On April 3, the United States International Trade Commission (USITC) announced it will let stand a sweeping order in support of a complaint by 3-A Sanitary Standards Inc. (3-A SSI), McLean, Va., to block the imports of any products from China showing a counterfeit 3-A Symbol or equivalent claim. The scope of the order is significant in its finding of injury to 3-A SSI and the type of remedy granted, according to 3-A SSI.
3-A SSI filed the complaint in March 2019 under section 337 of the Tariff Act of 1930, alleging that certain Chinese companies used false or misleading representations of 3-A Symbol authorization in the advertising or sale of certain food processing equipment. The ruling by Administrative Law Judge David P. Shaw issued in February 2020 found that the unlicensed use of the 3-A Symbol “has substantially injured 3-A SSI’s domestic industry by harming the goodwill associated with the 3-A Certification Marks,” 3-A SSI said.
“The decision by the USITC is an important precedent for 3-A SSI and other U.S. certification marks as well, as it demonstrates that the U.S. will take vigorous action to protect the economic value and goodwill associated with such marks from unfair foreign trade practices, “ said Bart S. Fisher, international trade counsel for 3-A SSI. “The ruling places China on notice that the U.S. will not tolerate its predatory use of the internet to place the health and safety of U.S. consumers at risk.”
The ruling is also significant in finding that the unlicensed use of the 3-A Symbol, as false advertising, substantially injured 3-A SSI’s domestic industry by harming the goodwill associated with the 3-A marks, 3-A SSI said. The notice is available here.
Significantly, Judge Shaw agreed that the evidence submitted by 3-A SSI justified a general exclusion order as opposed to a more limited order directed against the infringers named in the 3-A SSI complaint, 3-A SSI said. The 3-A SSI complaint documented violations among a group of five companies, but showed that numerous other companies not named in the complaint advertised and sold products that are shipped in nondescript cardboard boxes without any apparent branding to identify the sender.
“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,” Shaw’s order states.
The USITC order affirmed the strong evidence presented in the 3-A SSI complaint by recommending that the respondents named in the 3-A SSI complaint be required to post a bond of 100% of entered value during a 60-day presidential review period.
“The USITC ruling represents the most significant and far-reaching action taken by any U.S. authority to defend the integrity of the 3-A Symbol program and its role in protecting the public health,” said Tim Rugh, 3-A SSI’s executive director. “The leaders of 3-A SSI were united in supporting this complaint and the strong message it sends to any infringer.”
U.S. regulatory sanitarians, including USDA, FDA and state authorities, rely on the 3-A Symbol program to support the inspections of equipment and processing systems around the United States and other processing facilities of foods imported into the United States. The 3-A Symbol is a registered mark used since 1956 to identify equipment that meets 3-A Sanitary Standards for design and fabrication, 3-A SSI said. Voluntary use of the 3-A Symbol on dairy and food equipment conveys assurance that equipment meets sanitary standards, provides accepted criteria to equipment manufacturers for sanitary design, and establishes guidelines for uniform evaluation and compliance by sanitarians.