Related Companies Under Section 526
Dissenting in the Second Circuit's Bourjois decision, Judge Hough had posed the issue in the clearest possible terms. "It is not yet settled," he had remarked, "whether a trade-mark is to be primarily regarded as protecting the trade-mark owner's business from a species of unfair competition, or protecting the public from imitations."1 The Supreme Court's decision not to take up this troublesome issue would leave the question "still far from settled"2 for decades to come and would contribute much to the uncertainty of the shadowy "gray market" to the present day.
Still, for many years, neither the ambiguities of Bourjois, nor the apparent split between language and intent in section 526, posed significant difficulties for courts determining genuine goods cases. 3 In Coty, Inc. v. Le Blume Import Co., 4 for example, the plaintiff was a Delaware corporation organized by a French perfumer "to conduct his American business."5 While the American and French concerns were evidently closely related, and although the American public doubtless viewed the French parent as the source of "Coty" perfume, these facts never barred relief; the contested imports were another French firm's similarly marked, genuine goods, and thus could be excluded as infringing on Coty's goodwill.
In another case, Perry v. American Hecolite Denture Corp., 6 an American dentist formed a company and purchased the U.S. distribution rights to German-made "Hecolith" denture blanks, but lost sales to a third party who had bought identical blanks from German retailers and imported them for sale