Preventing the Importation and Sale of Genuine Goods Bearing American-Owned Trademarks: Protecting an American Goodwill

A trademark's "primary and proper function," it has been said, "is to identify the origin or ownership of the article to which it is affixed." Thus, if a trademark indicates either the original producer or an exclusive distributor as the source of the goods on which it appears, it will be entitled to protection against infringement. Related to this source identification function are a trademark's quality assurance and advertising functions. Because the public comes to associate trademarked goods with a certain standard of quality, a trademark guarantees that the goods on which it appears will meet public expectations about quality. Moreover, because of a trademark's consequent power to attract consumers, it serves its owner as a valuable advertising device. Indeed, a trademark's ability "to make a direct emotional appeal or insinuate itself into the memory” may make it "a more convincing selling point than even the quality of the article to which it refers." Because trademarks thus serve both public and private interests, the courts have tended to ground relief on both deception of the public about the source of trademarked goods, and infringement of private property rights. A trademark owner cannot complain of infringement unless a competitor's activities are likely to cause confusion, mistake, or deception among potential consumers. Although the competitor's use of the mark might impair the trademark owner's economic interests, without deception of the public the impairment is not wrongful.