904 F.2d 44: Makita U.s.a., Inc., Makita Corporation of America, Appellant, v. U.S. International Trade Commission, Appellee,tochiado Industry Co., Ltd.,andjepson, Inc. and Ko Shin Electric & Machinery Co., Ltd., Intervenors

Makita U.S.A., Inc. and Makita Corporation of America (Makita) appeal the decision of the United States International Trade Commission (ITC), In re Certain Electric Power Tools, Battery Cartridges and Battery Chargers, Inv. No. 337-TA-284, 54 Fed.Reg. 31896 (notice issued July 31, 1989).

Makita filed a complaint with the ITC on April 1, 1988, under Section 337 of the Tariff Act of 1930, codified as amended at 19 U.S.C. Sec. 1337, alleging that imports of certain electric power tools, battery cartridges and battery chargers, inter alia, infringed Makita's common law trademarks as to the design and the combined color and design of its products. An Administrative Law Judge issued an initial determination on June 2, 1989, finding, in part, that: Makita's claimed trademarks were neither inherently distinctive nor had they acquired secondary meaning; the marks were de jure functional; and, there is no likelihood of confusion. The ITC adopted these findings in its July 31, 1989, decision not to review. Thus, the final determination of the ITC held that there was no violation of Section 337 as to the above issues.**

We affirm on the basis of the opinion of the ITC.