New Trend in Infringement Litigation: Section 337

Originally posted 2018-11-19 11:18:38

By Diana Chan |

USITCThe U.S. International Trade Commission (USITC) adjudicates claims of unfair competition involving imported articles under Section 337 of the Tariff Act of 1930 (codified as 19 U.S.C §1337). While most Section 337 investigations are intellectual property (IP)-related matters dealing with high tech products, recently, Section 337 has been used for fashion-related IP.

Common cases that are litigated at the ITC involve infringement of a U.S. patent, a federally registered copyright, or a federally registered trademark. In order for there to be a finding of a violation under Section 337, three elements must be shown. First, a complainant must show (1) importation, sale for importation, or sale in the U.S. after importation of the allegedly infringing article; (2) infringement of one of the enumerated IP rights by the accused article; and (3) an industry in the U.S. relating to articles protected by the IP rights exists or is in the process of being established (domestic industry requirement).

The advantage of Section 337 is that adjudication is expedited. Under Section 337, the USITC is to establish a target date for completion of an investigation within 45 days once the case is initiated. The USITC’s jurisdiction is triggered by the importation or sale of unfairly traded goods in the U.S., which allows IP owners to pursue infringement litigation against infringing goods with multiple import sources and countries in a single forum.  This is another advantage for IP holders because they can avoid issues of jurisdiction.

In 2012, the USITC granted Louis Vuitton a general exclusion for several items including handbags, luggage, accessories, and packaging against companies who infringed Louis Vuitton’s trademarks.  This past September the USITC granted RevoLaze an investigation for its laser abraded denim garments against Abercrombie & Fitch, American Eagle, Diesel, Gap, and Levi Strauss.  Last month, Converse filed a complaint and requested an investigation of several companies for infringing its trademarks.

If a company is able to establish a violation, Section 337 can be a significant source for brand protection.



19 U.S.C. 1337

Fall Fashion Forecast calls for Section 337

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