Using Section 337 of the Tariff Act of 1930 to Block Materially Different Gray Market Goods in the Common Control Context: Are Reports of Its Death Greatly Exaggerated?

Authors

Margo A. Bagley, Emory University School of LawFollow

Author ORCID Identifier

0000-0002-0992-888X

Document Type

Article

Publication Date

1995

Keywords

International Trade Commission, ITC, Territoriality principle, Trademark, Gray market goods, Tariff Act of 1930, Domestic sale, Section 337, Unfair competition, Importation of goods, Lanham Act, Copyright Act

Abstract

This Comment examines the primary reasons for trademark owners within the common control exception to revisit section 337 when faced with materially different gray market goods. Part One discusses the issues in and history of the gray market goods controversy, and the common control exception. Part Two focuses on section 337: how it works, its use in gray market goods cases, and how it has changed as a result of amendments in the Omnibus Trade and Competitiveness Act of 1988 and in the Uruguay Round Agreements Act of 1994. Part Three traces the changes in the gray market landscape favorable to a return of action by trademark owners under section 337, particularly in light of the Lever III decision, and outlines the benefits of section 337 over other statutory provisions used to combat materially different gray market goods. This Comment concludes with the argument that, on balance, the benefits associated with successfully reviving the use of section 337 for materially different gray market goods sufficiently outweigh the potential risks, so as to make this statute a viable alternative for embattled U.S. trademark owners.

First Page

1541

Publication Title

Emory Law Journal

Recommended Citation

Margo A. Bagley, Using Section 337 of the Tariff Act of 1930 to Block Materially Different Gray Market Goods in the Common Control Context: Are Reports of its Death Greatly Exaggerated, 44 EMORY L. J. 1541 (1995).