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Swagway, LLC v. International Trade Commission

Fed Cir Withdraws Holding Concerning Preclusive Effect of ITC Trademark Determinations

Swagway, LLC v. International Trade Commission, __ F.3d __, 2019 WL ____ (Fed. Cir. Aug. 14, 2019 (modification)) (Dyk, Mayer, CLEVENGER) (ITC) (4 of 5 stars)

Fed Cir modifies previous opinion (923 F.3d 1349) affirming determination of section 337 violation from trademark infringement. The previous opinion’s discussion of “the issue of the preclusive effect of the [ITC’s] trademark decisions” (Op. at 3) is vacated and a new discussion added; the remainder of that opinion is materially unchanged. The modified opinion’s discussion of Swagway’s arguments concerning the ITC’s entry of a consent order is as follows:

Swagway is not entitled to APA relief in connection with the ITC’s denial of Swagway’s proposed consent order and entry of its own. The opinion discusses how the record makes clear the ALJ and ITC’s reasoning in denying Swagway’s motion for a pre-trial consent order on the trademark issues (which Segway opposed), noting that the motion came extremely late in the case, and finding no abuse of discretion in the ALJ’s decision to proceed with the evidentiary hearing rather than address the motion. The ITC did violate the APA in the form used to deny Swagway’s motion. ITC Rule 210.42(c) requires that denials of motions must be in separate orders, not in a footnote to the ID. Per Align Technology, 771 F.3d 1317 (Fed. Cir. 2014), this error was “a rule violation cognizable under the APA.” Op. at 18. The error was harmless, however, and warrants no relief because the record showed no harm to Swagway in the mere form of the denial.

KEYWORDS: TRADEMARK; ITC; CONSENT ORDER