Antidumping/Countervailing Duty

Owners of the various forms of intellectual property rights are protected by provisions of Section 337 (19 U.S.C. 1337) via investigations of unfair competition conducted by the United States International Trade Commission (“ITC”).  Investigations are commenced upon the filing of a complaint with the ITC by or on behalf of persons usually seeking relief for domestic patent, trademark, and copyright infringement caused by imported goods.  However, ITC investigations also have involved antitrust, trade secret misappropriation, trade dress misappropriation, false advertising, false labeling, product disparagement, and tortious interference with contractual relations, and breach of contract.

Remedies available under Section 337 include exclusion orders directing U.S. Customs to exclude infringing articles (or other injuries articles) from entry into the U.S. regardless of where the maker or the importer of such goods is located.  Cease and desist orders may also be issued against named importers and other persons engaged in unfair acts, requiring them to stop selling, further distributing or upgrading any infringing articles, or products that incorporate infringing articles, that have already been imported and held in inventory in the U.S.  Expedited relief in the form of temporary exclusion orders and temporary cease and desist orders may also be available in exceptional circumstances.

In Section 337 cases, the ITC exercises in rem jurisdiction over the imported articles.  Such jurisdiction does not depend upon the presence of the parties or the performance of unfair acts within the United States, but rather upon the location of the offending goods in the United States upon importation.  Section 337 typically offers faster resolution of infringement disputes than do district courts, and provides a unique and powerful remedy.  The parties, typically a U.S. patent holder complainant and foreign manufacturer, domestic importer and sales company respondents, are allowed the full range of formal discovery and the opportunity to present evidence and cross examine evidence being introduced by adverse parties.  An outcome favorable to a complainant can have serious and immediate consequences for foreign manufacturers, who risk losing access to the U.S. market, and for domestic importers and sellers, who risk a disruption of their supply of goods.

Parties on both sides of a Section 337 complaint do well to have effective legal representation:  the complainants, to utilize the statute as a tool to protect against unfair competition from imports; and the respondents, to protect against overreaching by U.S. domestic complainants seeking to freeze out legitimate competition by using the statute as a weapon.

Whichever side you are on–we can help.

Domestic industries unfairly harmed by foreign imports may seek protection under antidumping (AD) and countervailing duty (CVD) laws designed to offset injury to domestic businesses resulting from international price discrimination.  “Dumping” occurs when a foreign producer sells goods into the United States market at a price that is below the sales price in its home market, or at a price below the cost of production.  As such, ADs are assessed on imported merchandise that is sold, or is likely to be sold, in the United States at less than fair value, that is, less than the foreign market value of the merchandise.  Subsidizing occurs when a foreign government provides financial assistance to benefit the production, manufacture, or exportation of a good.  CVDs are assessed to counter subsidies provided to merchandise that is exported to the United States.

Those injured domestic industries seeking relief from unfairly priced or subsidized imports may file a petition with the ITC and the ITA.  These agencies will begin an investigation into the alleged dumping or subsidizing which is harmful to the domestic industry.  The ITC is in charge of claims of material injury, while the ITA will examine claims of sales at less than fair value and of subsidization.  The normal period of investigation typically includes review of the year proceeding the date that the petition was filed.  This period of investigation may be adjusted to account for factors that may effect the proper assessment of an antidumping duty (e.g., severe inflation/deflation).

CVD is assessed on imported goods that receive government subsidization.  This may take the form of direct cash payments, credits against taxes, or loans with artificially low interest rates.  Other assistance that acts as a subsidy to the exporter may also validate the use of a CVD.  Determination of the amount of a CVD depends on the subsidy received and its effect on the EP in relation to the NV.  Similar to an antidumping duty, the amount of the CVD will be the difference between the NV and the EP or CEP.