USITC Announces Major Action to Stem 3-A China Counterfeits
McLean, VA – The United States International Trade Commission on April 3 announced it will let stand a sweeping order in support of a complaint by 3-A SSI 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.
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.”
“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, “ according to 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,” Fisher said.
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. The notice is available at: https://www.usitc.gov/secretary/fed_reg_notices/337/337_1161_notice04032020sgl.pdf.
Submitted Evidence by 3-A SSI
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. 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 which are shipped in non-descript, 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. “This amount should be sufficient to prevent any harm to 3-A SSI during the period of Presidential review,” the order states.
“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. The leaders of 3-A SSI were united in supporting this complaint and the strong message it sends to any infringer,” according to Executive Director Tim Rugh.
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 U.S. and other processing facilities of foods imported into the U.S. The 3-A Symbol is a registered mark used since 1956 to identify equipment that meets 3-A Sanitary Standards for design and fabrication. 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.