Re: Re: Re: Re: Grey Imports

Subject: Re: Re: Re: Re: Re: Grey Imports

Comments:
: : Here is a reply I received from a UK Lawyer on this subject. It appears that the UK lawyer is going to get my business. It's a shame I could not get such a concise reply from a US lawyer on a US forum. : : Dear Mr Moore : : : : Further to this matter, we are able to provide an outline of the legal implications pertaining to the scenario that you have described. I should point out that scope and nature of this outline is based on the limited facts available and is not intended to be a definitive advice. It is intended to summarise the the issues that need to be addressed further. : : : : 1. In our consultant's initial view, it is likely that your company (the "Company") is committing actionable infringements of the Manufacturer's intellectual property rights and acts of unfair competition under US law. The Company could face significant potential legal liability if the situation was to become public, and if part of a public corporation, the Company could also find itself having to handle adverse publicity that could be very damaging to its stock price and its investor relations. It is also to be noted that in certain cases of intellectual property infringement, it is possible that criminal offences may also have been committed, although it is not possible to comment on whether the current situation raises that risk without further specific analysis. Having regard to the points outlined, it is strongly recommend that the Company seeks definitive legal advice on this situation and develops a plan of action. : : 2. There are several areas where the Manufacturer's rights may be being infringed and the law being violated. In sum, these are as follows: : : (a) Assuming it is correct that the European manufacturer has patents in the US, then any unauthorised importation and use of the patented product by the Company in the US would be a patent infringement. : : (b) If the European manufacturer has trademarks registered in the US, the Company may be infringing those trademarks. This issue will turn on such factors as whether or not the item is visible and how the kit is being actually being marketed. : : (c) The US has strong laws on unfair competition, which covers a multitude of offences and even if the trademarks are not registered in the US, the Company may be committing the tort of passing off or another act of unfair competition in that it is arguably holding itself out as the producer of the patented product. : : As it appears that the Company may be somewhat exposed at the present time, please let me know if you require further substantive advice to protect its position. : : : : Regards : : J K : Dear Mr. Moore, : Don't live in a phantasy world and think that you are going to get legal service free anywhere in the world. : It is also important to have a US Lawyer, whomever you use, to take professional responsibility for the work they do. : Refer you to my British associates for UK legal problems. : M. Arthur Auslander : Auslander & Thomas-Intellectual Property Law Since 1909 : 3008 Johnson Ave., New York, NY 10463 : 7185430266, aus@auslander.com : ELAINE's Workshop® : E arly L egal A dvice I s N ot E xpensive™ : Reality Check®

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