Parallel Importation in U.S. Trademark Law

By Timothy H. Hiebert | Go to book overview

independent foreign manufacturer be removed from the purview of the statute." 149

Although settling the inter-circuit conflict about the validity of the customs regulations, the Court's decision continued to manifest deeper doubts about the relationship between the public interest in trademark protection and trademark owners' interest in sheltering expected returns on their investments. While Brennan and his camp had viewed section 526 as consistent with an intent to preserve trademarks' role as "a device to protect the public against fraud by properly identifying the product's manufacturer, not a device to protect the trademark owner against competing sales of its own goods," 150 Scalia had conceived of a trademark owner's "investment" as equivalent to "the entire goodwill" associated with the mark. 151 The basic ambivalence in the nature of trademark protection reflected in these two opinions had endured since the early days of American trademark law and, it seemed, would continue to characterize future parallel importation cases, whether decided under trademark infringement theories or under new interpretations of section 526.


NOTES
1.
See supra chap. 2.
2.
See supra chap. 5.
3.
618 F. Supp. 700 (D.N.J. 1985), rev'd, 878 F.2d 659 (3rd Cir.) (reversal discussed infra, chap. 7). cert. denied, 493 U.S. 853 ( 1989).
4.
See 618 F. Supp. at 703, 707.
5.
In addition to claiming trademark infringement, the plaintiff also asserted that the defendant's imports should be excluded under sections 42 and 526. Seeid. at 703.
6.
Id. at 705.
7.
Id.
8.
Id. (emphasis added).
9.
Id.
10.
Id.
11.
Id. at 711 (emphasis added).
12.
Id.
13.
Id.
14.
Id. at 712 (ellipsis by the court) (quoting Osawa & Co. v. B & H Photo, 589 F. Supp. 1163,1174 [S.D.N.Y. 1984]).
15.
See supra chap. 3.
16.
618 F. Supp. at 711 (emphasis added). Cf. A Bourjois & Co. v. Katzel, 274 F. 856, 860 (S.D.N.Y. 1920) ("the original owner of the business and its trade-marks had completely parted therewith to a vendee, who had proceeded upon the strength of his ownership to develop an American market'). Note also the Weil court's two usages of "goodwill." The court apparently conceived of local proprietary goodwill as something to be "developed," but of transnational psychological goodwill as something otherwise to be "relied upon."
17.
618 F. Supp. at 713.
18.
Id. (emphasis added).
19.
Id.
20.
599 F. Supp. 1380 (E.D.N.Y. 1984), rev'd, 806 F.2d 392 (2d Cir. 1986).

-122-

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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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