Typing_G585058484_Banner_1920x945

11.16.21

Up in smoke: ITC institutes investigation of cartridges used to inhale CBD/THC

BY , Evan Langdon

On November 4, 2021, the United States International Trade Commission (ITC) instituted Investigation No. 337-TA-1286, in Certain Oil-Vaping Cartridges, Components Thereof, and Products Containing the Same.

The ITC's investigation is based on a complaint filed by Shenzhen Smoore Technology Limited of China (Smoore) alleging a violation of Section 337 in the unlawful importation and/or sale in the U.S. of certain oil-vaping cartridges, components thereof, and products containing the same by reason of patent and trademark infringement. According to the complaint, Smoore alleges that its patented technology relates to the structure and function of atomizers, cartridges, mouthpieces, vaporizers, and vaping assemblies accused of infringements and other vaping devices that are used for vaping purposes. The trademark at issue is a standard character CCELL mark under which Smoore markets, advertises, and sells vaporizer products, such as electronic cigarettes, oral vaporizers for smokers, and vaporizer cartridges.

Smoore's complaint names 38 respondents and the accused products are atomizers, cartridges, mouthpieces, vaporizers, and vaping products used to inhale CBD and/or THC. Smoore requests that the ITC issue limited exclusion orders and permanent cease-and-desist orders directed to the named respondents.

This investigation is the third time the ITC has heard disputes over vaping products in the last few years. In 2018, the Commission launched an investigation based on a complaint filed by Juul Labs, Inc. (Juul), styled Certain Electronic Nicotine Delivery Systems and Components Thereof (337-TA-1139), which related to e-cigarettes and packaging. There, the Commission ultimately found a violation of Section 337 and issued limited exclusion orders and cease-and-desist orders directed to two remaining respondents. Nixon Peabody Partner Evan Langdon represented respondent Myle Vape in this investigation, which led to a favorable settlement.

In 2020, the ITC launched another investigation on behalf of Juul, styled Certain Vaporizer Cartridges and Components Thereof (337-TA-1211), which related to vaporizer cartridges and components. Recently, on October 14, 2021, the presiding administrative law judge (ALJ) issued an initial determination granting Juul's motion for summary determination that the defaulting respondents have violated Section 337 and recommended that the ITC issue cease-and-desist orders as well as a general exclusion order excluding all infringing products regardless of source, as opposed to a limited exclusion order directed only to particular persons found in violation. Nixon Peabody Partner Evan Langdon represented respondent Price Point NY in the 1211 Investigation, which also led to a favorable settlement. The ALJ's initial determination is currently pending Commission review.

The ITC remains a popular venue for intellectual property infringement disputes, and the vaping industry has taken note. Section 337 Investigations, which involve acts of unfair importation, most often involve claims of patent infringement but can also include claims of trademark infringement, other Lanham Act violations, copyright infringement, and misappropriation of trade secrets. Though monetary damages are not available at the ITC, the remedies offered include an exclusion order directing Customs and Border Protection to stop infringing imports from entering the United States and cease-and-desist orders against named importers and other persons engaged in unfair acts that violate Section 337. Section 337 investigations are conducted pursuant to 19 U.S.C. § 1337 and the Administrative Procedure Act and include trial proceedings before ALJs and review by the ITC.

Have questions about the ITC or one of your products that has been named in an investigation? Nixon Peabody's Intellectual Property team is here to help.

author img

Author

Paulina M. Starostka

Associate

Posts By this author

author img

Author

Evan Langdon

Partner

Posts By this author