Foundations of Modern Parallel Importation Law
By the time of the First World War, the theoretical system constructed by Justice Duer had implicitly or explicitly supported the development of American trademark law for well over half a century. The earlier paradigm of conflict between public and private interests had now evolved into a model of unquestioned unity. In fact, the concept of a twofold purpose to trademark law was well enough established that it was beginning to support the growth of doctrinal accretions. For several years the notion of trademark protection's "three-fold object" gained currency, with the addition of "punish[ing] the dishonest trader" to the earlier formula. 1
At the same time, however, the Second Circuit cases of Apollinaris, Russia Cement, and Gretsch were posing the troubling possibility of a new divergence of public and private interests, a possibility which threatened to destroy the accepted structure of trademark protection without offering a new conceptual formula to take its place. By protecting the domestic trademark owner in genuine goods cases, the courts would have appeared to deny the absence of any deception to the public. Yet by emphasizing the public interest, and permitting the sale of genuine goods, they appeared to give short shrift to the Duerian premise that the trademark owner's investments were worthy of protection.
The basic problem courts faced was how best to manage the conceptual dissonance between the lofty vision of a twofold alignment of interests and the equally idealistic principle of universality. The Apollinaris court had managed