January 8, 2003 VIA HAND DELIVERY The Hon. Marilyn R. Abbott

Transcription

Correspondence To:
P.O. Box 1404
Alexandria, Virginia 22313-1404
BURNS DOANE SWECKER & MATHIS LLP
ATTORNEYS AT LAW
ALEXANDRIA, VIRGINIA
REDWOOD SHORES, CALIFORNIA
DURHAM, NORTH C A R O L I N A
Office Address:
Suite 500
1737 King Street
Telephone: +I
,703,836,6620
Group 3 Fax: +1.703.836.2021
.703.836.0028
Group 4 Fax: +I
January 8, 2003
ROBERTs. SWECKER
~ I [email protected]
TELEPHONE:
+ 1.703.838.6568
VIA HAND DELIVERY
The Hon. Marilyn R. Abbott
Secretary
United States International Trade Commission
500 E Street, S.W.
Washington, D. C. 20436
Re:
In the Matter of Certain Agricultural Vehicles
and Components Thereof
Dear Secretary Abbott:
Enclosed for filing on behalf of Deere & Company (Deere) are documents in support of Deere's
request that the Commission commence an investigation pursuant to Section 337 of the Tariff Act of
1930, as amended. Pursuant to the Commission Rules of Practice and Procedure, a request for
confidential treatment of Confidential Exhibits is also filed concurrently herewith. Accordingly, Deere
submits the following:
1.
An original and twelve (12) copies of Deere's Verified Complaint pursuant to Rule
2 10.8(a);
2.
An original and six (6) copies of Confidential Exhibits 9, 11, and 14-19 (original and one
copy unbound, without tabs), segregated from the other material submitted, pursuant to
Rules 210.8(a), 210.6(c), and 210.4(f)(3)(i);
3.
An original and six (6) copies of the non-confidential Exhibits to the Complaint (original
and one copy unbound, without tabs) pursuant to Rules 201.6(c), 210.4(f)(3)(i) and
2 10.8(a);
4.
Twenty-nine (29) additional copies of the Complaint and accompanying non-confidential
Exhibits, one each for service upon the proposed Respondents;
January 8, 2003
Page 2
5.
Twenty-nine (29) additional copies of the Confidential Exhibits to be retained by the
Commission until such time, if ever, that the proposed Respondent(s) sign(s) an
applicable protective order, pursuant to Rules 210.4(f)(3)(i), 210.8(a) and 210.1 l(a);
6.
Four copies of the Complaint and accompanying non-confidential Exhibits for service
upon the Embassies of the People's Republic of China, Germany, France and The
Netherlands pursuant to Rules 210.4(f)(3)(i), 210.8(a) and 210.1 l(a);
7.
Certified status copies of U.S. Trademark Registration Nos. 1,254,339; 1,502,103;
1,503,576 and 91,860 (legible copies of which are included with the Complaint as
Exhibits 2-5), pursuant to Rule 210.12(a)(9)(i); and
8.
A letter and certification pursuant to Commission Rules 201.6(b) and 210.5(d) requesting
confidential treatment of Confidential Exhibits 9, 11 and 14-19.
Respectfully submitted,
Robert S. Swecker
Bassam N. Ibrahim
S. Lloyd Smith
Bryce J. Maynard
Burns, Doane, Swecker & Mathis, L.L.P.
Counsel for Complainant
Correspondence To:
P.O. Box 1404
BURNS DOANE SWECKER & MATHIS LLP
ATTORNEYS AT LAW
Office Address:
Suite 500
1737 King Street
ALEXANDRIA, VIRGINIA
REDWOOD SHORES, CALIFORNIA
DURHAM, NORTH CAROLINA
Telephone: + I ,703,836,6620
Group 3 Fax: +
.703.836.2021
I
Group 4 Fax: +1.703.836.0028
January 8, 2003
s.
ROBERT SWECKER
E-MAIL - [email protected]
TELEPHONE: 1.703.838.6568
+
VIA HAND DELIVERY
Secretary
United States International Trade Commission
500 E Street, S.W.
Washington, D. C. 20436
Re:
In the Matter of Certain Agricultural Vehicles
and Components Thereof
Dear Secretary Abbott:
I am counsel for Complainant Deere & Company ("Deere"). In accordance with Commission
Rules 201.6 and 210.5, Deere requests confidential treatment of business information contained in
Confidential Exhibits 9, 11 and 14-19 to the Complaint.
The information for which confidential treatment is sought is proprietary commercial and
technical information not otherwise publicly available. Specifically, the exhibits contain the following:
Exhibit 9 Exhibit 11 Exhibit 14 Exhibit 15 Exhibit 16 Exhibit 17 Exhibit 18 Exhibit 19 -
Sales of Deere's forage harvesters 1999-2001
Sales of Deere's telehandlers 1999-2001
Sales of Deere's agricultural tractors 1999-2001
Floor space of Deere's U.S. factories
Floor space and valuation of Deere's facilities in Waterloo, Iowa
Floor space and valuation of Deere's headquarters in Moline, Illinois
Annual labor hours expended at Deere's Waterloo, Iowa facilities
Amount spent by Deere on advertising and promoting products
bearing Deere's trademarks.
The information described above qualifies as confidential business information pursuant to Rule
201.6(a) in that:
(a)
it is not available to the public;
January 8, 2003
Page 2
(b)
unauthorized disclosure of such information could cause substantial harm to the
competitive position of Complainant Deere & Company; and
(c)
the disclosure of which could impair the Commission's ability to obtain information
necessary to perform its statutory function.
Robert S. Swecker
Bassam N. Ibrahim
S. Lloyd Smith
Bryce J. Maynard
Burns, Doane, Swecker & Mathis, L.L.P.
Counsel for Complainant
UNITED STATES INTERNATIONAL TRADE COMMISSION
Washington, D. C.
In the Matter o f
)
)
CERTAIN AGRICULTURAL VEHICLES )
AND COMPONENTS THEREOF
Investigation No. 337-TA-
1
h
COMPLAINT OF DEERE & COMPANY
PURSUANT TO 6337 OF THE TARIFF ACT OF 1930. AS AMENDED
COMPLAINA NT
PROPOSED RESPONDENTS
Deere & Company
One John Deere Place
Moline, Illinois 61250
(309) 765-8000
Jingsa Yueda Co. Ltd.
71 Revmin Road
Central Yangcheng City
Jiangsu Province
Peoples Republic of China 224002
couNSEL FOR COMPLAINANT
Robert S. Swecker
Bassam N. Ibrahim
S. Lloyd Smith
Bryce J. Maynard
BURNS,DOANE,SWECKER
& MATHIS,LLP
1737 King Street, Suite 500
Alexandria, Virginia 223 14
(703) 836-6620
Dongfeng Agricultural Machinery Group
No. 10 Xiney Road
Changzhou
Jiangsu Province
Jiangling Motors Corporation Limited
509 Northern Yingbing Avenue
Nanchang City
Jaingxi Province
Agra-Infocentrum-Benelux
Postbus 49
5 110 AA Baarle-Nassau
The Netherlands
Agrideal
Chemin des Perrines
3550 Vitre
France
Bikker Firm
Middenraai 48a
7912TK
Nieuweroord, Holland
Erntetechnik Franz Becker
Naendorf 6
Metelen 48629
Germany
Jaco Equipment Ltd.
2007 14'h Avenue North
Lethbridge, Alberta
Canada T1H 1VS
Agracat, Inc.
57 E. Main St.
Farmington, Arkansas 72730
Bolton Power Equipment
39 Whitcomb Road
Bolton, MA 01740
Bourdeau Bros, Inc.
590 Mason Road
Champlain, N Y 12919-4855
Ray Chastain
71 182 E. Keene Road
Richland, WA 99352
China America Imports
33898 Adler Lane
Creswell, OR 97246
Co-Ag LLC
W894 Hwy DW
Theresa, WI 53091
Crossroads Technologies International
815 Bedford St.
Chesapeake, VA 23322
Dale Ilgen Enterprises
W. 6897 Firelane 4
Menasha, WI 54952
Davey-Jones Tractor & Chopper
Supermarket
980 SR 13 Box 173
Williamstown, NY 13493
Fitzpatrkk Farms
12210 Stone Rd
Fowler, MI 48835
GTS Enterprises LLC
d/b/a Coastal Tractor and Equipment
307 Bridgeport Avenue
Milford, CT 06460
J&T Farms
370 Spring Grove Road
Ephrata, PA 17522
Lancaster Silo Company
2008 Horseshoe Road
Lancaster, PA 17601
Lenar Equipment, LLC
326 1 Northeast Alexander Lane
Albany, OR 9732 1
OK Enterprises
Route #1, Box 198
Mountain Lake, MN 56159
...
-111-
Pacific Avenue Equipment
1015 Pacific Avenue
Yakima, WA 98901
SamTrac Tractor and Equipment
3199 Plummers Lane, No. 13
Chico, CA 95973
Stanley Farm
3821 County Hwy H
Stanley, WI 54768
Sunova Implement Co.
196679 19th Line RR #1
Lakeside, Ontario
Canada NOM 2G0
Task Master Equipment LLC/Tractors Etc.
83969 N. Pacific Highway
Creswell, OR 97426
Workhorse Tractors
36616 N. 27thAve.
Phoenix, AZ 85806
-iv-
TABLE OF CONTENTS
PaFe
EXHIBIT LIST
.................................................
vii
I.
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1
I1.
THECOMPLAINANT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3
I11.
THE INTELLECTUAL PROPERTY RIGHTS AT ISSUE . . . . . . . . . . . . . . . . . 6
IV .
A.
Deere’s Green and Yellow Trademarks . . . . . . . . . . . . . . . . . . . . . . . . . .
6
B.
The JOHNDEERE Trademark . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
8
C.
The Leaping Deer Mark . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
10
THE PRODUCTS AT ISSUE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
11
A.
Forage Harvesters and Telehandlers . . . . . . . . . . . . . . . . . . . . . . . . . .
11
Forage Harvesters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
11
1.
B.
V.
Agricultural Tractors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
14
THE DOMESTIC INDUSTRY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
15
A.
Investment in Plant and Equipment . . . . . . . . . . . . . . . . . . . . . . . . . . .
15
B.
Significant Employment of Labor or Capital in the Exploitation of Deere’s
Registered Trademarks
...............................
16
C.
VI .
Substantial Investment in the Exploitation of Deere ’s Registered Trademarks 16
PROPOSED RESPONDENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
A.
17
Forage Harvesters and Telehandlers . . . . . . . . . . . . . . . . . . . . . . . . . .
18
1.
Foreign Dealers and Exporters . . . . . . . . . . . . . . . . . . . . . . . . .
18
2.
United States Importers and Dealers . . . . . . . . . . . . . . . . . . . . .
18
-V-
B.
VI1.
19
1.
Chinese Manufacturers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
19
2.
U.S. Importers and Dealers . . . . . . . . . . . . . . . . . . . . . . . . . . .
20
IMPORTATION AND SALE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
22
Forage Hawesters and Telehandlers . . . . . . . . . . . . . . . . . . . . . . . . . .
22
1.
Evidence of Importation and Sale . . . . . . . . . . . . . . . . . . . . . . . .
22
2.
Specific Acts of Unfair Competition by Respondents . . . . . . . . . . . . 24
3.
Material DifSerences Forage Hawesters . . . . . . . . . . . . . . . . . . . 30
4.
Material DifSerences - Telehandlers . . . . . . . . . . . . . . . . . . . . . .
33
36
A.
B.
1.
Specific Acts of Unfair Competition by Respondents . . . . . . . . . . . . 36
VI11.
INJURY TO DOMESTIC INDUSTRY . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
42
IX .
RELATED LITIGATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
46
X.
REQUEST FOR RELIEF . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
48
-v1-
EXHIBIT LIST
Description
No.
Exhibit 1
Deere 2001 Annual Report
Exhibit 2
Certified Copy of U.S. Registration No. 1,254,339
Exhibit 3
Exhibit 4
Exhibit 5
Certified Copy of U.S. Registration No. 91,860
Exhibit 6
Web site printout showing various leaping deer marks
Exhibit 7
Printout from U.S. Patent and Trademark Office web site showing
current status of Application Serial No. 76/095,359
Exhibit 8
Brochure displaying and describing Deere’s 6000 series forage
harvesters
Confidential
Exhibit 9
Sales of forage harvesters in 1999-2001
Exhibit 10
Brochure displaying and describing Deere U. S. telehandler models
3200, 3400, 3800
Confidential
Exhibit 11
Sales of telehandlers in 1999-2001
Exhibit 12
Photograph of Deere 41 15 agricultural tractor
Exhibit 13
Photograph of Deere 9520 agricultural tractor
Confidential
Exhibit 14
Sales of agricultural tractors 1999-2001
Confidential
Exhibit 15
Floor space of Deere’s U.S. factories
Confidential
Exhibit 16
Floor space and valuation of Deere’s facilities in Waterloo, Iowa
-vii-
No.
Description
Confidential
Exhibit 17
Floor space and valuation of Deere’s corporate headquarters in
Moline, Illinois
Confidential
Exhibit 18
Annual labor hours expended at Deere’s Waterloo, Iowa facilities
Confidential
Exhibit 19
Expenditures for advertising and marketing 1999-2001
Exhibit 20
List of active licensees
Exhibit 2 1
Sample license agreement
Exhibit 22
Web page printout stating that Task Master Equipment, L.L.C. is a
division or subsidiary of China America Imports
Exhibit 23
Affidavit of Peter Augustin (w/ photograph)
Exhibit 24
E-mail from employees of Agra-Infocentrum-Benelux to authorized
John Deere dealers in U.S. advertising and soliciting sales of new and
used European Version forage harvesters
Exhibit 25
E-mail from employees of Agra-Infocentrum-Benelux to authorized
John Deere dealers in U.S. advertising and soliciting sales of
European Version telehandlers
Exhibit 26
Affidavit of Kory Taylor
Exhibit 27
Agrideal web site printout advertising used European Version forage
harvesters for sale and listing shipping prices to United States
Exhibit 28
Bill of Lading for shipment of forage harvesters from Agrideal to
J&T Farms
Exhibit 29
Bikker Firm webs site print out advertising European Version forage
harvesters for sale
Exhibit 30
Price quote given by Erntetechnik Franz Becker to John Deere dealer
in Columbus, OH for 2001 European Version forage harvesters
models 6850 and 6750
Exhibit 3 1
Sample letter from Erntetechnik Franz Becker to John Deere dealer
advertising and soliciting sales of used European Version forage
harvesters
-viii-
Description
No.
Exhibit 32
Price quote from Jaco Equipment Ltd. to Kevin Robinson for a new
6950 European Version forage harvester
Exhibit 33
E-Mail re: sales of European Version forage harvesters by Bourdeau
Bros. (w/ picture)
Exhibit 34
Price quote by Ray Chastain to Kevin Robinson for new European
Version forage harvester
Exhibit 35
Bill of lading for shipment of European Version forage harvesters
from Erntetechnik Franz Becker to Co-Ag LLC
Exhibit 36
E-mail from Douglas Penny re: Fitzpatrick Farms sale of imported
European Version forage harvesters
Exhibit 37
Lancaster Silo Company advertisement of European Version forage
harvester for sale in U. S .
Exhibit 38
Printout of OK Enterprises listings for agricultural equipment
(including European Version forage harvesters) on agdealer .corn
website
Exhibit 39
Stanley Farms advertisement of European Version forage harvesters
for sale in the U.S.
Exhibit 40
Letter from Kory Taylor re: Stanley Farms sales of European Version
forage harvesters
Exhibit 4 1
Price quote by Stanley Farms for 2001 European Version forage
harvester model 6950
Exhibit 42
Price quote by Stanley Farms for new European Version forage
harvester model 6850
Exhibit 43
Stanley Farms advertisement of European Version telehandlers for
sale in the U.S.
Exhibit 44
Web page stating that Jinma tractors are made by Jiangsu
Exhibit 45
Web page stating that Jinma exports tractors to over 40 countries
Exhibit 46
Jinma U.S. dealer list
Exhibit 47
'Chinese Tractor 101' web page
-ix-
No.
Description
Exhibit 48
Web page regarding Jiangling involvement in tractor business
Exhibit 49
Investigator's report regarding Agracat tractors
Exhibit 50
Printout of AGRACAT tractors advertised for sale on Agracat, Inc.'s
web site
Exhibit 5 1
Letter from Deere to Agracat
Exhibit 52
Letter from Agracat to Deere
Exhibit 53
Printout of AVENGER tractors advertised for sale on China America
Imports web site
Exhibit 54
Statement from China America Imports web site that AVENGER
tractors are manufactured in China by Dongfeng
Exhibit 55
Investigator's report regarding Crossroads Technologies and Bolton
Power Equipment tractors
Exhibit 56
Picture of EMERYBUILT tractor advertised on Crossroads
Technologies International's web site
Exhibit 57
Picture of tractor advertised for sale on Bolton Power Equipment web
site
Exhibit 58
Specifications and picture of Lenar Tractor
Exhibit 59
Picture of tractors advertised for sale on Dale Iljen Enterprises' web
site
Exhibit 60
Lenar Tractor web page stating that Dale Iljen Enterprises is a Lenar
dealer and that Pacific Avenue Equipment is U .S . distributor of
Lenar tractors
Exhibit 6 1
Pictures of tractors advertised for sale on SamTrac Tractor
Equipment web site
Exhibit 62
Picture of tractor advertised for sale on Task Master Equipment,
L.L.C. web site
Exhibit 63
Web page stating that AVENGER tractor is made in China by
Dongfeng
-X-
No.
Description
Exhibit 64
Picture of TERRA CYCLONE tractor advertised for sale on Task
Master Equipment, L.L.C. web site
Exhibit 65
Pictures of tractors advertised for sale on Workhorse Tractors web
site
Exhibit 66
Article, March 2002 Edition of Northwest Arkansas Business Journal
Exhibit 67
Article, February 4, 2001 Edition of Arkansas Democrat Gazette
Exhibit 68
Copy of TTAB's March 18, 1988 decision in In re Deere & Co.
Exhibit 69
Copy of September 24, 1990 decision in Deere & Co. v. Unveqerth
Manufacturing Co., Northern District of Ohio
Exhibit 70
Copy of TTAB's October 19, 1995 decision in Aktiebolaget
Electrolux v. Deere & Co.
-xi-
I.
INTRODUCTION
1.
The United States International Trade Commission has jurisdiction over this
Investigation pursuant to 19 U.S.C. $1337 (a)(l)(A) and §1337(a)(l)(C).
2.
Complainant Deere & Co. (“Deere”) alleges that the Respondents have engaged
in unfair acts in the importation into the United States, and/or the sale within the United States
after importation by the owner, importer, or consignee, of certain Agricultural Vehicles and
Components Thereof, namely forage harvesters, telehandlers and agricultural tractors.
3.
The Respondents are divided into two groups. The first group comprises those
Respondents involved in the exportation from Europe, and the importation and sale after
importation in the United States, of “gray market” forage harvesters and telehandlers made by
Deere in Europe but not authorized for sale in the United States.
4.
The second group comprises those Respondents involved in the manufacture and
exportation from China, and importation and sale after importation in the United States, of
agricultural tractors that infringe on Deere’s trademarks. Unlike the forage harvesters and
telehandlers, these tractors are not “gray market” goods but are manufactured in China and
exported to the United States by certain Respondents unrelated to Deere and its subsidiaries.
5.
Deere, through its European divisions and subsidiaries, manufactures a
European version and a United States version of the forage harvesters and telehandlers. Each
version complies with the respective government regulations of Europe and the United States,
and each version is designed to meet the working conditions and farming practices of the users
of the machines in the two respective regions. These forage harvesters and telehandlers bear
-1-
Deere’s famous registered trademarks. The United States versions of these machines are
exported directly from Germany to Deere’s facilities in the United States for sale to Deere’s
authorized U.S. dealers.
6.
The forage harvesters and telehandlers made for the European market are
referred to as the “European Version forage harvesters” and “European Version telehandlers. ”
These machines are authorized by Deere for sale in Europe only. The European Version
harvesters and telehandlers are materially different from the harvesters and telehandlers made
for the United States market, which are referred to as the “U.S. Version forage harvesters”
and “U.S. Version telehandlers.”
7.
Certain Respondents purchase the European Version forage harvesters and
telehandlers from Deere dealers in Europe and export them to the United States. The
European Version forage harvesters and telehandlers are imported and sold in the United States
by other Respondents, without authorization from Deere.
8.
The importation and sale of the gray market European Version forage harvesters
and telehandlers infringes Deere’s registered trademarks in violation of 15 U.S.C. 01 114(1).
9.
Certain Respondents manufacture agricultural tractors in China and export them
to the United States where they are sold by other Respondents without Complainant’s
authorization or license. These tractors have green and yellow colors and infringe Deere’s
registered trademarks. These tractors are hereinafter collectively referred to as “China
Tractors. ”
-2-
10.
The importation and sale of the China Tractors infringes Deere’s registered
trademarks in violation of 15 U.S.C. §1114(1) and dilutes Deere’s registered trademarks in
violation of 15 U.S.C. §1125(c).
11.
Deere seeks relief from the Commission pursuant to 19 U.S.C. $1337 in the
form of a general exclusion order barring the importation into the United States of European
Version forage harvesters, European Version telehandlers, China Tractors, and components
thereof. Deere further seeks cease and desist orders halting the distribution, sale, and
advertising for sale within the United States after importation of the European Version forage
harvesters, European Version telehandlers, and China Tractors bearing Deere’s registered
trademarks.
11.
THE COMPLAINANT
12.
Complainant Deere & Company (“Deere”) is a corporation organized and
existing under the laws of the State of Delaware, and has its principal place of business at One
John Deere Place, Moline, Illinois 61265.
13.
Deere & Company was founded by John Deere, who opened his first
blacksmith shop in Grand Detour, Illinois in 1837. Deere noticed that the cast iron plow
blades used by farmers at that time became easily clogged in the thick Midwestern soil.
Farmers had to stop often to clean the plow with a wooden paddle. Deere began to experiment
with polishing steel plow blades, and in 1837 introduced the self-scouring plow, a simple
curved blade that allowed soil to drop off easily. This plow was pivotal in opening the
-3-
American Midwest to high-production agriculture. Demand for Deere’s innovative plow soon
outpaced his backyard blacksmith shop and the John Deere Company was born. By 1847, the
John Deere Company was producing over 1,000 plows a year.
14.
John Deere moved his operations to Moline, Illinois in 1848, where he
continued to manufacture and sell high-quality agricultural and farm products. Deere &
Company was incorporated in 1868.
15.
In the early 1900s, Deere began using green on the bodies of its agricultural
equipment and yellow on the wheels. Deere has used this color combination continuously for
over 80 years.
16.
In 1918, Deere acquired the Waterloo Gasoline Traction Engine Company of
Waterloo, Iowa, which put Deere in the agricultural tractor business. Deere has been
manufacturing tractors continuously without interruption for the past 84 years.
17.
Deere does business in more than 160 countries and employs over 40,000
people worldwide, including over 25,000 in the United States.
18.
Deere & Company consists of three equipment operations divisions, four
support operations divisions, and a credit operations division. Deere’s equipment operations
divisions include Agricultural Equipment, Construction and Forestry Equipment, and
Commercial and Consumer Equipment. The Agricultural Equipment division manufactures
and distributes a full line of farm equipment, including tractors, forage harvesters, and
telehandlers. The Construction and Forestry Equipment division manufactures and distributes
a broad range of machines used in construction, earthmoving, material handling, and timber
-4-
harvesting. The Commercial and Consumer Equipment division manufactures and distributes
equipment for commercial and residential uses, such as lawn and garden tractors and mowers
and golf course landscaping equipment.
19.
Deere’s support operations divisions consist of Parts, Power Systems,
Technology Services, and Health Care. Deere’s Parts division supplies parts for its own
products as well as those of other manufacturers. The Power Systems division produces
engines and drive train systems for Deere equipment and OEM (original equipment
manufacturer) markets. The Technology Services division offers a range of electronic,
Internet, and wireless products and services to Deere and outside consumers. John Deere
Health Care and its subsidiaries provide health care management services to over 500,000
members.
20.
Deere’s net sales from 1999 to 2001 totaled over $32 billion. Approximately
65% of this figure was attributable to sales within the United States. During the period 1999
through 2001, Deere had net sales of agricultural equipment of more than $17.3 billion.
21.
Deere owns and operates 27 factories in the United States and leases and
operates three additional factories in the United States. Ten of these factories are devoted to
the manufacture and production of agricultural equipment.
22.
Deere’s marketing and administrative activities relating to its agricultural
equipment are based at its headquarters in Moline, Illinois.
23.
Deere sells its products through a network of dealers who are authorized to use
Deere’s trademarks in advertising Deere’s products, and to sell Deere’s products which bear
-5-
such trademarks. At the present time, there are over 3,000 authorized John Deere dealerships
in the United States, most of which are independently owned. Of these dealerships,
approximately 1,400 sell agricultural equipment.
24.
Deere’s products are recognized throughout the United States and the world to
be products of exceptionally high quality.
25.
In a nationwide survey published in the June 10, 2002 issue of Crain’s Chicago
Business, Deere was ranked the most-trusted corporation in Illinois. Deere also ranked first
among Illinois corporations in product quality.
26.
In the February 19, 2001 issue of Fortune magazine, Deere ranked first among
industrial and farm equipment companies in a survey of “America’s Most Admired
Companies.” Deere also ranked first in its category in product quality.
27.
A copy of Deere’s 2001 Annual Report, which further describes Deere’s
business activities, is attached as Exhibit 1.
111.
THE INTELLECTUAL PROPERTY RIGHTS AT ISSUE
A.
Deere ’s Green and Yellow Trademarks
28.
Deere is the owner of U.S. Trademark Registration Nos. 1,254,339; 1,502,103;
and 1,503,576 (hereinafter referred to collectively as “Deere’s green and yellow trademarks”).
29.
U.S. Registration No. 1,254,339 was registered by the United States Patent and
Trademark Office on October 18, 1983. This registration confirms Deere’s exclusive right to
use this trademark on “agricultural and lawn care machines - namely balers, windrowers,
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mower-conditioners, forage harvesters, seeders, combines, sprayers, beet harvesters, cotton
harvesters, hay stacking machines, and lawn mowers.” The trademark is described as “a
horizontal yellow stripe on a green machine hood or panel.” A certified status copy of the
registration is attached as Exhibit 2.
30.
Trademark Office on August 30, 1988. This registration confirms Deere’s exclusive right to
use its trademark on “agricultural tractors, lawn and garden tractors, trailers, wagons, and
carts.” The trademark is described as “a bright green vehicle body or frame with bright
yellow wheels.” A certified status copy of the registration is attached as Exhibit 3.
31.
Trademark Office on September 13, 1988. The registration confirms Deere’s exclusive right
to use its trademark on “wheeled agricultural, lawn and garden, and material handling
machines, namely tillage machines, mowers, cutters, shredders, sprayers, loaders, spreaders,
planting machines, and snow removal machines.” This mark is described as “a bright green
body and bright yellow wheels.” A certified status copy of the registration is attached as
Exhibit 4.
32.
The above-listed trademark registrations are valid, subsisting, and incontestable
pursuant to 15 U.S.C. $1065 and are conclusive evidence of Deere’s ownership of its green
and yellow trademarks, and Deere’s exclusive right to use its green and yellow trademarks in
commerce.
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33.
Deere’s green and yellow trademarks are inherently distinctive and identify
Deere’s agricultural products, distinguish them from the agricultural products of others, and
distinguish the source or origin of Deere’s agricultural products.
34.
As a result of Deere’s longstanding use and promotion of its green and yellow
trademarks in connection with agricultural products, Deere’s green and yellow trademarks
have long since acquired distinctiveness and serve to identify Deere’s agricultural products, to
distinguish them from the agricultural products of others, and to distinguish the source or
origin of Deere’s agricultural products.
35.
Deere has developed substantial goodwill in its green and yellow trademarks,
which are a business asset of immense value. Consumers and the general public widely
recognize and associate Deere’s green and yellow trademarks with Deere and its products.
Consumers associate Deere’s green and yellow trademarks with equipment that is of high
quality and reliability.
36.
Deere has developed substantial goodwill in its green and yellow trademarks,
which are a business asset of immense value.
37.
By virtue of Deere’s significant promotion and advertising of its green and
yellow trademarks, and as evidenced by significant sales and distribution of products bearing
the trademarks, Deere’s green and yellow trademarks are famous.
B.
The JOHN DEERE Trademark
38.
Deere is the owner of U.S. Registration No. 91,860 (hereinafter referred to as
“the JOHN DEERE trademark. ”).
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39.
U.S. Registration No. 91,860 (JOHN DEERE) was registered by the United
States Patent and Trademark Office on June 3 , 1913. This registration confirms Deere’s
exclusive right to use its trademark on “plows, cultivators, harrows, mowers, grain harvesters,
hay-rakes, hay-presses, corn, cotton planters, grain-drills, manure-spreaders, fertilizer
distributors, spraying-machines, stalk-cutters, surface-graders, corn harvesters, ensilagecutters, lawn-mowers, soil-pulverizers” in International Class 7.
A certified status copy of
the registration is attached as Exhibit 5 .
40.
U.S. Registration No. 91,860 is valid, subsisting, and incontestable pursuant to
15 U.S.C. 81065 and is conclusive evidence of Deere’s ownership of the JOHN DEERE
trademark, and of Deere’s exclusive right to use the JOHN DEERE trademark in commerce.
41.
Deere’s JOHN DEERE trademark is inherently distinctive and serves to identify
Deere’s agricultural products, distinguish them from the agricultural products of others, and
distinguish the source or origin of Deere’s agricultural products.
42.
As a result of Deere’s longstanding use and promotion of its JOHN DEERE
trademark in connection with agricultural products, Deere’s JOHN DEERE trademark has long
since acquired distinctiveness and serves to identify Deere’s agricultural products, to
distinguish them from the agricultural products of others, and to distinguish the source or
origin of Deere’s agricultural products.
43.
Deere has developed substantial goodwill in its JOHN DEERE trademark,
which is a business asset of immense value. Consumers associate Deere’s JOHN DEERE
trademark with equipment that is of high quality and reliability.
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44.
By virtue of Deere’s significant promotion and advertising of its JOHN DEERE
trademark, and as evidenced by significant sales and distribution of products bearing the JOHN
DEERE trademark, Deere’s JOHN DEERE trademark is famous.
45.
Deere’s green and yellow trademarks and Deere’s JOHN DEERE trademarks
are hereinafter collectively referred to as “Deere’s registered trademarks. ”
C.
The Leaping Deer Mark
46.
Deere is also the owner of rights in a mark consisting of a depiction of a leaping
deer. The leaping deer mark has been featured on Deere products for over 120 years. During
this period, the leaping deer mark has gone through several modifications, as shown in Exhibit
6. Deere has owned several trademark registrations over the years for these marks.
47.
The current version of the leaping deer mark was introduced in 2000. Deere is
the owner of U.S. Trademark Application Serial No. 76/095,359, which consists of the current
version of the leaping deer mark. The PTO has granted a Notice of Allowance for this
application and the registration should issue shortly. A printout from the Patent and
Trademark Office web site showing the current status of Application Serial No. 76/095,359 is
attached as Exhibit 7. Deere intends to move to amend this Complaint to include the leaping
deer registration as soon as the registration has issued.
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IV.
THE PRODUCTS AT ISSUE
A.
Forage Harvesters and Telehandlers
1.
48.
Forage Harvesters
A forage harvester, also known as a corn harvester or silage harvester, is an
agricultural vehicle designed to cut corn stalks just above the ground as the harvester is driven
across the corn field. The harvester has a "head" mounted on the front of the harvester,
which includes cutters and conveyors to collect the stalks and pass the stalks through feedrolls
to a cutterhead which chops the stalks into small pieces. The process is similar for grass
crops, except that a pickup head lifts the crop off the ground after it has been cut, and feeds it
using an auger to the feedroll housing. When the harvester is used to chop corn, the crops
pass through a device that cracks any remaining whole kernels of corn from the cob. The
chopped crop is then ejected through a spout from which it is collected in an accompanying
wagon or cart. Forage harvesters are either self-propelled or pulled behind a tractor.
49.
Deere currently sells six models of self-propelled forage harvesters in the United
States: the 7200, 7300, 7400, 7500, 7700, and 7800. These "7000 series" products were
introduced as new models in Summer 2002 for the 2003 season. For the previous seven years,
Deere sold four self-propelled forage harvester models: the 6650, 6750, 6850, and 6950 (the
"6000 series"). Most of the European Version forage harvesters that are being imported and
sold in the United States (that Deere is aware of) are 6000 series models. A brochure
displaying and describing Deere's 6000 series forage harvesters is attached as Exhibit 8.
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50.
Deere’s sales of forage harvesters in the U.S. from 1999 through 2001 are
shown in Confidential Exhibit 9.
51.
Both the European Version forage harvesters and U.S. Version forage
harvesters are manufactured in Europe by John Deere Werke Zweibruecken (hereinafter
“Zweibruecken”), a division of Deere. The majority of heads for both versions of the forage
harvesters are manufactured by Maschinenfabrik Kemper GmbH & Co. KG (“Kernper”), a
wholly owned subsidiary of Deere. However, the U.S. Version heads are branded as JOHN
DEERE while the European Version heads are branded as KEMPER and do not carry the
Deere name or logo, although they do bear Deere’s green and yellow colors. There are
significant differences between the European Version heads and the U.S. Version heads, as
well as between the machines themselves, due to differing farming techniques on European and
American farms and different safety regulations in the United States and in European
countries.
52.
Some of the parts used in both versions of the forage harvesters are
manufactured in the United States. These U.S.-origin parts constitute approximately 40 % of
the value of the forage harvesters. The remaining 60% of the value of the forage harvesters is
supplied by non-U. S.-origin parts.
53.
The U.S.-origin parts include the engines, which are primarily manufactured at
Deere’s manufacturing facilities in Waterloo, Iowa. The remainder of the engines are
manufactured by Cummins, Inc. Upon information and belief, the Cummins engines are
manufactured in the United States. Approximately 70% of the engines are manufactured by
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Deere, while the other 30% are manufactured by Cummins. The engine constitutes
approximately 10% of the value of the forage harvester.
54.
The U.S.-origin parts, including engines from both Deere and Cummins, are
shipped to Zweibruecken and are installed in both the European Version forage harvesters and
the U.S. Version forage harvesters.
55.
Both the European Version forage harvesters and U.S. Version forage
harvesters bear Deere’s green and yellow trademarks as well as the JOHN DEERE trademark.
2.
56.
Telehandlers
A telehandler is an agricultural vehicle which is used for transporting and
loading or unloading large objects. The telehandler has an arm projecting outward from the
vehicle for lifting and turning an object on the vehicle’s platform, on which the object is
placed. Deere’s telehandlers are used for transporting large bales of straw or hay, moving
building materials, and loading farm commodities.
57.
Deere currently sells three telehandler models in the United States, the 3200, the
3400, and the 3800. A brochure displaying and describing Deere’s telehandlers is attached as
Exhibit 10.
58.
Deere’s sales of telehandlers in the U.S. from 1999 through 2001 are shown in
Confidential Exhibit 11.
59.
Both the U.S. Version telehandlers and the European Version telehandlers are
assembled in Europe by Deere’s factory at Zweibruecken from parts manufactured in the
United States and elsewhere. The majority of the parts used in the telehandlers are
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manufactured outside of the United States. The engines for the telehandlers are manufactured
in France.
60.
There are significant material differences between the U.S. Version telehandlers
and the European Version telehandlers, due to differing farm techniques on European and
American farms and different safety regulations in the United States and in European
countries.
61.
Both the U.S. Version telehandlers and European Version telehandlers bear
Deere’s green and yellow trademarks as well as the JOHN DEERE trademark and the leaping
deer trademark.
B.
Azricultu ral Tractors
62.
Deere manufactures and sells a wide variety of agricultural tractors, including
two-wheel drive, four-wheel drive, diesel powered models, open chassis tractors, narrow
utility tractors, and track tractors. Deere’s tractors range from 24 to 450 HP. Deere currently
sells over 80 individual models of agricultural tractors in the United States. Representative
web site photographs showing Deere’s 41 15 (24 HP) and 9520 (450 HP) agricultural tractors
are attached as Exhibit 12 and Exhibit 13 , respectively.
63.
Deere’s sales of agricultural tractors in the United States from 1999 through
2001 are shown in Confidential Exhibit 14.
64.
Deere’s agricultural tractors are manufactured in the United States, Germany,
and Mexico. Approximately 80 percent of the tractors are manufactured in the United States.
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65.
Deere’s agricultural tractors bear Deere’s green and yellow trademarks as well
as the JOHN DEERE trademark and the leaping deer trademark.
V.
THE DOMESTIC INDUSTRY
66.
Deere alleges that a domestic industry exists that exploits Deere’s registered
trademarks as a result of Deere’s significant investment in plant and equipment, significant
employment of labor or capital, and substantial investment in exploitation of articles protected
by Deere’s registered trademarks, including research and development and licensing.
19 U.S.C. §1337(a)(l)(C).
A.
Investment I‘n Plant and Equipment
67.
Deere owns and operates 27 factory locations in the United States and leases and
operates three additional factory locations. The amount of square feet of floor space in
Deere’s factories is shown in Confidential Exhibit 15.
68.
From 1999 through 2001, Deere spent approximately $1.7 billion on capital
projects relating to its manufacturing facilities in the United States, including the acquisition of
land, buildings, and capital equipment for production-related activities. A significant portion
of the acquired land, buildings, and equipment is used for the manufacture of agricultural
machinery bearing Deere’s registered trademarks.
69.
In the United States, Deere’s agricultural tractors are manufactured at its
facilities in Waterloo, Iowa. The majority of the engines for Deere’s forage harvesters are also
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manufactured at Waterloo. The square footage and current valuation of Deere’s facilities in
Waterloo are shown in Confidential Exhibit 16.
70.
The remainder of the engines for Deere’s forage harvesters are manufactured by
Cummins, Inc. Upon information and belief, these engines are manufactured in the United
States.
71.
The manufacture and sale of products bearing Deere’s registered trademarks are
coordinated from Deere’s corporate offices in Moline, Illinois. In addition, executive,
administrative, advertising, marketing, research and development, information technology,
accounting, financial, and legal functions relating to products bearing Deere’s registered
trademarks are headquartered in Moline. The square footage and current valuation of Deere’s
corporate headquarters are shown in Confidential Exhibit 17.
B.
. .
i m i ficant Employment
. .
qf Labor or Cauital in the Exploitation qf Deere ’s
Registered Trademarks
72.
Deere’s facilities in Waterloo, where Deere manufactures its agricultural
tractors and the engines for its forage harvesters, currently employ 4,643 persons.
73.
The total labor hours expended at Deere’s facilities in Waterloo in 2001 are
shown in Confidential Exhibit 18.
74.
Deere currently employs 2,646 persons at its corporate offices in Moline,
Illinois.
C.
stanti‘a1Investment in the Exploitation qf Deere ’s Registered Trademarks
75.
There has been a substantial investment in the United States in the exploitation
of Deere’s registered trademarks. The amount that Deere spent from 1999 through 2001 in the
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United States on advertising and promoting products bearing its trademarks is shown in
Confidential Exhibit 19.
76.
Deere invests substantial sums in engineering, research, and development to
improve the quality and performance of products and to develop new products.
77.
Deere spent about $1.6 billion from 1999 through 2001 on research and
development. These expenditures are equal to approximately 5 percent of net sales over this
period.
78.
Deere has licensed its registered trademarks to approximately 180 licensees for
use on a variety of collateral goods, primarily clothing, toys, collectibles, and related goods.
A list of active licensees and a sample license agreement are attached as Exhibits 20 and 21,
respectively. This license agreement is a standard agreement used by Deere and its licensees,
although the specific terms of the agreement may vary by licensee. Deere offers to submit
copies of additional license agreements to the Commission upon request.
VI.
PROPOSED RESPONDENTS
79.
The Respondents are divided into two groups. The first group of Respondents
comprises those involved in the exportation from Europe and importation and sale within the
United States of the gray market European Version forage harvesters and European Version
telehandlers that infringe Deere’s registered trademarks. The second group of Respondents
comprises those involved in the manufacture and exportation from the Peoples Republic of
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China and importation and sale within the United States of the China tractors that infringe and
dilute Deere’s green and yellow trademarks.
A.
Forage Harvesters and Telehandlers
1.
80.
Foreign Dealers and Exporters
Upon information and belief, Respondent Agra-Infocentrum-Benelux has a place
of business at Postbus 49, 5110 AA Baarle-Nassau, The Netherlands.
8 1.
Upon information and belief, Respondent Agrideal has a place of business at
Chemin des Perrines, 3550 Vitre, France.
82.
Upon information and belief, Respondent Bikker Firm has a place of business at
Middenraai 48a, 7912TK, Nieuweroord, Holland.
83.
Upon information and belief, Respondent Erntetechnik Franz Becker has a place
of business at Naendorf 6, 48629 Metelen, Germany.
84.
Upon information and belief, Respondent Jaco Equipment Ltd. has a place of
business at 2007 14thAvenue North, Lethbridge, Alberta, Canada T1H 1VS.
85.
Upon information and belief, Respondent Sunova Implement Co. has a place of
business at 196679 19th Line RW1, Lakeside, Ontario, Canada, NOM 2G0.
2.
86.
United States Importers and Dealers
Upon information and belief, Respondent Bourdeau Bros., Inc. has a place of
business at 590 Mason Road, Champlain, New York, 12919.
87.
Upon information and belief, Respondent Ray Chastain has a place of business
at 71182 East Keene Road, Richland, Washington, 99352.
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88.
Upon information and belief, Respondent Co-Ag LLC has a place of business at
W894 Hwy DW, Theresa, Wisconsin, 53091.
89.
Upon information and belief, Respondent Davey-Jones Tractor & Chopper
Supermarket has a place of business at 980 SR 13, Box 173, Williamstown, New York 13493.
90.
Upon information and belief, Respondent Fitzpatrick Farms has a place of
business at 12210 Stone Road, Fowler, Michigan, 48835.
91.
Upon information and belief, Respondent J&T Farms has a place of business at
370 Spring Grove Road, Ephrata, Pennsylvania, 17522.
92.
Upon information and belief, Respondent Lancaster Silo Company, Inc. has a
place of business at 2008 Horseshore Road, Lancaster, Pennsylvania 17801.
93.
Upon information and belief, Respondent OK Enterprises has a place of
business at Route 1, Box 198, Mountain Lake, Minnesota, 56159.
94.
Upon information and belief, Respondent Stanley Farms has a place of business
at 3821 County Hwy H, Stanley, Wisconsin, 54768.
B.
Azricultu ral Tractors
1.
95.
Chinese Manufacturers
Upon information and belief, Respondent Jiangsu Yueda Co. Ltd. is a state-
owned enterprise of China with a principal place of business at 71 Revmin Road, Central
Yancheng City, Jiangsu Province, China.
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96.
Upon information and belief, Respondent Dongfeng Agricultural Machinery
Group is a state-owned enterprise of China with a principal place of business at No. 10 Xinye
Road, Changzhou, Jiangsu Province, China, 213012.
97.
Upon information and belief, Respondent Jiangling Motors Corporation Limited
is a Chinese company with a principal place of business at 509 Northern Yingbing Avenue,
Nanchang City, Jaingxi, China, 330001.
2.
98.
U.S. Importers and Dealers
Upon information and belief, Respondent Agracat, Inc. is a corporation of
Nevada, having a place of business at 57 E. Main St., Farmington, Arkansas 72730.
99.
Upon information and belief, Respondent Agracat, Inc. has a network of
approximately 70 dealerships throughout the United States. Complainant has not listed the
individual dealerships as Respondents, but reserves the right to amend the Complaint in the
future to add the dealers as Respondents depending on what discovery reveals about the extent
of their involvement.
100.
Upon information and belief, Respondent China America Imports has a place of
business at 33898 Adler Lane, Creswell, Oregon 97246.
101.
Upon information and belief, Respondent Crossroads Technologies,
International has a place of business at 815 Bedford Street, Chesapeake, Virginia 23322.
Respondent Crossroads Technologies, International may also be doing business as “Emerybuilt
Tractors. ”
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102.
Upon information and belief, Respondent Bolton Power Equipment has a place
of business at 39 Whitcomb Road, Bolton, Massachusetts, 01740.
103.
Upon information and belief, Respondent Dale Iljen Enterprises has a place of
business at W. 6897 Firelane 4, Menasha, Wisconsin 54952.
104.
Upon information and belief, Respondent Lenar Equipment LLC has a place of
business at 3261 NE Alexander Lane, Albany, Oregon 97321.
105.
Upon information and belief, Respondent Pacific Avenue Equipment has a place
of business at 1015 Pacific Avenue, Yakima, Washington 98901.
106.
Upon information and belief, Respondent SamTrac Tractor and Equipment has a
place of business at 3199 Plummers Lane, No. 13, Chico, California 95973.
107.
Upon information and belief, Respondent Task Master Equipment LLC has a
place of business at 83969 N. Pacific Hwy., Creswell, Oregon 97426. Upon information and
belief, Task Master Equipment may also be doing business as “Tractors Etc.” Upon
information and belief, Task Master Equipment LLC is a division or subsidiary of Respondent
China America Imports. See Exhibit 22.
108.
Upon information and belief, Respondent Workhorse Tractors has a place of
business at 36616 N. 27‘h Avenue, Phoenix, Arizona, 85086.
109.
Upon information and belief, other entities not specifically named as
Respondents are engaged in the importation and sale in the United States after importation of
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green and yellow tractors manufactured by Jingsa Yueda, Dongfeng, and Chiangling.
Complainant may move to add one or more such entities to this investigation.
VII.
IMPORTATION AND SALE
A.
Forape Hawesters and Telehandlers
1.
110.
Evidence of Importation and Sale
Deere maintains a service information system (“SIS system”) for John Deere
products. When an authorized John Deere dealer places an order with the Zweibrucken
factory for a forage harvester or a telehandler, a serial number is assigned to the machine. The
serial number indicates whether the machine is a European Version machine or a U.S. Version
machine. The customer’s name and address is then entered by the dealer at the time of sale.
111.
Deere’s serial number records indicate that a significant number of European
Version forage harvesters are being exported to the United States. For example, Deere’s
factory at Zweibrucken shipped a European Version forage harvester 6850 model (Serial No.
206850x505622) to DOB Landtechnik GMBH, an authorized Deere dealer in Germany. This
same forage harvester (Serial No. 206850x505622) was later observed by a Deere employee
on the loading dock at the shipping port of Zeebrugge, Holland. This forage harvester was
prepared for loading on the ship “Maersk Wave” which was bound for Baltimore, Maryland
and scheduled to arrive on January 3 1, 2002. See Exhibit 23.
112.
Deere has been unable to identify the European exporter who purchased this
European Version forage harvester (Serial No. 206850x505622) from DOB Landtechnik
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GMBH or the U.S. importer and/or purchaser of this product, because the name and address of
the customer who purchased this machine were not entered in Deere’s SIS system. This
indicates that Serial No. 206850x505622 is a gray market forage harvester which was
imported into the United States without Deere’s authorization or consent.
113.
European Version forage harvesters have been sold within the United States.
For example, Deere’s investigation has found that a customer in Roswell, New Mexico
recently purchased two new 2002 6950 model European Version forage harvesters (Serial Nos.
206950x505739 and Z06950X505796).
The serial numbers of these machines indicate that
both are European Version forage harvesters. An inspection of both of these machines
revealed that they had decals in the Dutch language and that the head had 56 knives, which
confirms that they are both European Version models.
Deere’s SIS entries for these
machines contain no customer information and no warranty information, which again indicates
that these machines are not U.S. Version forage harvesters, but gray market European Version
forage harvesters that were imported into the United States without Deere’s knowledge or
consent.
114.
When Deere’s European factory receives an order for a forage harvester or a
telehandler from an authorized European Deere dealer, the factory ships the European Version
forage harvester or European Version telehandler directly to Deere’s authorized European
dealer. Some of the new European Version forage harvesters and European Version
telehandlers are then purchased by persons or organizations who export them to the United
States for resale to United States customers. The imported European Version forage harvesters
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and European Version telehandlers are sold to dealers in the United States at significantly
lower prices than are charged by Deere's U.S. sales organizations for the U.S. Version forage
harvesters and U.S. Version telehandlers.
2.
115.
Specific Acts of Unfair Competition by Respondents
Respondent Agra-Infocentrum-Benelux purchases new and used European
Version forage harvesters and European Version telehandlers in Europe and exports them to
customers in the United States. Employees of Respondent Agra-Infocentrum-Benelux have
sent e-mails to authorized John Deere dealers in the United States advertising and soliciting
sales of new and used European Version forage harvesters (see Exhibit 24) and European
Version telehandlers (see Exhibit 25).
116.
Kory Taylor, a Deere dealer in Hoxie, Kansas, has reported that he spoke to
Hans Bastiaansen, an employee of Respondent Agra-Infocentrum-Benelux on the telephone on
June 24, 2002 after receiving an e-mail from said Respondent advertising European Version
forage harvesters. Mr. Bastiaansen stated that he sold European Version forage harvesters to
dealers and wholesalers in the United States, and that he had 64 different contacts in the United
States with whom he did business on a regular basis. Mr. Taylor spoke to Mr. Bastiaansen
again on June 24, 2002, at which time Mr. Bastiaansen stated that he had ordered 5 new
European Version forage harvesters for export and sale to the United States. Mr. Bastiaansen
quoted a price of $162,000 for one of these machines, which is significantly lower than the
price charged by Deere to its dealers for a new U.S. Version forage harvester. See Exhibit
26.
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117.
Respondent Agrideal purchases used European Version forage harvesters in
Europe and exports them to the United States. The web site of Respondent Agrideal advertises
used European Version forage harvesters for sale and provides shipping costs for export to
America. The web site also provides the contact information for an American representative,
who assists American customers with importing agricultural equipment from Agrideal. See
Exhibit 27.
118.
Agrideal is also listed as the shipper on a bill of lading for a carrier containing
two European Version forage harvesters shipped from Bremerhaven, Germany to Baltimore,
Maryland. See Exhibit 28. The bill lists J & T Farm as the consignee and states that the
shipment was scheduled to arrive in the United States on July 8, 2002.
119.
Upon information and belief, respondent Bikker Firm purchases used European
Version forage harvesters in the Netherlands and has exported them to the United States. The
web site of Respondent Bikker Firm advertises used European Version forage harvesters. The
Bikker Firm web site explains that these forage harvesters cost less than John Deere forage
harvesters in the United States and Canada and states that these machines can be exported.
See Exhibit 29.
120.
Respondent Erntetechnik Franz Becker exports used European Version forage
harvesters to the United States. Respondent Erntetechnik Franz Becker gave a John Deere
dealer in Columbus, Ohio price quotes of $138,000 for a 2001 European Version forage
harvester 6850 model and $110,000 for a 2001 European Version forage harvester 6750
model. See Exhibit 30. Respondent Erntetechnik Franz Becker has also sent letters to John
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Deere dealers advertising and soliciting sales of used European Version forage harvesters. A
sample letter is attached as Exhibit 31. This letter admits that Respondent Erntetechnik Franz
Becker has “exported many machines to South and North America” and offers a 1999
European Version forage harvester model 6850 for $110,000. The letter also states that
“transport to a harbour of your choise [sic] and customs clearance is no problem. ” The prices
quoted by Respondent Erntetechnik Franz Becker are significantly less than the prices charged
by Deere for new U.S. Version forage harvesters, as well as the market prices for used U.S.
Version forage harvesters.
121.
Respondent Jaco Equipment Ltd. purchases European Version forage harvesters
from persons or organizations in Europe and sells them to customers within the United States.
Respondent Jaco Equipment Ltd. sent a price quote of $176,525.00 for a new 6950 European
Version forage harvester to Kevin Robinson, an individual in Dexter, New Mexico, a price
significantly less than that charged by Deere’s authorized dealers for a new U.S. Version
forage harvester. See Exhibit 32. Upon information and belief, the SPFH being offered by
Jaco in this quote is located in the United States and is a European Version SPFH, as
evidenced by the offering price that is substantially lower than Deere’s prices. Although Jaco
is located in Canada, this price quote includes delivery to the customer in New Mexico.
Accordingly, Jaco is offering a sale for importation.
122.
Respondent Bourdeau Bros. purchases European Version forage harvesters and
sells them to customers within the United States. A picture of forage harvesters offered for
sale by Respondent Bourdeau Bros. at its place of business is attached as Exhibit 33. Upon
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information and belief, the pictured machines are European Version forage harvesters. An email sent by a Deere representative to Deere states that the picture was taken at the Bourdeau
Bros. facility by a Pioneer sales representative and that a Bourdeau Bros. salesman stated that
Bourdeau Bros. had sold six European Version forage harvesters in January 2002. See
Exhibit 33.
123.
Upon information and belief, respondent Ray Chastain is a farm machinery
dealer who imports European Version forage harvesters and sells them to customers within the
United States. Respondent Ray Chastain gave a John Deere dealer in New Mexico a quote of
$198,000 for a new European Version forage harvester. See Exhibit 34. This price is
approximately $62,000 less than the price charged by Deere for a new U.S. Version forage
harvester.
124.
Respondent Co-Ag LLC imports European Version forage harvesters and sells
them to customers within the United States. A bill of lading obtained by Deere lists
Respondent Co-Ag LLC as the importer of a shipment of three used John Deere 6810
European Version forage harvesters. The shipment was scheduled to arrive at the port of
Baltimore, Maryland on June 2, 2002.
See Exhibit 35. Tim Meister, Division Marketing
Manager for Deere’s Forage Division, spoke to Bonnie Woodmire, an employee of Co-Ag
LLC on January 2, 2003. Ms. Woodmire stated that Co-Ag LLC had several John Deere
forage harvesters for sale, all of which had been imported from Europe.
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125.
Upon information and belief, Respondent Davey-Jones Tractor & Chopper
Supermarket purchases imported European Version forage harvesters and sells them to
customers within the United States.
126.
Respondent Fitzpatrick Farms imports European Version forage harvesters and
European Version telehandlers and sells them to customers within the United States. Douglas
Penny, a Deere field manager, recently spoke to a Deere dealer in St. Louis who confirmed
with Respondent Fitzpatrick Farms that it had imported and sold at least 20-30 European
Version forage harvesters and 3-5 European Version telehandlers. See Exhibit 36.
127.
Respondent J&T Farms imports European Version forage harvesters and sells
them to customers within the United States. A bill of lading for a July 2002 shipment
containing two John Deere forage harvesters is attached as Exhibit 28. The bill lists Agrideal
as the shipper and Respondent J&T Farm as the consignee and states that the shipment left
from the port of Bremerhaven, Germany and was scheduled to arrive in Baltimore, Maryland
on July 8, 2002. The two listed forage harvesters are both European Version machines.
128.
Respondent Lancaster Silo Company, Inc. sells European Version forage
harvesters to customers within the United States. Respondent Lancaster Silo Company, Inc.
has advertised European Version forage harvesters for sale in the United States. See Exhibit
37.
129.
Respondent OK Enterprises purchases used European Version forage harvesters
and sells them to customers within the United States. OK Enterprises lists its available
agricultural equipment on the web site agdealer.com. A printout of a recent listing is attached
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as Exhibit 38. These listings are for forage harvesters currently held by OK Enterprises at its
location in Minnesota. Upon information and belief, several of the listed forage harvesters are
European Version models.
130.
Respondent Stanley Farms imports new and used European Version forage
harvesters and European Version telehandlers from Europe and sells them to customers within
the United States. Respondent Stanley Farms has advertised European Version forage
harvesters for sale in the United States. See Exhibit 39. Kory Taylor, a Deere dealer in
Kansas, spoke to a representative of Stanley Farms on June 26, 2002, who admitted that
Stanley Farms imported European Version forage harvesters from Europe and sold them within
the United States. See Exhibit 40. Stanley Farms then faxed Mr. Taylor price quotes of
$197,550 for a new 2002 model year European Version forage harvester model 6850 and
$183,350 for a used 2001 model year European Version forage harvester model 6950. See
Exhibits 41 and 42. Respondent Stanley Farms has also advertised European Version
telehandlers for sale in the United States. See Exhibit 43.
131.
Respondent Sunova Implement Co. purchases European Version forage
harvesters from European exporters and exports them to the United States. Tim Meister,
Division Marketing Manager for Deere’s Forage division, recently spoke to the owner of
Sunova Implement who stated that Sunova Implement currently had four European Version
forage harvesters in stock with two more on the way from Europe. He also stated that Sunova
Implement had sold European Version forage harvesters to persons within the United States,
primarily in Michigan.
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3.
132.
Material DifSerences - Forage Harvesters
The European Version forage harvesters and European Version telehandlers are
designed to meet the working conditions of European farms and the regulations issued by
European governments. The U. S. Version forage harvesters and U.S. Version telehandlers are
designed to meet the working conditions of American farms and the requirements of United
States government regulations. The working conditions on European farms vary from those on
American farms, and the government regulations pertaining to farm equipment vary
significantly between the United States and the various European countries.
133.
The European Version forage harvesters are materially different from the U.S.
Version forage harvesters. The following are examples of material differences between the
European Version forage harvesters and the U.S. Version forage harvesters:
A.
The U.S. version forage harvesters have certain safety features, required
by OSHA regulations, that are not present in the European Version
forage harvesters. For example, the U.S. Version forage harvesters
have a seat switch whereby the front end equipment will automatically
shut down if the operator leaves the seat for more than five minutes.
The European Version forage harvesters do not have this safety feature.
B.
The pollution control systems of the engines used in the European
Version forage harvesters are different or non-existent as compared to
the engines used in the U.S. Version forage harvesters. The pollution
control systems on the engines used in the U.S. Version forage
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harvesters are built to comply with EPA regulations and are EPAcertified.
C.
Seat belts are required in the U.S. Version forage harvesters. However,
seat belts are an option on the European Version forage harvesters and
are not present on many of the European Version forage harvesters being
imported and sold in the U.S.
D.
The European Version forage harvesters have headlights, warning lights
and reflectors that are arranged differently than those on the U.S. version
forage harvesters. The lights and reflectors on the U.S. Version forage
harvesters are homologated to the standards of the American Society of
Agricultural Engineers (ASAE), while the lights and reflectors on the
European Version harvesters do not comply with ASAE standards.
E.
Some parts for the European Version forage harvesters are not stocked
by Deere’s U.S. authorized dealers because they are not used on the
U.S. version forage harvesters.
F.
Rotary beacons are required on the European Version forage harvesters,
but are not included on the U.S. Version forage harvesters. Some states
prohibit such beacons.
G.
The operators manuals for the respective versions are different. The
operators manuals for the U.S. Version forage harvesters are in English.
The operators manuals for the European Version forage harvesters are
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available in a number of languages, including French, German, and
Dutch, depending on the country of purchase. The operators manuals
also reflect the different operational and structural features of the U.S.
Version and European Version forage harvesters.
H.
The U.S. Version forage harvester has a Slow Moving Vehicle (SMV)
sign which complies with U.S. transportation regulations. This sign, in
the form of a familiar orange triangle, warns motorists of a slow moving
vehicle on the road. The European version forage harvester does not
have the U.S. SMV sign. The European version harvester has a sign
which serves the same purpose in Europe, but this sign, which consists
of a square with red and white diagonal lines, is meaningless to the vast
majority of American motorists.
I.
European Version forage harvesters may have weaker structural
components than corresponding components in the U. S. Version forage
harvester.
J.
Purchasers of the European Version forage harvester are not enrolled in
Deere’s SIS system. These purchasers will not receive notices of safety
issues, recalls or product improvement programs that are made available
to purchasers of the U.S. Version forage harvesters, unless a Deere
dealer specifically asks Deere to add the European Version forage
harvester to the SIS system.
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K.
The European Version forage harvester is available with a 48 knife cutter
head or a 56 knife cutter head. The 56 knife cutter head is the
predominant head in Europe but is not available on the U.S. version
forage harvester.
L.
The U.S. Version forage harvester is available with a 40 knife cutter
head or a 48 knife cutter head. The 40 knife cutter head is the
predominant head in the United States but is not available on the
European Version forage harvester.
4.
Material DifSerences - Telehandlers
134. The European Version telehandlers are materially different from the U.S.
Version telehandlers authorized for sale in the United States. The following are examples of
differences between the European Version telehandlers and the U.S. Version telehandlers:
A.
The safety decals on the U.S. Version telehandlers include text, while
the safety decals on the European Version telehandlers include only
pictograms.
B.
The safety decals on the U.S. Version telehandlers include additional
warnings and messages not present on the safety decals on the European
Version telehandlers.
C.
The functionality of the warning, stop, and blinker lights is different on
the European Version telehandlers. For example, the European Version
telehandlers have “automotive style” blinker lights which stay dark until
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the telehandler is about to turn, and then blink on the side to which the
vehicle is turning. However, the U. S. Version telehandlers have blinker
lights which blink continuously until the telehandler is about to turn, and
then go dark on the side to which the vehicle is turning.
D.
There are options available on the European Version telehandlers, such
as competitive attachment carriers and trailer brakes, that are not
available on the U. S . Version telehandlers .
E.
The operators manuals for the respective versions are different. The
operators manuals for the U.S. Version telehandlers are in English. The
operators manuals for the European Version telehandlers are available in
a number of languages, including French, German, and Dutch,
depending on the country of purchase. The operators manuals also
reflect the different operational and structural features of the U. S.
Version and European Version telehandlers.
F.
The U.S. Version telehandler has a Slow Moving Vehicle (SMV) sign
which complies with U. S. transportation regulations. This sign, in the
form of a familiar orange triangle, warns motorists of a slow moving
vehicle on the road. The European Version telehandler does not have
the U.S. SMV sign. The European version telehandler has a sign which
serves the same purpose in Europe, but this sign, which consists of a
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square with red and white diagonal lines, is meaningless to the vast
majority of American motorists.
G.
Purchasers of the European Version forage harvester are not enrolled in
Deere’s SIS system. These purchasers will not receive notices of safety
issues, recalls or product improvement programs that are made available
to purchasers of the U.S. Version forage harvesters, unless a Deere
dealer specifically asks Deere to add the European Version forage
harvester to the SIS system.
H.
The European Version telehandlers include a Load Moment Indicator
(LMI), which indicates the amount of weight on the front axle of the
vehicle. This feature is not included on the U.S. Version telehandlers.
I.
The U.S. Version telehandlers have load charts that indicate the
maximum extension for a range of boom angles, depending on the load
that is applied. This feature is not included on the Euroepan Version
telehandlers .
135.
Consumers are likely to believe that the European Version forage harvesters and
European Version telehandlers are approved and authorized by Deere for domestic sale, and
that they are identical to, carry the same safety features as, include all options as, are subject to
the same quality assurances as, and include the same manuals as the U.S. Version forage
harvesters and U.S. Version telehandlers authorized for sale in the United States. Consumers
are also likely to believe that the European Version forage harvesters and European Version
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telehandlers can be serviced by U.S. dealers. However, due to differences in warranty
coverage and parts availability, this is often not the case.
Under the law, a presumption of actual confusion arises from the material
136.
differences between the U. S. Version forage harvesters and telehandlers and the European
Version forage harvesters and telehandlers.
137.
The activities of the Respondents recited in paragraphs 115 to 131 above thus
infringe Deere’s registered trademarks in violation of 15 U.S.C. §1114(1).
138.
Upon information and belief, the European Version forage harvesters and
European Version telehandlers are being imported into the United States under harmonized
tariff schedule number 8701.30.10.
B.
Agricultural Tractors
1.
139.
Specific Acts of Unfair Competition by Respondents
Respondent Jiangsu Yueda Co. Ltd. (“Jiangsu”) manufactures agricultural
tractors in China and exports them to the United States. According to Jiangsu’s web site,
these tractors are made by Yancheng Tractors Plant, a wholly owned subsidiary of Jiangsu
Yueda Co. Ltd.
Jiangsu makes several brands of tractors, including JINMA tractors. See
Exhibit 44. Jiangsu exports its tractors to over 40 countries, including the United States. See
Exhibit 45. Some of the tractors exported by Jiangsu to the United States have green bodies
and yellow wheels. A partial list of U.S. dealers and importers is attached as Exhibit 46.
140.
Respondent Dongfeng Agricultural Machinery Group (“Dongfeng”)
manufactures agricultural tractors in China and exports them to the United States. Dongfeng is
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identified on the web page “Chinese Tractor 101” as a company that exports tractors to the
United States. See Exhibit 47. Upon information and belief, some of the tractors exported
to the United States have green bodies, yellow wheels, and/or yellow striping.
141.
Respondent Jiangling Motor Corporation Limited (“Jiangling ”) manufactures
agricultural tractors in China and exports them to the United States under the brand name
LENAR. Jiangling Motor Corporation Limited is primarily involved in automotive
manufacturing. However, in 2000 Jiangling became involved in the tractor business and in
2002 it began exporting tractors to the United States. See Exhibit 48. Upon information and
belief, the tractors exported by Jiangling to the United States have green bodies and yellow
wheels. Some of the tractors also have yellow striping.
142.
Respondent Agracat, Inc. sells tractors imported from Jiangsu Yueda Co. Ltd.
These tractors have a green body and yellow wheels and are sold under the brand name
AGRACAT. Some of the tractors have a yellow stripe or marking along the side of the hood.
An independent investigator commissioned by Deere spoke to an Agracat customer service
representative who stated that all of Agracat’s tractors are imported from China and are green
and yellow. See Exhibit 49.
Pictures of tractors advertised for sale by Agracat, Inc. on its
web site are attached as Exhibit 50. Respondent Agracat, Inc. also distributes its green and
yellow AGRACAT tractors to a network of over 60 independent dealers throughout the United
States. The dealers then sell these tractors directly to consumers. Deere has not named
Agracat’s dealers as respondents in this action, but may seek to amend the Complaint to list the
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individual dealers as respondents as the extent of their involvement becomes known during this
proceeding.
143.
Deere’s attorney notified Agracat that its importation and sales of tractors
bearing Deere’s green and yellow trademarks infringed Deere’s trademark rights. See Exhibit
51. Agracat responded through its attorney, stating that it would not comply with Deere’s
requests. See Exhibit 52. Although the parties have exchanged additional correspondence,
Agracat has continued to refuse to stop selling tractors that infringe Deere’s green and yellow
trademark rights.
144.
Respondent China America Imports imports tractors from Dongfeng
Agricultural Machinery Group and sells them to customers within the United States. These
tractors have a green body and yellow wheels and are sold under the name CHANGZHOU
AVENGER or AVENGER. A picture of an AVENGER tractor advertised for sale by China
America Imports on its web site is attached as Exhibit 53. China America Imports states on
its web site that these tractors are manufactured in China by Dongfeng. See Exhibit 54.
145.
Respondent Crossroads Technologies, International sells tractors imported from
Jiangsu Yueda Co. Ltd. These tractors have a green body and yellow wheels and are sold
under the name EMERYBUILT. Crossroads Technologies, International is named on an
Internet listing of dealers selling Jinma tractors imported from China. See Exhibit 46. An
investigator commissioned by Deere spoke to Gary Keffer, one of the owners of Crossroads
Technologies, in July 2002. Mr. Keffer stated that the EMERYBUILT tractors are Jinma
tractors imported from China and are available in various color combinations, including green
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and yellow. See Exhibit 55. A picture of a tractor advertised for sale by Crossroads
Technologies, International on its web site is attached as Exhibit 56.
146.
Respondent Bolton Power Equipment sells tractors imported from Jiangsu
Yueda Co. Ltd. These tractors have a green body and yellow wheels and are sold under the
name AG-BOSS. Bolton Power Equipment is named on an Internet listing of dealers selling
Jinma tractors imported from China. See Exhibit 46. An investigator commissioned by
Deere spoke to Graham Slieker, the owner of Bolton Power Equipment, in July 2002. Mr.
Slieker stated that his company imported and sold Jinma tractors under the name AG-BOSS.
See Exhibit 55. A picture of a tractor advertised for sale by Bolton Power Equipment on its
web site is attached as Exhibit 57.
147.
Respondent Lenar Equipment LLC sells tractors imported from Jiangling Motor
Corporation Limited. These tractors have green bodies, yellow wheels, and yellow striping,
and are sold under the name LENAR. Respondent Lenar Equipment LLC also distributes its
tractors to other dealers within the United States, who in turn sell them to consumers. A
picture and specifications of a Lenar tractor is attached as Exhibit 58. This document states
that the tractor is manufactured by Jiangling.
148.
Respondent Dale Iljen Enterprises sells tractors imported from Jiangling Motors
Corporation Limited. These tractors have green bodies, yellow wheels, and yellow striping.
A picture of tractors advertised for sale by Dale Iljen Enterprises on its web site is attached as
Exhibit 59. Dale Iljen Enterprises is identified on the web site “www.1enartractor.com” as a
dealer of the green and yellow Lenar tractors. See Exhibit 60.
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149.
Respondent Pacific Avenue Equipment imports tractors manufactured by
Jiangling Motors Corporation Limited and distributes these tractors within the United States.
These tractors have green bodies, yellow wheels, and yellow striping. Pacific Avenue
Equipment is identified on the web site “www.lenartractor.com” as a U.S. distributor of Lenar
tractors. See Exhibit 60.
150.
Respondent SamTrac Tractor and Equipment sells tractors imported from
Jiangsu Yueda Co. Ltd. These tractors have a green body and yellow wheels and are marketed
under the name SAMTRAC. SamTrac Tractor and Equipment is named on an Internet listing
of dealers selling Jinma tractors imported from China. See Exhibit 46. A picture of a tractor
advertised for sale by SamTrac Tractor and Equipment on its web site is attached as Exhibit
61.
151. Respondent Task Master Equipment sells tractors imported from Dongfeng
Agricultural Machinery Group. These tractors have a green body and yellow wheels and are
sold under the name AVENGER. A picture of an AVENGER tractor advertised for sale by
Task Master Equipment LLC on its web site is attached as Exhibit 62. Task Master
Equipment states on its web site that these tractors are manufactured in China by Dongfeng.
See Exhibit 63.
152.
Respondent Task Master Equipment also sells tractors imported from Jiangling.
These tractors have a green body, yellow wheels, and yellow striping across the hood and are
sold under the name TERRA CYCLONE. A picture of a TERRA CYCLONE tractor
advertised for sale by Task Master Equipment LLC on its web site is attached as Exhibit 64.
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Respondent Workhorse Tractors sells tractors imported from Jiangsu Yueda
153.
Co. Ltd. These tractors have a green body and yellow wheels and are sold under the name
WORK HORSE. Workhorse Tractors is named on an Internet listing of dealers of Jinma
tractors imported from China. See Exhibit 46. A picture of tractors advertised for sale on
Workhorse Tractors’ web site is attached as Exhibit 65.
154.
The importation and/or sale of the green and yellow China tractors is done
without authorization, license, or permission of Deere.
Upon information and belief, Jiangsu, Dongfeng, and Jiangling have
155.
deliberately copied the famous color combination of Deere’s products, and Deere’s green and
yellow trademarks, with the intent to trade on Deere’s reputation and goodwill.
156.
The color combinations of Jiangsu’s, Dongfeng’s, and Jiangling’s tractors are
identical to Deere’s tractors or are so similar as to be likely to cause confusion or mislead
consumers as to the source, affiliation, or sponsorship of Jiangsu’s, Dongfeng’s and Jiangling’s
tractors.
157.
The size, configuration, horsepower, and functions of the agricultural tractors
manufactured by Jiangsu, Dongfeng, and Jiangling are closely comparable to certain models of
Deere’s agricultural tractors and the products are directly competitive.
158.
Consumers of agricultural tractors are likely to be confused by the agricultural
tractors manufactured by Jiangsu, Dongfeng, and Jiangling and to believe that they originate
from the same source as Deere’s agricultural tractors, because of their use of green and yellow
on the tractors.
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159.
The activities of Respondents recited in paragraphs 139 to 153 above infringe
Deere’s green and yellow trademarks in violation of 15 U.S.C. §1114(1).
160.
Deere’s green and yellow trademarks are famous, and have been famous since
prior to the Respondents’ adoption of the green and yellow colors.
161.
The activities of the Respondents involved in the export, import, and sale of
China tractors having a green and yellow color combination are likely to blur the distinctive
quality of Deere’s green and yellow trademarks and to weaken the ability of Deere’s green and
yellow trademarks to identify Deere’s goods.
162.
The activities of the Respondents involved in the export, import, and sale of
China tractors having a green and yellow color combination are likely to tarnish Deere’s green
and yellow trademarks because of the inferior quality of the China tractors.
163.
The activities of Respondents described in paragraphs 139 to 153 above
therefore have caused, and are likely to cause, dilution of Deere’s green and yellow trademarks
in violation of 15 U.S.C. §1125(c).
164.
Upon information and belief, the China tractors are imported into the United
States under harmonized tariff schedule number 8701.30.10.
VIII.
INJURY TO DOMESTIC INDUSTRY
165.
As set forth above in Section V, Deere’s operations and facilities in the United
States constitute an “industry” within the meaning of 19 U.S.C. §1337(a)(l)(A)(i).
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166.
The domestic industry described by Deere has suffered damage and continues to
suffer damage as a result of the unfair acts committed by the Respondents involved in the
manufacture and export of China tractors and the import and sale within the United States of
China tractors bearing Deere’s green and yellow trademarks.
167.
’
Since long prior to the acts of Respondents complained of herein, Deere has
developed a substantial amount of goodwill for agricultural products bearing Deere’s green and
yellow trademarks. Deere’s agricultural products are recognized nationwide as superior
products of exceptionally high quality.
168.
The China tractors imported and sold by Respondents are of substantially lower
quality than Deere’s agricultural tractors.
169.
The China tractors imported and sold by Respondents are priced significantly
lower than Deere’s agricultural tractors. For example, one Respondent advertises a 30
horsepower green and yellow tractor for $7000. The retail price for a comparable Deere
agricultural tractor, the 32 horsepower 790 model, is over $12,000.
170.
Some purchasers of the green and yellow China tractors that have been
unlawfully imported and/or sold after importation into the United States are likely to
mistakenly believe that they are purchasing John Deere tractors or tractors equivalent to those
sold by Deere and its authorized dealers. Other consumers are likely to believe that these
tractors are part of a separate, lower-priced line produced by Deere or at the very least
’
Since Deere is only alleging dilution against the Respondents that are involved in the import and sale
of the China tractors, Deere has not alleged that the acts of the Respondents involved in the importation and sale
of the European Version forage harvesters and European Version telehandlers have caused injury to the domestic
industry.
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authorized, sponsored, or licensed by Deere. The sales of the China tractors under these
circumstances are sales which otherwise would have gone to Deere.
171.
Deere has also suffered injury due to the initial interest confusion created by
Respondents’ unfair acts. Even if potential consumers realize that the China tractors are not
Deere tractors, the green and yellow color combination on the China tractors is likely to create
an initial interest in the China tractors which consumers would otherwise ignore. Consumers
may then decide to purchase the China tractors instead of the Deere tractors, since the China
tractors are significantly lower-priced than the Deere tractors. The China tractors thus create
an initial interest or “get a foot in the door” by virtue of the similarity of the China tractors to
Deere tractors. The sales of China tractors to these consumers are also sales which otherwise
would have gone to Deere.
172.
Because of the vastly lower costs of production in China, Respondents are able
to offer the China tractors at substantially lower prices than Deere sells its agricultural tractors.
173.
The precise volume of sales of China tractors is currently unknown to Deere.
However, the current sales are enough to cause significant injury. An article in the March 4,
2002 edition of the Northwest Arkansas Business Journal stated that Respondent Agracat, Inc.
sold over 600 tractors and had over $5 million in sales in 2001. See Exhibit 66. This
represents over $5 million of lost business to Deere due to the activities of just one importer
and distributor of China tractors in just one year.
The article also quoted Agracat’s general
manager as stating that the company expected to sell over 1,000 tractors in 2002.
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174.
Most of the China tractors currently imported and sold by Respondents are
compact tractors in the 25 to 35 horsepower range. However, Respondent Agracat, Inc. is
currently planning to import more powerful tractors from China, and other Respondents are
likely to do the same. An article published in the Arkansas Democrat Gazette on February 4,
2001 discussed Agracat's plans to import 65 and 80 horsepower tractor models. See Exhibit
67. The importation and sale of these powerful tractors bearing Deere's green and yellow
trademarks creates a significant threat of future injury to Deere, since these tractors are far
more expensive than compact tractors and sales of these tractors will further detract from the
sales of Deere's comparably sized agricultural tractors.
175.
As a result of Respondents' unfair methods of competition and unfair acts
relating to the China tractors, Deere has lost a substantial amount of sales, potential sales,
revenues, and profits.
176.
Deere's green and yellow trademarks are a business asset of immense value.
Respondents importation and sale of inferior green and yellow agricultural tractors, if
continued, will dilute the value of Deere's green and yellow trademarks by weakening the
ability of these trademarks to identify Deere's products. Instead of associating Deere's green
and yellow trademarks exclusively with Deere, consumers are likely to associate these color
marks with the importers and sellers of the China tractors. Furthermore, Deere has a
reputation as a seller of superior quality products. This reputation will inevitably be tarnished,
as will Deere's green and yellow trademarks, by the association of the green and yellow
trademarks with the poor quality tractors imported and sold by Respondents.
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177.
The acts of Respondents therefore have caused injury to the domestic industry
and create a threat of future injury to the domestic industry.
IX.
ATED LITIGATION
178.
Deere & Co. brought an unfair competition claim against Farmhand, Inc. on
November 2, 1979 in the Southern District of Iowa seeking to enjoin Farmhand from selling
front-end loaders that were painted “John Deere Green.” However, this case did not involve
Deere’s green and yellow trademarks or Deere’s green and yellow color combination. The
court dismissed Deere’s claims on June 30, 1982, finding that the John Deere Green color
standing alone was aesthetically functional. This decision was affirmed by the United States
Court of Appeals for the Eighth Circuit. 721 F.2d 253 (8th Cir. 1983)
179.
When Deere sought to register its green and yellow trademarks in 1988, the
Patent and Trademark Office examining attorney initially refused registration of two of Deere’s
green and yellow trademarks on the grounds that the marks were aesthetically functional.
Deere appealed the examining attorney’s refusals of registration to the Trademark Trial and
Appeal Board (“TTAB”). On March 18, 1988, the TTAB issued its decision in In re Deere &
Co. The TTAB reversed the examining attorney’s decision, finding that aesthetic functionality
is not a valid legal theory recognized by the Federal Circuit. The TTAB also held that in any
event, Deere’s green and yellow trademarks were not aesthetically functional. A copy of the
TTAB’s decision is attached as Exhibit 68.
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180.
On November 4, 1988, Deere filed a civil action in the Northern District of
Ohio against Unverferth Manufacturing Co. alleging infringement of Deere’ s registered green
and yellow trademarks on grain carts produced by Unverferth. On September 24, 1990, after
a jury trial, the court entered judgment against the defendant and permanently enjoined
Unverferth from “making or selling agricultural equipment bearing any of defendant’s
trademarks or trade dress comprising a green color with yellow trim. ” The court also ordered
Unverferth to pay Deere $237,913.77 in damages. A copy of the court’s order in the
Unverferth case is attached as Exhibit 69.
181.
In 1993, Deere threatened legal action against Aktiebolaget Electrolux
(“Electrolux”), which was manufacturing and selling green and yellow WEED EATER lawn
tractors that infringed Deere’s trademarks. Electrolux responded by filing a Petition for
Cancellation of Deere’s green and yellow trademarks on August 30, 1993, alleging that the
trademarks lacked distinctiveness and had been abandoned. Aktiebolaget Electrolux v. Deere
& Company (Cancellation No. 22,144). On October 19, 1995, the Trademark Trial and
Appeal Board granted Deere’s motion for summary judgment with respect to U.S. Registration
No. 1,254,339, finding that Deere had not abandoned its mark and that Electrolux’s other
claims were untimely. A copy of the TTAB’s decision is attached as Exhibit 70. The parties
eventually settled the claims against Deere’s other registrations.
182.
In 1994, Deere sued MTD Products, Inc. in the Southern District of New York
for infringement, dilution, and unfair competition regarding a television commercial that used
a modified version of Deere’s Leaping Deer Trademark. The district court ruled in Deere’s
-47-
favor on its dilution claim and granted an injunction against the defendant. The decision was
affirmed by the U.S. Court of Appeals for the Second Circuit. 41 F.3d 39 (2ndCir. 1994).
183.
On August 10, 2000, Deere filed a civil action in the Southern District of New
York (No. 00 CIV 5936) against MTD Products, Inc. (“MTD”). Deere alleged infringement
and dilution of its green and yellow trademarks and trade dress based on MTD’s use of a green
and yellow trade dress on its YARD MAN line of lawn and garden equipment. The case is
currently in the discovery phase and has not yet been scheduled for trial.
X.
QUEST FOR RELIEF
184.
Therefore, Deere prays that the International Trade Commission:
A.
Institute an investigation pursuant to 19 U.S.C. §1337(b), into unfair
methods of competition and unfair acts arising in connection with the
importation into the United States, sale for importation and the sale
within the United States after importation by the owner, importer, or
consignee of (1) forage harvesters and telehandlers that infringe Deere’s
registered trademarks; and (2) agricultural tractors that infringe Deere’s
registered trademarks and dilute Deere’s registered trademarks;
B.
After full investigation, make a determination that there is a violation of
19 U.S.C. $1337, and issue a general exclusion order excluding from
entry into the United States, and sale within the United States after
importation, of (1) forage harvesters and telehandlers that infringe
-48-
Deere’s registered trademarks; and (2) agricultural tractors that infringe
and dilute Deere’s registered trademarks;
C.
Issue cease and desist orders pursuant to 19 U.S.C. §1337(f) prohibiting
further sales of forage harvesters, telehandlers, and agricultural tractors
that violate the rights of Deere recited above; and
D.
Grant such other or further relief as the Commission deems appropriate
and just under the law.
Date: January 8, 2003
Robert S. Swecker
Bassam N. Ibrahim
S. Lloyd Smith
Bryce J. Maynard
BURNS,DOANE,SWECKER
& MATHIS,LLP
1737 King Street, Suite 500
Alexandria, Virginia 223 14-2727
703-836-6620
703-836-2021 (fax)
Attorneys For Complainant
Deere & Company
-49-
VERIFICATION OF COMPLAINT
I, Timothy 0. Meister, declare in accordance with 19 C.F.R. 55210.4, under penalty
of perjury, that the following statements are true:
1.
I am Division Marketing Manager for the Forage Division of John Deere
Ottumwa Works of Complainant Deere & Company, and am duly authorized to sign this
Complaint on behalf of Complainant;
2.
I have read the foregoing Complaint;
3.
To the best of my knowledge, information, and belief, based upon reasonable
inquiry, the foregoing Complaint is well-founded in fact and is warranted by existing law or
by a non-frivolous argument for the extension, modification, or reversal of existing law or the
establishment of new law; and
4.
The foregoing Complaint is not being filed for an improper purpose, such as to
harass or to cause unnecessary delay or needlessly increase the cost of litigation.
A

January 8, 2003 VIA HAND DELIVERY The Hon. Marilyn R. Abbott

Transcription

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