grey goods

Second Circuit Strengthens Grey Goods Enforcement Law

The Second Circuit recently summarily affirmed a preliminary injunction order in Abbott Laboratories v. H&H Wholesale Services, Inc., 670 Fed. Appx. 6, (2d Cir. 2016), affirming, 2015 WL 10906060 (E.D.N.Y. 2015) – a grey goods case involving importation of diabetes test strips designed for sale internationally. 

The Second Circuit’s adoption of the district court’s opinion sheds light on several issues in grey goods.

New Strategies for Grey Market Protection in Wake of Kirtsaeng

In March, the Supreme Court issued its decision in Kirtsaeng v. John Wiley & Sons, Inc., 133 S.Ct. 1351 (2013), where it held that the copyright “first sale” doctrine applies to items manufactured and sold abroad by the copyright owner.  

The decision makes it harder for intellectual property owners to control importation of “grey goods” – items manufactured abroad by the owner or its licensees, and then imported into the U.S. to take advantage of better pricing here.  However, there remain a number of strategies for controlling such importation and resale.