[00:00:00] Speaker 04:
We are privileged to have sitting with us this morning as a visiting judge, the Honorable John Chun from the Western District of Washington.

[00:00:09] Speaker 04:
Welcome, Judge Chun.

[00:00:11] Speaker 04:
Thank you.

[00:00:13] Speaker 04:
We have five cases on the calendar this morning.

[00:00:17] Speaker 04:
Until yesterday, we had six.

[00:00:19] Speaker 04:
One was settled in the courthouse steps.

[00:00:22] Speaker 04:
We have today one from the ITC, one from the PTAD, two from district courts.

[00:00:29] Speaker 04:
and one from the MSPB.

[00:00:32] Speaker 04:
That and one of the district court appeals submitted on the briefs will not be argued.

[00:00:39] Speaker 04:
Our first case today is Crocs versus the International Trade Commission, 2024-1300.

[00:00:45] Speaker 04:
Mr. Cain.

[00:00:46] Speaker 04:
Thank you, Your Honor.

[00:00:54] Speaker 02:
May it please the court, David Cain for Appellant Crocs.

[00:00:58] Speaker 02:
In this case, the commission found that the accused marks are substantially similar to Kroc's registered product configuration marks, which we refer to as the 3D marks.

[00:01:10] Speaker 02:
The commission found that the goods are the same.

[00:01:12] Speaker 02:
In fact, these are not just shoes.

[00:01:14] Speaker 02:
They're all molded foam clogs.

[00:01:16] Speaker 04:
But are the merits before us?

[00:01:17] Speaker 04:
Did you file in time?

[00:01:19] Speaker 02:
Yes, Your Honor, we did.

[00:01:21] Speaker 02:
Kroc's filed a timely notice of appeal

[00:01:24] Speaker 02:
pursuant to the plain language of Section 1337, 1337C and 1337J.

[00:01:33] Speaker 02:
There was a single statement of decision in this case constituting the determination.

[00:01:39] Speaker 02:
That determination included relief that was subject to presidential review.

[00:01:43] Speaker 02:
Under 1337J, a statement of decision, a determination subject to presidential review, is effective when filed.

[00:01:52] Speaker 02:
And this also comes from the Young Engineering case, but not final until following the presidential review period.

[00:02:00] Speaker 00:
How do you deal with Broadcom, which in that case, there were two different determinations within a single decision?

[00:02:10] Speaker 00:
slightly different facts there, because the question was whether an earlier appeal was premature.

[00:02:16] Speaker 00:
But it's analogous in the sense that it is talking about two different decisions.

[00:02:24] Speaker 00:
I think there was maybe one patent was found valid and infringed, and the other two patents were found invalid.

[00:02:31] Speaker 00:
And there were different

[00:02:33] Speaker 00:
appeal timing requirements for those two different determinations within the same decision.

[00:02:39] Speaker 00:
So how, how, why doesn't that apply here?

[00:02:42] Speaker 02:
So your honor, if you look at the appeal briefing in the Broadcom case, which we've cited in our briefing,

[00:02:51] Speaker 02:
There were actually two separate statements of decision in Broadcom.

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And that's what distinguishes Broadcom from this case.

[00:02:57] Speaker 02:
There was a first statement of decision, a first determination, where certain patents were found not infringed and valid, that sort of thing.

[00:03:06] Speaker 02:
And then there was a second later statement of decision constituting a separate determination

[00:03:12] Speaker 02:
where it was subject to presidential relief.

[00:03:15] Speaker 00:
That is not- Were they issued on the same day?

[00:03:17] Speaker 02:
They were not issued on the same day.

[00:03:18] Speaker 02:
No, Your Honor.

[00:03:19] Speaker 02:
In fact, they were issued on different days, and that became the issue.

[00:03:22] Speaker 02:
And then as you noted, there was even in that case an argument, as I think Your Honor said, about the rightness of the first appeal.

[00:03:30] Speaker 02:
But that is both Broadcom and Allied are different in that regard.

[00:03:35] Speaker 00:
In this case where you've got two different sets of respondents,

[00:03:42] Speaker 00:
Why should the finding as the defaulting respondents change the date on which a notice of appeal should be filed for the active respondents?

[00:03:50] Speaker 02:
I mean, they're separate parties, right?

[00:03:54] Speaker 02:
Um, we have the active respondents and we have the defaulting respondents, but it is the single, it was the commission's single determination as to all of those issues containing all of the commission's findings and conclusions.

[00:04:08] Speaker 02:
That's the subject of this appeal.

[00:04:10] Speaker 01:
Why does that procedural difference though, between this case and allied and Broadcom make a legal difference here?

[00:04:17] Speaker 02:
Because when the statute refers to a determination, a final determination,

[00:04:22] Speaker 02:
It is referring to a statement of decision.

[00:04:25] Speaker 02:
Here we have a single statement of decision that was the subject of notice in the Federal Register.

[00:04:31] Speaker 02:
And it is that single statement of determination that includes all of the relief set forth there at all of the findings and conclusions, both the findings and conclusions that were adverse to prox and those that were in favor.

[00:04:45] Speaker 01:
So your client was adversely affected by that decision at that time.

[00:04:50] Speaker 02:
Well, that decision contains findings and conclusions that were not favorable, but that determination itself as a whole did not become final until after the presidential review period.

[00:05:02] Speaker 02:
So I would say that there was a mixed decision in that case doesn't affect

[00:05:08] Speaker 02:
when the determination becomes final.

[00:05:10] Speaker 02:
That comes straight from the statute, 1337J, and Young Engineers, which is this court's precedent, which says that a determination that contains a remedy that's subject to presidential review does not become final until after the presidential review period.

[00:05:29] Speaker 00:
But in that case, Young Engineers, that case only involved findings

[00:05:37] Speaker 00:
infringement and violation of Section 1337, right?

[00:05:40] Speaker 00:
So it's distinguished from the facts here.

[00:05:45] Speaker 00:
I understand your argument is that it still applies because it's a single determination, but you agree factually that Young Engineers is different, right?

[00:05:55] Speaker 02:
It doesn't include findings and conclusions that were against the party.

[00:06:02] Speaker 00:
That's right.

[00:06:03] Speaker 00:
That were against the patent owner.

[00:06:04] Speaker 02:
Yes, that's right.

[00:06:06] Speaker 02:
But it still stands for the proposition that when you read the statute, section 1337C and 1337J together, and you have a final determination, that final determination is not effective when issued.

[00:06:21] Speaker 02:
But only following the presidential review period does it become final.

[00:06:24] Speaker 00:
In your view, it's my understanding that your view is had the commission issue two different decisions.

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one for the defaulting respondents and one for the active respondents, the outcome in this case would be different.

[00:06:41] Speaker 02:
If there were two separate determinations that were issued.

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Two separate papers.

[00:06:45] Speaker 02:
Two separate papers issued, two separate notices published, then we would have had the ability to submit an appeal earlier.

[00:06:56] Speaker 02:
But here, we didn't have that ability, and an earlier notice would not have been right, because there was a single determination, single statement of decision that was subject to presidential review.

[00:07:14] Speaker 01:
Is this an issue of first impression?

[00:07:18] Speaker 02:
Well, the court doesn't have a decision squarely addressing this subject.

[00:07:23] Speaker 02:
You have to look at Young Engineering, which I think controls, and then Allied and Broadcom, which are distinguishable.

[00:07:34] Speaker 04:
Well, you can get to the merits.

[00:07:36] Speaker 02:
Thank you, Your Honor.

[00:07:38] Speaker 02:
Having found the first three DuPont factors, all favored

[00:07:44] Speaker 02:
a likelihood of confusion, those should have been dispositive, regardless of the weighing of other factors.

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But even if any doubt remains, it is erased by the commission's clear errors on the factors it reached in coming to the conclusion of no likelihood of confusion.

[00:08:03] Speaker 02:
The commission erred on questions of law, and those errors are what stood in the way of the issuance of a general exclusion order.

[00:08:10] Speaker 02:
And this court should reverse.

[00:08:12] Speaker 02:
On the first of those questions for which the commission committed error, intent to confuse, the dissent correctly points out that it was error to weigh intent to confuse against likelihood of confusion because lack of intent is largely irrelevant in determining if consumers are likely to be confused as to source.

[00:08:36] Speaker 02:
So here, intent to confuse cannot weigh anything less than neutral.

[00:08:42] Speaker 02:
But in fact, it should have been weighed in favor of a likelihood of confusion.

[00:08:47] Speaker 02:
The reason is that Orly referred to its Gator product, which is itself a reference to Crocs.

[00:08:56] Speaker 02:
It referred internally to that product and in its communications with its suppliers using the word Crocs.

[00:09:04] Speaker 02:
Its customer, Hobby Lobby,

[00:09:06] Speaker 02:
affixed a label to the products it sold calling them croc slides.

[00:09:10] Speaker 02:
And Emoji, one of the other active respondents, bought the keyword for crocs.

[00:09:16] Speaker 00:
Do you see legal error with this as well?

[00:09:19] Speaker 02:
Yes, Your Honor, because the weighing of the factors

[00:09:22] Speaker 02:
the weighing of the factors along with the ultimate conclusion is legal error.

[00:09:28] Speaker 02:
It's a question of law.

[00:09:29] Speaker 02:
So how you weigh those factors is legal error.

[00:09:32] Speaker 02:
And having weighed, not made findings about the facts, but how you weigh that intent to confuse factor, weighing it here as against a likelihood of confusion when it couldn't have weighed any less than neutral, that is legal error.

[00:09:49] Speaker 02:
And so the point I was just making on the emoji pieces, they purchased the keyword crocs so that consumers who would be looking for crocs would be redirected to emoji.

[00:10:00] Speaker 02:
So for all of those reasons.

[00:10:02] Speaker 00:
Do you remember quickly that the commission said, or maybe it was the ALJ said, that use of the word crocs was generic?

[00:10:10] Speaker 02:
In a few instances, they did.

[00:10:11] Speaker 02:
But of course, the commission found that crocs, the word mark, is not generic.

[00:10:17] Speaker 02:
and that it is distinctive of prox.

[00:10:21] Speaker 00:
So you think those are inconsistent findings or rulings by the commission?

[00:10:28] Speaker 02:
Yes, I do think they're inconsistent.

[00:10:30] Speaker 02:
I think that the idea that

[00:10:33] Speaker 02:
And really, there's no evidence supporting this notion that prox is used generically.

[00:10:41] Speaker 02:
It's merely supposition by the commission versus the finding and conclusion that prox the word mark.

[00:10:49] Speaker 02:
is distinctive and does apply.

[00:10:52] Speaker 02:
And so there's nothing, there's no support beyond the commission's speculation for the proposition that, well, Crocs is sort of being used to refer to a product category, nothing like that.

[00:11:05] Speaker 02:
And so here, when you see someone purchasing, as Emoji did, purchasing the keyword Crocs that the people looking for Croc shoes would be redirected to Emoji, that is strong evidence of intent.

[00:11:17] Speaker 02:
That's not, Your Honors, the only error that the Commission made.

[00:11:23] Speaker 02:
The Commission also erred, and again, the dissent pointed this out, as to its analysis of the fame factor.

[00:11:31] Speaker 02:
The Crocs configuration marks in the classic clog, which are shown on page two of the blue brief,

[00:11:38] Speaker 02:
are instantly recognizable.

[00:11:39] Speaker 02:
And I imagine everyone in this courtroom, if they looked at those shoes, would see them and recognize the 3D marks because they're that well known.

[00:11:50] Speaker 02:
The commission erred in weighing the evidence of fame as neutral on the basis that Crocs had not shown advertising of the registered trademarks, product configuration marks, standing alone.

[00:12:04] Speaker 02:
They said that that was what was required.

[00:12:07] Speaker 02:
But as this court has said, you can look at evidence of the goods that are dressed by the mark to determine fame.

[00:12:16] Speaker 04:
Counsel, you're into your rebuttal time.

[00:12:18] Speaker 04:
You can continue or save it or some combination thereof.

[00:12:22] Speaker 02:
Yeah.

[00:12:23] Speaker 02:
Well, let me just say here, Your Honor, that this is a case, again, where the commission found that the similarity of the marks, similarity of the goods, and the similarity of the trade channels, the dispositive factors all line up in favor of a likelihood of confusion.

[00:12:39] Speaker 02:
Reversing the commission on any one of its factors, and we talked a little bit about fame and intent to confuse,

[00:12:45] Speaker 02:
But the survey evidence is also, there was also an error of law there.

[00:12:50] Speaker 02:
And actual confusion, as well as the conditions of sale, all legal errors in terms of the weighing, reversing on any one of those would lead to a reversal and a conclusion that infringement had been shown.

[00:13:08] Speaker 04:
We will save the remainder of your time for you.

[00:13:11] Speaker 03:
Thank you.

[00:13:12] Speaker 04:
Mr. Brecher.

[00:13:16] Speaker 03:
Good morning.

[00:13:16] Speaker 03:
May it please the court, regarding the jurisdiction of question, the key point here is finality.

[00:13:22] Speaker 03:
The commission, as is well known, issued a final determination of no violation on September 14th of 2023.

[00:13:30] Speaker 03:
At the same time, it issued a final determination denying the request for a GEO.

[00:13:35] Speaker 03:
Those are final determinations in the sense that the president has no authority to review or revise or reverse a commission's

[00:13:45] Speaker 03:
no violation determination.

[00:13:47] Speaker 00:
How do you respond to the argument being made that a final determination is a single statement of determination, like a single paper, and that it's a single notice in the register?

[00:14:02] Speaker 03:
Well, that's simply not correct.

[00:14:04] Speaker 03:
I mean, is this court held in young engineers?

[00:14:08] Speaker 03:
Determination means a decision.

[00:14:10] Speaker 03:
And the court even went on to say that the term determination in section three through seven is used in different ways in different parts of the statute.

[00:14:17] Speaker 03:
When we look at section J, which refers to presidential review, that only refers to a determination that includes a remedial order, because it's only the remedial order that's reviewed by the president.

[00:14:30] Speaker 03:
So whether we have one paper or two papers, it doesn't change the president's statutory authority that he cannot review

[00:14:36] Speaker 03:
a no violation determination and cannot review the denial of a request for a general exclusion order.

[00:14:44] Speaker 03:
If we're going to get into how many pieces of paper we're supposed to print out, that just completely detracts from this court's precedent and 40 years of holdings that finality is determined by the nature of the decision.

[00:14:59] Speaker 03:
Specifically, finality means there's a decision on the merits, whether to exclude certain products,

[00:15:06] Speaker 03:
And there's no further administrative or presidential proceeding.

[00:15:09] Speaker 03:
It's not about whether there's one cover or two covers.

[00:15:11] Speaker 03:
So one notice or two notes.

[00:15:14] Speaker 03:
That puts the authority solely on the commission about whether something is final or not.

[00:15:18] Speaker 03:
Well, it's the court that's decided what's final.

[00:15:21] Speaker 00:
Do you know of any other area of the law?

[00:15:24] Speaker 00:
I mean, this is kind of a special thing with the presidential review period, where a single paper could have multiple final determinations with different notices of appeal time periods.

[00:15:38] Speaker 03:
I have to admit, I'm not familiar with other agencies.

[00:15:40] Speaker 03:
But in the commission practice, it's not uncommon to have a final determination that has both a violation and no violation finding.

[00:15:49] Speaker 03:
No violation because a patent's invalid.

[00:15:52] Speaker 03:
Violation because another patent, a second patent, is valid infringed.

[00:15:56] Speaker 03:
Or in this case, you have one set of respondents that violate the second set that don't violate.

[00:16:00] Speaker 03:
This comes up quite common.

[00:16:03] Speaker 03:
And again, if we have to go down to counting the number of coverage we use, it just completely just tracks from this court's precedent regarding finality.

[00:16:13] Speaker 00:
And when you're saying this court's precedent, what cases are you thinking of?

[00:16:17] Speaker 03:
Well, I'm thinking about allied, broad, common.

[00:16:19] Speaker 03:
There's a long chain of cases about this where finality is determined by, as I said, is it a decision on the merits?

[00:16:27] Speaker 03:
Does it go to whether to exclude the product?

[00:16:28] Speaker 03:
And then are we finished with the administrative and presidential proceedings?

[00:16:32] Speaker 03:
So in allied, there was a no violation finding even before the rest of the case was done, because there was nothing more to be done respecting that particular patent.

[00:16:43] Speaker 03:
Broadcom moved up the framework a little bit, as your honor mentioned, so that there was one notice stating one patent's not infringed, a second patent is infringed.

[00:16:53] Speaker 03:
But the timing doesn't change the result.

[00:16:56] Speaker 03:
The result is because of that principle about finality.

[00:17:00] Speaker 03:
So this is not an unusual case.

[00:17:03] Speaker 03:
It's unusual.

[00:17:04] Speaker 03:
It's only because we have that provision, Section 337j.

[00:17:07] Speaker 03:
I mean, if, for example, we could lift that out as a thought experiment,

[00:17:13] Speaker 03:
everything would have a 60-day deadline.

[00:17:16] Speaker 03:
It's only when we put it in section 337j and then we read it on its terms that we find a determination with a remedy order.

[00:17:25] Speaker 01:
That's what's reviewed by the president.

[00:17:27] Speaker 01:
What's your best response to the corrective argument that this is not a jurisdictional question and therefore that we can apply equitable tolling?

[00:17:37] Speaker 03:
Well, we would disagree, of course, and the courts disagreed for 40 years.

[00:17:41] Speaker 03:
referring specifically to the Harrow case, Harrow does not say that every deadline is not jurisdictional.

[00:17:47] Speaker 03:
It says there's only presumption of tolling.

[00:17:49] Speaker 03:
Now, in our case, we have several factors that we need to take into consideration.

[00:17:54] Speaker 03:
One is our statutory language itself.

[00:17:56] Speaker 03:
This 60-day deadline is integral to the one sentence in all of Section 337 that speaks to this court's jurisdiction.

[00:18:06] Speaker 03:
Specifically, there has to be a notice of appeal from a final decision on the merits,

[00:18:12] Speaker 03:
filed within 60 days, and then now it falls under subsections D, E, F, or G. So that's all one integral part of the statute.

[00:18:23] Speaker 03:
Secondly, when Congress amended section 337 in 1984 to explicitly add that 60-day deadline, Congress said at the time that this was part of a package of amendments to improve and correct the jurisdiction of this court.

[00:18:40] Speaker 03:
And it also said that notice of appeal must be filed in six days.

[00:18:44] Speaker 03:
So Congress's intent in this case is very clear.

[00:18:48] Speaker 03:
And we recite that legislative history on page 31 of our brief in footnote 12.

[00:18:55] Speaker 03:
What's more, we have the precedent of this court that says this revision is jurisdictional most recently.

[00:19:01] Speaker 03:
In the Realtek BITC case that was decided just a few months ago,

[00:19:06] Speaker 03:
The court reiterated that that sentence is jurisdictional.

[00:19:09] Speaker 03:
Now granted, the court was speaking specifically about subparts D, E, F, and G, that language, but it's one statutory sentence.

[00:19:19] Speaker 03:
There's no reason to parse it.

[00:19:21] Speaker 03:
And as I said, Congress's intent was clear in the legislative history.

[00:19:24] Speaker 01:
And I was wondering how much weight to give those cases, like Realtek, but also Allied, Broadcom.

[00:19:29] Speaker 01:
Both those opinions say it's jurisdictional, but I couldn't tell whether the issue of jurisdiction was even litigated there, so I didn't

[00:19:36] Speaker 03:
Well, I would say at the time, before Harrow, people would assume that a deadline is a deadline.

[00:19:43] Speaker 03:
All we believe in our case is that the legislative history, plus the statutory language, plus precedent, reinforces the concept of jurisdiction, that it's not a new change.

[00:19:54] Speaker 03:
I'll also note, if it's not jurisdictional, then it's certainly a mandatory rule.

[00:19:58] Speaker 03:
We cite cases like Nutraceutical, and there's a Saganti case we cite in our Rule 28-J letter.

[00:20:08] Speaker 03:
It's mandatory at the minimum because it goes directly to regulating this court's orderly proceedings.

[00:20:13] Speaker 03:
In other words, parties should not have to wait five weeks after the 60-day deadline expires to find out if there's going to be a notice of appeal.

[00:20:21] Speaker 03:
And Crocs, moreover, has never made a case for equitable tolling.

[00:20:24] Speaker 03:
They didn't do it in their opening briefing.

[00:20:26] Speaker 03:
They were required to do it.

[00:20:28] Speaker 03:
They didn't do it today.

[00:20:29] Speaker 03:
And the facts don't support any equitable tolling.

[00:20:33] Speaker 03:
This was a decision solely by Crocs.

[00:20:35] Speaker 03:
There was no problem with it.

[00:20:37] Speaker 03:
The commission's service, no problem with email addresses or quorums like in Harrow.

[00:20:42] Speaker 03:
No problems with the court's filing procedures.

[00:20:45] Speaker 03:
This was solely Prox's decision to wait five weeks.

[00:20:48] Speaker 03:
How about their argument that there was some lack of clarity in the law?

[00:20:53] Speaker 03:
There's no clarity at all when the commission issues a notice saying, notice the final determination of no violation by participating respondents.

[00:21:01] Speaker 03:
It's as clear as a bell.

[00:21:02] Speaker 03:
It's restated in the opinion.

[00:21:04] Speaker 03:
The opinion, moreover, simply adopted the findings of the ID.

[00:21:08] Speaker 03:
So there was no question about what was happening here.

[00:21:11] Speaker 03:
And the fact that the commission also entered the remedial orders for the defaulters at the same time, that's just administrative efficiency.

[00:21:21] Speaker 03:
I mean, the commission is going to terminate an investigation.

[00:21:24] Speaker 03:
It's going to wrap up everything at the same time.

[00:21:26] Speaker 03:
And it's going to issue their medial orders to defaulters who were found on default a year before.

[00:21:31] Speaker 03:
So that part of the situation holds fast.

[00:21:32] Speaker 04:
Council, assuming we don't agree with you, you want to deal with the merits?

[00:21:37] Speaker 03:
Sir.

[00:21:41] Speaker 03:
It's rather surprising to have Crocs come here.

[00:21:43] Speaker 03:
I never mentioned the history of its own shoes.

[00:21:45] Speaker 03:
And I would direct the court's attention to the opening pages of Crocs post hearing brief, which is in the appendix.

[00:21:52] Speaker 03:
But the classic clog that everybody's familiar with was introduced in, I think, 2002.

[00:21:57] Speaker 03:
At the time, it was covered by a design patent, and Prox had great success, as we all know, for approximately 15 years before these trademarks even issued.

[00:22:06] Speaker 03:
So even though the trademark were part of that original design, there's many, many factors that drove the success and the recognition of that shoe.

[00:22:14] Speaker 03:
It's just the concept of having a plastic molded clog was new at the time.

[00:22:19] Speaker 03:
It's comfortable.

[00:22:20] Speaker 03:
It's colorful.

[00:22:21] Speaker 03:
It has that kind of lovable ugliness to it.

[00:22:23] Speaker 03:
You can decorate it.

[00:22:27] Speaker 03:
This court referred to various converging lines and focal points in its first Prox opinion, Prox BITC, several years ago.

[00:22:36] Speaker 03:
So the commission was faced with the task of trying to discriminate between what factors lead to associations that are covered by the trademark versus what factors are not covered by the trademark.

[00:22:49] Speaker 03:
as I said, the general clog design.

[00:22:51] Speaker 03:
To do that, the commission looked primarily to these surveys.

[00:22:56] Speaker 03:
And Crocs, in fact, told us at the time that the surveys were the best evidence of confusion.

[00:23:05] Speaker 03:
I'm sorry.

[00:23:09] Speaker 03:
That's the appendix 95761 that was in the post-hearing brief.

[00:23:12] Speaker 03:
And we cite it in our brief on page 35.

[00:23:15] Speaker 03:
So Crocs himself directed us to consider those surveys.

[00:23:18] Speaker 03:
And because of this unique history of the shoe, we cannot rely on just visual similarities alone, because there's lots of visual elements that can lead people to associate a shoe with proximate.

[00:23:31] Speaker 03:
So we look at the surveys.

[00:23:33] Speaker 03:
We discuss these at length in our brief.

[00:23:37] Speaker 03:
I have some time.

[00:23:40] Speaker 03:
Let me just address quickly some of the other elements they raise.

[00:23:43] Speaker 03:
The fame issue.

[00:23:45] Speaker 03:
Here, again, we have a problem that

[00:23:46] Speaker 03:
The fame of the shoe is due to many, many factors.

[00:23:49] Speaker 03:
Color is in comfort and marketing.

[00:23:52] Speaker 03:
But fame needs to be focused on those specific trademark elements, if it's supposed to counter a likelihood of confusion.

[00:24:00] Speaker 03:
That's the kind of evidence the commission was looking for, and that's the kind of evidence Crocs did not provide, at least not sufficiently.

[00:24:07] Speaker 03:
In Kent, I'll touch on briefly.

[00:24:11] Speaker 03:
Intent can go against the likelihood of confusion when parties like Orly specifically redesigned their shoe to avoid the likelihood of confusion.

[00:24:20] Speaker 03:
The Orly redesign, for example, does not contain any of the trademarked elements.

[00:24:25] Speaker 00:
You think that the fact that they redesigned shows that their original design doesn't have confusion?

[00:24:32] Speaker 03:
Well, I think they originally believed their shoe did not infringe, because it is different.

[00:24:35] Speaker 03:
It has a different look.

[00:24:36] Speaker 03:
It has a certainly very different price point.

[00:24:38] Speaker 03:
It's $10 versus $10.

[00:24:39] Speaker 00:
But the fact that they designed showed that they had no bad intent with respect to their first design.

[00:24:45] Speaker 03:
Yeah, and then they redesigned it to get even farther away from the trademark.

[00:24:49] Speaker 00:
What about the point, can you respond specifically to the point about how the commission found that the mark was not generic, but then explained that the accused infringer's use of the mark was simply to use it as a generic phrase?

[00:25:07] Speaker 03:
Right.

[00:25:08] Speaker 03:
Well, the croc's mark appears in the heel strap of the shoe.

[00:25:12] Speaker 03:
It's all in caps and it's a recognizable name.

[00:25:16] Speaker 00:
This is where, I think if I remember correctly, the huge infringing shoe had, they always have a tag on it that says it's a croc-like shoe or croc shoe.

[00:25:26] Speaker 03:
Yeah, there's several things here.

[00:25:27] Speaker 03:
First of all, the Orly shoes have their own tag on the top that says coexist or spring shop.

[00:25:32] Speaker 03:
So it's not mimicking the croc.

[00:25:35] Speaker 03:
label on the tag that the customer is really going to see, the Croc name, and it's Croc C-R-O-C, appears on the bottom on a sticker with a lot of other information.

[00:25:47] Speaker 03:
So it's questionable to what extent are consumers going to be misled by that when the tag on the top says it's sold by somebody else.

[00:25:54] Speaker 00:
This was for intent, specifically for the factor of intent, the fact that the shoe had a sticker on it that said Croc on it.

[00:26:04] Speaker 03:
Yeah, but that was from the Chinese manufacturer.

[00:26:07] Speaker 03:
It wasn't something Orly or Hobby Lobby were putting on the shoe.

[00:26:10] Speaker 03:
They labeled it differently, which shows they're trying to distinguish their shoe.

[00:26:17] Speaker 03:
So, but going to the, the surveys, there's multiple problems with these surveys here.

[00:26:27] Speaker 03:
Crocs' own expert, Dr. Petoulos, explained that the control in a survey is meant

[00:26:33] Speaker 03:
to filter out associations with the non-trademarked elements so that consumers can determine to what extent consumers are identifying the shoe with crocs because of the trademarked elements.

[00:26:46] Speaker 03:
I mean, it's a common control.

[00:26:48] Speaker 03:
You filter out the noise, so you're left with the actual finger testing.

[00:26:53] Speaker 03:
And she describes the purpose of the control in her witness statement.

[00:26:58] Speaker 03:
I can give those pages.

[00:27:00] Speaker 03:
But the witness statement starts in the phase 67275 and there's specific references on 67292 to the purpose of the control.

[00:27:10] Speaker 03:
But the problem then is the same expert admits that her own control does not keep the non-trademark elements constant.

[00:27:19] Speaker 03:
She uses a control that looks substantially different from a clog-like shoe or what I'll call a bare or generic clog-like shoe.

[00:27:26] Speaker 03:
It was this black slipper-like thing.

[00:27:29] Speaker 03:
So she admits she doesn't hold the non-trademark elements.

[00:27:33] Speaker 03:
That's an appendix, page 21999, 22001.

[00:27:35] Speaker 03:
It's here in transcript 360 to 362.

[00:27:41] Speaker 03:
And then she also admits that not holding the non-trademark elements constant could affect her results.

[00:27:47] Speaker 03:
So the net result in having looked at her survey is that the association rate for control is artificially low, which tends to drive up.

[00:27:58] Speaker 03:
the net association rate for these huge products.

[00:28:01] Speaker 03:
But even if we look at her survey at face value, putting that aside, two or at least three of the products are down in fringe, even on her own analysis.

[00:28:13] Speaker 03:
Oh, I'm sorry.

[00:28:16] Speaker 03:
I'm almost out of time.

[00:28:16] Speaker 03:
Does the court have any questions?

[00:28:19] Speaker 04:
Do you have a final thought?

[00:28:22] Speaker 03:
Just that Dr. Patoulis also admitted that

[00:28:25] Speaker 03:
The Wallace control did admit the trademarks from the control.

[00:28:29] Speaker 03:
It did properly admit it.

[00:28:30] Speaker 03:
And that's appendix page 22028230, transcript page 3892391.

[00:28:36] Speaker 03:
We address all this at length in our brief.

[00:28:38] Speaker 03:
And the brief in turn incorporates the opinion, which in turn incorporates the ID.

[00:28:42] Speaker 03:
So it's all in there.

[00:28:44] Speaker 04:
Thank you, counsel.

[00:28:46] Speaker 03:
Thank you very much.

[00:28:48] Speaker 04:
Mr. Cain has some rebuttal time.

[00:28:50] Speaker 02:
Yes.

[00:28:50] Speaker 02:
Thank you, your honor.

[00:28:53] Speaker 02:
The commission points to no statutory language, no rules, no regulations as supporting its view on the timing of the appeal, or the idea that when you have a single statement of determination, that you have to parse that to try and understand, well, you have to take an appeal at one time for what they call the negative aspects.

[00:29:16] Speaker 02:
and at another time for the positive aspects.

[00:29:19] Speaker 02:
That comes out of nowhere and it's contrary to the statute.

[00:29:23] Speaker 02:
1337J clearly says that 1337C is, it says except for, let me read it here,

[00:29:33] Speaker 02:
It says, subject to the provisions, I'm talking about 1337J3, subject to the provisions of paragraph 2, such determination, except for purposes of subsection C, be effective upon publication thereof in the Federal Register.

[00:29:50] Speaker 02:
So that's directly contrary to the commission's view of how this works.

[00:29:56] Speaker 02:
The Harrow case, very clearly to touch on that, says that regular claims processing rules of which the 60-day time period is one.

[00:30:06] Speaker 00:
What do you think except for the purposes of subsection C means?

[00:30:10] Speaker 00:
Because subsection C, of course, is the provision that provides the timing.

[00:30:17] Speaker 02:
That means that that timing doesn't apply in the case where you have a single final determination that is subject to presidential review.

[00:30:26] Speaker 02:
That means that it is effective when issued, but it does not become final for appeal purposes until after the presidential review period.

[00:30:38] Speaker 00:
This is when it's effective, not necessarily when it's final.

[00:30:42] Speaker 00:
such determination shall be final upon publication in the Federal Register.

[00:30:47] Speaker 00:
It just says effective, meaning that would be when the goods, if there was an exclusion order, maybe when it would go into effect.

[00:30:55] Speaker 00:
I mean, why doesn't it say final instead of effective?

[00:31:00] Speaker 02:
Well, Young Engineers reads it.

[00:31:02] Speaker 02:
And it does say, I think, if we continue down in subsection three and subsection four, Young Engineers says exactly that, that what this combination

[00:31:11] Speaker 02:
of language says in section 1337 is that when you have a determination that's subject to presidential review, it is effective when issued, but it does not become final until after the presidential review period.

[00:31:24] Speaker 00:
So if you put together- It doesn't become final for purposes of appeal under section C. That's right.

[00:31:29] Speaker 00:
Right.

[00:31:30] Speaker 02:
That's right.

[00:31:30] Speaker 02:
It doesn't become final for purposes under C until after the presidential review period, which supports our argument.

[00:31:37] Speaker 00:
What is your best support for why a final determination, which is what the language in the statute uses, why that's referring to

[00:31:48] Speaker 00:
It can't be referring to different determinations for different respondents, as opposed to it has to be a single paper.

[00:31:56] Speaker 00:
What is your best statutory support for that?

[00:31:59] Speaker 00:
It's really the meaning of a final determination.

[00:32:02] Speaker 00:
Yeah.

[00:32:02] Speaker 02:
My best support is that when you look at the way that the statute, section 1337, is laid out,

[00:32:09] Speaker 02:
It doesn't refer to different determinations for different respondents.

[00:32:13] Speaker 02:
It refers to a determination that concludes an investigation.

[00:32:19] Speaker 02:
And that is what we have here, a single statement of decision, a single determination that concludes an investigation.

[00:32:25] Speaker 00:
It doesn't say single anywhere, right?

[00:32:28] Speaker 02:
It doesn't say single.

[00:32:29] Speaker 02:
But it says the determination is what is issued to conclude the investigation.

[00:32:34] Speaker 00:
And I'm paraphrasing.

[00:32:35] Speaker 00:
Where is the language that concludes the investigation from?

[00:32:50] Speaker 02:
So if we look at, for example, the commission shall determine with respect to- Can you tell me which section you're referring to?

[00:32:58] Speaker 02:
Oh, I'm sorry.

[00:32:59] Speaker 02:
I'm sorry, Your Honor.

[00:32:59] Speaker 02:
Section C. Just the very first part.

[00:33:02] Speaker 02:
The commission shall determine with respect to each investigation conducted by it under this section that each investigation is referring to the investigation encompassing all of the respondents.

[00:33:13] Speaker 02:
It has an investigation number.

[00:33:15] Speaker 02:
And that is the investigation that the determination in this case was issued with respect to.

[00:33:22] Speaker 02:
And when you follow the statutory language through, that leads to that determination becoming effective once issued, here because it had relief subject to presidential review, but not final until after the presidential review period expires.

[00:33:40] Speaker 04:
Thank you, counsel.

[00:33:41] Speaker 04:
Thank you to both counsel.

[00:33:43] Speaker 04:
The case is submitted.