I shall argue that, with limited exceptions, the problem posed by genuine gray market imports from an affiliated source is not a trademark problem per se, and as such federal relief must come from Congress in the form of sui generis legislation. First, I shall briefly examine the historical background of this problem and discuss the debate leading up to the K Mart decision. Second, I shall discuss the nature of the trademark right, provisions under the Lanham Act that safeguard that right and several illustrative gray market cases decided thereunder. Third, I shall discuss the relationship between the trademark standard for regulating gray market goods and the ability of the trademark owner to avoid intrabrand competition. Fourth, I shall conclude by proposing an infringement standard under which gray market goods should be measured that considers the interests of trademark owners, consumers and competition in the marketplace.
Auvil, Steven M.
"Gray Market Goods Produced by Foreign Affiliates of the U.S. Trademark Owner: Should the Lanham Act Provide a Remedy?,"
Akron Law Review: Vol. 28
, Article 6.
Available at: http://ideaexchange.uakron.edu/akronlawreview/vol28/iss3/6