Gray Market Goods Produced by Foreign Affiliates of the U.S. Trademark Owner: Should the Lanham Act Provide a Remedy?

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