904 F.2d 44
12 ITRD 1272
Unpublished DispositionNOTICE: Federal Circuit Local Rule 47.8(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent.  This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.MAKITA U.S.A., INC., Makita Corporation of America, Appellant,v.U.S. INTERNATIONAL TRADE COMMISSION, Appellee,Tochiado Industry Co., Ltd.,andJepson, Inc. and Ko Shin Electric & Machinery Co., Ltd., Intervenors.
No. 89-1709.
United States Court of Appeals, Federal Circuit.
May 1, 1990.

Before NIES, Circuit Judge, COWEN, Senior Circuit Judge, and ADRIAN G. DUPLANTIER,* District Judge.
DECISION
COWEN, Senior Circuit Judge.


1
Makita U.S.A., Inc. and Makita Corporation of America (Makita) appeal the decision of the United States International Trade Commission (ITC), In re Certain Electric Power Tools, Battery Cartridges and Battery Chargers, Inv. No. 337-TA-284, 54 Fed.Reg. 31896 (notice issued July 31, 1989).


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


3
We affirm on the basis of the opinion of the ITC.



*
 The Honorable Adrian G. Duplantier, United States District Court for the Eastern District of Louisiana, sitting by designation pursuant to 28 U.S.C. Sec. 293(a)


**
 The Commission did find a violation of Section 337(a)(1)(C) by Jet Equipment & Tools, Inc., based on the depiction of Makita's Registered Trademark No. 1,204,296, in connection with the importation and sale of certain accused items.  However, that finding is not presently before the court


