... continue to be used in commerce: u.S. Reg. No. 2,596,539 for the Color Purple u.S. Reg. No. 2,533,260 for PURPLE NITRILE U.S. Reg. No. 2,593,382 for PURPLE NITRILE X-TRA U.S. Reg. No. 3,099,894 for the Color Purple None ...

... Reg. No. 2,593,382 for PURPLE NITRILE X-TRA U.S. Reg. No. 3,099,894 for the Color Purple U.S. Reg. No. 3,099,894 for the Color Purple None of the aforesaid trademarks has been abandoned, canceled or rendered invalid or None ...

... continue to be used in commerce: U.S. Reg. No. 2,596,539 for the Color Purple U.S. Reg. No. 2,533,260 for PURPLE NITRILE U.S. Reg. No. 2,593,382 for PURPLE NITRILE X-TRA U.S. Reg. No. 3,099,894 for the Color Purple None ...

Branch Chief Intellectual Property Rights Branch Office of Regulations and Rulings U.S. Customs and Border Protection Department of Homeland Security 1300 Pennsylvania Avenue, NW Washington, DC 20229 Port Director U.S. Customs and Border Protection 301 E. Ocean Blvd Ste 700 Long Beach, California 90802 For complainant in Inv. No. 337-TA-500: Raymond A. Kurz, Esq.

The U.S. Customs and Border Protection (“Customs”) has informed the Commission that (i) the owner, importer or consignee (or the agent of such person) of certain purple protective gloves previously attempted to import the article into the United States; (ii) Customs previously denied entry of the article into the United States by reason of a final exclusion order; and (iii) upon such previous denial of entry, the Secretary of the Treasury provided the owner, importer, or consignee of the article (or the agent of such person) with written notice of the aforesaid exclusion order and the fact that seizure and forfeiture would result from any further attempt to import the article into the United States.

The Commission having determined, based on these and other documents provided by Customs, that the issuance of a seizure and forfeiture order concerning the article would be appropriate pursuant to section 337(i) of the Tariff Act of 1930 (19 U.S.C. 1337(i)), it is hereby ORDERED:

The Secretary shall serve copies of this order on the Secretary of the Treasury; U.S. Customs and Border Protection, Washington, D.C.; U.S. Customs and Border Protection, Long Beach, California; the firm listed in paragraph 1 above; and counsel for Kimberly-Clark Corporation, the complainant in Inv. No. 337-TA-500.

August 8,2005 The Honorable John W. Snow Secretary o f the Treasury 1500 Pennsylvania Avenue, NW Washington, DC 20220 Re: Seizure and Forfeiture Order Dear A4r.

Customs and Border Protection Department of Homeland Security 1300 Pennsylvania Avenue, NW Washington, DC 20229 Port Director U.S. Customs and Border Protection 301 E. Ocean Blvd Ste 700 Long Beach, California 90802 For complainant in Inv. No. 337-TA-500: Raymond A. Kurz, Esq.

The U.S. Customs and Border Protection (“Cu~toms’~) has informed the Commission that (i) the owner, importer or consignee (or the agent of such person) of certain purple protective gloves previously attempted to import the article into the United States; (ii) Customs previously denied entry of the article into the United States by reason of a final exclusion order; and (iii) upon such previous denial of entry, the Secretary of the Treasury provided the owner, importer, or consignee of the article (or the agent of such person) with written notice of the aforesaid exclusion order and the fact that seizure and forfeiture would result from any further attempt to import the article into the United States.

The Commission having determined, based on these and other documents provided by Customs, that the issuance of a seizure and forfeiture order concerning the article would be appropriate pursuant to section 337(i) of the Tariff Act of 1930 (19 U.S.C. 9 1337(i)), it is hereby ORDERED:

The Commission has previously determined that there is a violation of section 337 o f the Tariff Act o f 1930 (19 U.S.C. 0 1337) in the unlawful importation and sale of certain purple protective gloves that infringe U.S.

Having reviewed the record in this investigation, including the written submissions of the parties, the Commission has made its determinations on the issues of remedy, the public interest, and bonding.

Accordingly, the commission has determined to issue a general exclusion order prohibiting the unlicensed importation of infiinging purple protective gloves.

Complainants Kimberly-Clark Corporation and Safeskin Corporation shall file a written statement with the Commission, made under oath, each year on the anniversary of the issuance of this Order stating whether they continue to use each of the aforesaid trademarks in commerce in the United States in connection with purple protective gloves and whether any of the \* aforesaid trademarks has been abandoned, canceled, or rendered invalid or unenforceable.

The Commission has noted that the criteria of section 337(d)(2) “do not differ significantly” from the factors in Certain Airless Paint Spray Pumps and Components Thereof, Inv. 337-TA-90, USITC It could be argued that respondent Dash also appeared to contest the investigation, given that it filed a response to the amended complaint and notice of institution.

In Spray Pumps, the Commission held that a complainant seeking a general exclusion order must show both (1) a widespread pattern of unauthorized use of its patented invention and (2) certain business conditions from which one might reasonably infer that foreign manufacturers other than the respondents to the investigation may attempt to enter the U.S. market with infringing articles.

He notes that K-CISafeskin attributes the increase to strong demand for the product (fueled partly by internet offers) and the relative ease with which existing manufacturing lines can be adapted to produce infringing gloves.

Based on these representations, the ALJ found that “there is a widespread pattern of unauthorized use of the asserted trademarks” and “that business conditions exist from which one might reasonably infer that foreign manufacturers other than respondents ... may attempt to enter the U.S. market with infringing gloves.” RD at 19.

On September 23,2004, the ALJ issued an ID (Order No. 17) finding “substantial, reliable, and probative evidence” of a violation of section 337 by reason of Dash’s importation and sale of the accused gloves and the existence of a domestic industry.

The Commission also determined that the public interest factors enumerated in section 337(d) do not preclude the issuance of the aforementioned remedial order and that the bond during the Presidential review period shall be 100 percent of the entered value of the articles in question.

Having reviewed the record in this investigation, including the written submissions o f the parties, the Commission has made its determinations on the issues o f remedy, the public interest, and bonding.

Accordingly, the Commission has determined to issue a general exclusion order prohibiting the unlicensed importation of infringing purple protective gloves.

(3) Agency Form Number, i f Any, and the Applicable Component of the Department Sponsoring the Collection : None.

On September 2,2004, K-C/Safeskin filed a motion pursuant to Commission rule 210.18 for summary determination on the issues of violation of section 337 and the existence of a domestic industry.

On September 23,2004, the ALJ issued an initial determination (Order No. 17) finding “substantial, reliable, and probative evidence” of a violation of section 337 by reason of Dash’s importation and sale of the accused gloves and the existence of a domestic industry.

In connection with the final disposition of this investigation, the Commission may issue an order that could result in the exclusion of the subject articles from entry into the United States, and/or issue a cease and desist order that could result in the remaining respondent being required to cease and desist from engaging in unfair acts in the importation and sale of such articles.

During this period, the subject articles would be entitled to enter the United States under a bond, in an amount determined by the Commission and prescribed by the Secretary of the Treasury.

Id, Lastly, K-CISafeskin states that its facility in Roswell, Georgia “boasts significant investments in equipment and a pilot lab used in connection with engineering and research and development associated with the COLOR PURPLE protective gloves.” Memo.

For the reasons set forth above, the undersigned finds that there is a domestic industry The asserted gloves bearing the color purple mark were conceived of in the United States and prototypes were made in San Diego, California.

C/Safeskin observes that during prosecution of the asserted trademarks, the PTO accepted in whole or in part K-C/Safeskin’s claim of acquired distinctiveness pursuant to Section 2(f) of the Lanham Act based on such evidence.

Aqoropriateness of a general exclusion order in this matter As it pertains to whether there is a “widespread pattern of unauthorized use” of the asserted trademarks, K-C/Safeskin and Staff concur that significant quantities of infringing gloves have been and are continuing to be imported into the United States.