Washington, D.C. DEVICES, BRUSHES AND CHARGERS THEREFOR ... · Clarisonic Trade Dress as defined in...

UNITED STATES INTERNATIONAL TRADE COMMISSION

Washington, D.C.

In the Matter of

C E R T A I N E L E C T R I C SKIN C A R E D E V I C E S , BRUSHES AND C H A R G E R S T H E R E F O R , AND K I T S CONTAINING SAME

Inv. No. 337-TA-959

O R D E R NO. 10: INITIAL DETERMINATION TERMINATING INVESTIGATION AS TO RESPONDENT NUTRA L U X E M.D., L L C . BASED ON CONSENT O R D E R

(August 28, 2015)

On August 17, 2015, Complainant Pacific Bioscience Laboratories, Inc. ("PBL") and

Respondent Nutra-Luxe M.D., LLC ("NutraLuxe") jointly moved to terminate this investigation

as to NutraLuxe based on a consent order stipulation (Motion Docket No. 959-006). PBL and

NutraLuxe certify that they conferred with the other Respondents who have made an appearance

pursuant to Ground Rule 3.2. On August 27, 2015, the Commission Investigative Staff ("Staff)

filed a response in support of the motion. No other responses were received.

Commission Rule 210.21(a)(2) states in relevant part that "[a]ny party may move at any

time for an order to terminate an investigation in whole or in part as to any or all respondents on

the basis of a settlement, a licensing or other agreement... or consent order , as provided in

paragraphs (b), (c) and (d) of this section." 19 C.F.R. § 210.21(a)(2). Commission Rule

210.21(c)(l)(ii) provides in relevant part that "[ i ]n investigations under Section 337 of the Tariff

Act of 1930, a proposal to terminate by consent order shall be submitted as a motion to the

administrative law judge with a stipulation that incorporates a proposed consent order."

19 C.F.R. § 210.21(c)(l)(ii). Commission Rule 210.21(c)(3) sets forth the information that must

be included in the consent order stipulation. 19 C.F.R. § 210.21(c)(3). Commission Rule

210.21(c)(4) sets forth the information that must be included in the proposed consent order.

19 C.F.R. § 210.21(c)(4). A consent order may not include terms beyond or inconsistent with

those set forth by Commission Rule 210.21(c)(4). Id.

The joint motion includes a Consent Order Stipulation (Exhibit A) and Proposed Consent

Order (Exhibit B). PBL and NutraLuxe state that there are no other agreements, written or oral,

express or implied between the parties concerning the subject matter of the investigation. The

Consent Order Stipulation was signed by a representative for NutraLuxe on August 14, 2015.

The Staff reviewed the Consent Order Stipulation and found that it meets the Commission's

requirements. The Staff also reviewed the Proposed Consent Order and found that it does not

appear to have terms beyond, or materially inconsistent with the Commission's rules. I agree

with the Staff and find that NutraLuxe's Consent Order Stipulation conforms with Commission

Rule 210.21(c)(3) and that the Proposed Consent Order is consistent with Commission Rule

210.21(c)(4). See 19 U.S.C. § 210.21(c)(3)-(4).

Commission Rule 210.50(b)(2) provides that in the case of a proposed termination by

settlement agreement or consent order, the parties may file statements regarding the impact of

the proposed termination on the public interest, and the administrative law judge may hear

argument, although no discovery may be compelled, with respect to issues relating solely to the

public interest. 19 C.F.R. § 210.50(b)(2). In any initial determination terminating an

investigation by settlement agreement or consent order, the administrative law judge is directed

to consider and make appropriate findings regarding the effect of the proposed settlement on the

2

public health and welfare, competitive conditions in the United States economy, the production

of like or directly competitive articles in the United States, and United States consumers. Id.

PBL and NutraLuxe argue that termination is in the public interest, and the Staff agrees.

I do not find any public interest concerns that would weigh against termination of the

investigation based on the Proposed Consent Order. I also find nothing to suggest that

termination of NutraLuxe from the Investigation would impose an undue burden on the public

health and welfare, competitive conditions in the U.S. economy, the production of similar or

directly competitive articles in the United States, or U.S. consumers. See 19 U.S.C. § 1337(d). I

therefore find that termination of the investigation as to NutraLuxe is in the public interest,

which favors settlement to avoid needless litigation and to conserve public resources. See

Certain Navigation Products, Including GPS Devices, Navigation and Display Systems, Radar

Systems, Navigational Aids, Mapping Systems and Related Software, Inv. No. 337-TA-900,

Order No. 27 (August 21, 2014).

Accordingly, it is my Initial Determination that Motion Docket No. 959-006 is

GRANTED. A l l deadlines in the Investigation are hereby stayed as to Nutraluxe pending the

Commission's disposition of this hiitial Determination. Pursuant to Commission Rule 210.42(h),

this Initial Determination shall become the determination of the Commission unless a party files

a petition for review pursuant to Commission Rule 210.43(a), or the Commission orders, on its

own motion, a review of the Initial Determination or certain issues herein pursuant to

Commission Rule § 210.44. 19 C.F.R. § 210.42(h), 210.43(a), 210.44.

SO ORDERED.

Dee Lord Administrative Law Judge

3

Exhibit A

UNITED STATES INTERNATIONAL TRADE COMMISSION WASHINGTON, D.C.

Before the Honorable Dee Lord Administrative Law Judge

In the Matter of:

CERTAIN E L E C T R I C SKIN CARE DEVICES, BRUSHES AND CHARGERS THEREFOR, AND KITS CONTAINING SAME

Inv. No. 337-TA- 959

CONSENT ORDER STIPULATION

WHEREAS, this Consent Order Stipulation is entered by and between Complainant

Pacific Bioscience Laboratories, Inc. ("PBL") and Respondent Nutra-Luxe M.D., LLC

("NutraLuxe");

WHEREAS, PBL filed a Complaint on April 30,2015 and an Amended Complaint on

May 20,2015 (collectively "Complaints"), alleging unfair acts in the importation into, sale for

importation into, and/or sale or offer for sale after importation into, the United States of certain

electric skin care devices, brushes and chargers therefor, and kits containing same, that infringe:

(i) claims 1,4-6,12-16,22, 31, 33,39-41,42,44-46,49, 51-52 of U.S. Patent No. 7,320,691

("the '691 patent")', (ii) claims 1-2,4-5,7-15 of U.S. Patent No. 7,386,906 ("the "906 patent");

(iii) the claim of U.S. Patent No. D523,809 (collectively, "Asserted Patents"), and (iv) the

Clarisonic Trade Dress as defined in the Amended Complaint (see paragraphs 152 to 167,

incorporated herein by reference);

WHEREAS, the Commission instituted this Investigation under Section 337 ofthe Tariff

Act of 1930, as amended, 19 U.S.C. § 1337, as Investigation No. 337-TA-959, based upon the

allegations contained in the Amended Complaint filed by PBL; and

Inv. No. 337-TA-959 - 1 - Consent Order Stipulation as to NutraLuxe

WHEREAS, Nutraluxe, in accordance with a Declaration provided to PBL, agrees to the

entry of a Consent Order by the Commission in the form attached hereto as Exhibit A.

NOW, THEREFORE, pursuant to Commission Rule 210.21(c)(1)(H) and (c)(3)(f),

Nutraluxe stipulates and agrees as follows in connection with the Joint Motion To Terminate

Investigation As To Nutraluxe Based On Entry Of Consent Order:

1. Respondent Nutraluxe is a limited liability company organized and existing under

the laws of Florida, with its principal place of business located at 6835 International Center

Blvd., Suite 5, Fort Myers FL33912 .

2. "Accused Products" as used herein shall mean: (i) the NutraSonic 4-Speed and

NutraSonic travel products identified in the Complaints; (ii) any other product containing an

oscillating brush head that has been previously adjudicated as infringing one or more of U.S.

Patent No. 7,320,691; U.S. Patent No. 7,386,906; U.S. Design Patent No. D523.809, and the

Clarisonic Trade Dress (i.e., the Nutra Sonic Professional, Nutra Sonic Essential, Nutra Sonic

Companion, Nutra Sonic Bella, discontinued 2010-era ProSonic, SkinnSonic Classic and

SkinnSonic Ultra); (iii) any other product with an oscillating brush head with a feature or

features not more than colorably different from the infringing feature or features in the Nutra

Sonic Professional, Nutra Sonic Essential, Nutra Sonic Companion, Nutra Sonic Bella,

discontinued 2010-era ProSonic, SkinnSonic Classic and SkinnSonic Ultra; and (iv) any other

product that is substantially similar in visual appearance to the Nutra Sonic Professional, Nutra

Sonic Essential, Nutra Sonic Companion, Nutra Sonic Bella.

3. Nutraluxe stipulates to entry of a Consent Order in the form attached hereto as

Exhibit A.

Inv. No. 337-TA-959 -2- Consent Order Stipulation as to NutraLuxe

4. The Commission has in rem jurisdiction over Nutraluxe's Accused Products, the

Commission has in personam jurisdiction over Nutraluxe for purposes of the Consent Order, and

the Commission has subject matter jurisdiction over this Investigation.

5. By its execution of this Consent Order Stipulation, Nutraluxe admits and

acknowledges that, for the purposes of this Investigation and enforcement of the Consent Order,

each of: (i) claims 1,4-6,12-16,22,31,33,39-41,42,44-46,49, 51-52 of U.S. Patent No.

7,320,691 ("the '691 patent"); (ii) claims 1-2,4-5,7-15 of U.S. Patent No. 7,386,906 ("the '906

patent"); (iii) the claim of U.S. Patent No. D523,809 ("the D'809 patent"); and (iv) the

Clarisonic Trade Dress, is valid and enforceable.

6. Nutraluxe agrees that upon entry of the Consent Order, it will not import into the

United States, sell for importation into the United States, and/or sell or offer for sale in the

United States after importation, or knowingly aid, abet, encourage, participate in or induce the

importation into the United States, the sale for importation into the United States, or the sale,

offer for sale or use in the United States after importation, any Accused Products, except under

prior written consent or license from PBL, or its successors or assignee.

7. Nutraluxe expressly waives all rights to seek judicial review or otherwise appeal

from, challenge or contest the validity of the Consent Order,

8. Nutraluxe will cooperate with and will not seek to impede by litigation or other

means the Commission's efforts to gather infonnation under Subpart I ofthe Commission's

Rules of Practice and Procedure, 19 C.F.R. § 210.

9. The enforcement, modification, and revocation of the Consent Order will be

carried out pursuant to Subpart I of the Commission's Rules of Practice and Procedure, 19

C.F.R. § 210, which is incorporated herein by reference.


10. The consent order shall have the same force and effect and may be enforced,

modified, or revoked in the same manner as is provided in section 337 of the Tariff Act of 1930

and this part for other Commission actions, and the Commission may require periodic

compliance reports pursuant to subpart I of this part to be submitted by the person entering into

the consent order stipulation.

11. The Consent Order shall not apply with respect to any claim of any Asserted

Patent that has expired or been found or adjudicated invalid or unenforceable by the Commission

or a court or agency of competent jurisdiction, provided that such finding or judgment has

become final and nonreviewable.

12. Nutraluxe will not seek to challenge or assert any defense regarding the validity

or enforceability ofthe Asserted Patents or tlie Clarisonic Trade Dress in any administrative or

judicial proceeding to enforce the Consent Order.

13. The undersigned is a representative of Nutraluxe and is authorized to sign this

Consent Order Stipulation on behalf of Nutraluxe.

IN WITNESS WHEREOF, a duly authorized representative of Nutraluxe has caused this

Consent Order Stipulation to be executed as of the date indicated below.

Dated: August 2015


Exhibit B

UNITED STATES INTERNATIONAL T R A D E COMMISSION

Washington, D.C.

In the Matter of

C E R T A I N E L E C T R I C SKIN C A R E D E V I C E S , BRUSHES AND CHARGERS T H E R E F O R , AND K I T S CONTAINING SAME

Inv. No. 337-TA-959

[PROPOSED] CONSENT ORDER

The United States International Trade Commission (the "Commission") instituted this

Investigation under Section 337 ofthe Tariff Act of 1930, as amended, 19 U.S.C. § 1337, based

upon the allegations contained in the Complaint filed on April 30, 2015 and the Amended

Complaint filed on May 20, 2015 (collectively "Complaints") by Pacific Bioscience

Laboratories, Inc. ("PBL"), which allege unfair acts in the importation into, sale for importation

into, and/or sale or offer for sale after importation into the United States of certain electric skin

care devices, brushes and chargers therefor, and kits containing same, that infringe: (i) claims 1,

4-6, 12-16, 22, 31, 33, 39-41, 42, 44-46, 49, 51-52 of U.S. Patent No. 7,320,691 ("the '691

patent"); (ii) claims 1-2, 4-5, 7-15 of U.S. Patent No. 7,386,906 ("the '906 patent"); (iii) the

claim of U.S. Patent No. D523,809; and (iv) the Clarisonic Trade Dress (as that term is defined

in the Amended Complaint at paragraphs 152-167).

Respondent Nutra-Luxe M.D., LLC ("NutraLuxe") has executed a Consent Order

Stipulation in which it agrees to entry of this Consent Order and to all waivers and other

provisions required by the Commission's Rules of Practice and Procedure. PBL and NutraLuxe

have filed a Joint Motion For Termination Of The Investigation As To NutraLuxe Based On A

Consent Order.

IT IS HEREBY ORDERED THAT:

1. "Accused Products" as used herein shall mean: (i) the NutraSonic 4-Speed and

NutraSonic travel products identified in the Complaints; and (ii) any other product containing an

oscillating brush head that has been previously adjudicated as infringing one or more of U.S.

Patent No. 7,320,691; U.S. Patent No. 7,386,906; U.S. Design Patent No. D523,809, and the

Clarisonic Trade Dress (i.e., the Nutra Sonic Professional, Nutra Sonic Essential, Nutra Sonic

Companion, Nutra Sonic Bella, discontinued 2010-era ProSonic, SkinnSonic Classic and

SkinnSonic Ultra); (iii) any other product with an oscillating brush head with a feature or

features not more than colorably different from the infringing feature or features in the Nutra

Sonic Professional, Nutra Sonic Essential, Nutra Sonic Companion, Nutra Sonic Bella,

discontinued 2010-era ProSonic, SkinnSonic Classic and SkinnSonic Ultra; and (iv) any other

product that is substantially similar in visual appearance to the Nutra Sonic Professional, Nutra

Sonic Essential, Nutra Sonic Companion, Nutra Sonic Bella.

2. Nutraluxe agrees that upon entry of the Consent Order by the Commission, it will

not import into the United States, sell for importation into the United States, and/or sell or offer

for sale in the United States after importation, or knowingly aid, abet, encourage, participate in

or induce the importation into the United States, the sale for importation into the United States,

or the sale, offer for sale or use in the United States after importation, any Accused Products,

except under consent or license from PBL, its successors or assignees.

3. This Consent Order shall be applicable to and binding upon Nutraluxe, and its

officers, directors, agents, servants, employees and all persons, firms, corporations, successors,

assigns or other entities acting in concert or participation with Nutraluxe or under the direction

or authority of Nutraluxe.

4. Nutraluxe shall be precluded from seeking judicial review or otherwise

challenging or contesting the validity or any aspect of this Consent Order.

5. Nutraluxe shall cooperate with, and shall not seek to impede by litigation or any

other means, the Commission's efforts to gather information under Subpart I of the

Commission's Rules of Practice and Procedure, 19 C.F.R. § 210.

6. Nutraluxe shall not seek to challenge the validity or enforceability of: (i) claims 1,

4-6, 12-16, 22, 31, 33, 39-41, 42, 44-46, 49, 51-52 of U.S. Patent No. 7,320,691; (ii) claims 1-2,

4-5, 7-15 of U.S. Patent No. 7,386,906; (iii) the claim of U.S. Patent No. D523,809; and (iv) the

Clarisonic Trade Dress and to assert any related validity or enforceability defense, in any

administrative or judicial proceeding to enforce this Consent Order.

7. Upon the expiration of an Asserted Patent or abandonment of the Clarisonic Trade

Dress, this Consent Order shall become null and void as to that Asserted Patent or to the

Clarisonic Trade Dress, as the case may be.

8. I f any claim of an Asserted Patent or the Clarisonic Trade Dress is found or

adjudicated to be invalid or unenforceable by the Commission or a court or agency of competent

jurisdiction in a final decision not subject to appeal, this Consent Order shall become null and

void as to any such invalid or unenforceable claim or trade dress.

9. This Investigation is hereby terminated as to Nutraluxe; provided, however, that

enforcement, modification or revocation of this Consent Order shall be carried out pursuant to

Subpart I of the Commission's Rules of Practice and Procedure, 19 C.F.R. § 210.

BY ORDER OF THE COMMISSION:

Issued: September ,2015

Lisa Barton Secretary to the Commission

CERTAIN E L E C T R I C SKIN C A R E D E V I C E S , BRUSHES AND C H A R G E R S T H E R E F O R , AND K I T S CONTAINING SAME

Inv. No. 337-TA-959

PUBLIC C E R T I F I C A T E O F S E R V I C E

I , Lisa R. Barton, hereby certify that the attached O R D E R has been served by hand upon the Commission Investigative Attorney, Sarah J . Sladic, Esq., and the following parties as indicated, on

~"T ,.<-icjf^^

Lisa R. Barton, Secretary U.S. International Trade Commission 500 E Street, SW, Room 112 Washington, DC 20436

On Behalf of Complainant Pacific Bioscience Laboratories, Inc.:

Robert M . Masters, Esq. PAUL HASTINGS, L L P 875 15 t h St.NW Washington, DC 20005

• Via Hand Delivery

J>f Via Express Delivery

• Via First Class Mail

• Other:

On Behalf of Respondents Home Skinovations Inc. and Home Skinovations Ltd.:

G. Brian Busey, Esq. • Via Hand Delivery MORRISON & F O E R S T E R L L P K Via Express Delivery 2000 Pennsylvania Ave., NW, Suite 6000 Q Y F i r g t Q a s s M a i l

Washington, DC 20006 Q ^

On Behalf of Respondent RN Ventures Ltd.:

Michael G. McManus, Esq. • Via Hand Delivery

DUANE MORRIS, L L P & V i a Express Delivery 505 9 t h Street, NW, Suite 1000 n y k F i r g t c k s s ^ Washington, DC 20004-2166 n Q t h e r

C E R T A I N E L E C T R I C SKIN C A R E D E V I C E S , BRUSHES Inv. No. 337-TA-959 AND C H A R G E R S T H E R E F O R , AND K I T S CONTAINING SAME

Certificate of Service - Page 2

On Behalf of Respondents Michael Todd True Organics L P and MTTO L L P :

Paul M . Schoenhard, Esq. ROPES & G R A Y L L P One Metro Center 700 12 t h Street NW, Suite 900 Washington, DC 20005


'M, Via Express Delivery


• Other:

On Behalf of Respondent Nutra-Luxe M.D., L L C : • Via Hand Delivery

jM. Via Express Delivery Larry D. Johnson n v i a F i r s t c l a s s M a i l

P.O. Box 470277 n ^ Celebration, FL 34747 '

On Behalf of Beauty Tech, Inc.:

Leo V. Goldstein-Gureff • Via Hand Delivery INTERNATIONAL L E G A L COUNSELS PC ^ via Express Delivery 901 N. Pitt Street, Suite 325 n v i a F i r s t c l a s s M a i l

Alexandria, V A 22314 • Other:

Respondents: Accord Media, LLC d/b/a Truth in Aging

ST 241 West36 l

Rm/Suite 19 New York, NY 10018

Xnovi Electronic Co., Ltd. Room 915, GuanLiDa Mansion QianJin 1 s t Road Zone 30 Bao'An; Shenzhen, China


IS Via Express Delivery


• Other:


£3' Via Express Delivery


• Other:

Shanghai Anzikang Electric Co., Ltd. 168/3 JiXinRoad Rm/Suite 401 Shanghai 201108


^ Via Express Delivery


• Other:

C E R T A I N E L E C T R I C SKIN C A R E D E V I C E S , BRUSHES Inv. No. 337-TA-959 AND C H A R G E R S T H E R E F O R , AND K I T S CONTAINING SAME


China

Our Family Jewels, Inc. d/b/a Epipiir Skincare • Via Hand Delivery 7770 E. I l i f f Ave., Rm./Suite E T^.via Express Delivery Denver, CO 80231 n v i a F i r s t c l a s s M a i l

• Other:

Anex Corporation • Via Hand Delivery C-304 Seoul Hightech Venture Center, 647-26 ^ Via Express Delivery Deungchon-dong, Gangseo-ku n v i a F i r s t c l a s s M a i l

Seoul, 157-030, Korea • Other-

Korean Beauty Co., Ltd. 10 F, Pluszone bldg. 700 Deungchon-Dong, Gangseo-Gu Seoul, Korea


IS" Via Express Delivery


• Other:

H2pro Beautylife, Inc. 1043 Segovia Cir. Placentia, CA 92870-7137


S} Via Express Delivery


• Other:

Serious Skin Care, Inc. 112N. Curry St. Carson City, NV 89703-4934


C3 Via Express Delivery


• Other:

Wenzhou A i Er Electrical Technology Co., Ltd. d/b/a CNAIER 1#, XiaSong Road, WanQuan Town PI WNZ 325800 China


El Via Express Delivery


• Other:

Coreana Cosmetics Co., Ltd. • Via Hand Delivery 204-1 Jeongchon-ri, eup, Seobuk-gu y i a Express Delivery Cheonan-si, Chungcheongnam-do • y i a F i r s t Q a s s M a i l

K o r e a • Other:

C E R T A I N E L E C T R I C SKIN C A R E D E V I C E S , BRUSHES Inv. No. 337-TA-959 AND C H A R G E R S T H E R E F O R , AND KITS CONTAINING SAME


Flageoli Classic Limited 7310 Smoke Ranch Road Las Vegas, NV 89128


M Via Express Delivery


• Other:

Jewlzie 2008 West 9 t h Street Brooklyn, NY 11223


jSj Via Express Delivery


• Other:

Unicos USA, Inc. 610 South Palm Street, #E LaHabra, CA 90630


JS? Via Express Delivery


• Other:

Skincarebyalana • Via Hand Delivery 34179 Golden Lantern Street, #101 ^ Via Express Delivery Dana Point, CA 92629 n v k F i r g t c l a g s M a i l

• Other:

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