FujiFilm North America Corporation filed a lawsuit in the Eastern District of New York last week accusing several camera retailers of selling Gray Market Fuji cameras in the United States.
Fuji’s lawsuit claims:
“Defendants have willfully imported, advertised, promoted, offered for sale and/or sold, without authorization from FNAC (Fuji North American Corporation), gray market cameras which physically and materially differ from such products authorized for import and sale in the United States. Defendants’ importation, advertisement, promotion, offer for sale and/or sale within the United States of gray market cameras intended for markets outside of the United States is likely to result in consumer confusion and stymie FNAC’s quality control efforts, causing irreparable harm to FNAC that will continue unless such conduct is enjoined.”
The retailers accused of selling gray market cameras are:
- ABESONS CORP., 1350 46th Street, Brooklyn, NY 11219 that also may be doing business at 227 Hewes Street, Brooklyn, NY 11211
- AVIS SALES CORP., 344 Marcy Avenue, Brooklyn, NY 11211
- BIG VALUE INC., 245 Belmont Drive, Somerset, NJ 08873, with a storefront on Ebay
- EPICESOLUTIONS, with a storefront on Ebay
- F&E TRADING LLC, believed to be affiliated with Defendants AVIS SALES CORP., GADGET CIRCUIT LLC and LE RELIABLE TRADING, with a principal place of business at 245 Belmont Drive, Somerset, NJ 08873
- GELESHMALL ENTERPRISES LLC, under the trade name INTERNATIONAL SUPPLIES and/or ORIENTAL PHOTO USA, 945 West Hyde Park Boulevard, Inglewood, CA 90302
- GET IT DIGITAL LLC, 984 East 35th Street, Unit 2, Brooklyn, NY 11210
- GOLDEX LIMITED (d/b/a THECAMERABOX.COM), 315 Rutledge Street, Brooklyn, New York, 11211
- MAX TRADING, with a storefront on Amazon.com
- OJ BASICS, a/k/a OJ COMMERCE, with a storefront on Amazon.com
- SOCH GLOBAL INC., f 2 Rolling Drive, Old Westbury, NY 11568
- TRI-STATE CAMERA EXCH. INC., 150 Sullivan Street, Brooklyn, New York 11231
- John/Jane Doe Nos. 1-25
Some of the Defendants are accused of selling gray market cameras through brick and mortar stores, and some through their own websites and/or interactive storefronts on Amazon.com and Ebay.com.
FujiFilm claims that in order to maintain quality control over genuine Fujifilm and Instax products, its sells its products only through a channel of specifically authorized local dealers and distributors. FujiFilm carefully monitors the marketplace to assess whether unlawful gray market imports or the sale of non-genuine products is occurring, and investigates such suspected activities in order to prevent damage to the goodwill and reputation of the Fujifilm Marks and to address potential consumer safety concerns.
How Are Gray Market Fuji Cameras Different from Regular U.S.A. Sold Fuji Cameras?
FujiFilm admits that its cameras offered for sale outside of the United States are physically and materially different from the cameras Fuji offers in the United States under identical marks.
Some of the distinctions include:
Warranties: Genuine Products include geographically-specific warranties which are effective and enforceable in the United States. Fuji has a strict company policy, uniformly enforced, of not providing warranty service on any Fujifilm and/or Instax product that is not subject to a valid United States warranty. Gray Market Products frequently have no warranty coverage at all.
Packaging and Product Labeling: Genuine Products are labeled distinctly from Gray Market Products. For example, the packaging for Genuine Products includes disclaimers that provide information to United States consumers as required by United States regulations and to ensure that full disclosure of all potentially relevant information is made to United States consumers prior to purchase. Additionally, packaging for genuine Instax cameras includes the name and color of the product in both English and French. Packaging for Gray Market Products does not include informational disclaimers intended for United States consumers, including development time disclaimers for Instamax cameras. Additionally, product packaging for Genuine Products typically includes attribution to the photographer of images appearing on packaging, and information on intellectual property ownership.
Serial Numbers and Tracking Codes: The UPC and other codes appearing on Genuine Products are critical to FujiFilm North America’s quality control efforts, and Genuine Products are marked with UPC and other codes identifying the products as intended for the United States market. Gray Market Products do not include UPC and other codes identifying the product as intended for sale in the United States.
Accessories: Accessories to Genuine Products, including batteries, plugs and adapters, are intended and optimized for use in the United States. Optimization and certification for United States use is important for safety and functionality reasons, as electrical systems and safety certifications vary from country to country. Accessories to Gray Market Products are not intended, optimized or certified for safe use in the United States.
FujiFilm North America Corporation is suing based upon claims for false or misleading description or misrepresentation of fact, false designation of origin and unfair competition under the Lanham Act §43(a), 15 U.S.C. §1125(a) and common law unfair competition. FujiFilm North America is seeking to enjoin and restrain the sale of gray market cameras; for the defendants to deliver all remaining gray market cameras to them for destruction; and to recover damages, profits, attorney’s fees, and court costs.
