Parallel Importation in U.S. Trademark Law

By Timothy H. Hiebert | Go to book overview

Apart from reaffirming the importance of consumers' perceptions in trademark law, the Court's opinion actually did very little to cut through the conceptual fog surrounding parallel importation. By leaving the relationship between trademark ownership and public understanding largely unexplored, Holmes had left little guidance for a large number of cases to come, in which public understanding might not correspond to the realities of trademark ownership and control or in which the separation between foreign manufacturer and domestic assignee might be less distinct than it had been in Bourjois.


NOTES
1.
Florence Mfg. Co. v. J.C. Dowd & Co., 78 F. 73, 75 (2d Cir. 1910) (emphasis added), quoted with approval in Gulden v. Chance, 182 F. 303, 318 (3rd Cir. 1910); Atlas Mfg. Co. v. Street 204 F. 398, 405 (8th Cir.), appeal dismissed, 231 U.S.348, cert. denied, 231 U.S.755 ( 1913) and 232 U.S.724 ( 1914); J.N. Collins Co. v. F.M. Paist Co., 14 F.2d 614, 615-16 (E.D. Pa. 1926); American Chain Co. v. Carr Chain Works, Inc., 141 Misc. 303, 309 (N.Y. Sup. Ct. 1931); H.A. Metz Laboratories, Inc. v. Blackman, 153 Misc. 171, 179 (N.Y. Sup. Ct. 1934). But this moralistic approach did not long survive the advent of legal realism, and by 1946 it was considered the "well-established role of law" that the basic purpose of trademark protection was "two-fold," to protect "both the public and the trade-mark owner." S. Rep. No. 1333, 79th Cong., 2d Sess. 3 ( 1946) (report on the Lanham Act). See also A.E. Staley Mfg. Co. v. Staley Milling Co., 253 F.2d 269, 275 (7th Cir. 1958) ("Our alertness to the social values in and functions of trademarks flows from and parallels the dual purposes of the trademark statute.").
2.
Apollinaris Co. v. Scherer, 27 F. 18, 21-22 (C.C.S.D.N.Y. 1886). Cf. W. BROWNE, TREATISE ON THE LAW OF TRADE-MARKS AND ANALOGOUS SUBJECTS at 41 ("it is the moral, if not the legal, duty of a court to protect the public against fraud").
3.
238 F. at 781.
4.
274 F. 856 (S.D.N.Y. 1920), rev'd, 275 F. 539 (2d Cir. 1921), rev'd, 260 U.S.689 ( 1923).
5.
275 F. at 539.
6.
274 F. at 857.
7.
See Affidavit of Leon J. Katzel, in Transcript of Record at 19, A. Bourjois & Co. v. Katzel, 260 U.S.689 ( 1923) (describing husband's purchasing trips to Paris).
8.
274 F. at 860.
9.
The observation that courts discern certain dualistic structures in the law seems to explain how courts resolve perceived ambiguities and uncertainties in legal doctrine. By deliberately binding together the otherwise divergent public and private aspects of a particular role, for example, a court take comfort in the idea that protecting individuals (trademark owners, for instance) need not compromise the interests of society in general (consumers, for instance). By the same token, a court may wish to alleviate any perceived discrepancy between a legal role and the factual "reality" of a situation. For example, a trademark assignment between two corporate entities might be "legally" effective to transfer ownership, but might really be designed to accomplish no more than shift assets around within a single international enterprise, as a matter of fact. By establishing that the corporate entities are both "legally" and "factually" distinct, the court avoids the intellectual discomfort of such a discrepancy.

Figure 1 (based roughly on Duncan Kennedy approach in his Structure of Blackstone's Commentaries, 28 BUFF. L. REV. 209 [ 1979]) represents the dualistic thought implicit in the Bourjois court's approach:

-56-

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Parallel Importation in U.S. Trademark Law
Table of contents

Table of contents

  • Title Page iii
  • Contents v
  • Preface vii
  • Notes ix
  • Chapter One - Parallel Importation and the Early History of Trademark Protection 1
  • Notes 13
  • Chapter Two - the Rise of Universality A. a Twofold Purpose 21
  • Chapter Three - Foundations of Modern Parallel Importation Law 43
  • Notes 56
  • Chapter Four - Related Companies Under Section 526 63
  • Notes 79
  • Chapter Five - Public Understanding and Private Expectations in the 1980s 85
  • Notes 98
  • Chapter Six - Evolving Conceptions of Territoriality and Goodwill 103
  • Notes 122
  • Chapter Seven - Territoriality Revisited 129
  • Chapter Eight the Future of Parallel Importation 151
  • Notes 157
  • Selected Bibliography 161
  • Index 177
  • About the Author 179
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