The Graying of the American Manufacturing Economy : Gray Markets, Parallel Importation, and a Tort Law Approach

Ever wonder how you got that camera, television, or other product so cheap? The most likely answer is that it probably came from a “gray market” source. One of the most vexing and problematic areas of international trade for manufacturers has been “gray market” or “parallel importation.” In the United States alone, this problem costs American manufacturers billions of dollars each year. Generally speaking, “gray market” or parallel importation” occurs when a third party purchases “genuine” trademarked or copyrighted goods manufactured or distributed abroad, and imports and sells these goods in the United States without the consent of the American holder of the trademark or copyright. Gray market goods are distinguishable from black market goods (i.e. counterfeit or imitation goods), in that the United States trademark or copyright holder manufactures the goods or permits a foreign licensee to produce the goods according to established specifications. This Article examines the gray market, as it impacts American manufacturers, from three discrete legal perspectives: (1) trademark law, (2) customs law, and (3) copyright law. Further, this Article explores in depth the case law in the United States that has framed the gray market discussion over the years. Finally, this Article concludes by recommending that American manufacturers turn to tort law as a solution to their gray market issues. Specifically, this Article advocates for use of the tort of intentional interference with performance of contract by a third person as a means to combat the problem of gray market or parallel importation