correspondence to - mofcomimages.mofcom.gov.cn/trb/accessory/200712/1197006968511.pdf ·...

Correspondence To: P.O. Box 1404

Alexandria, Virginia 2231 3-1404 BURNS DOANE SWECKER & MATHIS LLP ATTORNEYS AT LAW

ALEXANDRIA, VIRGINIA REDWOOD SHORES, CALIFORNIA DURHAM, NORTH CAROLINA

January 8, 2003

VIA HAND DELIVERY

The Hon. Marilyn R. Abbott Secretary United States International Trade Commission 500 E Street, S.W. Washington, D. C. 20436

Re: In the Matter of Certain Agricultural Vehicles and Components Thereof

Office Address: Suite 500

1737 King Street Alexandria, Virginia 22314-2727

Telephone: +I ,703,836,6620 Group 3 Fax: +1.703.836.2021 Group 4 Fax: +I .703.836.0028

ROBERT s. SWECKER ~ I L - [email protected]

TELEPHONE: + 1.703.838.6568

Dear Secretary Abbott:

Enclosed for filing on behalf of Deere & Company (Deere) are documents in support of Deere's request that the Commission commence an investigation pursuant to Section 337 of the Tariff Act of 1930, as amended. Pursuant to the Commission Rules of Practice and Procedure, a request for confidential treatment of Confidential Exhibits is also filed concurrently herewith. Accordingly, Deere submits the following:

1. An original and twelve (12) copies of Deere's Verified Complaint pursuant to Rule 2 10.8(a) ;

2. An original and six (6) copies of Confidential Exhibits 9, 11, and 14-19 (original and one copy unbound, without tabs), segregated from the other material submitted, pursuant to Rules 210.8(a), 210.6(c), and 210.4(f)(3)(i);

3. An original and six (6) copies of the non-confidential Exhibits to the Complaint (original and one copy unbound, without tabs) pursuant to Rules 201.6(c), 210.4(f)(3)(i) and 2 10.8(a) ;

4. Twenty-nine (29) additional copies of the Complaint and accompanying non-confidential Exhibits, one each for service upon the proposed Respondents;

The Hon. Marilyn R. Abbott January 8, 2003

5 . Twenty-nine (29) additional copies of the Confidential Exhibits to be retained by the Commission until such time, if ever, that the proposed Respondent(s) sign(s) an applicable protective order, pursuant to Rules 210.4(f)(3)(i), 210.8(a) and 210.1 l(a);

6. Four copies of the Complaint and accompanying non-confidential Exhibits for service upon the Embassies of the People's Republic of China, Germany, France and The Netherlands pursuant to Rules 210.4(f)(3)(i), 210.8(a) and 210.1 l(a);

7. Certified status copies of U.S. Trademark Registration Nos. 1,254,339; 1,502,103; 1,503,576 and 91,860 (legible copies of which are included with the Complaint as Exhibits 2-5), pursuant to Rule 210.12(a)(9)(i); and

8. A letter and certification pursuant to Commission Rules 201.6(b) and 210.5(d) requesting confidential treatment of Confidential Exhibits 9, 11 and 14-19.

Respectfully submitted,

Robert S. Swecker Bassam N. Ibrahim S. Lloyd Smith Bryce J. Maynard Burns, Doane, Swecker & Mathis, L.L.P. Counsel for Complainant

Correspondence To: P.O. Box 1404

Alexandria, Virginia 22313-1404 BURNS DOANE SWECKER & MATHIS LLP ATTORNEYS AT LAW

ALEXANDRIA, VIRGINIA REDWOOD SHORES, CALIFORNIA DURHAM, NORTH CAROLINA

Office Address: Suite 500

1737 King Street Alexandria, Virginia 22314-2727

Telephone: + I ,703,836,6620 Group 3 Fax: +I .703.836.2021 Group 4 Fax: +1.703.836.0028

January 8, 2003

VIA HAND DELIVERY

ROBERT s. SWECKER E-MAIL - [email protected]

TELEPHONE: + 1.703.838.6568

The Hon. Marilyn R. Abbott Secretary United States International Trade Commission 500 E Street, S.W. Washington, D. C. 20436

Re: In the Matter of Certain Agricultural Vehicles and Components Thereof

Dear Secretary Abbott:

I am counsel for Complainant Deere & Company ("Deere"). In accordance with Commission Rules 201.6 and 210.5, Deere requests confidential treatment of business information contained in Confidential Exhibits 9, 11 and 14-19 to the Complaint.

The information for which confidential treatment is sought is proprietary commercial and technical information not otherwise publicly available. Specifically, the exhibits contain the following:

Exhibit 9 - Exhibit 11 - Exhibit 14 - Exhibit 15 - Exhibit 16 - Exhibit 17 - Exhibit 18 - Exhibit 19 -

Sales of Deere's forage harvesters 1999-2001 Sales of Deere's telehandlers 1999-2001 Sales of Deere's agricultural tractors 1999-2001 Floor space of Deere's U.S. factories Floor space and valuation of Deere's facilities in Waterloo, Iowa Floor space and valuation of Deere's headquarters in Moline, Illinois Annual labor hours expended at Deere's Waterloo, Iowa facilities Amount spent by Deere on advertising and promoting products bearing Deere's trademarks.

The information described above qualifies as confidential business information pursuant to Rule 201.6(a) in that:

(a) it is not available to the public;

The Hon. Marilyn R. Abbott January 8, 2003 Page 2

(b) unauthorized disclosure of such information could cause substantial harm to the competitive position of Complainant Deere & Company; and

(c) the disclosure of which could impair the Commission's ability to obtain information necessary to perform its statutory function.


Robert S. Swecker Bassam N. Ibrahim S. Lloyd Smith Bryce J. Maynard Burns, Doane, Swecker & Mathis, L.L.P. Counsel for Complainant

UNITED STATES INTERNATIONAL TRADE COMMISSION Washington, D. C.

In the Matter of ) )

AND COMPONENTS THEREOF 1 CERTAIN AGRICULTURAL VEHICLES )

h

Investigation No. 337-TA-

COMPLAINT OF DEERE & COMPANY PURSUAN T TO 6337 OF THE TARIFF ACT OF 1930. AS AMEN DED

COMPLAINA NT

Deere & Company One John Deere Place Moline, Illinois 61250 (309) 765-8000

cou NSEL FOR COM PLAINANT

Robert S. Swecker Bassam N. Ibrahim S. Lloyd Smith Bryce J. Maynard BURNS, DOANE, SWECKER & MATHIS, LLP 1737 King Street, Suite 500 Alexandria, Virginia 223 14 (703) 836-6620

PROPOSED RESPON DENTS

Jingsa Yueda Co. Ltd. 71 Revmin Road Central Yangcheng City Jiangsu Province Peoples Republic of China 224002

Dongfeng Agricultural Machinery Group No. 10 Xiney Road Changzhou Jiangsu Province Peoples Republic of China 213012

Jiangling Motors Corporation Limited 509 Northern Yingbing Avenue Nanchang City Jaingxi Province Peoples Republic of China 330001

Agra-Infocentrum-Benelux Postbus 49 5 110 AA Baarle-Nassau The Netherlands

Agrideal Chemin des Perrines 3550 Vitre France

Bikker Firm Middenraai 48a 7912TK Nieuweroord, Holland

Erntetechnik Franz Becker Naendorf 6 Metelen 48629 Germany

Jaco Equipment Ltd. 2007 14'h Avenue North Lethbridge, Alberta Canada T1H 1VS

Agracat, Inc. 57 E. Main St. Farmington, Arkansas 72730

Bolton Power Equipment 39 Whitcomb Road Bolton, MA 01740

Bourdeau Bros, Inc. 590 Mason Road Champlain, N Y 12919-4855

Ray Chastain 71 182 E. Keene Road Richland, WA 99352

China America Imports 33898 Adler Lane Creswell, OR 97246

Co-Ag LLC W894 Hwy DW Theresa, WI 53091

Crossroads Technologies International 815 Bedford St. Chesapeake, VA 23322

Dale Ilgen Enterprises W. 6897 Firelane 4 Menasha, WI 54952

Davey-Jones Tractor & Chopper Supermarket 980 SR 13 Box 173 Williamstown, NY 13493

Fitzpatrkk Farms 122 10 Stone Rd Fowler, MI 48835

GTS Enterprises LLC d/b/a Coastal Tractor and Equipment 307 Bridgeport Avenue Milford, CT 06460

J&T Farms 370 Spring Grove Road Ephrata, PA 17522

Lancaster Silo Company 2008 Horseshoe Road Lancaster, PA 17601

Lenar Equipment, LLC 326 1 Northeast Alexander Lane Albany, OR 9732 1

OK Enterprises Route #1, Box 198 Mountain Lake, MN 56159

... -111-

Pacific Avenue Equipment 1015 Pacific Avenue Yakima, WA 98901

SamTrac Tractor and Equipment 3199 Plummers Lane, No. 13 Chico, CA 95973

Stanley Farm 3821 County Hwy H Stanley, WI 54768

Sunova Implement Co. 196679 19th Line RR #1 Lakeside, Ontario Canada NOM 2G0

Task Master Equipment LLC/Tractors Etc. 83969 N. Pacific Highway Creswell, OR 97426

Workhorse Tractors 36616 N. 27th Ave. Phoenix, AZ 85806

-iv-

TABLE OF CONTENTS PaFe

EXHIBIT LIST . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii

I . INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

I1 . THECOMPLAINANT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

I11 . THE INTELLECTUAL PROPERTY RIGHTS AT ISSUE . . . . . . . . . . . . . . . . . 6

A . Deere’s Green and Yellow Trademarks . . . . . . . . . . . . . . . . . . . . . . . . . . 6

B . The JOHNDEERE Trademark . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

C . The Leaping Deer Mark . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

IV . THE PRODUCTS AT ISSUE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

A . Forage Harvesters and Telehandlers . . . . . . . . . . . . . . . . . . . . . . . . . . 11

1 . Forage Harvesters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

B . Agricultural Tractors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

V . THE DOMESTIC INDUSTRY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

A . Investment in Plant and Equipment . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

B . Significant Employment of Labor or Capital in the Exploitation of Deere’s Registered Trademarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

C . Substantial Investment in the Exploitation of Deere ’s Registered Trademarks 16

VI . PROPOSED RESPONDENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

A . Forage Harvesters and Telehandlers . . . . . . . . . . . . . . . . . . . . . . . . . . 18

1 . Foreign Dealers and Exporters . . . . . . . . . . . . . . . . . . . . . . . . . 18

2 . United States Importers and Dealers . . . . . . . . . . . . . . . . . . . . . 18

-V-


1 . Chinese Manufacturers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

2 . U.S. Importers and Dealers . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

VI1 . IMPORTATION AND SALE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

A . Forage Hawesters and Telehandlers . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Evidence of Importation and Sale . . . . . . . . . . . . . . . . . . . . . . . . 22 1 .

2 .

3 .

Specific Acts of Unfair Competition by Respondents . . . . . . . . . . . . 24

Material DifSerences Forage Hawesters . . . . . . . . . . . . . . . . . . . 30

4 . Material DifSerences - Telehandlers . . . . . . . . . . . . . . . . . . . . . . 33


1 . Specific Acts of Unfair Competition by Respondents . . . . . . . . . . . . 36

VI11 . INJURY TO DOMESTIC INDUSTRY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IX . RELATED LITIGATION 46

X . REQUEST FOR RELIEF 48 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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EXHIBIT LIST

No. Description

Exhibit 1

Exhibit 2

Exhibit 3

Exhibit 4

Exhibit 5

Exhibit 6

Exhibit 7

Exhibit 8

Confidential Exhibit 9

Exhibit 10


Exhibit 12

Exhibit 13




Deere 2001 Annual Report

Certified Copy of U.S. Registration No. 1,254,339



Certified Copy of U.S. Registration No. 91,860

Web site printout showing various leaping deer marks

Printout from U.S. Patent and Trademark Office web site showing current status of Application Serial No. 76/095,359

Brochure displaying and describing Deere’ s 6000 series forage harvesters

Sales of forage harvesters in 1999-2001

Brochure displaying and describing Deere U. S. telehandler models 3200, 3400, 3800

Sales of telehandlers in 1999-2001

Photograph of Deere 41 15 agricultural tractor

Photograph of Deere 9520 agricultural tractor

Sales of agricultural tractors 1999-2001

Floor space of Deere’s U.S. factories

Floor space and valuation of Deere’s facilities in Waterloo, Iowa

-vii-

No. Description




Exhibit 20

Exhibit 2 1

Exhibit 22

Exhibit 23

Exhibit 24

Exhibit 25

Exhibit 26

Exhibit 27

Exhibit 28

Exhibit 29

Exhibit 30

Exhibit 3 1

Floor space and valuation of Deere’s corporate headquarters in Moline, Illinois

Annual labor hours expended at Deere’s Waterloo, Iowa facilities

Expenditures for advertising and marketing 1999-200 1

List of active licensees

Sample license agreement

Web page printout stating that Task Master Equipment, L.L.C. is a division or subsidiary of China America Imports

Affidavit of Peter Augustin (w/ photograph)

E-mail from employees of Agra-Infocentrum-Benelux to authorized John Deere dealers in U.S. advertising and soliciting sales of new and used European Version forage harvesters

E-mail from employees of Agra-Infocentrum-Benelux to authorized John Deere dealers in U.S. advertising and soliciting sales of European Version telehandlers

Affidavit of Kory Taylor

Agrideal web site printout advertising used European Version forage harvesters for sale and listing shipping prices to United States

Bill of Lading for shipment of forage harvesters from Agrideal to J&T Farms

Bikker Firm webs site print out advertising European Version forage harvesters for sale

Price quote given by Erntetechnik Franz Becker to John Deere dealer in Columbus, OH for 2001 European Version forage harvesters models 6850 and 6750

Sample letter from Erntetechnik Franz Becker to John Deere dealer advertising and soliciting sales of used European Version forage harvesters

-viii-

No. Description

Exhibit 32

Exhibit 33

Exhibit 34

Exhibit 35

Exhibit 36

Exhibit 37

Exhibit 38

Exhibit 39

Exhibit 40

Exhibit 4 1

Exhibit 42

Exhibit 43

Exhibit 44

Exhibit 45

Exhibit 46

Exhibit 47

Price quote from Jaco Equipment Ltd. to Kevin Robinson for a new 6950 European Version forage harvester

E-Mail re: sales of European Version forage harvesters by Bourdeau Bros. (w/ picture)

Price quote by Ray Chastain to Kevin Robinson for new European Version forage harvester

Bill of lading for shipment of European Version forage harvesters from Erntetechnik Franz Becker to Co-Ag LLC

E-mail from Douglas Penny re: Fitzpatrick Farms sale of imported European Version forage harvesters

Lancaster Silo Company advertisement of European Version forage harvester for sale in U. S .

Printout of OK Enterprises listings for agricultural equipment (including European Version forage harvesters) on agdealer . corn website

Stanley Farms advertisement of European Version forage harvesters for sale in the U.S.

Letter from Kory Taylor re: Stanley Farms sales of European Version forage harvesters

Price quote by Stanley Farms for 2001 European Version forage harvester model 6950

Price quote by Stanley Farms for new European Version forage harvester model 6850

Stanley Farms advertisement of European Version telehandlers for sale in the U.S.

Web page stating that Jinma tractors are made by Jiangsu

Web page stating that Jinma exports tractors to over 40 countries

Jinma U.S. dealer list

'Chinese Tractor 101' web page

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No. Description

Exhibit 48

Exhibit 49

Exhibit 50

Exhibit 5 1

Exhibit 52

Exhibit 53

Exhibit 54

Exhibit 55

Exhibit 56

Exhibit 57

Exhibit 58

Exhibit 59

Exhibit 60

Exhibit 6 1

Exhibit 62

Exhibit 63

Web page regarding Jiangling involvement in tractor business

Investigator's report regarding Agracat tractors

Printout of AGRACAT tractors advertised for sale on Agracat, Inc.'s web site

Letter from Deere to Agracat

Letter from Agracat to Deere

Printout of AVENGER tractors advertised for sale on China America Imports web site

Statement from China America Imports web site that AVENGER tractors are manufactured in China by Dongfeng

Investigator's report regarding Crossroads Technologies and Bolton Power Equipment tractors

Picture of EMERYBUILT tractor advertised on Crossroads Technologies International's web site

Picture of tractor advertised for sale on Bolton Power Equipment web site

Specifications and picture of Lenar Tractor

Picture of tractors advertised for sale on Dale Iljen Enterprises' web site

Lenar Tractor web page stating that Dale Iljen Enterprises is a Lenar dealer and that Pacific Avenue Equipment is U . S . distributor of Lenar tractors

Pictures of tractors advertised for sale on SamTrac Tractor Equipment web site

Picture of tractor advertised for sale on Task Master Equipment, L.L.C. web site

Web page stating that AVENGER tractor is made in China by Dongfeng

-X-

No. Description

Exhibit 64

Exhibit 65

Exhibit 66

Exhibit 67

Exhibit 68

Exhibit 69

Exhibit 70

Picture of TERRA CYCLONE tractor advertised for sale on Task Master Equipment, L.L.C. web site

Pictures of tractors advertised for sale on Workhorse Tractors web site

Article, March 2002 Edition of Northwest Arkansas Business Journal

Article, February 4, 2001 Edition of Arkansas Democrat Gazette

Copy of TTAB's March 18, 1988 decision in In re Deere & Co.

Copy of September 24, 1990 decision in Deere & Co. v. Unveqerth Manufacturing Co., Northern District of Ohio

Copy of TTAB's October 19, 1995 decision in Aktiebolaget Electrolux v. Deere & Co.

-xi-

I. INTRODUCTION

1. The United States International Trade Commission has jurisdiction over this

Investigation pursuant to 19 U.S.C. $1337 (a)(l)(A) and §1337(a)(l)(C).

2. Complainant Deere & Co. (“Deere”) alleges that the Respondents have engaged

in unfair acts in the importation into the United States, and/or the sale within the United States

after importation by the owner, importer, or consignee, of certain Agricultural Vehicles and

Components Thereof, namely forage harvesters, telehandlers and agricultural tractors.

3. The Respondents are divided into two groups. The first group comprises those

Respondents involved in the exportation from Europe, and the importation and sale after

importation in the United States, of “gray market” forage harvesters and telehandlers made by

Deere in Europe but not authorized for sale in the United States.

4. The second group comprises those Respondents involved in the manufacture and

exportation from China, and importation and sale after importation in the United States, of

agricultural tractors that infringe on Deere’s trademarks. Unlike the forage harvesters and

telehandlers, these tractors are not “gray market” goods but are manufactured in China and

exported to the United States by certain Respondents unrelated to Deere and its subsidiaries.

5 . Deere, through its European divisions and subsidiaries, manufactures a

European version and a United States version of the forage harvesters and telehandlers. Each

version complies with the respective government regulations of Europe and the United States,

and each version is designed to meet the working conditions and farming practices of the users

of the machines in the two respective regions. These forage harvesters and telehandlers bear

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Deere’s famous registered trademarks. The United States versions of these machines are

exported directly from Germany to Deere’s facilities in the United States for sale to Deere’s

authorized U.S. dealers.

6 . The forage harvesters and telehandlers made for the European market are

referred to as the “European Version forage harvesters” and “European Version telehandlers. ”

These machines are authorized by Deere for sale in Europe only. The European Version

harvesters and telehandlers are materially different from the harvesters and telehandlers made

for the United States market, which are referred to as the “U.S. Version forage harvesters”

and “U.S. Version telehandlers.”

7. Certain Respondents purchase the European Version forage harvesters and

telehandlers from Deere dealers in Europe and export them to the United States. The

European Version forage harvesters and telehandlers are imported and sold in the United States

by other Respondents, without authorization from Deere.

8. The importation and sale of the gray market European Version forage harvesters

and telehandlers infringes Deere’s registered trademarks in violation of 15 U.S.C. 01 114( 1).

9. Certain Respondents manufacture agricultural tractors in China and export them

to the United States where they are sold by other Respondents without Complainant’s

authorization or license. These tractors have green and yellow colors and infringe Deere’s

registered trademarks. These tractors are hereinafter collectively referred to as “China

Tractors. ”

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10. The importation and sale of the China Tractors infringes Deere’s registered

trademarks in violation of 15 U.S.C. §1114(1) and dilutes Deere’s registered trademarks in

violation of 15 U.S.C. §1125(c).

11. Deere seeks relief from the Commission pursuant to 19 U.S.C. $1337 in the

form of a general exclusion order barring the importation into the United States of European

Version forage harvesters, European Version telehandlers, China Tractors, and components

thereof. Deere further seeks cease and desist orders halting the distribution, sale, and

advertising for sale within the United States after importation of the European Version forage

harvesters, European Version telehandlers, and China Tractors bearing Deere’s registered

trademarks.

11. THE COMPLAINANT

12. Complainant Deere & Company (“Deere”) is a corporation organized and

existing under the laws of the State of Delaware, and has its principal place of business at One

John Deere Place, Moline, Illinois 61265.

13. Deere & Company was founded by John Deere, who opened his first

blacksmith shop in Grand Detour, Illinois in 1837. Deere noticed that the cast iron plow

blades used by farmers at that time became easily clogged in the thick Midwestern soil.

Farmers had to stop often to clean the plow with a wooden paddle. Deere began to experiment

with polishing steel plow blades, and in 1837 introduced the self-scouring plow, a simple

curved blade that allowed soil to drop off easily. This plow was pivotal in opening the

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American Midwest to high-production agriculture. Demand for Deere’s innovative plow soon

outpaced his backyard blacksmith shop and the John Deere Company was born. By 1847, the

John Deere Company was producing over 1,000 plows a year.

14. John Deere moved his operations to Moline, Illinois in 1848, where he

continued to manufacture and sell high-quality agricultural and farm products. Deere &

Company was incorporated in 1868.

15. In the early 1900s, Deere began using green on the bodies of its agricultural

equipment and yellow on the wheels. Deere has used this color combination continuously for

over 80 years.

16. In 1918, Deere acquired the Waterloo Gasoline Traction Engine Company of

Waterloo, Iowa, which put Deere in the agricultural tractor business. Deere has been

manufacturing tractors continuously without interruption for the past 84 years.

17. Deere does business in more than 160 countries and employs over 40,000

people worldwide, including over 25,000 in the United States.

18. Deere & Company consists of three equipment operations divisions, four

support operations divisions, and a credit operations division. Deere’s equipment operations

divisions include Agricultural Equipment, Construction and Forestry Equipment, and

Commercial and Consumer Equipment. The Agricultural Equipment division manufactures

and distributes a full line of farm equipment, including tractors, forage harvesters, and

telehandlers. The Construction and Forestry Equipment division manufactures and distributes

a broad range of machines used in construction, earthmoving, material handling, and timber

-4-

harvesting. The Commercial and Consumer Equipment division manufactures and distributes

equipment for commercial and residential uses, such as lawn and garden tractors and mowers

and golf course landscaping equipment.

19. Deere’s support operations divisions consist of Parts, Power Systems,

Technology Services, and Health Care. Deere’s Parts division supplies parts for its own

products as well as those of other manufacturers. The Power Systems division produces

engines and drive train systems for Deere equipment and OEM (original equipment

manufacturer) markets. The Technology Services division offers a range of electronic,

Internet, and wireless products and services to Deere and outside consumers. John Deere

Health Care and its subsidiaries provide health care management services to over 500,000

members.

20. Deere’s net sales from 1999 to 2001 totaled over $32 billion. Approximately

65% of this figure was attributable to sales within the United States. During the period 1999

through 2001, Deere had net sales of agricultural equipment of more than $17.3 billion.

Deere owns and operates 27 factories in the United States and leases and 21.

operates three additional factories in the United States. Ten of these factories are devoted to

the manufacture and production of agricultural equipment.

22. Deere’s marketing and administrative activities relating to its agricultural

equipment are based at its headquarters in Moline, Illinois.

23. Deere sells its products through a network of dealers who are authorized to use

Deere’s trademarks in advertising Deere’s products, and to sell Deere’s products which bear

-5-

such trademarks. At the present time, there are over 3,000 authorized John Deere dealerships

in the United States, most of which are independently owned. Of these dealerships,

approximately 1,400 sell agricultural equipment.

24. Deere’s products are recognized throughout the United States and the world to

be products of exceptionally high quality.

25. In a nationwide survey published in the June 10, 2002 issue of Crain’s Chicago

Business, Deere was ranked the most-trusted corporation in Illinois. Deere also ranked first

among Illinois corporations in product quality.

26. In the February 19, 2001 issue of Fortune magazine, Deere ranked first among

industrial and farm equipment companies in a survey of “America’s Most Admired

Companies.” Deere also ranked first in its category in product quality.

27. A copy of Deere’s 2001 Annual Report, which further describes Deere’s

business activities, is attached as Exhibit 1.

111. THE INTELLECTUAL PROPERTY RIGHTS AT ISSUE

A.

28.

Deere ’s Green and Yellow Tradema rks

Deere is the owner of U.S. Trademark Registration Nos. 1,254,339; 1,502,103;

and 1,503,576 (hereinafter referred to collectively as “Deere’s green and yellow trademarks”).

U.S. Registration No. 1,254,339 was registered by the United States Patent and

Trademark Office on October 18, 1983. This registration confirms Deere’s exclusive right to

use this trademark on “agricultural and lawn care machines - namely balers, windrowers,

29.

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mower-conditioners, forage harvesters, seeders, combines, sprayers, beet harvesters, cotton

harvesters, hay stacking machines, and lawn mowers.” The trademark is described as “a

horizontal yellow stripe on a green machine hood or panel.” A certified status copy of the

registration is attached as Exhibit 2.

30. U.S. Registration No. 1,502,103 was registered by the United States Patent and

Trademark Office on August 30, 1988. This registration confirms Deere’s exclusive right to

use its trademark on “agricultural tractors, lawn and garden tractors, trailers, wagons, and

carts.” The trademark is described as “a bright green vehicle body or frame with bright

yellow wheels.” A certified status copy of the registration is attached as Exhibit 3.

31. U.S. Registration No. 1,503,576 was registered by the United States Patent and

Trademark Office on September 13, 1988. The registration confirms Deere’s exclusive right

to use its trademark on “wheeled agricultural, lawn and garden, and material handling

machines, namely tillage machines, mowers, cutters, shredders, sprayers, loaders, spreaders,

planting machines, and snow removal machines.” This mark is described as “a bright green

body and bright yellow wheels.” A certified status copy of the registration is attached as

Exhibit 4.

32. The above-listed trademark registrations are valid, subsisting, and incontestable

pursuant to 15 U.S.C. $1065 and are conclusive evidence of Deere’s ownership of its green

and yellow trademarks, and Deere’s exclusive right to use its green and yellow trademarks in

commerce.

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33. Deere’s green and yellow trademarks are inherently distinctive and identify

Deere’s agricultural products, distinguish them from the agricultural products of others, and

distinguish the source or origin of Deere’s agricultural products.

34. As a result of Deere’s longstanding use and promotion of its green and yellow

trademarks in connection with agricultural products, Deere’s green and yellow trademarks

have long since acquired distinctiveness and serve to identify Deere’s agricultural products, to

distinguish them from the agricultural products of others, and to distinguish the source or

origin of Deere’s agricultural products.

35. Deere has developed substantial goodwill in its green and yellow trademarks,

which are a business asset of immense value. Consumers and the general public widely

recognize and associate Deere’s green and yellow trademarks with Deere and its products.

Consumers associate Deere’s green and yellow trademarks with equipment that is of high

quality and reliability.

36. Deere has developed substantial goodwill in its green and yellow trademarks,

which are a business asset of immense value.

37. By virtue of Deere’s significant promotion and advertising of its green and

yellow trademarks, and as evidenced by significant sales and distribution of products bearing

the trademarks, Deere’s green and yellow trademarks are famous.

B.

38.

The JO HN DEERE Tradema rk

Deere is the owner of U.S. Registration No. 91,860 (hereinafter referred to as

“the JOHN DEERE trademark. ”).

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39. U.S. Registration No. 91,860 (JOHN DEERE) was registered by the United

States Patent and Trademark Office on June 3, 1913. This registration confirms Deere’s

exclusive right to use its trademark on “plows, cultivators, harrows, mowers, grain harvesters,

hay-rakes, hay-presses, corn, cotton planters, grain-drills, manure-spreaders, fertilizer

distributors, spraying-machines, stalk-cutters, surface-graders, corn harvesters, ensilage-

cutters, lawn-mowers, soil-pulverizers” in International Class 7.

the registration is attached as Exhibit 5.

A certified status copy of

40. U.S. Registration No. 91,860 is valid, subsisting, and incontestable pursuant to

15 U.S.C. 81065 and is conclusive evidence of Deere’s ownership of the JOHN DEERE

trademark, and of Deere’s exclusive right to use the JOHN DEERE trademark in commerce.

41. Deere’s JOHN DEERE trademark is inherently distinctive and serves to identify

Deere’s agricultural products, distinguish them from the agricultural products of others, and

distinguish the source or origin of Deere’s agricultural products.

42. As a result of Deere’s longstanding use and promotion of its JOHN DEERE

trademark in connection with agricultural products, Deere’s JOHN DEERE trademark has long

since acquired distinctiveness and serves to identify Deere’s agricultural products, to

distinguish them from the agricultural products of others, and to distinguish the source or

origin of Deere’s agricultural products.

43. Deere has developed substantial goodwill in its JOHN DEERE trademark,

which is a business asset of immense value. Consumers associate Deere’s JOHN DEERE

trademark with equipment that is of high quality and reliability.

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44. By virtue of Deere’s significant promotion and advertising of its JOHN DEERE

trademark, and as evidenced by significant sales and distribution of products bearing the JOHN

DEERE trademark, Deere’s JOHN DEERE trademark is famous.

45. Deere’s green and yellow trademarks and Deere’s JOHN DEERE trademarks

are hereinafter collectively referred to as “Deere’s registered trademarks. ”

C. The Leaping Dee r Mark

46. Deere is also the owner of rights in a mark consisting of a depiction of a leaping

deer. The leaping deer mark has been featured on Deere products for over 120 years. During

this period, the leaping deer mark has gone through several modifications, as shown in Exhibit

6. Deere has owned several trademark registrations over the years for these marks.

47. The current version of the leaping deer mark was introduced in 2000. Deere is

the owner of U.S. Trademark Application Serial No. 76/095,359, which consists of the current

version of the leaping deer mark. The PTO has granted a Notice of Allowance for this

application and the registration should issue shortly. A printout from the Patent and

Trademark Office web site showing the current status of Application Serial No. 76/095,359 is

attached as Exhibit 7. Deere intends to move to amend this Complaint to include the leaping

deer registration as soon as the registration has issued.

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IV. THE PRODUCTS AT ISSUE

A. Forage Harveste rs and Telehandle rs

1. Forage Harvesters

A forage harvester, also known as a corn harvester or silage harvester, is an 48.

agricultural vehicle designed to cut corn stalks just above the ground as the harvester is driven

across the corn field. The harvester has a "head" mounted on the front of the harvester,

which includes cutters and conveyors to collect the stalks and pass the stalks through feedrolls

to a cutterhead which chops the stalks into small pieces. The process is similar for grass

crops, except that a pickup head lifts the crop off the ground after it has been cut, and feeds it

using an auger to the feedroll housing. When the harvester is used to chop corn, the crops

pass through a device that cracks any remaining whole kernels of corn from the cob. The

chopped crop is then ejected through a spout from which it is collected in an accompanying

wagon or cart. Forage harvesters are either self-propelled or pulled behind a tractor.

49. Deere currently sells six models of self-propelled forage harvesters in the United

States: the 7200, 7300, 7400, 7500, 7700, and 7800. These "7000 series" products were

introduced as new models in Summer 2002 for the 2003 season. For the previous seven years,

Deere sold four self-propelled forage harvester models: the 6650, 6750, 6850, and 6950 (the

"6000 series"). Most of the European Version forage harvesters that are being imported and

sold in the United States (that Deere is aware of) are 6000 series models. A brochure

displaying and describing Deere's 6000 series forage harvesters is attached as Exhibit 8.

-1 1-

50. Deere’s sales of forage harvesters in the U.S. from 1999 through 2001 are

shown in Confidential Exhibit 9.

51. Both the European Version forage harvesters and U.S. Version forage

harvesters are manufactured in Europe by John Deere Werke Zweibruecken (hereinafter

“Zweibruecken”), a division of Deere. The majority of heads for both versions of the forage

harvesters are manufactured by Maschinenfabrik Kemper GmbH & Co. KG (“Kernper”), a

wholly owned subsidiary of Deere. However, the U.S. Version heads are branded as JOHN

DEERE while the European Version heads are branded as KEMPER and do not carry the

Deere name or logo, although they do bear Deere’s green and yellow colors. There are

significant differences between the European Version heads and the U.S. Version heads, as

well as between the machines themselves, due to differing farming techniques on European and

American farms and different safety regulations in the United States and in European

countries.

52. Some of the parts used in both versions of the forage harvesters are

manufactured in the United States. These U.S.-origin parts constitute approximately 40 % of

the value of the forage harvesters. The remaining 60% of the value of the forage harvesters is

supplied by non-U. S. -origin parts.

53. The U.S.-origin parts include the engines, which are primarily manufactured at

Deere’s manufacturing facilities in Waterloo, Iowa. The remainder of the engines are

manufactured by Cummins, Inc. Upon information and belief, the Cummins engines are

manufactured in the United States. Approximately 70% of the engines are manufactured by

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Deere, while the other 30% are manufactured by Cummins. The engine constitutes

approximately 10% of the value of the forage harvester.

54. The U.S.-origin parts, including engines from both Deere and Cummins, are

shipped to Zweibruecken and are installed in both the European Version forage harvesters and

the U.S. Version forage harvesters.

55. Both the European Version forage harvesters and U.S. Version forage

harvesters bear Deere’s green and yellow trademarks as well as the JOHN DEERE trademark.

2. Telehandlers

A telehandler is an agricultural vehicle which is used for transporting and 56.

loading or unloading large objects. The telehandler has an arm projecting outward from the

vehicle for lifting and turning an object on the vehicle’s platform, on which the object is

placed. Deere’s telehandlers are used for transporting large bales of straw or hay, moving

building materials, and loading farm commodities.

57. Deere currently sells three telehandler models in the United States, the 3200, the

3400, and the 3800. A brochure displaying and describing Deere’s telehandlers is attached as

Exhibit 10.

58. Deere’s sales of telehandlers in the U.S. from 1999 through 2001 are shown in

Confidential Exhibit 11.

59. Both the U.S. Version telehandlers and the European Version telehandlers are

assembled in Europe by Deere’s factory at Zweibruecken from parts manufactured in the

United States and elsewhere. The majority of the parts used in the telehandlers are

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manufactured outside of the United States. The engines for the telehandlers are manufactured

in France.

60. There are significant material differences between the U.S. Version telehandlers

and the European Version telehandlers, due to differing farm techniques on European and

American farms and different safety regulations in the United States and in European

countries.

61. Both the U.S. Version telehandlers and European Version telehandlers bear

Deere’s green and yellow trademarks as well as the JOHN DEERE trademark and the leaping

deer trademark.

B. Azricultu ral Tractors

62. Deere manufactures and sells a wide variety of agricultural tractors, including

two-wheel drive, four-wheel drive, diesel powered models, open chassis tractors, narrow

utility tractors, and track tractors. Deere’s tractors range from 24 to 450 HP. Deere currently

sells over 80 individual models of agricultural tractors in the United States. Representative

web site photographs showing Deere’s 41 15 (24 HP) and 9520 (450 HP) agricultural tractors

are attached as Exhibit 12 and Exhibit 13 , respectively.

63. Deere’s sales of agricultural tractors in the United States from 1999 through

2001 are shown in Confidential Exhibit 14.

64. Deere’s agricultural tractors are manufactured in the United States, Germany,

and Mexico. Approximately 80 percent of the tractors are manufactured in the United States.

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65. Deere’s agricultural tractors bear Deere’s green and yellow trademarks as well

as the JOHN DEERE trademark and the leaping deer trademark.

V. THE DOMES TIC INDUST RY

66. Deere alleges that a domestic industry exists that exploits Deere’s registered

trademarks as a result of Deere’s significant investment in plant and equipment, significant

employment of labor or capital, and substantial investment in exploitation of articles protected

by Deere’s registered trademarks, including research and development and licensing.

19 U.S.C. §1337(a)(l)(C).

A.

67.

Investment I ‘n Plant and Equipment

Deere owns and operates 27 factory locations in the United States and leases and

operates three additional factory locations. The amount of square feet of floor space in

Deere’s factories is shown in Confidential Exhibit 15.

68. From 1999 through 2001, Deere spent approximately $1.7 billion on capital

projects relating to its manufacturing facilities in the United States, including the acquisition of

land, buildings, and capital equipment for production-related activities. A significant portion

of the acquired land, buildings, and equipment is used for the manufacture of agricultural

machinery bearing Deere’s registered trademarks.

69. In the United States, Deere’s agricultural tractors are manufactured at its

facilities in Waterloo, Iowa. The majority of the engines for Deere’s forage harvesters are also

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manufactured at Waterloo. The square footage and current valuation of Deere’s facilities in

Waterloo are shown in Confidential Exhibit 16.

70. The remainder of the engines for Deere’s forage harvesters are manufactured by

Cummins, Inc. Upon information and belief, these engines are manufactured in the United

States.

71. The manufacture and sale of products bearing Deere’s registered trademarks are

coordinated from Deere’s corporate offices in Moline, Illinois. In addition, executive,

administrative, advertising, marketing, research and development, information technology,

accounting, financial, and legal functions relating to products bearing Deere’s registered

trademarks are headquartered in Moline. The square footage and current valuation of Deere’s

corporate headquarters are shown in Confidential Exhibit 17.

i m i ficant Employment qf Labor o r Cauital in the Exploitation qf Deere ’s . . . . B. Registered Tradema r ks

72. Deere’s facilities in Waterloo, where Deere manufactures its agricultural

tractors and the engines for its forage harvesters, currently employ 4,643 persons.

73. The total labor hours expended at Deere’s facilities in Waterloo in 2001 are

shown in Confidential Exhibit 18.

74. Deere currently employs 2,646 persons at its corporate offices in Moline,

Illinois.

C.

75.

stanti ‘a1 Investment in the Exploitation qf Deere ’s Registe red Tradema rks

There has been a substantial investment in the United States in the exploitation

of Deere’s registered trademarks. The amount that Deere spent from 1999 through 2001 in the

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United States on advertising and promoting products bearing its trademarks is shown in

Confidential Exhibit 19.

76. Deere invests substantial sums in engineering, research, and development to

improve the quality and performance of products and to develop new products.

77. Deere spent about $1.6 billion from 1999 through 2001 on research and

development. These expenditures are equal to approximately 5 percent of net sales over this

period.

78. Deere has licensed its registered trademarks to approximately 180 licensees for

use on a variety of collateral goods, primarily clothing, toys, collectibles, and related goods.

A list of active licensees and a sample license agreement are attached as Exhibits 20 and 21,

respectively. This license agreement is a standard agreement used by Deere and its licensees,

although the specific terms of the agreement may vary by licensee. Deere offers to submit

copies of additional license agreements to the Commission upon request.

VI. PROPOSED RESPONDENTS

79. The Respondents are divided into two groups. The first group of Respondents

comprises those involved in the exportation from Europe and importation and sale within the

United States of the gray market European Version forage harvesters and European Version

telehandlers that infringe Deere’s registered trademarks. The second group of Respondents

comprises those involved in the manufacture and exportation from the Peoples Republic of

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China and importation and sale within the United States of the China tractors that infringe and

dilute Deere’s green and yellow trademarks.

A. Forage Harvesters and Telehandle rs

1. Foreign Dealers and Exporters

Upon information and belief, Respondent Agra-Infocentrum-Benelux has a place 80.

of business at Postbus 49, 5110 AA Baarle-Nassau, The Netherlands.

8 1. Upon information and belief, Respondent Agrideal has a place of business at

Chemin des Perrines, 3550 Vitre, France.

82. Upon information and belief, Respondent Bikker Firm has a place of business at

Middenraai 48a, 7912TK, Nieuweroord, Holland.

83. Upon information and belief, Respondent Erntetechnik Franz Becker has a place

of business at Naendorf 6, 48629 Metelen, Germany.

84. Upon information and belief, Respondent Jaco Equipment Ltd. has a place of

business at 2007 14th Avenue North, Lethbridge, Alberta, Canada T1H 1VS.

85. Upon information and belief, Respondent Sunova Implement Co. has a place of

business at 196679 19th Line RW1, Lakeside, Ontario, Canada, NOM 2G0.

2.

Upon information and belief, Respondent Bourdeau Bros., Inc. has a place of

United States Importers and Dealers

86.

business at 590 Mason Road, Champlain, New York, 12919.

87. Upon information and belief, Respondent Ray Chastain has a place of business

at 71182 East Keene Road, Richland, Washington, 99352.

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88. Upon information and belief, Respondent Co-Ag LLC has a place of business at

W894 Hwy DW, Theresa, Wisconsin, 53091.

89. Upon information and belief, Respondent Davey-Jones Tractor & Chopper

Supermarket has a place of business at 980 SR 13, Box 173, Williamstown, New York 13493.

90. Upon information and belief, Respondent Fitzpatrick Farms has a place of

business at 12210 Stone Road, Fowler, Michigan, 48835.

91. Upon information and belief, Respondent J&T Farms has a place of business at

370 Spring Grove Road, Ephrata, Pennsylvania, 17522.

92. Upon information and belief, Respondent Lancaster Silo Company, Inc. has a

place of business at 2008 Horseshore Road, Lancaster, Pennsylvania 17801.

93. Upon information and belief, Respondent OK Enterprises has a place of

business at Route 1, Box 198, Mountain Lake, Minnesota, 56159.

94. Upon information and belief, Respondent Stanley Farms has a place of business

at 3821 County Hwy H, Stanley, Wisconsin, 54768.

B. Azricultu ral Tractors

1. Chinese Manufacturers

Upon information and belief, Respondent Jiangsu Yueda Co. Ltd. is a state- 95.

owned enterprise of China with a principal place of business at 71 Revmin Road, Central

Yancheng City, Jiangsu Province, China.

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96. Upon information and belief, Respondent Dongfeng Agricultural Machinery

Group is a state-owned enterprise of China with a principal place of business at No. 10 Xinye

Road, Changzhou, Jiangsu Province, China, 213012.

97. Upon information and belief, Respondent Jiangling Motors Corporation Limited

is a Chinese company with a principal place of business at 509 Northern Yingbing Avenue,

Nanchang City, Jaingxi, China, 330001.

2. U.S. Importers and Dealers

Upon information and belief, Respondent Agracat, Inc. is a corporation of 98.

Nevada, having a place of business at 57 E. Main St., Farmington, Arkansas 72730.

99. Upon information and belief, Respondent Agracat, Inc. has a network of

approximately 70 dealerships throughout the United States. Complainant has not listed the

individual dealerships as Respondents, but reserves the right to amend the Complaint in the

future to add the dealers as Respondents depending on what discovery reveals about the extent

of their involvement.

100. Upon information and belief, Respondent China America Imports has a place of

business at 33898 Adler Lane, Creswell, Oregon 97246.

10 1. Upon information and belief, Respondent Crossroads Technologies,

International has a place of business at 815 Bedford Street, Chesapeake, Virginia 23322.

Respondent Crossroads Technologies, International may also be doing business as “Emerybuilt

Tractors. ”

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102. Upon information and belief, Respondent Bolton Power Equipment has a place

of business at 39 Whitcomb Road, Bolton, Massachusetts, 01740.

103. Upon information and belief, Respondent Dale Iljen Enterprises has a place of

business at W. 6897 Firelane 4, Menasha, Wisconsin 54952.

104. Upon information and belief, Respondent Lenar Equipment LLC has a place of

business at 3261 NE Alexander Lane, Albany, Oregon 97321.

105. Upon information and belief, Respondent Pacific Avenue Equipment has a place

of business at 1015 Pacific Avenue, Yakima, Washington 98901.

106. Upon information and belief, Respondent SamTrac Tractor and Equipment has a

place of business at 3199 Plummers Lane, No. 13, Chico, California 95973.

107. Upon information and belief, Respondent Task Master Equipment LLC has a

place of business at 83969 N. Pacific Hwy., Creswell, Oregon 97426. Upon information and

belief, Task Master Equipment may also be doing business as “Tractors Etc.” Upon

information and belief, Task Master Equipment LLC is a division or subsidiary of Respondent

China America Imports. See Exhibit 22.

108. Upon information and belief, Respondent Workhorse Tractors has a place of

business at 36616 N. 27‘h Avenue, Phoenix, Arizona, 85086.

109. Upon information and belief, other entities not specifically named as

Respondents are engaged in the importation and sale in the United States after importation of

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green and yellow tractors manufactured by Jingsa Yueda, Dongfeng, and Chiangling.

Complainant may move to add one or more such entities to this investigation.

VII. IMPOR TATION AND SALE

A. Forape Haweste rs and Telehandle rs

1.

Deere maintains a service information system (“SIS system”) for John Deere

Evidence of Importation and Sale

110.

products. When an authorized John Deere dealer places an order with the Zweibrucken

factory for a forage harvester or a telehandler, a serial number is assigned to the machine. The

serial number indicates whether the machine is a European Version machine or a U.S. Version

machine. The customer’s name and address is then entered by the dealer at the time of sale.

11 1. Deere’s serial number records indicate that a significant number of European

Version forage harvesters are being exported to the United States. For example, Deere’s

factory at Zweibrucken shipped a European Version forage harvester 6850 model (Serial No.

206850x505622) to DOB Landtechnik GMBH, an authorized Deere dealer in Germany. This

same forage harvester (Serial No. 206850x505622) was later observed by a Deere employee

on the loading dock at the shipping port of Zeebrugge, Holland. This forage harvester was

prepared for loading on the ship “Maersk Wave” which was bound for Baltimore, Maryland

and scheduled to arrive on January 3 1, 2002. See Exhibit 23.

112. Deere has been unable to identify the European exporter who purchased this

European Version forage harvester (Serial No. 206850x505622) from DOB Landtechnik

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GMBH or the U.S. importer and/or purchaser of this product, because the name and address of

the customer who purchased this machine were not entered in Deere’s SIS system. This

indicates that Serial No. 206850x505622 is a gray market forage harvester which was

imported into the United States without Deere’ s authorization or consent.

113. European Version forage harvesters have been sold within the United States.

For example, Deere’s investigation has found that a customer in Roswell, New Mexico

recently purchased two new 2002 6950 model European Version forage harvesters (Serial Nos.

206950x505739 and Z06950X505796). The serial numbers of these machines indicate that

both are European Version forage harvesters. An inspection of both of these machines

revealed that they had decals in the Dutch language and that the head had 56 knives, which

confirms that they are both European Version models.

machines contain no customer information and no warranty information, which again indicates

that these machines are not U.S. Version forage harvesters, but gray market European Version

forage harvesters that were imported into the United States without Deere’s knowledge or

consent.

Deere’s SIS entries for these

114. When Deere’s European factory receives an order for a forage harvester or a

telehandler from an authorized European Deere dealer, the factory ships the European Version

forage harvester or European Version telehandler directly to Deere’s authorized European

dealer. Some of the new European Version forage harvesters and European Version

telehandlers are then purchased by persons or organizations who export them to the United

States for resale to United States customers. The imported European Version forage harvesters

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and European Version telehandlers are sold to dealers in the United States at significantly

lower prices than are charged by Deere's U.S. sales organizations for the U.S. Version forage

harvesters and U.S. Version telehandlers.

2.

Respondent Agra-Infocentrum-Benelux purchases new and used European

Specific Acts of Unfair Competition by Respondents

1 15.

Version forage harvesters and European Version telehandlers in Europe and exports them to

customers in the United States. Employees of Respondent Agra-Infocentrum-Benelux have

sent e-mails to authorized John Deere dealers in the United States advertising and soliciting

sales of new and used European Version forage harvesters (see Exhibit 24) and European

Version telehandlers (see Exhibit 25).

116. Kory Taylor, a Deere dealer in Hoxie, Kansas, has reported that he spoke to

Hans Bastiaansen, an employee of Respondent Agra-Infocentrum-Benelux on the telephone on

June 24, 2002 after receiving an e-mail from said Respondent advertising European Version

forage harvesters. Mr. Bastiaansen stated that he sold European Version forage harvesters to

dealers and wholesalers in the United States, and that he had 64 different contacts in the United

States with whom he did business on a regular basis. Mr. Taylor spoke to Mr. Bastiaansen

again on June 24, 2002, at which time Mr. Bastiaansen stated that he had ordered 5 new

European Version forage harvesters for export and sale to the United States. Mr. Bastiaansen

quoted a price of $162,000 for one of these machines, which is significantly lower than the

price charged by Deere to its dealers for a new U.S. Version forage harvester. See Exhibit

26.

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1 17. Respondent Agrideal purchases used European Version forage harvesters in

Europe and exports them to the United States. The web site of Respondent Agrideal advertises

used European Version forage harvesters for sale and provides shipping costs for export to

America. The web site also provides the contact information for an American representative,

who assists American customers with importing agricultural equipment from Agrideal. See

Exhibit 27.

118. Agrideal is also listed as the shipper on a bill of lading for a carrier containing

two European Version forage harvesters shipped from Bremerhaven, Germany to Baltimore,

Maryland. See Exhibit 28. The bill lists J & T Farm as the consignee and states that the

shipment was scheduled to arrive in the United States on July 8, 2002.

119. Upon information and belief, respondent Bikker Firm purchases used European

Version forage harvesters in the Netherlands and has exported them to the United States. The

web site of Respondent Bikker Firm advertises used European Version forage harvesters. The

Bikker Firm web site explains that these forage harvesters cost less than John Deere forage

harvesters in the United States and Canada and states that these machines can be exported.

See Exhibit 29.

120. Respondent Erntetechnik Franz Becker exports used European Version forage

harvesters to the United States. Respondent Erntetechnik Franz Becker gave a John Deere

dealer in Columbus, Ohio price quotes of $138,000 for a 2001 European Version forage

harvester 6850 model and $110,000 for a 2001 European Version forage harvester 6750

model. See Exhibit 30. Respondent Erntetechnik Franz Becker has also sent letters to John

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Deere dealers advertising and soliciting sales of used European Version forage harvesters. A

sample letter is attached as Exhibit 31. This letter admits that Respondent Erntetechnik Franz

Becker has “exported many machines to South and North America” and offers a 1999

European Version forage harvester model 6850 for $1 10,000. The letter also states that

“transport to a harbour of your choise [sic] and customs clearance is no problem. ” The prices

quoted by Respondent Erntetechnik Franz Becker are significantly less than the prices charged

by Deere for new U.S. Version forage harvesters, as well as the market prices for used U.S.

Version forage harvesters.

12 1. Respondent Jaco Equipment Ltd. purchases European Version forage harvesters

from persons or organizations in Europe and sells them to customers within the United States.

Respondent Jaco Equipment Ltd. sent a price quote of $176,525.00 for a new 6950 European

Version forage harvester to Kevin Robinson, an individual in Dexter, New Mexico, a price

significantly less than that charged by Deere’s authorized dealers for a new U.S. Version

forage harvester. See Exhibit 32. Upon information and belief, the SPFH being offered by

Jaco in this quote is located in the United States and is a European Version SPFH, as

evidenced by the offering price that is substantially lower than Deere’s prices. Although Jaco

is located in Canada, this price quote includes delivery to the customer in New Mexico.

Accordingly, Jaco is offering a sale for importation.

122. Respondent Bourdeau Bros. purchases European Version forage harvesters and

sells them to customers within the United States. A picture of forage harvesters offered for

sale by Respondent Bourdeau Bros. at its place of business is attached as Exhibit 33. Upon

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information and belief, the pictured machines are European Version forage harvesters. An e-

mail sent by a Deere representative to Deere states that the picture was taken at the Bourdeau

Bros. facility by a Pioneer sales representative and that a Bourdeau Bros. salesman stated that

Bourdeau Bros. had sold six European Version forage harvesters in January 2002. See

Exhibit 33.

123. Upon information and belief, respondent Ray Chastain is a farm machinery

dealer who imports European Version forage harvesters and sells them to customers within the

United States. Respondent Ray Chastain gave a John Deere dealer in New Mexico a quote of

$198,000 for a new European Version forage harvester. See Exhibit 34. This price is

approximately $62,000 less than the price charged by Deere for a new U.S. Version forage

harvester.

124. Respondent Co-Ag LLC imports European Version forage harvesters and sells

them to customers within the United States. A bill of lading obtained by Deere lists

Respondent Co-Ag LLC as the importer of a shipment of three used John Deere 6810

European Version forage harvesters. The shipment was scheduled to arrive at the port of

Baltimore, Maryland on June 2, 2002.

Manager for Deere’s Forage Division, spoke to Bonnie Woodmire, an employee of Co-Ag

LLC on January 2, 2003. Ms. Woodmire stated that Co-Ag LLC had several John Deere

forage harvesters for sale, all of which had been imported from Europe.

See Exhibit 35. Tim Meister, Division Marketing

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125. Upon information and belief, Respondent Davey-Jones Tractor & Chopper

Supermarket purchases imported European Version forage harvesters and sells them to

customers within the United States.

126. Respondent Fitzpatrick Farms imports European Version forage harvesters and

European Version telehandlers and sells them to customers within the United States. Douglas

Penny, a Deere field manager, recently spoke to a Deere dealer in St. Louis who confirmed

with Respondent Fitzpatrick Farms that it had imported and sold at least 20-30 European

Version forage harvesters and 3-5 European Version telehandlers. See Exhibit 36.

127. Respondent J&T Farms imports European Version forage harvesters and sells

them to customers within the United States. A bill of lading for a July 2002 shipment

containing two John Deere forage harvesters is attached as Exhibit 28. The bill lists Agrideal

as the shipper and Respondent J&T Farm as the consignee and states that the shipment left

from the port of Bremerhaven, Germany and was scheduled to arrive in Baltimore, Maryland

on July 8, 2002. The two listed forage harvesters are both European Version machines.

Respondent Lancaster Silo Company, Inc. sells European Version forage 128.

harvesters to customers within the United States. Respondent Lancaster Silo Company, Inc.

has advertised European Version forage harvesters for sale in the United States. See Exhibit

37.

129. Respondent OK Enterprises purchases used European Version forage harvesters

and sells them to customers within the United States. OK Enterprises lists its available

agricultural equipment on the web site agdealer.com. A printout of a recent listing is attached

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as Exhibit 38. These listings are for forage harvesters currently held by OK Enterprises at its

location in Minnesota. Upon information and belief, several of the listed forage harvesters are

European Version models.

130. Respondent Stanley Farms imports new and used European Version forage

harvesters and European Version telehandlers from Europe and sells them to customers within

the United States. Respondent Stanley Farms has advertised European Version forage

harvesters for sale in the United States. See Exhibit 39. Kory Taylor, a Deere dealer in

Kansas, spoke to a representative of Stanley Farms on June 26, 2002, who admitted that

Stanley Farms imported European Version forage harvesters from Europe and sold them within

the United States. See Exhibit 40. Stanley Farms then faxed Mr. Taylor price quotes of

$197,550 for a new 2002 model year European Version forage harvester model 6850 and

$183,350 for a used 2001 model year European Version forage harvester model 6950. See

Exhibits 41 and 42. Respondent Stanley Farms has also advertised European Version

telehandlers for sale in the United States. See Exhibit 43.

Respondent Sunova Implement Co. purchases European Version forage 13 1.

harvesters from European exporters and exports them to the United States. Tim Meister,

Division Marketing Manager for Deere’s Forage division, recently spoke to the owner of

Sunova Implement who stated that Sunova Implement currently had four European Version

forage harvesters in stock with two more on the way from Europe. He also stated that Sunova

Implement had sold European Version forage harvesters to persons within the United States,

primarily in Michigan.

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3.

The European Version forage harvesters and European Version telehandlers are

Material DifSerences - Forage Harvesters

132.

designed to meet the working conditions of European farms and the regulations issued by

European governments. The U. S. Version forage harvesters and U.S. Version telehandlers are

designed to meet the working conditions of American farms and the requirements of United

States government regulations. The working conditions on European farms vary from those on

American farms, and the government regulations pertaining to farm equipment vary

significantly between the United States and the various European countries.

133. The European Version forage harvesters are materially different from the U.S.

Version forage harvesters. The following are examples of material differences between the

European Version forage harvesters and the U.S. Version forage harvesters:

A. The U.S. version forage harvesters have certain safety features, required

by OSHA regulations, that are not present in the European Version

forage harvesters. For example, the U.S. Version forage harvesters

have a seat switch whereby the front end equipment will automatically

shut down if the operator leaves the seat for more than five minutes.

The European Version forage harvesters do not have this safety feature.

The pollution control systems of the engines used in the European

Version forage harvesters are different or non-existent as compared to

the engines used in the U.S. Version forage harvesters. The pollution

control systems on the engines used in the U.S. Version forage

B.

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harvesters are built to comply with EPA regulations and are EPA-

certified.

Seat belts are required in the U.S. Version forage harvesters. However,

seat belts are an option on the European Version forage harvesters and

are not present on many of the European Version forage harvesters being

imported and sold in the U.S.

The European Version forage harvesters have headlights, warning lights

and reflectors that are arranged differently than those on the U.S. version

forage harvesters. The lights and reflectors on the U.S. Version forage

harvesters are homologated to the standards of the American Society of

Agricultural Engineers (ASAE), while the lights and reflectors on the

European Version harvesters do not comply with ASAE standards.

Some parts for the European Version forage harvesters are not stocked

by Deere’s U.S. authorized dealers because they are not used on the

U.S. version forage harvesters.

Rotary beacons are required on the European Version forage harvesters,

but are not included on the U.S. Version forage harvesters. Some states

prohibit such beacons.

The operators manuals for the respective versions are different. The

operators manuals for the U.S. Version forage harvesters are in English.

The operators manuals for the European Version forage harvesters are

C.

D.

E.

F.

G.

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available in a number of languages, including French, German, and

Dutch, depending on the country of purchase. The operators manuals

also reflect the different operational and structural features of the U.S.

Version and European Version forage harvesters.

The U.S. Version forage harvester has a Slow Moving Vehicle (SMV)

sign which complies with U.S. transportation regulations. This sign, in

the form of a familiar orange triangle, warns motorists of a slow moving

vehicle on the road. The European version forage harvester does not

have the U.S. SMV sign. The European version harvester has a sign

which serves the same purpose in Europe, but this sign, which consists

of a square with red and white diagonal lines, is meaningless to the vast

majority of American motorists.

European Version forage harvesters may have weaker structural

components than corresponding components in the U. S. Version forage

harvester.

Purchasers of the European Version forage harvester are not enrolled in

Deere’s SIS system. These purchasers will not receive notices of safety

issues, recalls or product improvement programs that are made available

to purchasers of the U.S. Version forage harvesters, unless a Deere

dealer specifically asks Deere to add the European Version forage

harvester to the SIS system.

H.

I.

J.

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K. The European Version forage harvester is available with a 48 knife cutter

head or a 56 knife cutter head. The 56 knife cutter head is the

predominant head in Europe but is not available on the U.S. version

forage harvester.

The U.S. Version forage harvester is available with a 40 knife cutter

head or a 48 knife cutter head. The 40 knife cutter head is the

predominant head in the United States but is not available on the

European Version forage harvester.

4. Material DifSerences - Telehandlers

The European Version telehandlers are materially different from the U.S.

L.

134.

Version telehandlers authorized for sale in the United States. The following are examples of

differences between the European Version telehandlers and the U.S. Version telehandlers:

A. The safety decals on the U.S. Version telehandlers include text, while

the safety decals on the European Version telehandlers include only

pictograms.

The safety decals on the U.S. Version telehandlers include additional

warnings and messages not present on the safety decals on the European

Version telehandlers.

The functionality of the warning, stop, and blinker lights is different on

the European Version telehandlers. For example, the European Version

telehandlers have “automotive style” blinker lights which stay dark until

B.

C.

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D.

E.

F.

the telehandler is about to turn, and then blink on the side to which the

vehicle is turning. However, the U. S. Version telehandlers have blinker

lights which blink continuously until the telehandler is about to turn, and

then go dark on the side to which the vehicle is turning.

There are options available on the European Version telehandlers, such

as competitive attachment carriers and trailer brakes, that are not

available on the U. S . Version telehandlers .

The operators manuals for the respective versions are different. The

operators manuals for the U.S. Version telehandlers are in English. The

operators manuals for the European Version telehandlers are available in

a number of languages, including French, German, and Dutch,

depending on the country of purchase. The operators manuals also

reflect the different operational and structural features of the U. S.

Version and European Version telehandlers.

The U.S. Version telehandler has a Slow Moving Vehicle (SMV) sign

which complies with U. S. transportation regulations. This sign, in the

form of a familiar orange triangle, warns motorists of a slow moving

vehicle on the road. The European Version telehandler does not have

the U.S. SMV sign. The European version telehandler has a sign which

serves the same purpose in Europe, but this sign, which consists of a

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square with red and white diagonal lines, is meaningless to the vast

majority of American motorists.

Purchasers of the European Version forage harvester are not enrolled in

Deere’s SIS system. These purchasers will not receive notices of safety

issues, recalls or product improvement programs that are made available

to purchasers of the U.S. Version forage harvesters, unless a Deere

dealer specifically asks Deere to add the European Version forage

harvester to the SIS system.

The European Version telehandlers include a Load Moment Indicator

(LMI), which indicates the amount of weight on the front axle of the

vehicle. This feature is not included on the U.S. Version telehandlers.

The U.S. Version telehandlers have load charts that indicate the

maximum extension for a range of boom angles, depending on the load

that is applied. This feature is not included on the Euroepan Version

telehandlers .

G.

H.

I .

135. Consumers are likely to believe that the European Version forage harvesters and

European Version telehandlers are approved and authorized by Deere for domestic sale, and

that they are identical to, carry the same safety features as, include all options as, are subject to

the same quality assurances as, and include the same manuals as the U.S. Version forage

harvesters and U.S. Version telehandlers authorized for sale in the United States. Consumers

are also likely to believe that the European Version forage harvesters and European Version

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telehandlers can be serviced by U.S. dealers. However, due to differences in warranty

coverage and parts availability, this is often not the case.

136. Under the law, a presumption of actual confusion arises from the material

differences between the U. S. Version forage harvesters and telehandlers and the European

Version forage harvesters and telehandlers.

137. The activities of the Respondents recited in paragraphs 115 to 13 1 above thus

infringe Deere’s registered trademarks in violation of 15 U.S.C. §1114(1).

138. Upon information and belief, the European Version forage harvesters and

European Version telehandlers are being imported into the United States under harmonized

tariff schedule number 8701.30.10.

B . Agricultural T ractors

1.

Respondent Jiangsu Yueda Co. Ltd. (“Jiangsu”) manufactures agricultural

Specific Acts of Unfair Competition by Respondents

139.

tractors in China and exports them to the United States. According to Jiangsu’s web site,

these tractors are made by Yancheng Tractors Plant, a wholly owned subsidiary of Jiangsu

Yueda Co. Ltd.

Exhibit 44. Jiangsu exports its tractors to over 40 countries, including the United States. See

Exhibit 45. Some of the tractors exported by Jiangsu to the United States have green bodies

and yellow wheels. A partial list of U.S. dealers and importers is attached as Exhibit 46.

140.

Jiangsu makes several brands of tractors, including JINMA tractors. See

Respondent Dongfeng Agricultural Machinery Group (“Dongfeng”)

manufactures agricultural tractors in China and exports them to the United States. Dongfeng is

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identified on the web page “Chinese Tractor 101” as a company that exports tractors to the

United States. See Exhibit 47. Upon information and belief, some of the tractors exported

to the United States have green bodies, yellow wheels, and/or yellow striping.

14 1. Respondent Jiangling Motor Corporation Limited (“Jiangling ”) manufactures

agricultural tractors in China and exports them to the United States under the brand name

LENAR. Jiangling Motor Corporation Limited is primarily involved in automotive

manufacturing. However, in 2000 Jiangling became involved in the tractor business and in

2002 it began exporting tractors to the United States. See Exhibit 48. Upon information and

belief, the tractors exported by Jiangling to the United States have green bodies and yellow

wheels. Some of the tractors also have yellow striping.

142. Respondent Agracat, Inc. sells tractors imported from Jiangsu Yueda Co. Ltd.

These tractors have a green body and yellow wheels and are sold under the brand name

AGRACAT. Some of the tractors have a yellow stripe or marking along the side of the hood.

An independent investigator commissioned by Deere spoke to an Agracat customer service

representative who stated that all of Agracat’s tractors are imported from China and are green

and yellow. See Exhibit 49. Pictures of tractors advertised for sale by Agracat, Inc. on its

web site are attached as Exhibit 50. Respondent Agracat, Inc. also distributes its green and

yellow AGRACAT tractors to a network of over 60 independent dealers throughout the United

States. The dealers then sell these tractors directly to consumers. Deere has not named

Agracat’s dealers as respondents in this action, but may seek to amend the Complaint to list the

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individual dealers as respondents as the extent of their involvement becomes known during this

proceeding.

143. Deere’s attorney notified Agracat that its importation and sales of tractors

bearing Deere’s green and yellow trademarks infringed Deere’s trademark rights. See Exhibit

51. Agracat responded through its attorney, stating that it would not comply with Deere’s

requests. See Exhibit 52. Although the parties have exchanged additional correspondence,

Agracat has continued to refuse to stop selling tractors that infringe Deere’s green and yellow

trademark rights.

144. Respondent China America Imports imports tractors from Dongfeng

Agricultural Machinery Group and sells them to customers within the United States. These

tractors have a green body and yellow wheels and are sold under the name CHANGZHOU

AVENGER or AVENGER. A picture of an AVENGER tractor advertised for sale by China

America Imports on its web site is attached as Exhibit 53. China America Imports states on

its web site that these tractors are manufactured in China by Dongfeng. See Exhibit 54.

145. Respondent Crossroads Technologies, International sells tractors imported from

Jiangsu Yueda Co. Ltd. These tractors have a green body and yellow wheels and are sold

under the name EMERYBUILT. Crossroads Technologies, International is named on an

Internet listing of dealers selling Jinma tractors imported from China. See Exhibit 46. An

investigator commissioned by Deere spoke to Gary Keffer, one of the owners of Crossroads

Technologies, in July 2002. Mr. Keffer stated that the EMERYBUILT tractors are Jinma

tractors imported from China and are available in various color combinations, including green

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and yellow. See Exhibit 55. A picture of a tractor advertised for sale by Crossroads

Technologies, International on its web site is attached as Exhibit 56.

146. Respondent Bolton Power Equipment sells tractors imported from Jiangsu

Yueda Co. Ltd. These tractors have a green body and yellow wheels and are sold under the

name AG-BOSS. Bolton Power Equipment is named on an Internet listing of dealers selling

Jinma tractors imported from China. See Exhibit 46. An investigator commissioned by

Deere spoke to Graham Slieker, the owner of Bolton Power Equipment, in July 2002. Mr.

Slieker stated that his company imported and sold Jinma tractors under the name AG-BOSS.

See Exhibit 55. A picture of a tractor advertised for sale by Bolton Power Equipment on its

web site is attached as Exhibit 57.

147. Respondent Lenar Equipment LLC sells tractors imported from Jiangling Motor

Corporation Limited. These tractors have green bodies, yellow wheels, and yellow striping,

and are sold under the name LENAR. Respondent Lenar Equipment LLC also distributes its

tractors to other dealers within the United States, who in turn sell them to consumers. A

picture and specifications of a Lenar tractor is attached as Exhibit 58. This document states

that the tractor is manufactured by Jiangling.

148. Respondent Dale Iljen Enterprises sells tractors imported from Jiangling Motors

Corporation Limited. These tractors have green bodies, yellow wheels, and yellow striping.

A picture of tractors advertised for sale by Dale Iljen Enterprises on its web site is attached as

Exhibit 59. Dale Iljen Enterprises is identified on the web site “www.1enartractor.com” as a

dealer of the green and yellow Lenar tractors. See Exhibit 60.

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149. Respondent Pacific Avenue Equipment imports tractors manufactured by

Jiangling Motors Corporation Limited and distributes these tractors within the United States.

These tractors have green bodies, yellow wheels, and yellow striping. Pacific Avenue

Equipment is identified on the web site “www.lenartractor.com” as a U.S. distributor of Lenar

tractors. See Exhibit 60.

150. Respondent SamTrac Tractor and Equipment sells tractors imported from

Jiangsu Yueda Co. Ltd. These tractors have a green body and yellow wheels and are marketed

under the name SAMTRAC. SamTrac Tractor and Equipment is named on an Internet listing

of dealers selling Jinma tractors imported from China. See Exhibit 46. A picture of a tractor

advertised for sale by SamTrac Tractor and Equipment on its web site is attached as Exhibit

61.

15 1. Respondent Task Master Equipment sells tractors imported from Dongfeng

Agricultural Machinery Group. These tractors have a green body and yellow wheels and are

sold under the name AVENGER. A picture of an AVENGER tractor advertised for sale by

Task Master Equipment LLC on its web site is attached as Exhibit 62. Task Master

Equipment states on its web site that these tractors are manufactured in China by Dongfeng.

See Exhibit 63.

152. Respondent Task Master Equipment also sells tractors imported from Jiangling.

These tractors have a green body, yellow wheels, and yellow striping across the hood and are

sold under the name TERRA CYCLONE. A picture of a TERRA CYCLONE tractor

advertised for sale by Task Master Equipment LLC on its web site is attached as Exhibit 64.

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153. Respondent Workhorse Tractors sells tractors imported from Jiangsu Yueda

Co. Ltd. These tractors have a green body and yellow wheels and are sold under the name

WORK HORSE. Workhorse Tractors is named on an Internet listing of dealers of Jinma

tractors imported from China. See Exhibit 46. A picture of tractors advertised for sale on

Workhorse Tractors’ web site is attached as Exhibit 65.

154. The importation and/or sale of the green and yellow China tractors is done

without authorization, license, or permission of Deere.

155. Upon information and belief, Jiangsu, Dongfeng, and Jiangling have

deliberately copied the famous color combination of Deere’s products, and Deere’s green and

yellow trademarks, with the intent to trade on Deere’s reputation and goodwill.

156. The color combinations of Jiangsu’s, Dongfeng’s, and Jiangling’s tractors are

identical to Deere’s tractors or are so similar as to be likely to cause confusion or mislead

consumers as to the source, affiliation, or sponsorship of Jiangsu’s, Dongfeng’s and Jiangling’s

tractors.

157. The size, configuration, horsepower, and functions of the agricultural tractors

manufactured by Jiangsu, Dongfeng, and Jiangling are closely comparable to certain models of

Deere’ s agricultural tractors and the products are directly competitive.

158. Consumers of agricultural tractors are likely to be confused by the agricultural

tractors manufactured by Jiangsu, Dongfeng, and Jiangling and to believe that they originate

from the same source as Deere’s agricultural tractors, because of their use of green and yellow

on the tractors.

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159. The activities of Respondents recited in paragraphs 139 to 153 above infringe

Deere’s green and yellow trademarks in violation of 15 U.S.C. §1114(1).

160. Deere’s green and yellow trademarks are famous, and have been famous since

prior to the Respondents’ adoption of the green and yellow colors.

161. The activities of the Respondents involved in the export, import, and sale of

China tractors having a green and yellow color combination are likely to blur the distinctive

quality of Deere’s green and yellow trademarks and to weaken the ability of Deere’s green and

yellow trademarks to identify Deere’s goods.

162. The activities of the Respondents involved in the export, import, and sale of

China tractors having a green and yellow color combination are likely to tarnish Deere’s green

and yellow trademarks because of the inferior quality of the China tractors.

163. The activities of Respondents described in paragraphs 139 to 153 above

therefore have caused, and are likely to cause, dilution of Deere’s green and yellow trademarks

in violation of 15 U.S.C. §1125(c).

164. Upon information and belief, the China tractors are imported into the United

States under harmonized tariff schedule number 8701.30.10.

VIII. INJURY TO DOMEST IC INDUSTRY

165. As set forth above in Section V, Deere’s operations and facilities in the United

States constitute an “industry” within the meaning of 19 U.S.C. §1337(a)(l)(A)(i).

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166. The domestic industry described by Deere has suffered damage and continues to

suffer damage as a result of the unfair acts committed by the Respondents involved in the

manufacture and export of China tractors and the import and sale within the United States of

China tractors bearing Deere’s green and yellow trademarks. ’ 167. Since long prior to the acts of Respondents complained of herein, Deere has

developed a substantial amount of goodwill for agricultural products bearing Deere’s green and

yellow trademarks. Deere’s agricultural products are recognized nationwide as superior

products of exceptionally high quality.

168. The China tractors imported and sold by Respondents are of substantially lower

quality than Deere’s agricultural tractors.

169. The China tractors imported and sold by Respondents are priced significantly

lower than Deere’s agricultural tractors. For example, one Respondent advertises a 30

horsepower green and yellow tractor for $7000. The retail price for a comparable Deere

agricultural tractor, the 32 horsepower 790 model, is over $12,000.

170. Some purchasers of the green and yellow China tractors that have been

unlawfully imported and/or sold after importation into the United States are likely to

mistakenly believe that they are purchasing John Deere tractors or tractors equivalent to those

sold by Deere and its authorized dealers. Other consumers are likely to believe that these

tractors are part of a separate, lower-priced line produced by Deere or at the very least

’ Since Deere is only alleging dilution against the Respondents that are involved in the import and sale of the China tractors, Deere has not alleged that the acts of the Respondents involved in the importation and sale of the European Version forage harvesters and European Version telehandlers have caused injury to the domestic industry.

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authorized, sponsored, or licensed by Deere. The sales of the China tractors under these

circumstances are sales which otherwise would have gone to Deere.

171. Deere has also suffered injury due to the initial interest confusion created by

Respondents’ unfair acts. Even if potential consumers realize that the China tractors are not

Deere tractors, the green and yellow color combination on the China tractors is likely to create

an initial interest in the China tractors which consumers would otherwise ignore. Consumers

may then decide to purchase the China tractors instead of the Deere tractors, since the China

tractors are significantly lower-priced than the Deere tractors. The China tractors thus create

an initial interest or “get a foot in the door” by virtue of the similarity of the China tractors to

Deere tractors. The sales of China tractors to these consumers are also sales which otherwise

would have gone to Deere.

172. Because of the vastly lower costs of production in China, Respondents are able

to offer the China tractors at substantially lower prices than Deere sells its agricultural tractors.

173. The precise volume of sales of China tractors is currently unknown to Deere.

However, the current sales are enough to cause significant injury. An article in the March 4,

2002 edition of the Northwest Arkansas Business Journal stated that Respondent Agracat, Inc.

sold over 600 tractors and had over $5 million in sales in 2001. See Exhibit 66. This

represents over $5 million of lost business to Deere due to the activities of just one importer

and distributor of China tractors in just one year. The article also quoted Agracat’s general

manager as stating that the company expected to sell over 1,000 tractors in 2002.

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174. Most of the China tractors currently imported and sold by Respondents are

compact tractors in the 25 to 35 horsepower range. However, Respondent Agracat, Inc. is

currently planning to import more powerful tractors from China, and other Respondents are

likely to do the same. An article published in the Arkansas Democrat Gazette on February 4,

2001 discussed Agracat's plans to import 65 and 80 horsepower tractor models. See Exhibit

67. The importation and sale of these powerful tractors bearing Deere's green and yellow

trademarks creates a significant threat of future injury to Deere, since these tractors are far

more expensive than compact tractors and sales of these tractors will further detract from the

sales of Deere's comparably sized agricultural tractors.

175. As a result of Respondents' unfair methods of competition and unfair acts

relating to the China tractors, Deere has lost a substantial amount of sales, potential sales,

revenues, and profits.

176. Deere's green and yellow trademarks are a business asset of immense value.

Respondents importation and sale of inferior green and yellow agricultural tractors, if

continued, will dilute the value of Deere's green and yellow trademarks by weakening the

ability of these trademarks to identify Deere's products. Instead of associating Deere's green

and yellow trademarks exclusively with Deere, consumers are likely to associate these color

marks with the importers and sellers of the China tractors. Furthermore, Deere has a

reputation as a seller of superior quality products. This reputation will inevitably be tarnished,

as will Deere's green and yellow trademarks, by the association of the green and yellow

trademarks with the poor quality tractors imported and sold by Respondents.

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177. The acts of Respondents therefore have caused injury to the domestic industry

and create a threat of future injury to the domestic industry.

IX. ATED LITIGATION

178. Deere & Co. brought an unfair competition claim against Farmhand, Inc. on

November 2, 1979 in the Southern District of Iowa seeking to enjoin Farmhand from selling

front-end loaders that were painted “John Deere Green.” However, this case did not involve

Deere’s green and yellow trademarks or Deere’s green and yellow color combination. The

court dismissed Deere’s claims on June 30, 1982, finding that the John Deere Green color

standing alone was aesthetically functional. This decision was affirmed by the United States

Court of Appeals for the Eighth Circuit. 721 F.2d 253 (8th Cir. 1983)

179. When Deere sought to register its green and yellow trademarks in 1988, the

Patent and Trademark Office examining attorney initially refused registration of two of Deere’s

green and yellow trademarks on the grounds that the marks were aesthetically functional.

Deere appealed the examining attorney’s refusals of registration to the Trademark Trial and

Appeal Board (“TTAB”). On March 18, 1988, the TTAB issued its decision in In re Deere &

Co. The TTAB reversed the examining attorney’s decision, finding that aesthetic functionality

is not a valid legal theory recognized by the Federal Circuit. The TTAB also held that in any

event, Deere’s green and yellow trademarks were not aesthetically functional. A copy of the

TTAB’s decision is attached as Exhibit 68.

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180. On November 4, 1988, Deere filed a civil action in the Northern District of

Ohio against Unverferth Manufacturing Co. alleging infringement of Deere’ s registered green

and yellow trademarks on grain carts produced by Unverferth. On September 24, 1990, after

a jury trial, the court entered judgment against the defendant and permanently enjoined

Unverferth from “making or selling agricultural equipment bearing any of defendant’s

trademarks or trade dress comprising a green color with yellow trim. ” The court also ordered

Unverferth to pay Deere $237,913.77 in damages. A copy of the court’s order in the

Unverferth case is attached as Exhibit 69.

18 1. In 1993, Deere threatened legal action against Aktiebolaget Electrolux

(“Electrolux”), which was manufacturing and selling green and yellow WEED EATER lawn

tractors that infringed Deere’s trademarks. Electrolux responded by filing a Petition for

Cancellation of Deere’s green and yellow trademarks on August 30, 1993, alleging that the

trademarks lacked distinctiveness and had been abandoned. Aktiebolaget Electrolux v. Deere

& Company (Cancellation No. 22,144). On October 19, 1995, the Trademark Trial and

Appeal Board granted Deere’s motion for summary judgment with respect to U.S. Registration

No. 1,254,339, finding that Deere had not abandoned its mark and that Electrolux’s other

claims were untimely. A copy of the TTAB’s decision is attached as Exhibit 70. The parties

eventually settled the claims against Deere’s other registrations.

182. In 1994, Deere sued MTD Products, Inc. in the Southern District of New York

for infringement, dilution, and unfair competition regarding a television commercial that used

a modified version of Deere’s Leaping Deer Trademark. The district court ruled in Deere’s

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favor on its dilution claim and granted an injunction against the defendant. The decision was

affirmed by the U.S. Court of Appeals for the Second Circuit. 41 F.3d 39 (2nd Cir. 1994).

183. On August 10, 2000, Deere filed a civil action in the Southern District of New

York (No. 00 CIV 5936) against MTD Products, Inc. (“MTD”). Deere alleged infringement

and dilution of its green and yellow trademarks and trade dress based on MTD’s use of a green

and yellow trade dress on its YARD MAN line of lawn and garden equipment. The case is

currently in the discovery phase and has not yet been scheduled for trial.

X. QUEST FOR RELIEF

184. Therefore, Deere prays that the International Trade Commission:

A. Institute an investigation pursuant to 19 U.S.C. §1337(b), into unfair

methods of competition and unfair acts arising in connection with the

importation into the United States, sale for importation and the sale

within the United States after importation by the owner, importer, or

consignee of (1) forage harvesters and telehandlers that infringe Deere’s

registered trademarks; and (2) agricultural tractors that infringe Deere’s

registered trademarks and dilute Deere’s registered trademarks;

After full investigation, make a determination that there is a violation of

19 U.S.C. $1337, and issue a general exclusion order excluding from

entry into the United States, and sale within the United States after

importation, of (1) forage harvesters and telehandlers that infringe

B.

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Deere’s registered trademarks; and (2) agricultural tractors that infringe

and dilute Deere’s registered trademarks;

Issue cease and desist orders pursuant to 19 U.S.C. §1337(f) prohibiting

further sales of forage harvesters, telehandlers, and agricultural tractors

that violate the rights of Deere recited above; and

Grant such other or further relief as the Commission deems appropriate

and just under the law.

C.

D.


Date: January 8, 2003 Robert S. Swecker Bassam N. Ibrahim S. Lloyd Smith Bryce J. Maynard BURNS, DOANE, SWECKER & MATHIS, LLP 1737 King Street, Suite 500 Alexandria, Virginia 223 14-2727

703-836-202 1 (fax) 703 -836-6620

Attorneys For Complainant Deere & Company

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VERIFICATION OF COMPLAINT

I, Timothy 0. Meister, declare in accordance with 19 C.F.R. 55210.4, under penalty

of perjury, that the following statements are true:

1 . I am Division Marketing Manager for the Forage Division of John Deere

Ottumwa Works of Complainant Deere & Company, and am duly authorized to sign this

Complaint on behalf of Complainant;

2.

3.

I have read the foregoing Complaint;

To the best of my knowledge, information, and belief, based upon reasonable

inquiry, the foregoing Complaint is well-founded in fact and is warranted by existing law or

by a non-frivolous argument for the extension, modification, or reversal of existing law or the

establishment of new law; and

4. The foregoing Complaint is not being filed for an improper purpose, such as to

harass or to cause unnecessary delay or needlessly increase the cost of litigation.

A

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