Parallel Importation in U.S. Trademark Law

By Timothy H. Hiebert | Go to book overview

Throughout this history, the main issue has been the necessity of protecting the expectations of a domestic trademark owner which, by reason of its close corporate connections with a foreign owner of the same mark, has no justifiable need for such protection. A contest has taken place between (1) a formalist conception of trademarks-as-property, according to which "ownership" of a mark implies that another entity's use of the same mark must constitute infringement; and (2) a realistic vision of trademarks, according to which no reasonable policy requires an enterprise to "protect" itself from itself.


NOTES
1.
A. Bourjois & Co. v. Katzel, 275 F. 529, 543 ( 1921) (dissenting opinion).
2.
W. Derenberg, Territorial Scope and Situs of Trademarks and Good Will, 47 VA. L. REV. 733, 733 ( 1961).
3.
See Ercona Camera Corp. v. Brownell, 246 F.2d 675 (D.C. Cir. 1957); Perry v. American Hecolite Denture Corp., 78 F.2d 556 (8th Cir. 1935); Sturges v. Clark D. Pease, Inc., 48 F.2d 1035 (2d Cir. 1931). Holland v. C. & A. Import Corp., 8 F. Supp. 259 (S.D.N.Y. 1934); Coty, Inc. v. Le Blume Import Co., 292 F. 264 (S.D.N.Y.) (L. Hand, J.), aff'd, 293 F. 344 (2d Cir. 1923). De Jur-Amsco Corp. v. Janrus Camera, Inc., 16 Misc. 2d 772. 155 N.Y.S.2d 123 (Sup. Ct. 1956).
4.
292 F. 264 (S.D.N.Y. 1923).
5.
292 F. at 265.
6.
78 F.2d 556 (8th Cir. 1935).
7.
Id. at 561. The court's discussion of "reputation" thus bore overtones of a concern with the plaintiffs investments, as if the psychological and proprietary dimensions of goodwill were barely distinct, even under the rubric of "public understanding." The court's real concern seemed to be the same as the district court's in Bourjois v. Katzel, where the plaintiff had proceeded "upon the strength of his ownership" to develop "a separate American market," defined both by investments and public understanding. 274 F. at 860.
8.
78 F.2d at 561. Cf. Bourjois, 274 F. at 859 ("associated in the public mind" with the plaintiff's product).
9.
78 F.2d at 561 (emphasis added).
10.
246 F.2d 675 (D.C. Cir. 1957).
11.
See, e.g., Weil Ceramics & Glass, Inc. v. Dash, 878 F.2d 659 (3rd Cir. 1989); NEC Electronics v. CAL. Circuit Abco, 810 F.2d 1506 (9th Cir. 1987); In re Certain Alkaline Batteries, 225 U.S.P.Q. (BNA) 823 ( Int'l Trade Comm'n 1984), disapproved by President Reagan, 50 Fed. Reg. 1655, reprinted in 225 U.S.P.Q. (BNA) 862, appeal dismissed sub nom. Duracell, Inc. v. United States Int'l Trade Comm'n, 778 F.2d 1578 (Fed. Cir. 1985); Parfums Stern, Inc. v. United States Customs Service, 575 F. Supp. 416 (S.D. Fla. 1983); Bell & Howell: Mamiya Co. v. Masel Supply Co., 548 F. Supp. 1063 (E.D.N.Y. 1982), vacated and remanded, 719 F.2d 42 (2d Cir. 1983).
12.
See K. LLEWELLYN, THE COMMON LAW TRADITION: DECIDING APPEALS 36 ( 1960) (discussing the "Grand Style"); D. Kennedy, Toward an Historical Understanding of Legal Consciousness: The Case of Classical Legal Thought in America, 1850-1940, 3 RES. IN L. & Soc. 3, 4-6. 23 ( 1980); G. GILMORE, AGES OF AMERICAN LAW ( 1977) (both defining different stylistic periods of legal thought).
13.
See K. Llewellyn, A Realist Jurisprudence--The Next Step, 30 COLUM. L. REV. 431 ( 1930); J. FRANK. LAW AND THE MODERN MIND ( 1930). These two works gave a title and a certain definition to the intellectual movement whose central tenet was that the law should be

-79-

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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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