Lexis Nexis Gray Markets: Prevention, Detection and Litigation
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In Gray Markets: Prevention, Detection and Litigation, author, Eric Bensen, provides comprehensive legal analysis of the unauthorized economy known as the gray market and offers a blueprint for attorneys and businesses to prevent, detect, and litigate gray market cases. After introducing readers to a variety of strategies to prevent a brand owner’s products from finding their way into unauthorized distribution channels, Bensen covers educational and contractual methods that communicate the importance of gray market abstinence, along with on-site security and modern tracking technologies, the use of private investigators, and even “dumpster dives”, while also examining the legal boundaries of gray market investigations.
The 2022 edition ISBN is 9781663340276.
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Featured Authors
Eric E. Bensen
Eric Bensen is an internationally recognized intellectual property law author, consultant and expert witness. In addition to U.S. Patent Opinions and Evaluations, his works as author or coauthor include six leading intellectual property treatises from LexisNexis/Matthew Bender:
Patent Law Perspectives (9 vols.)
Bensen on Patent Licensing Transactions(3 vols.)
Milgrim on Trade Secrets (5 vols.)
Milgrim on Licensing (3 vols.)
New York Intellectual Property Law
He is also the author of LexisNexis’ Patent Statements of Law, a singular tool for quickly identifying quotations that precisely state principles of patent law in a manner that is helpful to the drafter. It is comprised of more than 7500 intuitively organized patent law quotations from more than 1840 decisions including more than 200 Supreme Court decisions each followed by a short parenthetical briefly identifying the technology involved, the procedural posture of the decision and the pertinent facts. His other works from LexisNexis/Matthew Bender include:
Attorney’s Dictionary of Patent Claims (3 vols.)
Gray Markets: Prevention, Detection and Litigation
Intellectual Property in Bankruptcy
Mr. Bensen is the United States Reporter for LexisNexis Australia’s Intellectual Property Reports.
Mr. Bensen has advised clients throughout the United States as well as in Japan and Europe on intellectual property issues arising in litigation, licensing and transactional matters and has served as an expert witness in the United States, the United Kingdom and Germany on matters of U.S. intellectual property law and has worked as a consulting expert on matters of U.S. intellectual property law in connection with proceedings in the United States, France and the European Patent Office. He is admitted to the State Bar of Texas, the United States Supreme Court and the United States Court of Appeals for the Federal Circuit.
Mr. Bensen can be reached at ericbensen@me.com.
For more information, please visit www.ericbensen.com.
Table of contents
PART I Introduction: The Gray Market
CHAPTER 1 Shades of Gray: The Spectrum of Product Diversion
§ 1.01 The Gray Market
§ 1.02 From Bad to Worse: The Black Market
CHAPTER 2 From iPhones to Viagra: The Affected Industries
§ 2.01 Airline Industry
§ 2.02 Automotive Industry
§ 2.03 Cigarette Industry
§ 2.04 Cosmetics and Personal Care Products
§ 2.05 Clothing and Apparel
§ 2.06 Food and Drinks
§ 2.07 Watches and Jewelry
§ 2.08 Natural Resources
§ 2.09 Technology
§ 2.10 Pharmaceuticals
§ 2.11 Toys
§ 2.12 Ink Cartridges
§ 2.13 Electronic Song Files
§ 2.14 Internet Movie Access
§ 2.15 Medical Care Products
CHAPTER 3 Black and Gray Market 2.0: From Flea Markets to eBay
§ 3.01 Introduction
§ 3.02 Globalization
§ 3.03 Internet
§ 3.04 Technology
§ 3.05 Decreased Trade Barriers
CHAPTER 4 The Rippling Effect: Gray Market Consequences
§ 4.01 Economic Consequences
§ 4.02 Social Consequences
§ 4.03 Benefits of the Gray Market
PART II Prevention: Reducing The Gray Market Potential
CHAPTER 5 Education: Promoting Gray Market Abstinence
§ 5.01 No Single Strategy
§ 5.02 Employees
§ 5.03 Distribution Partners
§ 5.04 Consumers
§ 5.05 Industry Alliances
§ 5.06 Government Relations
§ 5.07 Media
CHAPTER 6 Troubleshooting Supply Chain Vulnerabilities
§ 6.01 Selecting and Qualifying Partners
§ 6.02 The Partner Contracts
§ 6.03 Tightening the Supply Chain
CHAPTER 7 Alternative Gray Market Strategies
§ 7.01 Worldwide Pricing
§ 7.02 Staggered Distribution
§ 7.03 Internal Distribution
§ 7.04 IP Insurance
§ 7.05 IP Licensing
§ 7.06 Tariff Act of 1930
PART III Detection: Monitoring the Supply Chain
CHAPTER 8 Red Flags: The Warning Signs of Gray Market Activity
§ 8.01 Introduction
§ 8.02 Pricing That Is Too Low
§ 8.03 Unreasonable Spikes in Orders
§ 8.04 Unusual Orders
§ 8.05 Special Discount Requests
§ 8.06 Warranty Exchange Requests
§ 8.07 Unusual Delivery Requests
CHAPTER 9 Methods of Detection
§ 9.01 Introduction
§ 9.02 Audits
§ 9.03 Internet Monitoring
§ 9.04 Brand Protection Purchases
§ 9.05 Informants
§ 9.06 Dumpster Diving
PART IV Reaction: Legal Strategies After Gray Market Discovery
CHAPTER 10 Initial Strategies
§ 10.01 Introduction
§ 10.02 Litigation Alternatives
§ 10.03 Civil or Criminal Justice
§ 10.04 State or Federal Court
§ 10.05 Personal Jurisdiction and Venue
CHAPTER 11 Preliminary Remedies
§ 11.01 Introduction
§ 11.02 Search and Seizure
§ 11.03 Temporary Restraining Orders and Preliminary Injunctions
§ 11.04 Knock’n Talks
§ 11.05 Cease and Desist Correspondence
CHAPTER 12 Civil Discovery
§ 12.01 Introduction
§ 12.02 E-Discovery: The Amended FRCP
§ 12.03 Forensic Preservation and Examination
CHAPTER 13 Theories of Recovery: Breach of Contract
§ 13.01 Diversion Means Breach
§ 13.02 Introduction to Contract Law
§ 13.03 Contract Law’s Treatment of the Gray Market
§ 13.04 Affirmative Defenses and the Gray Market
§ 13.05 Remedies
§ 13.06 Distinguishing a Licensee’s Breach from a Licensee’s Infringement
CHAPTER 14 Theories of Liability: Intentional Interference with Contract (IIWC)
§ 14.01 Introduction to IIWC
§ 14.02 IIWC’s Treatment of the Gray Market
§ 14.03 Interference with Contracts with End Users
§ 14.04 Affirmative Defenses
§ 14.05 Remedies
CHAPTER 15 Theories of Liability: Intentional Interference with Prospective Economic Advantage (IIEA)
§ 15.01 Introduction to IIEA
§ 15.02 IIEA’s Treatment of the Gray Market
§ 15.03 Affirmative Defenses and the Gray Market
§ 15.04 Remedies
CHAPTER 16 Theories of Liability: Copyright
§ 16.01 Introduction to Copyright Law
§ 16.02 Copyright's "First Sale" Doctrine and the Gray Market
§ 16.03 Affirmative Defenses
§ 16.04 Remedies
CHAPTER 17 Theories of Liability: Trademark
§ 17.01 Introduction to Trademark Law
§ 17.02 Trademark Law’s Treatment of the Gray Market
§ 17.03 Affirmative Defenses
§ 17.04 Remedies
CHAPTER 17A Theories of Liability: Patent
§ 17A.01 Introduction to Patent Law
§ 17A.02 Patents & the Gray Market
§ 17A.03 Limitations & Affirmative Defenses
§17A.04 Remedies
§17A.05 International Trade Commission
CHAPTER 18 Theories of Liability: State Law
§ 18.01 Introduction
§ 18.02 Gray Market Statutes in California
§ 18.03 Gray Market Statutes in Connecticut
§ 18.04 Gray Market Statutes in New York
§ 18.05 Gray Market Statutes in Washington D.C. and Michigan: Gray Market Cigarette Statutes
CHAPTER 19 Approaches to Gray Market around the Globe
§ 19.01 Introduction
§ 19.02 Canada
§ 19.03 Mexico
§ 19.04 Europe
§ 19.05 Russia
§ 19.06 China
§ 19.07 India
Table of Cases
Table of Statutes
Index
