from the United States International Trade Commission in
Investigation Nos. 337-TA-1007, 337-TA-1021.
Laurence M. Sandell, Mei & Mark LLP, Washington, DC,
argued for appellant. Also represented by Lei Mei, Robert
Hall, Philip Andrew Riley.
Michael Liberman, Office of the General Counsel, United
States International Trade Commission, Washington, DC, argued
for appellee. Also represented by Dominic L. Bianchi, Wayne
W. Herrington, Panyin Hughes.
Nicholas A. Brown, Greenberg Traurig LLP, San Francisco, CA,
argued for intervenors. Also represented by Jonathan D. Ball,
New York, NY.
Dyk, Mayer, and Clevenger, Circuit Judges.
CLEVENGER, CIRCUIT JUDGE.
LLC appeals the Final Determination of the International
Trade Commission ("the Commission"), which found
that Swagway violated 19 U.S.C. § 1337 ("Section
337"). Because we conclude that the Commission did not
err in its determination, we affirm.
Inc., DEKA Products Limited Partnership, and Ninebot
(Tianjin) Technology Co., Ltd. (collectively,
"Segway") filed a Complaint with the Commission on
May 18, 2016, alleging violations of Section 337 based on
infringement of six patents not at issue in the current
appeal, and two trademarks: U.S. Trademark Registration Nos.
2, 727, 948 ("the '948 mark") and 2, 769, 942
("the '942 mark").
owns both the '948 and '942 marks. The '948 mark
is the non-stylized SEGWAY mark, which covers
"motorized, self-propelled, wheeled personal mobility
devices, namely, wheelchairs, scooters, utility carts, and
chariots." J.A. 220. The '942 mark is the stylized
version of the SEGWAY mark covering the same goods as its
non-stylized counterpart. The Complaint filed with the
Commission alleged that Swagway's self-balancing
hoverboard products, marketed under the names SWAGWAY X1 and
X2, as well as SWAGTRON T1 and T3, infringed Segway's
August 16, 2016, Segway filed another Complaint with the
Commission alleging infringement of the same patents and
trademarks, but naming additional respondents. The Commission
instituted investigations based on both complaints,
consolidated them, and assigned an administrative law judge
March 21, 2017, Swagway moved for partial termination of the
investigation regarding the trademark infringement
allegations on the basis of a consent order stipulation.
Swagway amended its consent order stipulation and the
corresponding proposed consent order on two separate
occasions. The proposed consent order stipulated, among other
things, that Swagway would not sell or import
"SWAGWAY-branded personal transporter products as well
as all components thereof, packaging and manuals
therefor." J.A. 560. Segway opposed the stipulation and
proposed consent order based on the fact that it addressed
only a subset of the claims and products at issue in the
investigation, and because, according to Segway, it would
allow Swagway to relitigate the issue of trademark
infringement with respect to the products covered by the
the investigation, the Commission granted Seg-way's
motions to terminate the investigation as to four of the six
patents. By the time the ALJ held a hearing in the
investigation, only U.S. Patent Nos. 6, 302, 230 ("the
'230 patent") and 7, 275, 607 ("the '607
patent"), and the '942 and '948 trademarks
scheduled a hearing in the consolidated investigation for
April 18, 2017. Prior to the hearing, the ALJ held a
prehearing conference during which counsel for Swagway
inquired about the pending motion for consent order on which
it had yet to receive a ruling. The ALJ indicated that,
because of the number of versions of the consent order and
the amount of briefing, "it certainly [wasn't] going
to be ruled on . . . before the end of the hearing."
the hearing, the ALJ issued an Initial Determination
("ID"), finding that the respondents accused
products did not infringe the asserted claims of the '230
and '607 patents, and that the technical prong of the
domestic industry requirement was not satisfied for those
patents. The ID also found that Swagway's use of the
SWAGWAY designation, but not the SWAGTRON designation,
infringed the '942 and '948 trademarks. The ALJ's
trademark infringement determination was based on its
analysis of six "likelihood of confusion" factors:
(1) evidence of actual consumer confusion; (2) the degree of
similarity in appearance and pronunciation between the marks;
(3) the intent of the actor in adopting the designation; (4)
the relation in use and manner of marketing between the
products bearing the mark or designation; (5) the degree of
care exercised by consumers of the marked or designated
products; and (6) the strength of the mark.
the first factor, the ALJ found that there was
"overwhelming evidence" of actual confusion between
the SWAGWAY designation and the Segway marks. J.A. 230. But
the ALJ found only de minimis actual confusion between the
SWAGTRON designation and the Segway marks.
found that the second factor weighed in favor of finding a
likelihood of confusion because the Segway marks and SWAGWAY
designation looked alike and had similar pronunciations. The
ALJ found the opposite for the SWAGTRON designation.
determined that Swagway's founder did not intend to
infringe Segway's trademarks based on his testimony that
he independently derived the SWAGWAY designation, and his
testimony that he changed the designation to SWAGTRON after
receiving a cease-and-de-sist letter from Segway's
counsel. The ALJ did not definitively state whether the
intent of the actor factor weighed in favor of or against a
likelihood of confusion.
the fourth factor, the ALJ found that Segway's and
Swagway's products are sold on the same websites and in
the same stores. Thus, the products exist in a common
commercial channel. The ALJ determined, however, that the
goods offered in connection with the asserted trademarks are
significantly more expensive than the SWAGWAY and SWAGTRON
products. The ALJ therefore found that the fourth factor
weighed against a finding that the SWAGWAY and SWAGTRON
designations were likely to cause consumer confusion.
did not make a determination on the fifth factor because
neither party presented evidence going to the degree of care
exercised by consumers in purchasing products associated with