Archived posting to the Leica Users Group, 2002/03/03

[Author Prev] [Author Next] [Thread Prev] [Thread Next] [Author Index] [Topic Index] [Home] [Search]

Subject: RE: [Leica] Holy Doodle: grey market equipment
From: "Tim Atherton" <tim@KairosPhoto.com>
Date: Sun, 3 Mar 2002 20:10:45 -0700

Austin,

from another list, where this has been much discussed, so I can't account
for it's accuracy:

Prior to the 1998 Supreme Court case referenced above, it was  definately
legal to set up exclusive importing and licensing  agreements in the USA.
Many “official” importers collected civil  damages against gray market
importers (usually not individuals). But  there was one major condition that
had to be met to enforce the  trademark: the exclusive USA importer cannot
be owned (directly or  indirectly) by the manufacturer. Therefore, Mamiya
America  Corporation could (prior to 1998) enforce its exclusive trademark
license, since it is not owned by the manufacturer (despite its  name), and
it filled for and received the trademark for these  products in the USA.
The justification for this has been that companies like Mamiya  America
Corporation pay for all the marketing costs in the USA  (magazine ads, trade
show representation, repair service, stocking  parts, etc.). They are in
effect paying the manufacturer (by bearing  the cost of USA advertising and
marketing themselves) for this  exclusive right to import, and they would
suffer harm if the  manufacturer allowed gray market imports into the USA.
The gray  market goods are usually purchased from countries that have no
local  advertising and marketing support costs.  However, in the case of
NikonUSA and CanonUSA (who are owned or  controlled by their Japanese parent
companies) there has been no  legal restriction (at least not for quite a
few years) to gray market  imports since the importer (same company as the
manufacturer) was not  harmed regardless of who sold the goods to the
consumer (the importer  and the manufacturer are really one and the same).
That is why you  see B&H Photo sell gray market goods from Nikon and Canon
(along with  the official USA goods), but they do not usually sell gray
market  goods when the official USA importer is independent of the
manufacturer.  It is important to note that, the 1998 Supreme Court case
notwithstanding (the facts of every case are not identical), Mamiya  America
Corporation still claims that their exclusive trademarks are  valid in the
USA. Whether they could prevail in court is open to  debate.

- -------------

 Second, there has been recent a Supreme Court ruling that suggest
that such exclusive import licenses are not enforceable.
http://www.tradelaw.com/l'anza.htm But keep in mind that court
rulings are not always applicable to other situations (with lightly
different circumstances), and US Customs regulations are a very, very
murky area of the law.

- --
To unsubscribe, see http://mejac.palo-alto.ca.us/leica-users/unsub.html