Parallel Importation in U.S. Trademark Law

By Timothy H. Hiebert | Go to book overview

tion should be disapproved. The inter-departmental confusion of the Guerlain era, then, would not be repeated.

The case had shown that the felt need for new solutions to the problem of genuine imports was a compelling one. It was a need which had led Duracell to seek relief in a nontraditional forum; it had led the majority to endorse a fundamentally new vision of the purposes of trademark law; and it had led Stern to reaffirm the increasing significance of trademarks' quality assurance function.


NOTES
1.
See 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) (cameras): 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. 862, appeal dismissed sub. nom. Duracell, Inc. v. United States International Trade Commission, 778 F.2d 1578 (Fed. Cir. 1985) (batteries); Weil Ceramics & Glass, Inc. v. Dash, 878 F.2d. 659 (3rd Cir.), cert. denied, 110 S.Ct. 156 ( 1989) (figurines); Original Appalachian Artworks, Inc. v. Granada Electronics, Inc., 816 F.2d 68 (2d Cir.), cert. denied, 484 U.S.847 ( 1987) (dolls); Johnson & Johnson Products, Inc. v. DAL International Trading Co., 798 F.2d 100 (3rd Cir. 1986) (toothbrushes).
2.
Memorandum from T.E. Gardner to A.M. Quilty ( June 25, 1984) (copy submitted in response to Solicitation of Economic Data, 49 Fed. Reg. 21,453 ( 1984) (available in Customs Service files).
3.
See supra chap. 2.
4.
See supra chap. 3.
5.
See supra chap. 3.
6.
548 F. Supp. 1063 (E.D.N.Y. 1982), vacated and remanded, 719 F.2d 42 (2d Cir. 1983).
7.
Customs took the position that genuine Mamiya products could not be excluded from parallel importation because, in addition to the U.S. distributor, the manufacturer and the holder of worldwide distribution rights were also authorized users of the trademark:

Osawa Precision Industries, Ltd. and Mamiya Camera Co., Ltd., each a corporation of Japan are authorized to use the trademark. Therefore, merchandise manufactured and/or sold by these foreign firms bearing the genuine trademark "MAMIYA" may be imported by anyone.

U.S. Customs Service, Policies and Procedures Manual, Supp. No. TMK-2(4) ( Oct. 24, 1980) (copy attached as Exhibit A to Defendant MASEL's Memorandum of Law in Opposition to Plaintiff's Motion for Temporary Restraining Order and Preliminary Injunction).

This emphasis on authority to use a trademark appears to have been a remnant of the 1953-1959 period, when licensees, as "related companies," were barred from using section 526. Certainly it seems inconsistent with the regulations then in force, which emphasized ownership and control and did not automatically prohibit the use of section 526 by firms with a licensor-licensee relationship. See generally supra chap. 4.

In May 1982, possibly after recognizing this inconsistency, Customs changed its position to prohibit the importation of the cameras and instructed its officers to amend their records "by deleting all reference to the foreign authorized users of the trademark." U.S. Customs Service, Policies and Procedures Manual, Supp. Nos. 82-101, 82-102 ( May 6, 1982).

8.
548 F. Supp. at 1067.
9.
Id.

-98-

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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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