Competing in the shadowy gray: protecting domestic trademark holders from gray marketeers under the Lanham Act

Article Abstract:

Domestic trademark holders should be protected from infringement by gray market goods under the Lanham Act although courts have been divided on the issue. Gray market goods are genuine goods, not stolen or counterfeit, that are imported by someone other than the trademark holder. Gray market goods may be inferior in quality and may damage domestic trademark holders through loss of goodwill or through free-riding on advertising and other services. Protection of trademark holders from loss through the gray market is consistent with the Lanham Act's purpose of protection against confusion and misappropriation.

Laws, regulations and rules, Gray market

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Clearly erroneous review of mixed questions of law and fact: the likelihood of confusion determination in trademark law

Article Abstract:

Determination of likelihood of confusion in trademark infringement cases should be treated as a question of fact, upheld by appellate courts unless clearly erroneous, rather than a question of law, reviewable de novo. Likelihood of confusion is a mixed question of law and fact, and circuit courts have been divided on the standard of review issue. However, treating it as a factual issue for review purposes is consistent with Supreme Court jurisprudence on standard of review and is supported by analogy with the reasonable royalty standard in patent cases and with the treatment of negligence.

Law and fact

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Significant recent trademark decisions

Article Abstract:

Important trademark cases at the federal level during 1997-98 related to trade dress, trademark dilution, and the Internet, also trademark infringement, false advertising, bad faith, antitrust, legal fees, Patent and Trademark Office practice and procedure, and international issues.

United States

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