Parallel Importation in U.S. Trademark Law

By Timothy H. Hiebert | Go to book overview

C. THE FUTURE OF PARALLEL IMPORTATION

What can the past and present tell us about the future of parallel importation? To begin with, it seems clear that the current doctrinal conflicts, gaps, and ambiguities are unlikely to persist for long, particularly if the volume of gray market imports (and thus of gray market litigation) increases with another rise in the value of the dollar.

The persistence of the public-private duality in American trademark law does suggest that when an equilibrium is eventually regained, it will include some appreciation for the role of public understanding, even in a nominally territorialist approach. The law, it seems, must begin to reflect the increasingly plain fact that a distinction between domestic and foreign enterprises can be difficult to discern (depending as it does on such often divergent factors as place of incorporation, degrees of foreign ownership, or the nationalities of directors, managers, or workers) and also often of little practical significance. International business concerns have already begun to recognize the decreasing significance of political frontiers in international product design, pricing, promotion, and distribution. 41 While the world will never be a single market for all products, in all countries, for all industries, or for all consumers, it should be clear by now that many products are bought and sold on the basis of international reputations, and this country's trademark laws should reflect that fact.


NOTES
1.
See supra chap. 5.
2.
2 Sand. Super. 599 (N.Y. City Super. Ct. 1849) (discussed supra, chap. 2).
3.
877 F.2d 101 (D.C. Cir.), cert. denied, 481 U.S. 1069 ( 1989).
4.
The companies were related through the U.S. firm's "corporate grandparent." See Lever Brothers, 877 F.2d 101. 102 n.1 and accompanying text (D.C. Cir. 1989).
5.
15 U.S.C. sec. 1124.
6.
19 C.F.R. sec. 133.21 (c)(2).
7.
Lever Brothers Co. v. United States, 652 F. Supp. 403 (D.D.C. 1987), rev'd and remanded, 877 F.2d 101 (D.C. Cir. 1989), on remand, 796 F. Supp. I (D.D.C. 1992), aff'd in part and vacated in part, 981 F.2d 1330 ( 1993).
8.
Id. at 107.
9.
877 F.2d at 110.
10.
Id. at 111. The court made this ruling provisionally and remanded the case for consideration of legislative history and administrative practice (which the district court had not considered in its earlier decision). On remand, after considering the legislative history and administrative practice, the district court duly concluded that Customs was required to exclude the British goods, because they were "materially, physically different" 796 F. Supp. 1 (D.D.C. 1992). The district court took the additional step of enjoining Customs from enforcing the affiliate exemption in all cases involving "materially, physically different" goods. However, this injunction was subsequently vacated on appeal because the plaintiff had not explicitly requested such relief. Lever Brothers Co. v. United States, 981 F.2d 1330 (D.C. Cir. 1993).

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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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