Fighting or Defending Parallel Imports: A Practitioner's Guide to Material Differences, Customs, and Distribution Control
By Casey Scott McKay ·
This guide is the execution manual for a gray market problem on either side of it, and assumes the doctrine covered in the companion article rather than repeating it. It walks fourteen stages in the order a real matter runs them: classifying the goods in the first forty-eight hours, running a defensible test-purchase and chain-of-custody protocol, building the material-difference record field by field with the witness and exhibit attached to each field, and running the "all or substantially all" self-audit of your own domestic sales before you accuse anyone. It then turns to proving or abandoning the Warner-Lambert quality-control theory, tracing the leak through lot codes, import records, and INFORM Consumers Act seller disclosures, choosing among contract enforcement, federal court, Customs, and a Section 337 investigation on a cost-and-timeline basis, and deciding whether to sue the diverter or the retailer. Three stages are devoted to the border: recordation under 19 CFR Part 133, the Product Identification Training Guide, and a Lever-rule application under 19 CFR 133.2(e) with model application language and a candid account of why the remedy is only a labeling remedy. The back half is preventive and defensive, with model distribution-agreement clauses on territory, serialization, audit, and diversion charges, the antitrust and Robinson-Patman edges a badly built program runs into, a full reseller defense playbook with model disclosure language, and a section on what to do when the case goes sideways. Cost-and-timeline tables, two decision trees, and an annotated worked example run through every stage.
IP and Technology > Trademarks | Guide | Published 27 January 2024 - Updated 6 October 2025 | Casey Scott McKay - marksy.us
Summary. This is the working manual for a gray market matter, written for whichever side of it you are on. It assumes you already know the doctrine — the first sale rule, material differences, the Lever rule, the common-control exception — because that is set out in the companion article, and it spends its length instead on the sequence: what to buy, what to preserve, what to compare, what to audit before you accuse anyone, what to file, what it costs, how long it takes, and where each step goes wrong. Fourteen numbered stages carry a single worked example from the first test purchase to a redrafted distribution agreement, with model contract and application language, two decision trees, cost-and-timeline tables, and a full defense playbook for the reseller who is doing nothing unlawful and needs to keep it that way.
Keywords: gray market enforcement · parallel imports · material differences record · lever rule application · cbp recordation · 19 cfr 133.23 · section 526 tariff act · distribution agreement diversion clauses · serialization and product codes · authorized dealer program · quality control evidence · warner-lambert elements · first sale defense · robinson-patman act · vertical restraints · section 337 exclusion order · preliminary injunction bond · test purchase protocol · reseller defense playbook · product identification training guide
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