Federal Circuit Vacates and Remands Commission Decision in 337-TA-487
The Federal Circuit in a 2-1 decision in Deere v. Int'l Trade Comm'n, No. 2009-1016, today affirmed in part and reversed in part the Commission's ruling in 337-TA-487, In the Matter of Certain Agricultural Vehicles and Components Thereof. The Complainant in the investigation was Deere & Co., and the remaining Respondents were Bourdeau Brothers, Inc., OK Enterprises and Sunova Implement Co. The investigation covered whether Deere's trademarks were infringed through the "gray market" importation of European-market harvesters into the United States by Respondents.
In 2006, the Federal Circuit vacated and remanded this case after a finding of infringement, in order to determine whether "all or substantially all" of Deere's authorized domestic sales were materially different from the European-market harvesters. The ALJ, on remand, found that the number of authorized sales was so small that "substantially all" of Deere's U.S. sales were of North American-market harvesters. The Commission reversed, finding substantial evidence that Deere's own dealers were responsible for introducing a substantial quantity of nonconforming goods into the marketplace, and that 40-57% of the European-harvesters in the U.S. were sold by Deere authorized dealers.
The panel reversed the Commission, finding that it had focused on the number of European harvesters sold by authorized Deere distributors in the U.S., as opposed to the total number of harvesters of all kinds. Based on this analysis, the panel found that at most 3.4% of Deere's U.S.-authorized goods were European-market harvesters, as opposed to the 40-57% found by the Commission. The panel remanded for a determination as to whether this percentage permitted a finding that "all or substantially all" of Deere's sales were materially different.
Judges Michel and Lourie filed the majority opinion. Judge Newman concurred in part and dissented in part, agreeing with the majority that the Commission had misapplied the "all or substantially all" test, but dissenting in its analysis of whether particular sales were authorized by Deere.
