Michael A. Berta +1 415.471.3277 Direct [email protected] June 7, 2021 VIA EDIS Secretary Lisa R. Barton U.S. International Trade Commission 500 E Street, S.W., Room 112-A Washington, DC 20435 Re: Certain Casual Footwear and Packaging Thereof Inv. No. 337-TA-_______ [DN: ________] Dear Secretary Barton: Enclosed for filing on behalf of Complainant Crocs, Inc. (“Crocs”) are the following documents in support of Crocs’ request for the Commission to commence an investigation pursuant to Section 337 of the Tariff Act of 1930, as amended: 1. Crocs’ verified non-confidential Complaint and public Exhibits (19 C.F.R. §§ 210.4, 210.8, 210.12, as amended by the Commission’s Temporary Change to Filing Procedures, dated March 19, 2020); 2. Crocs’ Public Interest Statement (19 C.F.R. § 210.8(b), as amended by the Commission’s Temporary Change to Filing Procedures, dated March 19, 2020); 3. Crocs’ letter and certification requesting confidential treatment for the information contained in confidential Exhibit Nos. 3, 30-37, and 91 (19 C.F.R. §§ 201.6(b) and 210.5(d), as amended by the Commission’s Temporary Change to Filing Procedures, dated March 19, 2020); 4. Unredacted, confidential Exhibit Nos. 3, 30-37, and 91 (19 C.F.R. §§ 201.6(b) and 210.5(d), as amended by the Commission’s Temporary Change to Filing Procedures, dated March 19, 2020); and 5. Appendix Nos. 1-6 containing U.S. Trademark Registration Nos. 3,836,415, 5,149,328, and 5,273,875, and their respective file histories. Arnold & Porter Kaye Scholer LLP Three Embarcadero Center, 10th Floor | San Francisco, CA 94111-4024 | www.arnoldporter.com US 169943255v2 June 7, 2021 Page 2 Please contact me with any questions regarding this submission. Thank you for your attention to this matter. Respectfully submitted, Michael A. Berta Isaac Ramsey ARNOLD & PORTER KAYE SCHOLER LLP Three Embarcadero Center, 10th Floor San Francisco, CA 94111-4024 Telephone: (415) 471-3100 Facsimile: (415) 471-3400 Thomas T. Carmack ARNOLD & PORTER KAYE SCHOLER LLP 3000 El Camino Real Five Palo Alto Square, Suite 500 Palo Alto, CA 94306-3807 Telephone: (650) 319-4500 Facsimile: (650) 319-4700 Jacob Michael Bass ARNOLD & PORTER KAYE SCHOLER LLP 250 West 55th Street New York, NY 10019-9710 Telephone: (212) 836-8000 Facsimile: (212) 836-8689 Mark Samartino ARNOLD & PORTER KAYE SCHOLER LLP 70 West Madison Street Suite 4200 Chicago, IL 60602-4231 US 169943255v2 June 7, 2021 Page 3 Telephone: (312) 583-2300 Facsimile: (312) 583-2360 US 169943255v2 Michael A. Berta +1 415.471.3277 Direct [email protected] June 7, 2021 VIA EDIS Secretary Lisa R. Barton REQUEST FOR U.S. International Trade Commission CONFIDENTIAL TREATMENT 500 E Street, S.W., Room 112-A Washington, DC 20435 Re: Certain Casual Footwear and Packaging Thereof Inv. No. 337-TA-_______ [DN: ________] Dear Secretary Barton: Pursuant to Commission Rule 210.5(d) and 201.6(b)(1), as amended by the Commission’s Temporary Change to Filing Procedures, dated March 19, 2020, Complainant Crocs, Inc. (“Crocs”) respectfully requests confidential treatment of the confidential business information contained in Exhibit Nos. 3, 30-37, and 91 (“Conf.” Exhibits) to the Verified Complaint. The information contained in the Conf. Exhibits consists of: Proprietary information of Crocs that is not otherwise publicly available; and Activities related to Crocs’ domestic industry investments and expenditures and the injury to the domestic industry pursuant to 19 U.S.C. § 1337(a)(1). The proprietary information contained in the Conf. Exhibits qualifies as confidential business information under Commission Rule 201.6(a)(1), and the disclosure of that information is likely to have the effect of impairing the Commission’s ability to obtain such information, as is necessary to perform its statutory functions, and/or causing substantial harm to the competitive position of Crocs. Please contact me with any questions regarding this submission. Thank you for your attention to this matter. Arnold & Porter Kaye Scholer LLP Three Embarcadero Center, 10th Floor | San Francisco, CA 94111-4024 | www.arnoldporter.com US 169943258v2 June 7, 2021 Page 2 Respectfully submitted, Michael A. Berta Isaac Ramsey ARNOLD & PORTER KAYE SCHOLER LLP Three Embarcadero Center, 10th Floor San Francisco, CA 94111-4024 Telephone: (415) 471-3100 Facsimile: (415) 471-3400 Thomas T. Carmack ARNOLD & PORTER KAYE SCHOLER LLP 3000 El Camino Real Five Palo Alto Square, Suite 500 Palo Alto, CA 94306-3807 Telephone: (650) 319-4500 Facsimile: (650) 319-4700 Jacob Michael Bass ARNOLD & PORTER KAYE SCHOLER LLP 250 West 55th Street New York, NY 10019-9710 Telephone: (212) 836-8000 Facsimile: (212) 836-8689 Mark Samartino ARNOLD & PORTER KAYE SCHOLER LLP 70 West Madison Street Suite 4200 Chicago, IL 60602-4231 Telephone: (312) 583-2300 Facsimile: (312) 583-2360 US 169943258v2 UNITED STATES INTERNATIONAL TRADE COMMISSION Washington, DC In the Matter of Investigation No. 337-TA-___ CERTAIN CASUAL (DN: ________) FOOTWEAR AND PACKAGING THEREOF CERTIFICATION REGARDING REQUEST FOR CONFIDENTIAL TREATMENT I, Michael A. Berta, counsel for Complainant Crocs, Inc. (“Crocs”), declare as follows: 1. I have reviewed Crocs’ Verified Complaint and Confidential Exhibit Nos. 3, 30-37, and 91 (“Conf.” Exhibits) filed concurrently with this Certification. 2. Conf. Exhibit Nos. 3, 30-37, and 91 contain the following confidential business information of Crocs: a. proprietary information not available to the public; and b. activities related to domestic industry investments and expenditures and the injury to the domestic industry. I declare under penalty of perjury that the foregoing is true and correct. Executed this 7th day of June, 2020 in San Francisco, California. Dated: June 7, 2020 Respectfully submitted, Michael A. Berta Isaac Ramsey ARNOLD & PORTER KAYE SCHOLER LLP Three Embarcadero Center, 10th Floor San Francisco, CA 94111-4024 US 169943258v2 Telephone: (415) 471-3100 Facsimile: (415) 471-3400 Thomas T. Carmack ARNOLD & PORTER KAYE SCHOLER LLP 3000 El Camino Real Five Palo Alto Square, Suite 500 Palo Alto, CA 94306-3807 Telephone: (650) 319-4500 Facsimile: (650) 319-4700 Jacob Michael Bass ARNOLD & PORTER KAYE SCHOLER LLP 250 West 55th Street New York, NY 10019-9710 Telephone: (212) 836-8000 Facsimile: (212) 836-8689 Mark Samartino ARNOLD & PORTER KAYE SCHOLER LLP 70 West Madison Street Suite 4200 Chicago, IL 60602-4231 Telephone: (312) 583-2300 Facsimile: (312) 583-2360 US 169943258v2 UNITED STATES INTERNATIONAL TRADE COMMISSION Washington, DC In the Matter of CERTAIN CASUAL FOOTWEAR AND Investigation No. 337-TA-___ PACKAGING THEREOF COMPLAINANT CROCS, INC.’S COMMISSION RULE 210.8(b) STATEMENT ON THE PUBLIC INTEREST In support of its Complaint, filed June 7, 2020, and pursuant to Commission Rule 210.8(b), Complainant Crocs, Inc. (“Crocs”) respectfully submits this Statement of Public Interest. Crocs seeks a general exclusion order and cease and desist orders against certain footwear products (the “Accused Products”) that violate Crocs’ registered trademark rights in the three-dimensional configuration of the outside of an upper of a shoe, the textured strip on the heal of the shoe, the decorative band along the length of the heal strap, as well as the word mark “CROCS”, as encompassed in U.S. Trademark Registration Nos. 5,149,328, 5,273,875, and 3,836,415 (the “Asserted Trademarks”). The general exclusion order and cease and desist orders directed to the Accused Products would not have an adverse impact on public health or welfare in the U.S., competitive conditions in the U.S. economy, the production of competitive products in the U.S., or on U.S. consumers. I. USE OF THE ACCUSED PRODUCTS IN THE UNITED STATES The Accused Products are certain footwear products that violate Croc’s rights in the Asserted Trademarks pursuant to Sections 31(1), 43(a), and 43(c) of the Lanham Action (15 U.S.C. §§ 1114(1), 1125(a), and 1125(c)). The Accused Products are being promoted and sold to U.S. consumers of all ages and are likely to cause confusion and dilution of the Asserted 1 US 169935642v3 Trademarks. The Accused Products are imported, sold for importation, and/or sold within the United States after importation through many retail locations and websites. II. THE REQUESTED ORDERS DO NOT POSE ANY HEALTH, COMPETITION OR WELFARE CONCERNS The Accused Products are consumer products that represent a very small portion of the shoe market in the United States limited to shoes that infringe the Asserted Trademarks. U.S. consumers would continue to have access to a large quantity of non-infringing footwear products at varying price points even if the Accused Products were excluded from the United States. Additionally, the exclusion of the Accused Products does not implicate the public health. The Commission has already held that the “public interest does not preclude” general exclusion orders applicable to products infringing certain of Croc’s foam-footwear-related patents. In the Matter of Certain Foam Footwear, Inv. No. 337-TA-567 (Remand), 2011 WL 13383705, Comm’n Op. at *3 (August 2, 2011). The Commission has similarly held that exclusion orders involving other types of footwear do not adversely affect public health. See, e.g., Sneakers with Fabric Uppers and Rubber Soles, Inv. No. 337-TA-118, U.S.I.T.C. Pub. No. 1366, Views of the Comm’n at 28 (March 1983) (“The sneakers in question are not essential to the public health or welfare.”); Certain Flexible Foam Sandals, Inv. No. 337-TA-047, U.S.I.T.C. Pub. No. 947, Comm’n. Mem. Op. at 9 (February 1979) (there is “[n]o evidence which would show an adverse effect on the relevant public-interest factors by the exclusion of infringing sandals from entry into the United States”).