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On October 30, 2017, Excel Dryer, Inc. notched a complete victory at the U.S. International Trade Commission (ITC) in an action to prevent the importation of knockoffs of Excel’s revolutionary XLERATOR hand dryer.
Excel is a family owned and operated American company that developed and manufactures the American-made product—the XLERATOR hand dryer—from its production facility near Springfield, Massachusetts. Excel revolutionized the hand dryer industry and created the high-speed, energy-efficient hand dryer category with the introduction of the XLERATOR hand dryer with its distinctive housing that consumers associate with Excel and its high-quality hand dryers.
Due to the immense success of Excel’s revolutionary product, many imitators flooded the marketplace with cheap, low-quality knockoff dryers seeking to free-ride on Excel’s success by appropriating Excel’s distinctive trade dress embodied in the dryer’s housing. Excel filed a complaint for trade dress infringement in the ITC on June 24, 2016, against twelve respondents, including manufacturers, importers and distributors of hand dryers and housings for hand dryers, alleging infringement of Excel’s trade dress, and seeking to obtain an exclusion order barring all imports of infringing hand dryers.
Recognizing the strength of Excel’s claims, six respondents entered into consent order stipulations shortly after the ITC instituted the Investigation. After evaluating the substantial evidence submitted by Excel, the Commission agreed that Excel’s trade dress is valid, protectable, and infringed. To remedy these unfair acts, the Commission issued a general exclusion order (GEO) blocking importation of all infringing products, as well as several cease and desist orders preventing certain named respondents from selling infringing products that have already been imported in the U.S. The ITC stated that it issued the GEO because Excel demonstrated there was a pattern of infringing product being imported into the U.S., and Excel also showed the difficulty of identifying sources of these infringing products. The ITC has informed the U.S. Customs and Border Protection (CBP) of its orders prohibiting the importation of hand dryers and housings for hand dryers covered by the Excel trade dress.
The issuance of the general exclusion order and cease and desist orders marks a successful conclusion of the Investigation for Excel. The result ensures that Excel will maintain its strong market position, and consumers will benefit from Excel’s high-quality hand dryer products. Excel respects the intellectual property of others and expects these entities to do the same. Excel remains committed to pursuing legal enforcement against those who do not respect Excel’s intellectual property. Excel has worked hard to create award winning designs that consumers can differentiate from the products of other companies. Although imitation may be seen as the highest form of flattery, Excel will continue its efforts to prevent the copying of Excel products by free-riding imitators.
Calvin Nelson and Andrew Pratt with Venable LLP represented Excel Dryer, Inc. Patrick O'Shea with O'Shea Getz P.C. served as co-counsel.