Evolving Conceptions of Territoriality and Goodwill
In the late nineteenth century, courts had solved the problem of perceived conflict between public and private interests in trademark law through the insightful application of a new paradigm of trademark protection. From an earlier model of conflict between consumers' interest in discouraging "monopolies" and businesses' interest in ensuring returns on their investments, Duer, Upton, and others had fashioned a new model in which the two sets of interests were closely aligned. 1
A century later, a similar redefinition seemed to be taking place in the area of parallel importation. It was becoming clear that traditional concepts of trademark protection would not always adequately justify, on one hand, denying protection to domestic trademark registrants or, on the other hand, denying the availability of genuine goods to U.S. consumers. By applying the concept of "quality assurance" as a goal of trademark law, however, the district court in Bell & Howell found a way again to align the two sets of values and re-establish the coincidence of interests. 2 This new understanding permitted courts to protect domestic trademark owners by prohibiting parallel imports and yet also protect consumers by giving legal effect to their reliance on trademarks to indicate quality.
Still remaining, however, was the task of filling in the rest of the conceptual picture. What role, if any, did trademarks' traditional source identification function now play? And did the shift in emphasis about the nature of the public interest require corresponding adjustments in the principle of territoriality or the concept of goodwill? Answers to these questions would begin to emerge