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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


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.

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Emory Law Journal