This section contains the nature of the case and procedural background.

P is a Japanese company and the owner of the registered United States trademark 'Kubota.' P manufactures and sells agricultural equipment. Many of its end products are custom made and designed for sale in only one country. Kubota-US has the sole rights to sell P tractors that are custom made for the US marketplace. These tractors are substantially different than the P tractors that are sold in Japan. Some of the United States tractors are specially constructed for lifting and transporting earth and rocks, and to function with rear cutters that contain heavy blades capable of cutting rough undergrowth; these models do not have a direct Japanese counterpart. The tractor models intended for sale and use in the United States bear English-language controls and warnings, and have English-language dealers and users manuals. D imports used P tractors from Japan and resold them in the United States. P sued D before the ITC to exclude D’s importation as P claimed it infringed its trademark rights. D was charged with violation of '337 of the Tariff Act of 1930, 19 U.S.C. '1337, which provides for exclusion of product bearing infringing marks and other remedies, based on asserted infringement of the United States trademark 'Kubota.' The ITC issued a General Exclusion Order against importation of used Japanese tractors bearing the 'Kubota' trademark, and Cease and Desist Orders against sale of such tractors that had already been imported into the United States. D appealed.

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