The U.S. International Trade Commission (ITC) offers broad injunctive relief against imports that violate patents, trademarks and copyrights. Unlike injunctions in district courts, which are against specific parties, ITC in rem “exclusion orders” can exclude infringing imports from any and all sources.

ITC cases have one requirement that cases in federal court don’t–at the ITC, the rights owner must establish a “domestic industry” by proving either a) significant investment in plant and equipment; b) significant employment of labor or capital; or c) substantial investment in its exploitation, including engineering, research and development, or licensing.

Historically, sales, marketing, warehousing, quality control, and distribution activities did not count towards meeting the ITC’s “domestic industry requirement.” That has now changed.

In a recent decision reversing the ITC, the Federal Circuit ruled that when it comes to proving a domestic industry “[T]here is no exclusion… for sales, marketing, warehousing, quality control, or distribution, which are common aspects of providing goods or services.”

The ruling is a significant development in ITC practice. It means that trademark owners should now be able to more easily satisfy the “domestic industry” requirement at the ITC based on common non-manufacturing activities in the U.S., potentially opening the door to another venue besides federal court for enforcing U.S. trademarks against infringing imports.

The case is LASHIFY, INC. v. INTERNATIONAL TRADE COMMISSION. Case:23-1245 03/05/2025