As noted by Law360, the U.S. International Trade Commission "issued for the second time an exclusion order barring the retailers from selling Deere-brand self-propelled harvest foragers that the manufacturer had only intended for sale in Europe, adopting the Federal Circuit's determination that the ITC had previously erred in ruling that not 'all or substantially all' of Deere's authorized domestic vehicle sales were of products designated for the North American market and that this precluded Deere from obtaining an exclusion order."
"We feel vindicated in the sense that the court's ruling is now completely accurate and they properly applied the 'all or substantially all' test in the context of gray market proceedings," Ibrahim told Law360. "We’re delighted by the outcome and that we were able to protect our client's famous trademarks."
The commission's decision reinstated all relief earlier granted to Deere, including a general exclusion order barring importation of all infringing gray market machines and cease and desist orders against specific infringers.
The ITC's ruling closes a nearly decade-long case that bounced between the Federal Circuit and the trade commission. In 2010, six years after the original finding that retailers had infringed Deere's trademarks, the Federal Circuit determined there was faulty data used to determine the number of authorized European-model harvesters.
On remand, the ITC concluded the reduced percentage of authorized harvesters – 3 percent, compared to the faulty data's 40 to 57 percent estimate – did not preclude the exclusion and cease and desist orders.