115(a); Certain Handbags, Luggage, Accessories, and Packaging
Thereof, Inv. No. 337-TA-754 (“Handbags”), Order No. 16 (Initial Determination
Granting Complainants’ Motion for Summary Determination of Violation) at 6 (Mar. 5,
2012) (unreviewed, Apr. 12, 2012). This presumption “shift[s] the burden of production
to the defendant.” See Apple Inc. v. Samsung Elec. Co., 786 F.3d 983, 995 (Fed. Cir.
5 Each patent claim element or limitation is considered material and essential. London v.
Carson Pirie Scott & Co., 946 F.2d 1534, 1538 (Fed. Cir. 1991). If an accused device
lacks a limitation of an independent claim, the device cannot infringe a dependent claim.
See Wahpeton Canvas Co. v. Frontier, Inc., 870 F.2d 1546, 1552 n.9 (Fed. Cir. 1989).

PUBLIC VERSION
19
2015) (internal citations omitted). If this presumption is overcome, however, the
registration loses its legal significance. Id.
Although actual confusion is not required to prevail on a claim of trademark
infringement, “actual confusion is routinely considered by the Commission as proof of
trademark infringement as it is ‘undoubtedly the best evidence of likelihood of
confusion.’” Handbags, Order No. 16 (Initial Determination) at 14 (citing Daddy’s
Junky Music Stores, Inc. v. Big Daddy’s Family Music Center, 109 F.3d 275, 284 (6th
Cir. 1997); Certain Strip Lights, Inv. No. 337-TA-287, 1989 WL 608725 (Jun. 27, 1989))
(unreviewed, Apr. 12, 2012).
In determining whether any consumer confusion is likely, the Commission may
balance the following factors: (1) the degree of similarity between the designation and the
trademark in appearance, the pronunciation of words used, verbal translation of pictures
or designs involved, and suggestion; (2) the intent of the actor in adopting the
designation; (3) the relation in use and manner of marketing between the goods and
services marked by the actor and those by the other; and (4) the degree of care likely to
be exercised by purchasers. Protective Cases, Final Initial Determination at 85-86. The
Commission may also consider additional factors, such as the strength of the mark or
actual confusion, and all factors must be evaluated in the context of the ultimate question
of likelihood of confusion as to the source or sponsorship of the product. Certain Purple
Protective Gloves, Inv. No. 337-TA-500, Order No. 17 (Initial Determination) at 13
(Sept. 23, 2004) (unreviewed, Oct. 19, 2004); Certain Hair Irons and Packaging Thereof,
Inv. No. 337-TA-637, Order No. 14 (Initial Determination) at 22 (Mar. 10, 2009)
(unreviewed, Apr. 23, 2009).

PUBLIC VERSION
20
D. Domestic Industry
A violation of section 337(a)(1)(B), (C), (D), or (E) can be found “only if an
industry in the United States, with respect to the articles protected by the patent,
copyright, trademark, mask work, or design concerned, exists or is in the process of being
established.” 19 U.S.C. § 1337(a)(2). Section 337(a) further provides:
(3) For purposes of paragraph (2), an industry in the United States
shall be considered to exist if there is in the United States, with
respect to the articles protected by the patent, copyright, trademark,
mask work, or design concerned—
(A) significant investment in plant and equipment;
(B) significant employment of labor or capital; or
(C) substantial investment in its exploitation, including
engineering, research and development, or licensing.
19 U.S.C. § 1337(a)(3).
These statutory requirements consist of an economic prong (which requires
certain activities)6 and a technical prong (which requires that these activities relate to the
intellectual property being protected). Certain Stringed Musical Instruments and
Components Thereof, Inv. No. 337-TA-586, Comm’n Op. at 13 (May 16, 2008)
6 The Commission practice is usually to assess the facts relating to the economic prong at
the time that the complaint was filed. See Certain Coaxial Cable Connectors and
Components Thereof and Products Containing Same, Inv. No. 337-TA-560, Comm’n Op.
at 39 n.17 (Apr. 14, 2010) (“We note that only activities that occurred before the filing of
a complaint with the Commission are relevant to whether a domestic industry exists or is
in the process of being established under sections 337(a)(2)-(3).”) (citing Bally/Midway
Mfg. Co. v. U.S. Int’l Trade Comm’n, 714 F.2d 1117, 1121 (Fed. Cir. 1983)). In some
cases, however, the Commission will consider later developments in the alleged industry,
such as “when a significant and unusual development occurred after the complaint has
been filed.” See Certain Video Game Systems and Controllers, Inv. No. 337-TA-743,
Comm’n Op., at 5-6 (Jan. 20, 2012) (“[I]n appropriate situations based on the specific
facts and circumstances of an investigation, the Commission may consider activities and
investments beyond the filing of the complaint.”).

PUBLIC VERSION
21
(“Stringed Musical Instruments”). The burden is on the complainant to show by a
preponderance of the evidence that the domestic industry requirement is satisfied.
Certain Multimedia Display and Navigation Devices and Systems, Components Thereof,
and Products Containing Same, Inv. No. 337-TA-694, Comm’n Op. at 5 (July 22, 2011).
“With respect to section 337(a)(3)(A) and (B), the technical prong is the
requirement that the investments in plant or equipment and employment in labor or
capital are actually related to ‘articles protected by’ the intellectual property right which
forms the basis of the complaint.” Stringed Musical Instruments, Comm’n Op. at 13-14.
“The test for satisfying the ‘technical prong’ of the industry requirement is essentially
same as that for infringement, i.e., a comparison of domestic products to the asserted
claims.” Alloc, Inc. v. Int’l Trade Comm’n, 342 F.3d 1361, 1375 (Fed. Cir. 2003). “With
respect to section 337(a)(3)(C), the technical prong is the requirement that the activities
of engineering, research and development, and licensing are actually related to the
asserted intellectual property right.” Stringed Musical Instruments, Comm’n Op. at 13.
With respect to the economic prong, and whether or not section 337(a)(3)(A) or
(B) is satisfied, the Commission has held that “whether a complainant has established that
its investment and/or employment activities are significant with respect to the articles
protected by the intellectual property right concerned is not evaluated according to any
rigid mathematical formula.” Certain Printing and Imaging Devices and Components
Thereof, Inv. No. 337-TA-690, Comm’n Op. at 27 (Feb. 17, 2011) (“Printing and
Imaging Devices”) (citing Certain Male Prophylactic Devices, Inv. No. 337 TA-546,
Comm’n Op. at 39 (Aug. 1, 2007)). Rather, the Commission examines “the facts in each
investigation, the article of commerce, and the realities of the marketplace.” Id. “The

PUBLIC VERSION
24
are sufficient alone to demonstrate infringement and Mr. Hoge’s expertise is not required
to establish infringement, as the technology here involves “relatively simple technology”
that is “easily understandable without the need for expert explanatory testimony.” Staff
Resp. at 19-20 n.4 (citing K-TEC, Inc. v. Vita-Mix Corp., 696 F.3d 1364, 1374 (Fed. Cir.
2012)).
The administrative law judge has determined that a person of ordinary skill in the
art at the time of the claimed invention would have experience and/or education in design
and manufacture of simple plastic molded products. Mr. Hoge meets and exceeds that
requirement. See Mem. Attachment A (Declaration of William C. Hoge, III), ¶¶ 1-7.
2. Claim Construction
The ‘923 patent specification states that the “present invention relates generally to
fish gripping and handling tools. More specifically, the present invention relates to pliers
which are especially adapted to grip the lower lip of a fish.” Complaint, Ex. 1 (‘923
Patent) at at 1:4-7. The ‘923 patent includes various figures that depict embodiments of
the claimed invention, as reproduced below:

PUBLIC VERSION
25
As noted above, UPM asserts independent apparatus claims 1 and 7 of the ‘923
patent against respondents SamsFX/Lotus, NOEBY, and iLure. Claims 1 and 7 are
recited below:
1. Fish handling pliers comprising upper and lower members pivotally
connected to one another and having respective upper and lower opposed
jaws, wherein said upper and lower members have a lengthwise mated
tongue and groove coupling when said upper and lower opposed jaws are
in a closed condition, whereby lateral movement between said upper and
lower members is resisted;
an upper handle section immovably connected to said upper member;
and
a lower handle section pivotally connected at a forward end thereof to
a rearward end of said lower member such that pivotal movements of
said lower handle section between open and closed conditions
responsively pivotally moves said lower member away from and
towards said upper member to open and close said opposed jaws,
respectively; and wherein

PUBLIC VERSION
26
said lower member includes a stop boss having convergent upper and
lower surfaces which respectively establish said open and closed
conditions, respectively, of said lower handle section, and wherein said
stop boss is positioned such that said upper surface contacts said upper
handle section and said lower surface is spaced from said lower handle
section when said lower handle section is in said open condition, and
said lower surface contacts said lower handle section and said upper
surface is spaced from said upper handle section when said lower
handle section is in said closed condition, whereby pivotal movements
of said lower handle section beyond said open and closed conditions is
limited.
7. Fish handling pliers comprising:
an upper member having an upper handle section at a rearward end
thereof, and an upper jaw at a forward end thereof;
a lower member having a lower jaw at a forward end thereof which
is opposed to said upper jaw, and having a rearward end pivotally
connected to said upper member to allow for pivotal movements
towards and away from said upper member to thereby close and
open said opposed upper and lower jaws;
said upper handle section immovably connected to said upper
member; and
a lower handle section pivotally connected at a forward end thereof
to said rearward end of said lower member such that pivotal
movements of said lower handle section between open and closed
conditions responsively pivotally moves said lower member away
from and towards said upper member to open and close said
opposed jaws, respectively; wherein
said lower member includes a stop boss having convergent upper
and lower surfaces which respectively establish said open and
closed conditions, respectively, of said lower handle section, and
wherein said stop boss is positioned such that said upper surface
contacts said upper handle section and said lower surface is spaced
from said lower handle section when said lower handle section is
in said open condition, and said lower surface contacts said lower
handle section and said upper surface is spaced from said upper
handle section when said lower handle section is in said closed
condition, whereby pivotal movements of said lower handle
section beyond said open and closed conditions is limited, and
wherein
said upper member defines a lengthwise-extending groove; and
said lower member includes a lengthwise extending tongue in
opposition to said groove, said tongue being seated within said

PUBLIC VERSION
27
groove when said upper and lower jaws are closed by movement of
said lower handle section from said open condition to said closed
condition thereof.
Complaint, Ex. 1 (‘923 Patent) at 4:20-49, 5:5 - 6:13.
With one exception, UPM argues that the claim language should be interpreted
consistent with its plain and ordinary meaning, and thus does not propose any specific
constructions for the asserted claim language. See Mem. at 14. The Staff agrees. See
Staff Resp. at 18.
The sole exception noted by UPM is the “stop boss” limitation recited in both
claim 1 and claim 7. As UPM explains in its memorandum, the recited “stop boss”
structure “prevents the plier from being overextended in either the open or closed
position thereby avoiding damage to the pliers that could occur from such
overextension,” and on that basis, argues that the “stop boss” limitation be construed as
“a protrusion on the lower member section of the pliers that establishes the open-most
and closed-most positions of the pliers by limiting pivotal movements of the handles.”
Mem. at 14-15. UPM provides an annotated version of Fig. 2B identifying the position
of the recited “stop boss” structure, as reproduced below:

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30
NOEBY
UPM relies on Exhibit 6 to the complaint to establish infringement of the ‘923
patent by the accused NOEBY product imported into the United States. See Mem. at 17;
Complaint, Ex. 6. The Staff analyzed infringement with respect to this product, and the
administrative law judge adopts its undisputed analysis. See Staff Resp. at 21;
Complaint, Exs. 6, 17, and Physical Ex. D. Exhibit 6 contains claim charts that include
annotated photographs to illustrate and explain, on a limitation-by-limitation basis, how
and why the accused NOEBY product meets every limitation of independent claims 1
and 7 of the ‘923 patent.8 In addition, Mr. Hoge has also provided his expert opinion
that based on his review of the claim charts, the accused NOEBY product infringes
claims 1 and 7 of the ‘923 patent. See Mem. Attachment A (Declaration of William C.
Hoge, III), ¶ 14.
Respondent NOEBY has defaulted and thus has not presented any contrary
evidence or otherwise raised any genuine disputes of material fact regarding UPM’s
evidence of infringement.
Thus, summary determination of infringement of claims 1 and 7 of the ‘923 patent
is appropriate as to respondent NOEBY.
iLure
UPM relies on Exhibit 7 to the complaint to establish infringement of the ‘923
patent by the accused iLure product imported into the United States. See Mem. at 17-18;
8 On July 19, 2019, UPM submitted a revised version of Exhibit 6 to the complaint,
which contains complete claim charts for claims 1 and 7 of the ‘923 patent. See EDIS
Doc ID No. 682355.

PUBLIC VERSION
32
asserted intellectual property right.” Stringed Musical Instruments, Comm’n Op. at 13.
UPM relies on three products to meet the technical prong of the domestic industry
requirement: (1) The Fish Grip (introduced in 2002); (2) the Fish Grip Jr. (introduced in
2014); and (3) the Fish Grip Mini (introduced in 2016) (collectively, the “Domestic
Industry Products.”). See Mem. at 39.

PUBLIC VERSION
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The evidence demonstrates that each of the Domestic Industry Products satisfies
the technical prong of the domestic industry requirement by practicing the asserted claims
of the ‘923 patent.
UPM argues that the claim chart attached as Exhibit 20 to the complaint
demonstrates that the Fish Grip meets every element of claim 1 of the ‘923 patent. Mem.
at 40. UPM further argues that the claim chart included as Attachment B to its
memorandum demonstrates that the Fish Grip Jr. meets every element of claim 1 of the
‘923 patent. Id. UPM also relies on the opinion of employee William Hoge that the Fish
Grip and Fish Grip Jr. both meet every element of claim 1. Id. (citing Mem. Attachment
A (Declaration of William C. Hoge, III), ¶¶ 39-40).
The Staff analyzed the technical prong with respect to the ‘923 patent, and the
administrative law judge adopts its undisputed analysis. See Staff Resp. at 56.
The evidence shown in the cited claim charts supports summary determination
that UPM has satisfied the technical prong with respect to the ‘923 patent. Defaulting
respondents have not identified any contrary evidence or raised any genuine factual
disputes that would preclude summary determination.

PUBLIC VERSION
34
D. Validity of the ‘923 Patent
The patent at issue is presumed valid as a matter of law. 35 U.S.C. § 282. This
resumption of validity may be overcome only by “clear and convincing evidence.”
Pfizer, Inc. v. Apotex, Inc., 480 F.3d 1348, 1359 (Fed. Cir. 2007).
The evidence establishes that UPM is the owner by assignment of the ‘923 patent.
Specifically, the face page of the ‘923 patent lists UPM as the assignee and Exhibit 4 to
the complaint is a certified assignment record reflecting the assignment of the ‘923 patent
from the named inventor, Don S. Norton, to UPM.
No party has challenged the validity or enforceability of the ‘923 patent. Thus,
there is no issue of material fact as to the validity or enforceability of the asserted patents.
See Lannom Mfg. Co., Inc. v. Int’l Trade Comm’n, 799 F.2d 1572, 1580 (Fed. Cir. 1986)
(Commission did not have authority to redetermine patent validity when no defense of
invalidity had been raised).
VI. United States Trademark Registration Nos. 4,980,923 and 5,435,944
U .S. Trademark Registration No. 4,980,923 (“the ‘923 Mark” or “the ‘923
Trademark” or “the ‘923 trademark”) is registered on the Principal Register of the PTO
and is a trade dress consisting of an opening in fish-handling pliers as shown below:

PUBLIC VERSION
35
See Complaint, Ex 2.
U.S. Trademark Registration No. 5,435,944 (“the ‘944 Mark” or “the ‘944
Trademark” or “the ‘944 trademark”) is registered on the Principal Register and consists
of a stylized gripper with an opening as shown below:
See Complaint, Ex 3.
UPM is the owner of the ‘923 trademark and the ‘944 trademark. See Complaint,
Exs. 2-4.

PUBLIC VERSION
36
A. Infringement Analysis for the ‘923 Trademark
The ‘923 trademark is registered on the Principal Register of the U.S. Patent and
Trademark Office, with a registration date of June 21, 2016. See Complaint, Ex. 2.
According to the registration, the ‘923 trademark “consists of a heart shaped opening in
the three-dimensional configuration of [a] sport fishing device” (i.e., fish-handling
pliers), as reproduced below:
To establish infringement of the ‘923 trademark, UPM relies on various claim
charts included in its memorandum, exhibits attached to the complaint, and the opinions
of employee William C. Hoge, III. See Mem. at 18-29; Complaint, Exs. 8-11 (claim
charts); Mem. Attachment A (Declaration of William C. Hoge, III), ¶¶ 20-24.9 An
9 The Staff argues that although Mr. Hoge’s expert opinion regarding likelihood of
confusion largely consists of a single sentence indicating his agreement that the accused
products infringe based on his review of the corresponding claim charts (see Attachment
A (Declaration of William C. Hoge, III), ¶¶ 20-24), a detailed expert analysis is not
necessary here to establish likelihood of confusion, given the relatively simple nature of
the accused products at issue. Staff Resp. at 23 n.6 (citing McCarthy on Trademarks and

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infringement analysis for each respondent accused of infringing the ‘923 trademark is

discussed below.

1. NOEBY
UPM has provided a claim chart comparing the ‘923 trademark with the accused

NOEBY product, reproduced below. See also Complaint, Ex. 8.

U.S. Trademark Reg. No. 4,980,923 NOEBY

The ‘923 Mark consists of a heart
shaped opening in fish-handling pliers
as shown below:

Unfair Competition (5 Ed.) § 23:2.75 (“Especially if the goods or services involved are
ordinary consumer items familiar to most people, a [factfinder] does not need an expert’s
opinion ... .”)).

PUBLIC VERSION
38
https://www.amazon.com/gp/product/B07H9NYD
CK/
Degree of Similarity Between the Trademark and Accused Product
The claim chart included in UPM’s memorandum shows that the mouth of the
accused NOEBY product has the same heart-shaped opening depicted and described in
the ‘923 trademark. See Mem. at 18. The Staff analyzed the similarity between the ‘923
trademark and the accused product, and the administrative law judge adopts its
undisputed analysis. See Staff Resp. at 23-24; Complaint, Ex. 8 and Physical Ex. D.
Respondent NOEBY has defaulted and thus has not presented any contrary
evidence or otherwise raised any genuine disputes of material fact regarding UPM’s
evidence.
Intent of the Actor in Adopting the Designation
According to UPM, the shape of the ‘923 trademark is a “non-functional,
ornamental feature” that supports the inference that NOEBY’s intent in adopting the

PUBLIC VERSION

Exs. 9 and 18; Dec. 31, 2019 Supplement (EDIS Doc ID No. 698163) (noting that
“Exhibit 18 to the Complaint shows delivery confirmation in the U.S. of the green
SamsFX 6” product . . . . This is the same SamsFX product depicted in Exhibits 5, 9, and

13 to the Complaint.”).

U.S. Trademark Reg. No. 4,980,923 SamsFX 6” Fish Grip

The ‘923 Mark consists of a heart
shaped opening in fish-handling
pliers as shown below:

Lower Prited hers %2 Consiter Ve.
, eee | Pen oxtrot ew cd ea Fhe Oe toctereeeahh owe i
Pid “~ ewews 2 ee
7 35 pare
SAMS Floating Fishing Gripper 6.8" Fish © Pornaiwesten
Le : vague a8 Ne
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Oates ‘ =

AR S|F RD HIS)

PUBLIC VERSION
44
Respondents SamsFX and Lotus have defaulted and thus have not presented any
contrary evidence or raised any genuine disputes of material fact as to this factor. Thus,
this factor supports a finding of likelihood of confusion. See Recot, 214 F.3d at 1329.
3. SamsFX 9” Pliers (manufactured by Five Union)
UPM has provided a claim chart comparing the ‘923 trademark with the accused
SamsFX/Five Union 9” pliers imported into the United States, which are sold by SamsFX
and manufactured by Five Union. See Complaint, Exs. 10 and 18; Dec. 31, 2019
Supplement (EDIS Doc. ID No. 698163) (“The SamsFX 9” product shown in Exhibit 10
to the Complaint . . . is the same SamsFX 9” product model depicted in Exhibit 18 to the
Complaint that was purchased by counsel for UPM . . . . This product was manufactured
by Five Union in China and imported from abroad.”).

PUBLIC VERSION
U.S. Trademark Reg. No. 4,980,923
Accused SamsFX 9" Fish Grip
The '923 Mark consists of a heart shaped opening in fish-handling pliers as shown below:
SAMSEX®
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45
0
0

PUBLIC VERSION

4. iLure

As an initial matter, the only evidence of importation and alleged infringement for
the accused iLure prodcucts set forth in UPM’s complaint is dated March 13, 2016,
before the ‘923 trademark was registered on the Principal Register. See Complaint, Ex.
15. Inasmuch as UPM has not presented affirmative evidence demonstrating that the
“923 trademark had acquired secondary meaning at the time of iLure’s alleged violation,
it has not shown infringement of a “valid and enforceable trademark” with respect to
iLure, as required by section 337(a)(1)(C). See Converse, 909 F.3d at 1118 (“[W]ith
respect to infringement by [any] respondents whose first uses came before the
registration,” a Complainant “must establish without the benefit of the presumption that
its mark had acquired secondary meaning before the first infringing use by each
respondent.”).

Nonetheless, infringement analysis for the accused iLure prodcucts with respect
to the ‘923 trademark is provided below.

UPM has provided a claim chart comparing the ‘923 trademark with the accused
iLure product imported into the United States, reproduced below. See Complaint, Exs.

11 and 15.

U.S. Trademark Reg. No. 4,980,923 Accused iLure Fish Gripper

The ‘923 Mark consists of a heart
shaped opening in fish-handling
pliers as shown below:

PUBLIC VERSION
49
https://www.alibaba.com/product-detail/ILURE-125g-
25-6cm-Lip-
Grip_60322306200.html?spm=a2700.7724857.normal
List.17.2ca825e7wLsvCV

PUBLIC VERSION
52
heart-shaped opening,” as reproduced below:
The ‘944 trademark is a two-dimensional silhouette or logo mark, as opposed to a
trademark protecting the trade dress of the three-dimensional product. Indeed, in the
prosecution history the applicant, in response to the May 12, 2017 office action, describes
the mark as a silhouette design that appears on the product packaging and distinguishes
this silhouette design from the goods themselves which also appear in the submitted
specimen of use in commerce. See Appendix D to the Complaint (“Submitted herewith is
a photo of the entire package for applicant’s goods which displays the Silhouette Design
and clearly shows the goods themselves placed on the backer and beneath a clear plastic
overlay. The substitute specimen was in actual use in commerce at least as early as the
filing date of the application.”).
To establish infringement of the ‘944 trademark, UPM relies on various claim
charts included in its memorandum, exhibits attached to the complaint, and the opinions
of employee William C. Hoge, III. See Mem. at 29-39; Complaint, Exs. 12-14 (claim

PUBLIC VERSION

goods; and (3) provides a means for ordering the identified goods.” Jae Enterprises,
2016 WL 865328, at *3.

UPM’s position regarding likelihood of confusion flowing from the respondents’
use of confusingly similar marks on their point-of-sale websites, notwithstanding the
absence of accused marks from the accused products, is consistent with the above-cited
case law. An analysis of likelihood of confusion flowing from each respondents’ point-

of-sale websites is reviewed below.

1. NOEBY
UPM has provided a claim chart comparing the ‘944 trademark with the accused
NOEBY product, which was purchased from the website on which the image confusingly
similar to the mark appears, reproduced below. See a/so Complaint, revised Ex. 12 at 2.
As noted above, the website constitutes a “use in commerce” because it (1)
contains a picture of the accused product, (2) uses the allegedly infringing mark in
association with the accused product, and (3) provides a means for ordering the accused

product.

U.S. Trademark Reg. No. 5,435,944 The NOEBY Fishing Lip Grip

The Mark consists of a stylized
gripper with a heart-shaped opening
as shown below:

PUBLIC VERSION
56
https://www.amazon.com/gp/product/B07H9N
YDCK/
Degree of Similarity Between the Trademark and Accused Product
According to UPM, there are a “multitude” of “striking” similarities between the
‘944 trademark and the image of the NOEBY product shown at the point-of-sale:
the heart-shaped opening of the mouth of the pliers, the tilt of the pliers
are at similar angles, the four pin openings in the handles are at very
similar locations, the shape of the opening in the center of the pins are
similar, the lower handle is ribbed to foster gripping, the ends of the
handles both curve outward to help prevent dropping, and there is a

PUBLIC VERSION
57
circular ball at the end of a lanyard that is attached to the end of the top
handle. In fact, the overall shape of the NOEBY product and the ‘944
Mark are virtually identical – perhaps the only noticeable difference
appears to be the curl of the lanyard.
Mem. at 31. In addition, Mr. Hoge has provided his opinion that “a consumer looking at
the website with the NOEBY product displayed on it as shown in Exhibit 12 to the
complaint would likely be confused as to the product’s source or origin.” Mem.
Attachment A (Declaration of William C. Hoge, III), ¶ 26. The Staff analyzed the
similarity between the ‘944 trademark and the accused product, and the administrative
law judge adopts its undisputed analysis. See Staff Resp. at 38-39.
Respondent NOEBY has defaulted and thus has not presented any contrary
evidence or otherwise raised any genuine disputes of material fact regarding UPM’s
evidence of infringement. This factor favors summary determination of likelihood of
confusion as to NOEBY.
Intent of the Actor in Adopting the Designation
UPM argues that “[t]here is no explanation for the similarities in the NOEBY
product and the ‘944 Mark other than to provide the impression that the source of its
product is the same as that of the Domestic Industry Products,” and emphasizes the
strength of its ‘944 trademark to infer NOEBY’s bad faith intent in utilizing a
confusingly similar design at the point-of-sale for its product. Mem. at 31. UPM further
argues that discovery into NOEBY’s intent was not possible due to its default and non-
participation in this investigation. Id.
This factor supports a finding of likelihood of confusion, due to the similarity and
overlap in the overall shape and appearance between the ‘944 trademark and the

PUBLIC VERSION

‘944 Mark comes from the original source of the design, UPM.” Jd.

Respondent NOEBY has defaulted and thus has not presented any contrary

evidence or raised any genuine disputes of material fact as to this factor. This factor

supports a finding of likelihood of confusion.

2. SamsFX 6” Pliers (manufactured by Lotus)

UPM has provided a claim chart comparing the ‘944 trademark with the accused

SamsFX 6” product, which was purchased on Amazon.com and imported into the United

States. See Complaint Exs. 13, 18.

As noted above, the website constitutes a “use in commerce” because it (1)

contains a picture of the accused product, (2) uses the allegedly infringing mark in

association with the accused product, and (3) provides a means for ordering the accused

product.!!

U.S. Trademark Reg. No. 5,435,944

SamsFX 6”Fish Grip

The Mark consists of a stylized
gripper with a heart-shaped opening as
shown below:

1! Although the Amazon.com link included in Ex. 13 of the complaint indicates that the
accused product is no longer available for purchase from that webpage, “counsel for

UPM avers that when the product was purchased on February 5, 2019, from that webpage
the depiction of the product was identical to the one shown in Exhibit 13.” Dec. 31

Supplement (EDIS Doc. ID No. 698163).

PUBLIC VERSION
60
https://www.amazon.com/gp/product/B01CGAOU
SO/ref=ppx_od_dt_b_asin_title_s00?ie=UTF8&psc
=1

PUBLIC VERSION
61
Degree of Similarity Between the Trademark and Accused Product
According to UPM, there are a “multitude” of “striking” similarities between the
‘944 trademark and the image of the SamsFX 6” product shown at the point-of-sale:
the heart-shaped opening of the mouth, the four pin openings in the
handles are at very similar locations, the lower handle is ribbed to foster
gripping, a component that connects the two handles at the two rearmost
pins, the ends of the handles both curve outward to help prevent dropping,
and there is a circular ball at the end of a lanyard that is attached to the end
of the top handle. In fact, the overall shape of the SamsFX 6” and the ‘944
Mark are virtually identical -- the only noticeable difference appears to be
the curl of the lanyard.
Mem. at 34. In addition, Mr. Hoge has provided his opinion that “a consumer looking at
the website with the SamsFX product displayed on it as shown in Exhibit 13 to the
complaint would likely be confused as to the product’s source or origin.” Mem.
Attachment A (Declaration of William C. Hoge, III), ¶ 27. The Staff analyzed the
similarity between the ‘944 trademark and the accused product, and the administrative
law judge adopts its undisputed analysis. See Staff Resp. at 42-43.
Respondents SamsFX and Lotus have defaulted and thus have not presented any
contrary evidence or otherwise raised any genuine disputes of material fact regarding
UPM’s evidence of infringement. This factor favors summary determination of
likelihood of confusion as to the SamsFX 6” pliers sold by SamsFX and manufactured by
Lotus.
Intent of the Actor in Adopting the Designation
UPM argues that “[t]here is no explanation for the similarities in the
SamsFX/Lotus 6” grip and the ‘944 Mark other than to provide the impression that the
source of the SamsFX product is the same as that of the Domestic Industry Products,”

PUBLIC VERSION
64
Nonetheless, infringement analysis for the accused iLure prodcucts with respect
to the ‘944 trademark is provided below.
UPM has provided a claim chart comparing the ‘944 trademark with the accused
iLure product, which was purchased on the Alibaba.com website and imported into the
United States, reproduced below. See also Complaint, Exs. 14, 15.
As noted above, the website constitutes a “use in commerce” because it (1)
contains a picture of the accused product, (2) uses the allegedly infringing mark in
association with the accused product, and (3) provides a means for ordering the accused
product.

PUBLIC VERSION

U.S. Trademark Reg. No. 5,435,944 The iLure Lip Grip
The Mark consists of a stylized gripper
with a heart-shaped opening as shown —~ pape"
below: Minture |

www.mylure.cn

https://www.alibaba.com/product-detail/ILURE-

125g-25-6cm-Lip-

Grip_60322306200.html?spm=a2700.7724857.no
rmalList.17.2ca825e7wLsvCV

Degree of Similarity Between the Trademark and Accused Product

According to UPM, there are a “multitude” of “striking” similarities between the

“944 trademark and the image of the iLure product shown at the point-of-sale:

PUBLIC VERSION
66
the heart-shaped opening of the mouth, the four pin openings in the
handles are at very similar locations, the lower handle is ribbed to foster
gripping, a bridge component that connects the two handles at the two
rearmost pins, the ends of the handles both curve outward to help prevent
dropping, and there is a circular ball at the end of a lanyard that is attached
to the end of the top handle. In fact, the overall shape of the iLure Product
and the ‘944 Mark are very similar -- the only noticeable difference
appears to be the curl of the lanyard.
Mem. at 37. In addition, Mr. Hoge has provided his opinion that “a consumer looking at
the website with the iLure product displayed on it as shown in Exhibit 14 to the
complaint would likely be confused as to the product’s source or origin.” Mem.
Attachment A (Declaration of William C. Hoge, III), ¶ 28. The Staff analyzed the
similarity between the ‘944 trademark and the accused product, and the administrative
law judge adopts its undisputed analysis. See Staff Resp. at 45-46.
Respondent iLure has defaulted and thus has not presented any contrary evidence
or otherwise raised any genuine disputes of material fact regarding UPM’s evidence of
infringement. This factor favors summary determination of likelihood of confusion as to
the accused iLure product.
Intent of the Actor in Adopting the Designation
UPM argues that “[t]here is no explanation for the similarities in the iLure
Product and the ‘944 Mark other than to provide the impression that the source of its
product is the same as that of the Domestic Products,” and emphasizes the strength of its
‘944 trademark to infer iLure’s bad faith intent in utilizing a confusingly similar design at
the point-of-sale for the accused product. Mem. at 37. UPM further notes that discovery
into iLure’s intent was not possible due to its default and non-participation in this
investigation. Id. at 38.

PUBLIC VERSION
70
“iLure” logos appearing on those accused products and/or point-of-sale websites are
sufficiently famous or well-known to negate consumer confusion.
The addition of an accused infringer’s own logo will not negate likelihood of
confusion where, as here, the products at issue are “relatively inexpensive and [thus]
consumers cannot be expected to examine the labels carefully.” Scott Paper Co. v.
Scott’s Liquid Gold, Inc., 589 F.2d 1225, 1230 (3d Cir. 1978). Here, UPM has presented
uncontroverted evidence that the fish-handling pliers at issue are inexpensive, and thus
purchased by consumers without close scrutiny. See Mem. at 20 (“The products at issue
in this investigation are low-dollar plastic consumer goods, and at these price points
consumers are more likely to buy on impulse and without additional research.”).
* * *
Accordingly, substantial, reliable, and probative evidence discussed above
supports summary determination of likelihood of confusion against each defaulting
respondent.
C. Domestic Industry (Technical Prong)
“Where registered trademark rights are asserted, the test for determining whether
the technical prong is met through the practice of a trademark is plain use of the
trademark on products and packaging.” Certain Mounting Apparatuses for Holding
Portable Elec. Devices and Components Thereof, Inv. No. 337-TA-1086 (“Mounting
Apparatuses”), Initial Determination, 2018 WL 6837931, at *12 (Nov. 28, 2018)
(unreviewed in relevant part, June 24, 2019).

PUBLIC VERSION
71
UPM relies on three products to meet the technical prong of the domestic industry
requirement: (1) The Fish Grip (introduced in 2002); (2) the Fish Grip Jr. (introduced in
2014); and (3) the Fish Grip Mini (introduced in 2016) (collectively, the “Domestic
Industry Products.”). Mem. at 39.

PUBLIC VERSION
72
For the reasons discussed below, each of the Domestic Industry Products satisfies
the technical prong of the domestic industry requirement, by practicing the ‘923
trademark, and/or ‘944 trademark.
The ‘923 Trademark
UPM argues that the claim charts submitted with the complaint demonstrate that
the Fish Grip (Exhibit 21 to complaint), Fish Grip Jr. (Exhibit 22 to complaint), and Fish
Grip Mini (Exhibit 23 to complaint) each practice the ‘923 trademark, because each
product is “advertised, offered for sale, and sold in packaging that prominently displays”
the “distinctive heart-shaped opening in the mouth of the pliers.” Mem. at 40; see also
Mem. Attachments C-E. The Staff analyzed the technical prong with respect to the ‘923
trademark, and the administrative law judge adopts its undisputed analysis. See Staff
Resp. at 57-58.

PUBLIC VERSION
73
The undisputed evidence shown in the cited claim charts and Attachments
supports summary determination that UPM’s Domestic Industry Products satisfy the

PUBLIC VERSION
74
technical prong with respect to the ‘923 Trademark. Defaulting respondents have not
identified any contrary evidence or factual disputes that would preclude summary
determination.
The ‘944 Trademark
UPM argues that the claim charts provided with the complaint demonstrate that
the Fish Grip (Exhibit 24 to complaint) and the Fish Grip Jr. (Exhibit 25 to complaint)
practice the ‘944 Trademark, because “each of the two products is advertised, offered for
sale, and sold in packaging that prominently displays” the “distinctive silhouette of the
pliers with a heart-shaped opening on the packaging.” Mem. at 41. The Staff analyzed
the technical prong with respect to the ‘944 trademark, and the administrative law judge
adopts its undisputed analysis. See Staff Resp. at 58-59.

PUBLIC VERSION
75
The undisputed evidence shown in the cited claim charts supports summary
determination that UPM has satisfied the technical prong with respect to the ‘944
Trademark. Defaulting respondents have not identified any contrary evidence or factual
disputes that would preclude summary determination.
D. Validity of the Trademarks
For trademarks registered on the Principal Register, “[t]rademark registration
certificates for the asserted trademarks create a statutory presumption that each of the
marks is valid, that [Complainant] is the owner of the mark, and that [Complainant] has
the exclusive right to use the registered mark.” Certain Indus. Automation Sys. &
Components Thereof, Inv. No. 337-TA-1074, Initial Determination, 2018 WL 6119536,
at *10 (Oct. 23, 2018).14
“However, under the statute, the registration and its accompanying presumption
of validity operate only prospectively from the date of registration, i.e., the date on which
14 See also 15 U.S.C. 1115(a) (noting that registration of a trademark on the Principal
Register “shall be prima facie evidence of the validity of the registered mark . . . of the
registrant’s ownership of the mark, and of the registrant’s exclusive right to use the
registered mark in commerce on or in connection with the goods or services specified in
the registration . . . .”).

PUBLIC VERSION
78
Carburetors and Products Containing Such Carburetors, Inv. No. 337-TA-1123,
Comm’n Op. at 18 (Oct. 28, 2019).
As discussed above with respect to the technical prong analysis, the ‘923 patent
and the ‘923 trademark is practiced by all three Domestic Industry Products, while the
‘944 trademark is practiced by only two Domestic Industry Products – the Fish Grip and
Fish Grip Jr. (but not the Fish Grip Mini). See Mem. at 41.
According to UPM, total annual sales for all three Domestic Industry Products
since the year 2016 have totaled [ ] (FY2016); [ ] (FY2017); [ ]
(FY2018); and [ ] (FY2019, year to date). See Mem. at 41 (citing Complaint, Ex.
26C (Declaration of William C. Hoge, III), ¶ 8). Sales for the Fish Grip Mini were
[ ] (FY2016); [ ] (FY2017); [ ] (FY2018), and [ ] (FY2019 YTD).16
Thus, for the individual fiscal years from 2016 through 2019, the annual sales for the Fish
Grip Mini have ranged from approximately [ ] of total annual sales for all three
Domestic Industry Products. Mem. at 41; Mem. Attachment A (Declaration of William
C. Hoge, III), ¶ 47. Based on these revenue figures and percentages, UPM calculates that
“100% of all domestic activities . . . can be credited to the ‘923 Trademark while at least
[ ] of the activities can be credited to the ‘923 Patent and ‘944 Trademark.” Mem. at
41.17
UPM states that “all of the Domestic Industry Products are manufactured in
16 The figures for the Fish Grip Mini are included for the ‘923 patent and the ‘923
trademark.
17 Although UPM calculated the 96% figure for purposes of allocating domestic industry
activities to the ‘923 patent and ‘944 trademark, UPM does not appear to have actually
applied the 96% figure in performing its domestic industry analysis. However, the 96%
and 100% figures are not substantially different. See Staff Resp. at 60 n.12.

PUBLIC VERSION
79
UPM’s factory located in Jackson, Mississippi,” and further emphasizes that “all
activities performed by UPM in connection with Domestic Industry Products take place
at the Jackson Facility.” Mem. at 41-42 (citing Complaint, Ex. 26C (Declaration of
William C. Hoge, III), ¶ 9).
For purposes of determining the costs at its Jackson Facility attributable to the
Domestic Industry Products, UPM calculates that its Domestic Industry Products have
accounted for the following percentages of UPM’s total revenues for the following years:
[ ] (FY2015); [ ] (FY2016); [ ] (FY2017); [ ] (FY2018); and
[ ] (FY2019 YTD). Mem. at 42 (citing Complaint, Ex. 26C (Declaration of
William C. Hoge, III), ¶ 11).
Plant and Equipment
UPM states that it has invested in machines and fixtures at its Jackson facility that
are currently valued at [ ]. Mem. at 42 (citing Complaint, Ex. 26C (Declaration
of William C. Hoge, III), ¶ 13). Using the FY2017 sales apportionment [ ],18
UPM calculates that [ ] of the value of the machines and fixtures in Jackson is
attributable to the Domestic Industry Products.
UPM further states that in 2015, it spent [ ] to purchase the 96,700 square
foot property in which the Domestic Industry Products are manufactured. Id. Using the
FY2017 sales apportionment [ ], UPM calculates that [ ] of that property
value is attributable to the Domestic Industry Products.
18 UPM applied the data from FY2017, even though figures from FY2019(YTD) were
also available and would have been the more appropriate basis for calculating UPM’s
investments. However, the figures for FY2017 and FY2019(YTD) do not appear to be
substantially different. See Staff Resp. at 61 n.13.

PUBLIC VERSION
80
UPM also states that it initially incurred [ ] in tooling costs attributable to
the Domestic Industry Products, and since that time has incurred additional tooling costs
of [ ] attributable to the Domestic Industry Products. Mem. at 42 (citing
Complaint, Ex. 26C (Declaration of William C. Hoge, III), ¶ 14).
Finally, UPM states that from FY2002 to FY2019(YTD), it incurred [ ] in
repair and maintenance costs attributable to the Domestic Industry Products. Mem. at 42
(citing Complaint, Ex. 26C (Declaration of William C. Hoge, III), ¶ 15). UPM further
states that it incurred [ ] in repair and maintenance costs of molds that is
attributable to the Domestic Industry Products from FY2002 to FY2018. Mem. at 43; Ex.
26C (Declaration of William C. Hoge, III), ¶ 15.
Labor and Capital
UPM argues that it employs [ ] individuals in various positions, with total
headcount remaining stable over the past few years. Mem. at 43 (citing Attachment A
(Declaration of William C. Hoge, III), ¶ 50). For these employees, UPM calculates that it
has incurred payroll costs in the following amounts attributable to the Domestic Industry
Products: a cumulative total of [ ] for FY 2002-2018, with payroll costs of
[ ] (FY2016); [ ] (FY2017); [ ] (FY2018), and [ ] (FY2019
YTD). Mem. at 43 (citing Complaint, Ex. 26C (Declaration of William C. Hoge, III), ¶
18).
UPM also states that it subcontracts with third parties for additional labor
performed at the Jackson Facility in producing the Domestic Industry Products in the
following amounts: a cumulative total of [ ] for FY2002 to FY2018; [ ]
(FY2016); [ ] (FY2017); [ ] (FY2018); and [ ] (FY2019 YTD).

PUBLIC VERSION
81
Mem. at 43.19
Contextual Analysis of UPM’s Domestic Industry Figures
UPM makes several arguments in support of its position that its asserted domestic
industry activities are “significant” as required by section 337(a)(3)(A) and (B). Mem. at
43-44.
UPM argues that its alleged domestic industry activities “are of critical
importance to the Domestic Industry Products given that every facet of their production
and sale takes place in the United States.” Mem. at 44 (citing Complaint, Ex. 26C
(Declaration of William C. Hoge, III), ¶ 9). UPM argues that the ratio of its annual
domestic activities to annual sales “reinforces their importance to the protected articles.”
Mem. at 44. Specifically, UPM calculates that for its Domestic Industry Products, its
labor costs (for employees and contractors) were [ ] of sales revenue for FY2016;
[ ] for FY2017; [ ] for FY2018; and [ ] for FY2019YTD. Id.; see also
Dec. 31, 2019 Supplement.
19 The Staff states that it does not agree that UPM’s subcontracting costs are properly
credited to labor and capital, inasmuch as UPM only states those costs in general without
specifically explaining how and what percentage of those expenditures relate to the
domestic industry products at issue. See Staff Resp. at 62 n.14 (citing Certain
Collapsible Sockets for Mobile Electronic Devices and Components Thereof, Inv. No.
337-TA-1056, Comm’n Op. at 18-20 (July 9, 2018) (“Since Lelo, the Commission has
found evidence insufficient where the complainant relied on supplier payments without
providing evidence regarding its suppliers’ relevant investments in the complainant’s
products. . . . [Complainant’s] payments to Amazon.com, vendors with physical retail
stores, and website hosting services and/or website developers also are not credited for a
similar reason. [Complainant] has not shown what portion of these investments pertains
to the employment of labor or capital.”)).

PUBLIC VERSION

Total Labor Employee
Year Labor Costs | Labor Costs Annual Costs as Costs as a
(Employees) | (Contractors) Sales Percentage of | Percentage
Sales of Sales”°
2016 [ ] [ ] [ 1 |i ] [ ]
2017 [ ] [ ] [ 1 | ] [ ]
2018 [ ] [ ] [ 1 {i ] [ ]
amp {iE 1 fl o1 fi iit [|
Similarly, UPM calculates that its total plant and equipment costs of [ ]
(calculated as the sum total of [ ] in apportioned value of the machines and
fixtures at the Jackson facility; | | in apportioned property value of the Jackson
facility; | | initial tooling costs; [ | subsequent tooling costs; and
[ | and [ ] im repair and maintenance costs) are significant relative to sales

of the Domestic Industry Products from 2016-2019. Mem. at 44.

UPM’s investments in plant and equipment, and/or labor and capital (even if the
subcontractor payments are excluded) are significant and thus satisfy the economic prong
of the domestic industry requirement, for several reasons. The fact that UPM’s
production and sales activities all occur solely in the U.S. strongly supports UPM’s
position regarding the economic prong. With the exception of UPM’s reliance on
subcontracting expenditures, UPM’s approach to calculating the investments attributable

to the Domestic Industry Products is supported by the evidence. Moreover, UPM’s

20 Tn view of the Staff's persuasive argument, the administrative law judge is adopting the
Staff's revised labor cost percentages based only on labor costs attributable to UPM
employees and not including UPM’s subcontracting costs. See Staff Resp. at 61-63.

PUBLIC VERSION
83
investments in plant and equipment, and/or labor and capital, are significant “given [that
UPM’s] domestic industry products would not exist without these investments.” Certain
Water Filters & Components Thereof, Inv. No. 337-TA-1126 (“Water Filters”), Order
No. 17 (Initial Determination), 2019 WL 4072337, at *33 (July 11, 2019) (unreviewed in
relevant parts, Comm’n Op. (Nov. 15, 2019)).
Accordingly, the record evidence supports a finding that UPM’s domestic
activities add significant value to its domestic industry products, and are significant in the
context of its entire operations in view of (1) the quantitative levels of activity in the
United States discussed above, (2) the importance of those activities to the Domestic
Industry Products; and (3) the fact that all activities relevant to the Domestic Industry
Products occur solely within the United States. The evidence shows that UPM has made
and continues to make significant U.S. investments in plant, equipment, labor and capital
under 19 U.S.C. § 1337(a)(3)(A) and (B).
VIII. Remedy and Bonding
The Commission has broad discretion in selecting the form of the remedy in a
section 337 proceeding. See Fuji Photo Film v. International Trade Comm’n, 386 F.3d
1095, 1106-07 (Fed. Cir. 2004); Certain Hydraulic Excavators and Components Thereof,
Inv. No. 337-TA-582, Comm’n Op. at 15 (Feb. 3, 2009), USITC Pub. No. 4115 (Dec.
2009). Where a violation is found, the Commission generally issues a limited exclusion
order directed against products imported by persons found in violation of the statute. In
certain circumstances, however, the Commission may issue a general exclusion order
directed against all infringing products. 19 U.S.C. § 1337(d)(2).
UPM requests, along with a finding of violation, that the administrative law judge

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recommend a remedy in the form of a general exclusion order (GEO) with respect to each
of the asserted patent and trademarks. See Mem. at 45-49. Complainant requests that
bond during the presidential review period be set at 100% of the value of the accused
products. See Mem. at 50.
The Staff supports complainant’s request for a GEO, and request for a 100%
bond. See Staff Resp. at 65-70.
A. General Exclusion Order
Under 19 U.S.C. § 1337(g)(2), “a general exclusion from entry of articles,
regardless of the source or importer of the articles, may be issued if --- (A) no person
appears to contest an investigation concerning a violation of the provisions of this
section, (B) such a violation is established by substantial, reliable, and probative
evidence, and (C) the requirements of subsection (d)(2) are met.” 19 U.S.C. §
1337(g)(2).
Section 337(d)(2) states in relevant part:
(d) Exclusion of articles from entry . . .
(2) The authority of the Commission to order an exclusion from
entry of articles shall be limited to persons determined by the
Commission to be violating this section unless the Commission
determines that –
(A) a general exclusion from entry of articles is necessary
to prevent circumvention of an exclusion order limited
to products of named persons; or
(B) there is a pattern of violation of this section and it is
difficult to identify the source of infringing products.
19 U.S.C. § 1337(d)(2).
Thus, a GEO is warranted when “a general exclusion from entry of articles is

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Mem. at 46 (citing Complaint, Exs. 29-33). This further supports issuance of a GEO.
See Water Filters, Order No. 17 (Initial Determination), 2019 WL 4072337, at *41 (July
11, 2019) (“The evidence showing . . . generic, unmarked product shipments illustrates a
clear risk of circumvention of any LEO in the absence of a GEO.”) (unreviewed in
relevant parts, Comm’n Op. (Nov. 15, 2019)).
UPM argues that defaulting respondents’ failure to participate in this investigation
is further evidence that they “would not abide by the terms of a limited exclusion order.”
Mem. at 46. Respondents’ lack of participation in this investigation also supports
issuance of a GEO. See Certain Self-Anchoring Beverage Containers, Inv. No. 337-TA-
1092, Initial Determination, 2018 WL 4357626, at * (Aug. 27, 2018) (“Moreover, the
fact that the Defaulting Respondents have ignored proceedings in this Investigation
(which resulted in them being found in default) suggests that they would not abide by the
terms of any limited exclusion order the Commission may impose.”).
Accordingly, a GEO is warranted as to each of the ‘923 patent, ‘923 trademark,
and ‘944 trademark, due to the likelihood of circumvention of an LEO.
Widespread Pattern of Violation and Difficulty Identifying the Source(s) of
Infringing Products
The record evidence supports issuance of a GEO under section 337(d)(2)(B)
because there is a widespread pattern of violation, and it is difficult to identify the source
of infringing products.
Under Commission precedent, UPM’s evidence discussed above in connection
with “circumvention” under section 337(d)(2)(A) is also relevant to establishing
difficulty in identifying the source(s) of infringing products under section 337(d)(2)(B).

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See Certain Loom Kits, Comm’n Op., 2015 WL 5000875, at *8 (June 26, 2015) (“We
note that many of the facts described above in connection with subparagraph (A) are also
relevant to subparagraph (B).”).
The record evidence demonstrates that “there are dozens of infringing products
offered on eBay, Amazon, Wal-Mart, and AliExpress,” and that “[t]hese products are
shipped in generic packaging that does not identify the manufacturers, retailers, or the
source of the infringing products.” See Mem. at 47. This evidence supports issuance of a
GEO under section 337(d)(2)(B). See Certain Ink Cartridges and Components Thereof,
Inv. No. 337-TA-946, Initial Determination, 2015 WL 8641224, at *55 (Oct. 28, 2015)
(“GEO authorized under section 19 U.S.C. § 1337(d)(2)(B) when there are a multitude of
existing sources of infringing products and low barriers to entry for future participants,
and where products are packaged in unmarked, generic packaging . . . making it difficult
to identify the source of infringing goods.”) (unreviewed in relevant parts, June 29,
2016); Certain Personal Transporters, Inv. No. 337-TA-935, Comm’n Op., 2019 WL
4010936, at *15 (June 1, 2019) (“The Commission has recognized that the anonymity
over the Internet increases the difficulty in identifying the sources of infringing
products.”).
UPM argues that its prior “difficulties in serving two of the five respondents with
the Complaint further indicates that it is difficult to identify the source of the infringing
products.” Mem. at 48. This evidence supports UPM’s requested GEO under section
337(d)(2)(B). See Mounting Apparatuses, Initial Determination, 2018 WL 6837931, at
*37 (Nov. 28, 2018) (“Furthermore, the difficulty in serving some respondents (with
some being unlocatable) demonstrates that it is difficult to identify the sources of the

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products.”) (unreviewed in relevant part, June 24, 2019).
UPM’s unrebutted evidence regarding widespread online sales establishes a
pattern of violation warranting a GEO under section 337(d)(2)(B). Specifically, UPM
has presented evidence of widespread internet sales activities extending beyond the
named defaulting respondents in this investigation. For example, Attachment F shows at
least eight infringing products available for sale on Amazon; Attachment G shows at least
nine infringing products available for sale on eBay; Attachment H shows at least ten
infringing products available for sale on AliExpress; and Attachment I shows at least two
infringing products available for sale on Wal-Mart. A review of those Attachments
indicates that many of those infringing products are shipped from China. Under
Commission precedent, UPM’s evidence of extensive online sales by both the named
respondents and unnamed parties supports finding a pattern of violation and issuance of a
GEO. See Water Filters, Order No. 17 (Initial Determination), 2019 WL 4072337, at *43
(July 11, 2019) (“The Commission has found that such evidence of numerous online sales
of infringing imported goods can demonstrate a violation of section 337.”) (unreviewed
in relevant parts, Comm’n Op. (Nov. 15, 2019)).
The evidence shows that UPM’s prior efforts in enforcing its intellectual property
have failed to stop the flow of infringing products into the United States. See Mem. at
49. This evidence further supports a finding of widespread violation and issuance of a
GEO. See Handbags, Order No. 16 (Initial Determination) at 21 (“The undersigned finds
that a pattern of violation of section 337 is further evinced by [complainant’s]
extensive . . . enforcement activities within the United States. . . . Continued
infringement despite [complainant’s] diligence in policing its marks provides ample

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support for a finding of widespread violation.”) (unreviewed, Apr. 12, 2012).
Accordingly, the issuance of a GEO under 19 U.S.C. § 1337(d)(2)(B) is
appropriate with respect to the asserted patent and trademarks.
B. Cease and Desist Orders
UPM argues:
Under the Commission’s current interpretation of the Section 337,
cease and desist orders typically do not issue against defaulting
Respondents where, as here, a complainant is unable to ascertain whether
the Respondents maintained commercially significant inventory of the
accused products in the United States. Accordingly, UPM does not
request that C&Ds issue against the Respondents.
Mem. at 49-50; see Staff Resp. at 65.
Thus, UPM has not requested entry of any cease and desist orders.
C. Bond
Pursuant to section 337(j)(3), the administrative law judge and the Commission
must determine the amount of bond to be required of a respondent, during the 60-day
Presidential review period following the issuance of permanent relief, in the event that
the Commission determines to issue a remedy. The purpose of the bond is to protect the
complainant from any injury. 19 U.S.C. § 1337(j)(3); 19 C.F.R. §§ 210.42(a)(1)(ii),
When reliable price information is available, the Commission has often set bond
by eliminating the differential between the domestic product and the imported, infringing
product. See Certain Microsphere Adhesives, Processes for Making Same, and Products
Containing Same, Including Self-Stick Repositionable Notes, Inv. No. 337-TA-366,
Comm’n Op. at 24 (1995). In other cases, the Commission has turned to alternative
approaches, especially when the level of a reasonable royalty rate could be ascertained.

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See Certain Integrated Circuit Telecommunication Chips and Products Containing Same,
Including Dialing Apparatus, Inv. No. 337-TA-337, Comm’n Op. at 41 (1995). A 100
percent bond has been required when no effective alternative existed. See Certain Flash
Memory Circuits and Products Containing Same, Inv. No. 337-TA-382, USITC Pub. No.
3046, Comm’n Op. at 26-27 (July 1997) (a 100% bond imposed when price comparison
was not practical because the parties sold products at different levels of commerce, and
the proposed royalty rate appeared to be de minimis and without adequate support in the
record).
UPM argues:
The typical retail price for UPM’s Fish Grip is $14.95.
Attachment A hereto (Hoge Decl. ¶ 32). While the range of retail prices
for the competing infringing products varies, it is typically about half the
price of the Fish Grip. Id. at ¶ 31. The typical retail price for UPM’s Fish
Grip, Jr. is $11.99. Id. at ¶ 32. While the range of retail price for the
competing infringing products varies, it is typically less than half the price
of the Fish Grip Jr. Id. Given these values, UPM submits that the
appropriate bond to be assessed during the Presidential Review Period is
100% of entered value.
Mem. at 50.
The Staff agrees. See Staff Resp. at 70.
A bond of 100% is appropriate in this investigation. Inasmuch as the evidence
shows that the sales were made online at various price points and quantities, calculating
an average price would be difficult. Given this state of the evidentiary record, and the
fact that all of the affected respondents have defaulted rather than provide discovery, a
bond value of 100% is appropriate. Under these circumstances, the administrative law
judge recommends that the defaulting respondents be required to post a bond of 100% of

PUBLIC VERSION
92
entered value during the 60-day Presidential review period. This amount should be
sufficient to prevent any harm to complainant during the Presidential review period.
IX. Conclusions of Law
1. The Commission has subject matter, personal, and in rem jurisdiction in
this investigation.
2. The accused products have been imported or sold for importation into the
United States.
3. The accused products infringe the asserted claims of U.S. Patent No.
6,256,923.
4. The domestic industry requirement has been satisfied with respect to U.S.
Patent No. 6,256,923.
5. The accused products except iLure products have been shown to infringe
the asserted U.S. Trademark Registration No. 4,980,923.
6. The domestic industry requirement has been satisfied with respect to U.S.
Trademark Registration No. 4,980,923.
7. The accused products except iLure products have been shown to infringe
the asserted U.S. Trademark Registration No. 5,435,944.
8. The domestic industry requirement has been satisfied with respect to U.S.
Trademark Registration No. 5,435,944.
X. Initial Determination and Order
It is the initial determination of the administrative law judge that complainant’s
Motion No. 1169-7 for summary determination of violation of section 337 by the

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94
and thus makes no request that any portion be redacted from the public version, then a
statement to that effect shall be filed.22
David P. Shaw
Administrative Law Judge
Issued: April 10, 2020
22 Confidential business information (“CBI”) is defined in accordance with 19 C.F.R. §
201.6(a) and § 210.5(a). When redacting CBI or bracketing portions of documents to
indicate CBI, a high level of care must be exercised in order to ensure that non-CBI
portions are not redacted or indicated. Other than in extremely rare circumstances, block-
redaction and block-bracketing are prohibited. In most cases, redaction or bracketing of
only discrete CBI words and phrases will be permitted.

CERTAIN FISH-HANDLING PLIERS AND PACKAGING
THEREOF
Inv. No. 337-TA-1169
PUBLIC CERTIFICATE OF SERVICE
I, Lisa R. Barton, hereby certify that the attached Initial Determination has been served
via EDIS upon the Commission Investigative Attorney, Thomas C. Chen, Esq., and the following
parties as indicated, on August 7, 2020.
Lisa R. Barton, Secretary
U.S. International Trade Commission
500 E Street, SW, Room 112
Washington, DC 20436
On Behalf of Complainant United Plastic Molders:
Rett Snotherly, Esq.
LEVI & SNOTHERLY, PLLC
1101 Connecticut Ave., NW, Suite 450
Washington, DC 20036
Email: rsnotherly@levisnotherly.com
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Certain Fish-Handling Pliers and Packaging Thereof, Inv. 337-TA-1169

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