UNITED STATES INTERNATIONAL TRADE COMMISSION
`WASHINGTON, D.C.
`
`Before the Honorable Bryan F. Moore
`Administrative Law Judge
`
`
`
`
`
`In the Matter of
`
`CERTAIN FURNITURE PRODUCTS
`FINISHED WITH DECORATIVE WOOD
`GRAIN PAPER AND COMPONENTS
`THEREOF
`
`
`RESPONSE OF WHALEN LLC TO COMPLAINT AND NOTICE OF INVESTIGATION
`
`
`
`
`Inv. No. 337-TA-1385
`
`
`
`RESPONDENT
`Whale LLC d/b/a
`Whalen Furniture Manufacturing
`(address)
`
`
`
`
`
`COUNSEL FOR WHALEN LLC
`d/b/a WHALEN FURNITURE
`MANUFACTURING
`Lynda J. Zadra-Symes
`KNOBBE, MARTENS, OLSON & BEAR, LLP
`2040 Main Street, Fourteenth Floor
`Irvine, CA 92614
`Lynda.zadrasymes@knobbe.com
`
`
`
`
`-1-
`
`
`WASHINGTON, D.C.
`
`Before the Honorable Bryan F. Moore
`Administrative Law Judge
`
`
`
`
`
`In the Matter of
`
`CERTAIN FURNITURE PRODUCTS
`FINISHED WITH DECORATIVE WOOD
`GRAIN PAPER AND COMPONENTS
`THEREOF
`
`
`RESPONSE OF WHALEN LLC TO COMPLAINT AND NOTICE OF INVESTIGATION
`
`
`
`
`Inv. No. 337-TA-1385
`
`
`
`RESPONDENT
`Whale LLC d/b/a
`Whalen Furniture Manufacturing
`(address)
`
`
`
`
`
`COUNSEL FOR WHALEN LLC
`d/b/a WHALEN FURNITURE
`MANUFACTURING
`Lynda J. Zadra-Symes
`KNOBBE, MARTENS, OLSON & BEAR, LLP
`2040 Main Street, Fourteenth Floor
`Irvine, CA 92614
`Lynda.zadrasymes@knobbe.com
`
`
`
`
`-1-
`
`
`
`LIST OF EXHIBITS
`
`Exhibit
`A
`
`Description
`Information on Harmonized Tariff Schedule numbers, importation quantity
`and value of Accused Products, and the locations of Whalen’s suppliers
`
`
`
`
`
`
`-i-
`
`
`
`
`
`Pursuant to 19 C.F.R. § 210.13, Respondent Whalen LLC d/b/a Whalen Furniture
`
`Manufacturing (“Whalen” or “Respondent”) by and through its attorneys, hereby responds to the
`
`Complaint under Section 337 of the Tariff Act of 1930, as amended, filed by Toppan
`
`Interamerica, Inc. (“Complainant”) on December 7, 2023, and to the Notice of Institution of
`
`Investigation issued by the Unted States International Trade Commission (“Commission”) on
`
`January 9, 2024 (“Notice”).
`
`I.
`
`INTRODUCTION
`
`1.
`
`Whalen admits that Complainant requested the Commission to institute an
`
`investigation based on alleged violations of Section 337 of the Tariff Act of 1930, as amended,
`
`19 U.S.C. §1337 (“Section 337”). Whalen denies that it has engaged in any of the alleged
`
`violations of Section 337. Whalen lacks knowledge and information sufficient to form a belief
`
`as to the remaining allegations in Paragraph 1 of the Complaint, and therefore denies those
`
`allegations.
`
`2.
`
`Whalen admits that Complainant includes in its definition of the Accused
`
`Products multiple furniture items, including desks, bookcases, media stands and consoles,
`
`cabinets, vanities, and other furniture products finished with a wood grain finish. Whalen denies
`
`that any of these products infringe any of the Asserted Copyrights. Whalen lacks knowledge and
`
`information sufficient to form a belief as to whether Complainant is the exclusive licensee of the
`
`Asserted Copyrights in the United States, and therefore denies those allegations. Whalen denies
`
`all remaining allegations in Paragraph 2 of the Complaint.
`
`3.
`
`4.
`
`Whalen denies the allegations in Paragraph 3 of the Complaint.
`
`Whalen lacks information sufficient to form a belief as to the allegations of
`
`Paragraph 4 of the Complaint, and therefore denies those allegations.
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`-1-
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`
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`5.
`
`Whalen admits that Complainant is pursuing the relief identified in Paragraph 5 of
`
`the Complaint but denies that Complainant is entitled to the requested relief. Whalen denies all
`
`remaining allegations in Paragraph 5 of the Complaint.
`
`6.
`
`Whalen admits that Complainant is pursuing the relief identified in Paragraph 6 of
`
`the Complaint but denies that Complainant is entitled to the requested relief. Whalen denies all
`
`remaining allegations in Paragraph 6 of the Complaint.
`
`7.
`
`Whalen admits that Complainant is pursuing the relief identified in Paragraph 7 of
`
`the Complaint but denies that Complainant is entitled to the requested relief. Whalen denies all
`
`remaining allegations in Paragraph 7 of the Complaint.
`
`II. COMPLAINANT
`
`8.
`
`Whalen lacks knowledge and information sufficient to form a belief as to the
`
`allegations in Paragraph 8 of the Complaint, and therefore denies those allegations.
`
`9.
`
`Whalen lacks knowledge and information sufficient to form a belief as to the
`
`allegations in Paragraph 9 of the Complaint, and therefore denies those allegations.
`
`10. Whalen lacks knowledge and information sufficient to form a belief as to the
`
`allegations in Paragraph 10 of the Complaint, and therefore denies those allegations.
`
`11. Whalen lacks knowledge and information sufficient to form a belief as to the
`
`allegations in Paragraph 11 of the Complaint, and therefore denies those allegations.
`
`12. Whalen lacks knowledge and information sufficient to form a belief as to the
`
`allegations in Paragraph 12 of the Complaint, and therefore denies those allegations.
`
`III. THE ASSERTED COPYRIGHTS
`
`13. Whalen admits that wood grain appears in nature. Whalen denies that the wood
`
`grain finishes that Complainant uses are not natural wood grains. Whalen lacks knowledge and
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`-2-
`
`
`
`information sufficient to form a belief as to the remaining allegations in Paragraph 13 of the
`
`Complaint, and therefore denies those allegations.
`
`14. Whalen lacks knowledge and information sufficient to form a belief as to the
`
`allegations in Paragraph 14 of the Complaint, and therefore denies those allegations.
`
`15. Whalen admits that the Asserted Copyrights give the appearance of natural wood
`
`grain and facilitate printing in rolls for efficient manufacture. Whalen denies all remaining
`
`allegations in Paragraph 15 of the Complaint.
`
`16.
`
`The allegation that the Asserted Copyrights are original graphic works of
`
`authorship is a legal conclusion to which no response is required. Whalen denies all remaining
`
`allegations in Paragraph 16 of the Complaint.
`
`17. Whalen lacks knowledge and information sufficient to form a belief as to the
`
`allegations in Paragraph 17 of the Complaint, and therefore denies those allegations.
`
`18. Whalen admits that Exhibit 2 appears to show a copy of the Fitzroy Pine
`
`Copyright registration certificate. Whalen lacks knowledge and information sufficient to form a
`
`belief as to the remaining allegations in Paragraph 18 of the Complaint, and therefore denies
`
`those allegations.
`
`19. Whalen admits that Exhibit 3 appears to show a copy of the Roughsawn Oak
`
`Copyright registration certificate. Whalen lacks knowledge and information sufficient to form a
`
`belief as to the allegations in Paragraph 19 of the Complaint, and therefore denies those
`
`allegations.
`
`20. Whalen admits that Exhibit 4 appears to show a copy of the Aspen Oak Copyright
`
`registration certificate. Whalen lacks knowledge and information sufficient to form a belief as to
`
`the allegations in Paragraph 20 of the Complaint, and therefore denies those allegations.
`
`-3-
`
`
`
`21. Whalen admits that Exhibit 5 appears to show a copy of the Manaslu Oak
`
`Copyright registration certificate. Whalen lacks knowledge and information sufficient to form a
`
`belief as to the allegations in Paragraph 21 of the Complaint, and therefore denies those
`
`allegations.
`
`22. Whalen lacks knowledge and information sufficient to form a belief as to the
`
`allegations in Paragraph 22 of the Complaint, and therefore denies those allegations.
`
`23. Whalen lacks knowledge and information sufficient to form a belief as to the
`
`allegations in Paragraph 23 of the Complaint, and therefore denies those allegations.
`
`IV.
`
`PROPOSED RESPONDENT WHALEN
`
`24. Whalen admits the allegations of Paragraph 24 of the Complaint.
`
`25. Whalen admits that it designs furniture for sale to consumers both in the United
`
`States and in other countries. Whalen admits that it contracts for others to manufacture certain of
`
`the Accused Products and other furniture in Vietnam and that the wood grain finishes selected by
`
`customers or by Whalen and used on the furniture Whalen sells are manufactured by third parties
`
`in Asia. Whalen denies all remaining allegations in Paragraph 25 of the Complaint.
`
`26. Whalen admits that it sells furniture, including certain of the Accused Products,
`
`through United States retailers such as Home Depot, Walmart, Wayfair, and others. Whalen
`
`denies all remaining allegations in Paragraph 26 of the Complaint.
`
`27. Whalen admits that it sells certain of the Accused Products and other furniture to
`
`online and physical retailers in the United States under various third-party brand names such as
`
`“Better Homes & Gardens,” “Wayfair,” “StyleWell,” and “Style Selections.” Whalen denies all
`
`remaining allegations in Paragraph 27 of the Complaint.
`
`-4-
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`
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`V. WHALEN’S PRODUCTS
`
`28. Whalen admits that the Complaint identifies the products at issue as furniture
`
`products and components thereof, constructed from engineered wood products and finished with
`
`a wood grain paper. Whalen denies all remaining allegations in paragraph 28.
`
`29. Whalen admits that it designs and sells household furniture such as the products at
`
`issue here. Whalen admits that a “portion of Whalen’s furniture line is constructed from
`
`engineered wood products, such as particleboard and fiberboard.” Whalen lacks knowledge and
`
`information sufficient to form a belief as to the remaining allegations in Paragraph 29, and
`
`therefore denies those allegations.
`
`30. Whalen admits that it contracts with overseas factories to manufacture its
`
`furniture products and then arranges for the manufacturer to ship the finished products directly to
`
`the United States. Whalen admits that wood grain finishes that are manufactured overseas are
`
`used on certain of these furniture products. Whalen admits that most of its furniture products
`
`that are made with particleboard or fiberboard, including those at issue here, are finished with
`
`wood grain paper. Whalen admits that the packaging for certain of the Accused Products states
`
`that the products are “Made in Vietnam.” Whalen denies all remaining allegations in Paragraph
`
`30 of the Complaint.
`
`31. Whalen lacks sufficient knowledge and information to form a belief as to the
`
`contents of Exhibit 11, and therefore denies this allegation. Whalen denies all remaining
`
`allegations in Paragraph 31 of the Complaint.
`
`A.
`
`Products Alleged to Infringe the Fitzroy Pine Copyright
`
`32. Whalen admits that the Macie Product’s “base finish” is referred to as
`
`“Farmhouse Natural Wood with Grey Wash.” Whalen admits that Exhibit 13 appears to be an
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`-5-
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`
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`image of the Macie Product. Whalen admits that Exhibit 14 purports to include a comparison of
`
`the Macie Product to the Fitzroy Pine Copyright. Whalen denies that this comparison is accurate
`
`or demonstrates infringement. Whalen lacks knowledge and information sufficient to form a
`
`belief as to the remaining allegations in Paragraph 32, and therefore denies those allegations.
`
`33. Whalen denies the allegations in Paragraph 33 of the Complaint.
`
`B.
`
`Products Alleged to Infringe the Roughsawn Oak Copyright
`
`34. Whalen admits that the Wolcott Product’s “color/finish” is referred to as “Prairie
`
`Ash.” Whalen admits that Exhibit 16 appears to be an image of the Wolcott Product. Whalen
`
`admits that Exhibit 17 purports to include a comparison of the Wolcott Product to the
`
`Roughsawn Oak Copyright. Whalen denies that this comparison is accurate or demonstrates
`
`infringement. Whalen lacks knowledge and information sufficient to form a belief as to the
`
`remaining allegations in Paragraph 34, and therefore denies those allegations.
`
`35. Whalen denies the allegations in Paragraph 35 of the Complaint.
`
`C.
`
`Products Alleged to Infringe the Aspen Oak Copyright
`
`36. Whalen admits that the Jace Product’s “finish” is referred to as “Natural Oak.”
`
`Whalen admits that Exhibit 19 appears to be an image of the Wolcott Product. Whalen admits
`
`that Exhibit 20 purports to include a comparison of the Wolcott Product to the Aspen Oak
`
`Copyright. Whalen denies that this comparison is accurate or demonstrates infringement.
`
`Whalen lacks knowledge and information sufficient to form a belief as to the remaining
`
`allegations in Paragraph 36, and therefore denies those allegations.
`
`37. Whalen denies the allegations in Paragraph 37 of the Complaint.
`
`
`
`
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`-6-
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`D.
`
`Products Alleged to Infringe the Manaslu Oak Copyright
`
`38. Whalen denies that the Oxford Product’s “finish” is referred to as “Weathered
`
`Brown,” “Weathered Oak,” and “Rustic Oak” in different instances. Whalen admits that
`
`Exhibit 22 appears to be an image of the Oxford Product. Whalen admits that Exhibit 23
`
`purports to include a comparison of the Oxford Product to the Manaslu Oak Copyright. Whalen
`
`denies that this comparison is accurate or demonstrates infringement. Whalen lacks knowledge
`
`and information sufficient to form a belief as to the remaining allegations in Paragraph 36, and
`
`therefore denies those allegations.
`
`39. Whalen denies the allegations in Paragraph 39 of the Complaint.
`
`40. Whalen lacks knowledge and information sufficient to form a belief as to
`
`Complainant’s awareness of the specific importer(s) of record of certain of the Accused
`
`Products. The statement that Complainant may seek to amend the Complaint to name any such
`
`importer as a respondent in this investigation is a legal conclusion to which no response is
`
`required. Whalen denies all remaining allegations in Paragraph 40.
`
`VI. ALLEGATIONS AGAINST WHALEN
`
`41. Whalen denies the allegations in Paragraph 41 of the Complaint.
`
`42. Whalen admits that the Asserted Copyrights give the appearance of natural wood
`
`grain and facilitate printing in rolls for efficient manufacture. Whalen denies all remaining
`
`allegations in Paragraph 42 of the Complaint.
`
`43. Whalen admits that Exhibits 14, 17, 20, and 23 purport to include comparisons of
`
`the Macie Product, the Wolcott Product, the Jace Product, and the Oxford Product to the Fitzroy
`
`Pine Copyright, the Roughsawn Oak Copyright, the Aspen Oak Copyright, and the Manaslu Oak
`
`Copyright, respectively. Whalen denies that this comparison is accurate or demonstrates
`
`-7-
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`
`
`infringement. Whalen lacks knowledge and information sufficient to form a belief as to all
`
`remaining allegations in Paragraph 43 of the Complaint, and therefore denies these allegations.
`
`44. Whalen admits that Exhibit 14 purports to include a comparison of the Macie
`
`Product to the Fitzroy Pine Copyright. Whalen denies all remaining allegations in Paragraph 44
`
`of the Complaint.
`
`45. Whalen admits that Exhibit 17 purports to include a comparison of the Wolcott
`
`Product to the Roughsawn Oak Copyright. Whalen denies all remaining allegations in Paragraph
`
`45 of the Complaint.
`
`46. Whalen admits that Exhibit 20 purports to include a comparison of the Jace
`
`Product to the Aspen Oak Copyright. Whalen denies all remaining allegations in Paragraph 46
`
`of the Complaint.
`
`47. Whalen admits that Exhibit 23 purports to include a comparison of the Oxford
`
`Product to the Manaslu Oak Copyright. Whalen denies all remaining allegations in Paragraph 47
`
`of the Complaint.
`
`48. Whalen denies the allegations in Paragraph 48 of the Complaint.
`
`49. Whalen denies the allegations in Paragraph 49 of the Complaint.
`
`50. Whalen lacks knowledge and information sufficient to form a belief as to whether
`
`certain of the Accused Products are sold in competition with “products made and or [sic] sold”
`
`by other manufacturers who use licensed wood grain finish manufactured by Complainant in the
`
`United States, and therefore denies this allegation. Whalen denies all remaining allegations in
`
`Paragraph 50 of the Complaint.
`
`VII.
`
`SPECIFIC INSTANCES OF IMPORTATION AND SALE
`
`51. Whalen admits that it either imports certain of the Accused Products, sells certain
`
`of the Accused Products for importation, and/or sells certain of the Accused Products within the
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`-8-
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`
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`United States after importation. Whalen denies all remaining allegations in Paragraph 51 of the
`
`Complaint.
`
`52. Whalen admits that Exhibit 13 purports to be an image of the Macie Product.
`
`Whalen admits that Exhibit 7 purports to be an image of the Macie Product’s packaging.
`
`Whalen lacks knowledge and information sufficient to form a belief as to the remaining
`
`allegations in Paragraph 52 of the Complaint, and therefore denies these allegations.
`
`53. Whalen admits that Exhibit 16 purports to be an image of the Wolcott Product.
`
`Whalen admits that Exhibit 8 purports to be an image of the Wolcott Product’s packaging.
`
`Whalen lacks knowledge and information sufficient to form a belief as to the remaining
`
`allegations in Paragraph 53 of the Complaint, and therefore denies these allegations.
`
`54. Whalen admits that Exhibit 19 purports to be an image of the Jace Product.
`
`Whalen admits that Exhibit 9 purports to be an image of the Jace Product’s packaging. Whalen
`
`lacks knowledge and information sufficient to form a belief as to the remaining allegations in
`
`Paragraph 54 of the Complaint, and therefore denies these allegations.
`
`55. Whalen admits that Exhibit 22 purports to be an image of the Oxford Product.
`
`Whalen admits that Exhibit 10 purports to be an image of the Oxford Product’s packaging.
`
`Whalen lacks knowledge and information sufficient to form a belief as to the remaining
`
`allegations in Paragraph 55 of the Complaint, and therefore denies these allegations.
`
`VIII. DOMESTIC INDUSTRY
`
`56. Whalen lacks knowledge and information sufficient to form a belief as to the
`
`allegations in Paragraph 56 of the Complaint, and therefore denies these allegations.
`
`-9-
`
`
`
`A.
`
`Technical Prong
`
`57. Whalen lacks knowledge and information sufficient to form a belief as to the
`
`allegations in Paragraph 57 of the Complaint, and therefore denies these allegations.
`
`B.
`
`Economic Prong
`
`58. Whalen lacks knowledge and information sufficient to form a belief as to the
`
`allegations in Paragraph 58 of the Complaint, and therefore denies these allegations.
`
`59. Whalen lacks knowledge and information sufficient to form a belief as to the
`
`allegations in Paragraph 59 of the Complaint, and therefore denies these allegations.
`
`60. Whalen lacks knowledge and information sufficient to form a belief as to the
`
`allegations in Paragraph 60 of the Complaint, and therefore denies these allegations.
`
`IX. LICENSES TO THE ASSERTED COPYRIGHTS
`
`61. Whalen lacks knowledge and information sufficient to form a belief as to the
`
`allegations in Paragraph 61 of the Complaint, and therefore denies these allegations.
`
`X. TARIFF CODE CLASSIFICATION
`
`62. Whalen denies the allegations in Paragraph 62 of the Complaint.
`
`XI. RELATED LITIGATION
`
`63. Whalen lacks knowledge and information sufficient to form a belief as to the
`
`allegations in Paragraph 63 of the Complaint, and therefore denies these allegations.
`
`64. Whalen lacks knowledge and information sufficient to form a belief as to the
`
`allegations in Paragraph 64 of the Complaint, and therefore denies these allegations.
`
`65. Whalen admits that, on October 23, 2023, Complainant filed a copyright
`
`infringement action against Whalen in the United States District Court for the Southern District
`
`of California for alleged infringement of multiple copyrights, including the copyrights asserted
`
`here. Whalen denies that any grounds exist for those claims.
`
`-10-
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`
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`66. Whalen lacks knowledge and information sufficient to form a belief as to the
`
`allegations in Paragraph 66 of the Complaint, and therefore denies these allegations.
`
`XII. RELIEF REQUESTED
`
`To the extent a response to Complainant’s requested relief is required, Whalen denies the
`
`Complainant is entitled to the requested relief.
`
`XIII. RESPONSE TO NOTICE OF INVESTIGATION
`
`Pursuant to Commission Rule 210.13(b), Whalen responds to the Notice of investigation
`
`issued by the Commission on January 9, 2024, as follows:
`
`Whalen admits that the Complaint alleges violations of Section 337 as summarized in the
`
`Notice of Investigation, but Whalen denies those allegations.
`
`Whalen further admits that the Complaint requests that an investigation be instituted and
`
`that, after the investigation, a limited exclusion order and/or cease and desist order be issued, as
`
`indicated in the Notice of Investigation, but Whalen denies that Complainant is entitled to any
`
`such relief.
`
`XIV.
`
`STATEMENT PURSUANT TO 19 C.F.R. §210.13(b)
`
`Pursuant to 19 C.F.R. § 210.13(b), Whalen provides additional information in its
`
`Confidential Exhibit A to this Response.
`
`XV. AFFIRMATIVE DEFENSES AND OTHER DEFENSES
`
`Whalen asserts the following affirmative defenses and other defenses. Whalen reserves
`
`the right to amend, modify, and/or expand these defenses as permitted by 19 C.F.R. §§
`
`210.14(b), 210.14(c), and by any applicable Ground Rule or other authority.
`
`AFFIRMATIVE DEFENSES
`
`First Affirmative Defense
`
`
`
`Complainant has failed to state a claim upon which relief may be granted.
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`-11-
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`
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`Second Affirmative Defense
`
`Complainant’s claims are barred, in whole or in part, by the equitable doctrine of laches.
`
`Third Affirmative Defense
`
`Any copyright infringement by Whalen has been innocent infringement.
`
`Fourth Affirmative Defense
`
`Complainant lacks standing to assert the Asserted Copyrights.
`
`Fifth Affirmative Defense
`
`Complainant’s alleged works are not protectable, in whole or in part, due to the doctrine
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`
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`
`
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`
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`of scènes à faire.
`
`Sixth Affirmative Defense
`
`
`
`Complainant’s alleged works are not protectable, in whole or in part, due to the
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`idea/expression and merger doctrines.
`
`Seventh Affirmative Defense
`
`
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`Complainant’s alleged copyrights are invalid and/or unenforceable. For example,
`
`Complainant’s claims are barred because the level of creative authorship in the asserted
`
`copyrights is at best de minimis and too trivial to enable copyright protection.
`
`Eighth Affirmative Defense
`
`
`
`Complainant’s claims are barred by the doctrine of fair use. Respondent’s alleged actions
`
`constitute fair use under 17 U.S.C. § 107.
`
`Ninth Affirmative Defense
`
`
`
`Whalen’s activities complained of herein were impliedly licensed by Complainant.
`
`XVI.
`
`PRAYER FOR RELIEF
`
`Whalen requests that the Commission issue an order:
`
`1.
`
`Denying all relief requested in the Complaint;
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`-12-
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`
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`2.
`
`Finding that Whalen has not violated Section 337 of the Tariff Act of 1930, as
`
`amended, 19 U.S.C. § 1337;
`
`3.
`
`Finding that Whalen does not infringe any valid and enforceable claim of the
`
`Asserted Copyrights and has not otherwise committed any acts in violation of 17 U.S.C. § 501 or
`
`19 U.S.C. § 1337;
`
`4.
`
`5.
`
`6.
`
`Finding that the Asserted Copyrights are invalid;
`
`Finding that there is no domestic industry for the Asserted Copyrights;
`
`Complainant’s demands for relief are barred because of the relief’s effect upon
`
`competitive conditions in the United States economy, the production of like or directly
`
`competitive articles in the United States, and United States consumers;
`
`7.
`
`8.
`
`Finding that Complainant’s claims are barred by reason of equitable doctrines;
`
`Awarding Whalen its attorneys’ fees and costs incurred in responding to the
`
`Complaint and defending this Investigation;
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`9.
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`10.
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`Dismissing the present Complaint and terminating the present Investigation; and
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`Awarding such other and further relief as the Commission deems just and proper.
`
`Dated: February 20, 2024
`
`By: /s/ Baraa Kahf
`Lynda J. Zadra-Symes
`Ali S. Razai
`Baraa Kahf
`Jacob R. Rosenbaum
`KNOBBE, MARTENS, OLSON & BEAR, LLP
`2040 Main Street, Fourteenth Floor
`Irvine, CA 92614
`Telephone: (949) 760-0404
`Facsimile: (949) 760-9502
`
`Adam G. Copeland
`KNOBBE, MARTENS, OLSON & BEAR, LLP
`3579 Valley Centre Drive, Suite 300
`San Diego, CA 92130
`
`-13-
`
`
`
`Telephone: (858) 707-4000
`Facsimile: (858) 707-4001
`
`Counsel for Respondent
`Whalen LLC d/b/a
`Whalen Furniture Manufacturing
`
`
`
`-14-
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`
`
`EXHIBIT A
`EXHIBIT A
`[Redacted ]
`[Redacted |]
`
`
`
`UNITED STATES INTERNATIONAL TRADE COMMISSION
`WASHINGTON, D.C.
`
`Before the Honorable Bryan F. Moore
`Administrative Law Judge
`
`In the Matter of
`
`CERTAIN FURNITURE PRODUCTS
`FINISHED WITH DECORATIVE WOOD
`GRAIN PAPER AND COMPONENTS
`THEREOF
`
`
`
`
`
`
`Inv. No. 337-TA-1385
`
`
`
`CONFIDENTIAL EXHIBIT A TO RESPONSE OF RESPONDENT
`WHALEN LLC d/b/a WHALEN FURNITURE MANUFACTURING
`
`Respondent Whalen LLC d/b/a Whalen Furniture Manufacturing (“Whalen” or
`
`
`
`
`
`
`
`“Respondent”) respectfully submits this Confidential Exhibit under seal pursuant to the Protective
`
`Order (Order No. 1) in this Investigation.
`
`Pursuant to 19 C.F.R. § 210.13(b), Whalen provides the following information.
`
`The Harmonized Tariff Schedule Item Numbers for certain of the Accused Products below.
`
`By providing such information, Whalen intends only to supply information required by 19 C.F.R.
`
`§ 210.13(b). Whalen specifically denies that any of the information or data supplied relates to or
`
`supports any allegations of infringement against Whalen or any violation of 19 U.S.C. § 1337.
`
`Whalen specifically denies that any of the supplied data refers or relates to any unlawful act under
`
`19 U.S.C. § 1337 or otherwise, and Whalen specifically denies that its products infringe any of the
`
`Asserted Copyrights. Discovery has only recently begun and is ongoing. Whalen reserves the
`
`right to amend and/or supplement the information provided below.
`
`Accused Product Model No. Harmonized Tariff Schedule Item No.
`BH17-084-098-48
`9403.60.8081
`BH17-084-098-49
`9403.60.8081
`BH17-084-099-97
`9403.60.8081
`BH17-084-099-98
`9403.60.8081
`
`- 1 -
`
`
`
`BH46-084-899-04
`BHF1025004001
`BHF1025004002
`BHF1025004004
`BHF1025004007
`BHS036158813003
`BHW-10025
`BHW-10027
`HDFP48-45AE
`HDFP54-50
`HDFP54-50AE
`HDFP68-48
`HDSLFP48L-2B
`HDSLFP60L-2B
`HDTC60VW
`J711028-3
`LWS3FS
`LWUSTCA
`LWUSTCB
`LWUSTCC
`LWUSTCD
`SPLS-MI48D-TV
`WF30AVG
`WF36AVG
`WF48AVG
`WF60AVG
`WSF60MS26WW
`WSL24KSP
`
`9403.60.8081
`9403.60.8081
`9403.60.8081
`9403.60.8081
`9403.60.8081
`9403.60.8081
`9403.60.8081
`9403.60.8081
`9403.60.8081
`9403.60.8081
`9403.60.8081
`9403.60.8081
`9403.60.8081
`9403.60.8081
`9403.60.8081
`9403.20.0050
`9403.60.8081
`9403.50.9080
`9403.50.9080
`9403.50.9080
`9403.50.9080
`9403.30.8000
`9403.60.8081
`9403.60.8081
`9403.60.8081
`9403.60.8081
`9403.60.8081
`9403.60.8081
`
`Statistical data on the quantity and value of imports of the involved articles, in the time
`
`
`
`
`
`period of January 1, 2016, to December 31, 2016, is shown below. The Accused Products for
`
`which there were no importations during this time period are unlisted.
`
`Accused Product Model No.
`BH46-084-899-04
`
`Units
`
`
`Value (U.S. Dollars)
`
`
`
`
`- 2 -
`
`
`
`
`
`Statistical data on the quantity and value of imports of the involved articles, in the time
`
`period of January 1, 2017, to December 31, 2017, is shown below. The Accused Products for
`
`which there were no importations during this time period are unlisted.
`
`Units
`
`Value (U.S. Dollars)
`
`Accused Product Model No.
`BH17-084-098-48
`BH17-084-098-49
`BH17-084-099-97
`BH17-084-099-98
`BH46-084-899-04
`
`Statistical data on the quantity and value of imports of the involved articles, in the time
`
`
`
`
`
`period of January 1, 2018, to December 31, 2018, is shown below. The Accused Products for
`
`which there were no importations during this time period are unlisted.
`
`Accused Product Model No.
`BH17-084-098-48
`BH17-084-098-49
`BH17-084-099-97
`BH17-084-099-98
`BH46-084-899-04
`
`Units
`
`
`
`
`
`
`Value (U.S. Dollars)
`
`Statistical data on the quantity and value of imports of the involved articles, in the time
`
`
`
`
`
`period of January 1, 2019, to December 31, 2019, is shown below. The Accused Products for
`
`which there were no importations during this time period are unlisted.
`
`Units
`
`Value (U.S. Dollars)
`
`Accused Product Model No.
`BH17-084-098-48
`BH17-084-098-49
`BH17-084-099-97
`BH17-084-099-98
`BH46-084-899-04
`BHW-10025
`BHW-10027
`J711028-3
`WSF60MS26WW
`
`- 3 -
`
`
`
`WSL24KSP
`
`
`
`
`
`Statistical data on the quantity and value of imports of the involved articles, in the time
`
`
`
`
`
`period of January 1, 2020, to December 31, 2020, is shown below. The Accused Products for
`
`which there were no importations during this time period are unlisted.
`
`Units
`
`Value (U.S. Dollars)
`
`Accused Product Model No.
`BH17-084-098-48
`BH17-084-098-49
`BH17-084-099-97
`BH17-084-099-98
`BH46-084-899-04
`BHS036158813003
`BHW-10025
`BHW-10027
`HDFP48-45AE
`J711028-3
`WSF60MS26WW
`WSL24KSP
`
`Statistical data on the quantity and value of imports of the involved articles, in the time
`
`
`
`
`
`period of January 1, 2021, to December 31, 2021, is shown below. The Accused Products for
`
`which there were no importations during this time period are unlisted.
`
`Units
`
`Value (U.S. Dollars)
`
`Accused Product Model No.
`BH17-084-098-48
`BH17-084-098-49
`BH17-084-099-97
`BH17-084-099-98
`BH46-084-899-04
`BHF1025004001
`BHF1025004002
`BHF1025004004
`BHF1025004007
`BHW-10025
`BHW-10027
`HDFP48-45AE
`HDFP68-48
`
`- 4 -
`
`
`
`CONTAINS RESPONDENT’S CONFIDENTIAL BUSINESS INFORMATION
`SUBJECT TO PROTECTIVE ORDER
`Accused Product Model No.
`Units
`J711028-3
`LWS3FS
`WF30AVG
`WF36AVG
`WF48AVG
`WF60AVG
`WSF60MS26WW
`WSL24KSP
`
`Value (U.S. Dollars)
`
`Statistical data on the quantity and value of imports of the involved articles, in the time
`
`
`
`
`
`period of January 1, 2022, to December 31, 2022, is shown below. The Accused Products for
`
`which there were no importations during this time period are unlisted.
`
`Accused Product Model No.
`BH17-084-099-97
`BH17-084-099-98
`BH46-084-899-04
`BHF1025004001
`BHF1025004002
`BHF1025004004
`BHF1025004007
`BHW-10027
`HDFP54-50
`HDFP54-50AE
`HDSLFP48L-2B
`HDSLFP60L-2B
`HDTC60VW
`J711028-3
`LWS3FS
`LWUSTCA
`LWUSTCB
`LWUSTCC
`LWUSTCD
`WF30AVG
`WF36AVG
`WF48AVG
`WF60AVG
`WSF60MS26WW
`WSL24KSP
`
`Units
`
`Value (U.S. Dollars)
`
`-5-
`
`
`
`
`
`
`
`Statistical data on the quantity and value of imports of the involved articles, in the time
`
`period of January 1, 2023, to December 31, 2023, is shown below. The Accused Products for
`
`which there were no importations during this time period are unlisted.
`
`Units
`
`Value (U.S. Dollars)
`
`Accused Product Model No.
`BH17-084-098-49
`BH17-084-099-98
`HDTC60VW
`J711028-3
`LWS3FS
`LWUSTCA
`LWUSTCB
`LWUSTCC
`LWUSTCD
`SPLS-MI48D-TV
`WSF60MS26WW
`
`Statistical data on the quantity and value of imports of the involved articles, in the time
`
`
`
`
`
`period of January 1, 2024, to January 26, 2024, is shown below. The Accused Products for which
`
`there were no importations during this time period are unlisted.
`
`Accused Product Model No.
`LWUSTCA
`LWUSTCB
`LWUSTCC
`LWUSTCD
`
`Units
`
`Value (U.S. Dollars)
`
`The United States market is important to Whalen and is the largest market for Whalen’s
`
`
`
`
`
`involved articles listed above. The capacity to produce those articles is at least as great as the sales
`
`units shown above.
`
`
`
`Whalen’s suppliers of the Accused Products are: Kong Richs Furniture Viet Nam located
`
`at Lot F7.F8, N5 Road, Nam Tan Uyen Industrial Expanded, Hoi Nghia Ward, Tan Uyen Town,
`
`- 6 -
`
`
`
`Binh Duong Province, Vietnam; Hong Richs Furniture Viet Nam located at Land No.34, 189, Map
`
`no.39, group 6, quarter 7, Uyen Hung ward, Tan Uyen town, Binh Duong province, Vietnam; Feng
`
`Seng Furniture Company Limited located at Land Plot No. 386, Map No. 3, Cay Cham Quarter,
`
`Thanh Phuoc Ward, Tan Uyen Town, Binh Duong, Vietnam; Feng Heng Metal Products located
`
`at Lot 26, Atlas 38, Hamlet Suoi Sau, Dat Cuoc Commune, Bac Tan Uyen, District Binh Duong
`
`Province, 72000 Vietnam; Feng Tai Furniture Company Limited located at Lot B9, Ksb A
`
`Industrial Zone, Dat Cuoc Commune, Bac Tan Uyen District, Binh Duong Province, Vietnam;
`
`Chung Tham International Co., Ltd. located at Factory 1, 2 Phase 1 and Factory 1, 2 Phase 2, and
`
`Factory X5, Lot P7, D6 street, Nam Tan Uyen Industrial Park, Khanh Binh Ward, Tan Uyen City,
`
`Binh Duong Province, Vietnam; and Hsien Yang Industries (Viet Nam) Co., Ltd. located at No.6
`
`Street, Tam Phuoc Industries Park, Bien Hoa City, Dong Nai Province, Viet Nam.
`
`
`
`58881554
`
`- 7 -
`
`
`
`In the Matter of Certain Furniture Products Finished With
`Decorative Wood Grain Paper and Components Thereof
`Inv. No. 337-TA-1385
`CERTIFICATE OF SERVICE
`The undersigned hereby certifies that on February 23, 2024, I caused copies of the
`foregoing to be filed and served as indicated below:
`
`Secretary – U.S. International Trade Commission
`The Honorable Lisa R. Barton
` Via Electronic Filing [EDIS]
`Secretary to the Commission
` Via hand delivery
`U.S. International Trade Commission
` Via Express Delivery
`500 E Street, SW, Room 112
` Not filed
`Washington, DC 20436
`Administrative Law Judge – U.S. International Trade Commission
`The Honorable Bryan F. Moore
` Via Electronic Filing [EDIS]
`U.S. International Trade Commission
`500 E Street, S.W., Room 317
`Washington, D.C. 20436
`
`Counsel for Complainant Toppan Interamerica, Inc.
`Joseph A. Meckes
` Via Hand Delivery
`SQUIRE PATTON BOGGS (US) LLP
` Via E-mail to:
`555 California Street, Suite 550
`TIAService1385@squirepb.com
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