Interesting article...

http://consumerist.com/2015/01/21/f...or-of-costco-in-gray-market-omega-watch-case/

 

Would like to see Costco take them on, but Rolex has a stronger position and much tighter rein on their global distribution. Not to mention the protection Rolex receives (lawfully) from US customs enforcement.

 

This is an interesting case because it was based on copyright law and not trademark. I recall rolex's rights stem from trademark principles, no matter how silly that is. IMHO.

 

Every time a US court rules in favor of a US company, the Swiss find a loophole to screw America over. I think they believe we're obnoxious upstarts and NOBODY is going to tell THEM how to run THEIR business. The nerve of us ugly Americans!

 

I for one am not going to take it anymore.

 

To keep people amused here is a cut and paste from the appellate court's opinion in favor of Costco. It would have been easy for Omega to put ownership in either an American or European company (given knowledge of the rolex type situation that it supposedly makes a difference on the trademark side), but this implies to me it won't make a difference, so maybe it was or was not considered. I know this is a nail biter.

"While briefing in this matter was pending, the Supreme Court revisited the first sale doctrine in Kirtsaeng, 133 S. Ct. at 1355.1 In that case, the Court considered “whether the
‘first sale’ doctrine applies to protect a buyer or other lawful owner of a copy (of a copyrighted work) lawfully manufactured abroad.” Id. In other words, the Court asked whether the purchaser of the copyrighted work can “bring that copy into the United States (and sell it or give it away) without obtaining permission to do so from the copyright owner[.]” Id. The Court held that the answer was yes, and, thus, the “‘first sale’ doctrine applies to copies of a copyrighted work lawfully made abroad.” Id. at 1355–56.

Kirtsaeng explained that copyright distribution and importation rights expire after the first sale, regardless of where the item was manufactured or first sold. 133 S. Ct. at 1355–56. Kirtsaeng interpreted 17 U.S.C. § 109(a), the first sale statutory provision, without overruling prior Supreme Court precedent, see Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 73 n.8 (1977) (explaining judgment from an equally divided Supreme Court is not precedent), and its holding is therefore fully retroactive and applies here, Rivers v. Roadway Express, Inc., 511 U.S. 298, 312–13 (1994). "

 

I take these are the results of the second round. The score, Costco:1, Omega: 1. Are we to see a third round? It sounds like a very common-sense approach to me. If anyone acquires an article in a legitimate way, then they should be able to do as they please with the article. Does Omega place any restriction to ADs regading the sale of their products to other [gray] retailers? This should be an issue between Omega and the AD who sells to other retailers. What makes Omega pursue action against one specific gray dealer in the US when there are hundreds of gray dealers out there offering their watches in the open? Any other Swiss-watch manufacturer gone to court after a specific gray market dealer? Omega produces some outstanding watches, but appears they are lacking good legal counsel at their Corprate Hqs.

 

I am thinking as to Costco, they are a company that was financially able and willing to stand up to Swatch. This is a huge win for them from a lot of viewpoints, watches, books, clothing etc. it validates, apparently, a n important part of their business model. I doubt Swatch lacks competent counsel. Corporations will take shot if they see a possibility, it is really an investment for them. If they win, huge returns, if they don't then reload the litigation guns. If this had all gone down in Europe the decision would have gone the other way. Now we wait for someone to take on Rolex. I remain skeptical that their shenanigans would pass muster today. If it would, why doesn't Omega transfer their trademarks to a US company and get it done with. Aside from larger considerations such as taxes, that's what seems to be indicated. I wish I could bill somebody for this.

 

Once a lawyer, always a lawyer apparently.