Parallel Importation in U.S. Trademark Law

By Timothy H. Hiebert | Go to book overview

Chapter Seven
Territoriality Revisited

In 1935 Felix S. Cohen attacked judges' use of "the vivid fictions and metaphors of traditional jurisprudence" as "reasons for decisions, rather than poetical or mnemonic devices for formulating decisions reached on other grounds." 1 By using such devices as reference points, he contended, "the author, as well as the reader, of the opinion or argument, is apt to forget the social forces which mold the law and the social ideals by which the law is to be judged." 2

Half a century later, judicial application of the territoriality principle has provided a good example of the kind of reasoning Cohen disparaged. As we have seen, judges have matter-of-factly relied on territoriality as a reason for their decisions, without fully examining the underlying forces giving rise to the principle in the first place. To use Cohen's terminology, territoriality has become one of a number of "magic 'solving words'" 3 which "are themselves creations of law" and which thus produce "necessarily circular" legal arguments. 4

The failure of territoriality to provide a commonly accepted, fixed point of reference becomes evident when we consider the historical shifts in meaning of the purported principle itself. 5 It appears that from the time territoriality first emerged as a recognized doctrine, its precise content has remained somewhat elusive.


A. THE EMERGENCE OF TERRITORIALITY

In its origins, the doctrine of territoriality was seen not to oppose that of universality, but rather to complement it. Recall that under the universalist view

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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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