On June 24, 2016, Excel Dryer, Inc. of East Longmeadow, Massachusetts (“Excel”) filed a complaint requesting that the ITC commence an investigation pursuant to Section 337.
The complaint alleges that the following entities (collectively, the “Proposed Respondents”) unlawfully import into the U.S., sell for importation, and/or sell within the U.S. after importation certain hand dryers and housings for hand dryers that infringe Excel’s trade dress:
- ACL Group (Intl.) Ltd. of the United Kingdom
- Alpine Industries Inc. of Irvington, New Jersey
- FactoryDirectSale of Ontario, California
- Fujian Oryth Industrial Co., Ltd. (a/k/a Oryth) of China
- Jinhua Kingwe Electrical Co., Ltd. (a/k/a Kingwe) of China
- Penson & Co. of China
- Taizhou Dihour Electrical Appliances Co. Ltd. (a/k/a Dihour) of China
- TC Bunny Co., Ltd. of China
- Toolsempire of Ontario, California
- US Air Hand Dryer of Sacramento, California
- Vinovo Sovereign Industrial Jiaxing Co. Ltd. of China
- Zhejiang Aike Appliance Co., Ltd. of China
According to the complaint, the asserted trade dress relates to the distinctive look of Excel’s XLERATOR hand dryer product. In particular, the asserted trade dress includes a distinctive substantially-compound-curvature-shaped cover with a projection for a bulbous front exit nozzle, soft rounded edges, and substantially planar and parallel sidewalls; a distinctive name plate on the front of the compound-curvature-shaped cover above the bulbous front exit nozzle; and a distinctive “arrow-shaped” label on the projection for the bulbous front exit nozzle.
In the complaint, Excel states that the Proposed Respondents import and sell products that infringe the asserted trade dress. The complaint specifically refers to various hand dryers associated with the Proposed Respondents as infringing products.
Regarding domestic industry, Excel states that it manufactures its XLERATOR hand dryer—which bears the asserted trade dress—at a factory in Massachusetts. Excel further states that it conducts engineering, research and development, product support, and manufacturing support activities in the U.S. relating to its XLERATOR hand dryer. In addition, Excel states that the Proposed Respondents’ actions have threatened and caused, and will continue to threaten and cause, substantial injury to Excel’s domestic industry relating to its XLERATOR hand dryer.
With respect to potential remedy, Excel requests that the Commission issue a general exclusion order, a limited exclusion order, and a permanent cease and desist order directed at the Proposed Respondents. Excel states that a general exclusion order is warranted because it is difficult or impossible for Excel to identify the source of certain infringing products despite its best efforts.