Importation from Europe of agricultural vehicles (self-propelled forage harvesters) for sale in the United States could have infringed the trademarks of manufacturer Deere & Co. if "all or substantially all" of Deere's authorized domestic forage harvesters were materially different from the European-version harvesters, the U.S. Court of Appeals for the Federal Circuit has held. Deere alleged that Deere forage harvesters manufactured solely for sale in Europe were being imported into the United States. Deere asserted that the European version forage harvesters were materially different from the forage harvesters manufactured and authorized for sale in the United States and were, therefore, illegal gray market goods.

There were several material differences between the North American and European-version forage harvesters, the court said. However, there was evidence that some of the Deere-authorized sales of harvesters in the United States were of the European-version harvesters, which could support a determination that unauthorized sales of European-version harvesters did not contribute to consumer confusion. Substantial evidence indicated that Deere's official dealers, including its European dealers, had apparent authority to sell European-version Deere harvesters in the United States.

The International Trade Commission (ITC) erred in determining that not "all or substantially all" of Deere's domestic sales were of the North American-version harvesters, in the court's view. The ITC applied the incorrect denominator when it divided the number of official European-version harvesters sold in the United States ("at least 141") by the total number of European-version harvesters sold in the United States (247 to 347) to reach a conclusion that 40 to 57 percent of U.S. sales of the European-version harvesters were authorized, that is, made by official Deere dealers. The ITC should have used as the denominator the total number of authorized harvesters sold in the United States—the number of authorized North American-version harvesters (4,400) plus the number of authorized European-version harvesters (141 to 155), or 4,541 to 4,555. Therefore, applying this ratio, a total of 3.1 to 3.4 percent of the authorized harvesters sold in the United States were European-version harvesters, and 96.6 to 96.9 percent were of the North American version.

The case was remanded to the ITC for determination of the factual question as to whether 3.1 to 3.4 percent was an insubstantial percentage, such that substantially all of the authorized harvesters sold in the United States were of the North American version.

Deere & Co., Fed Cir., ¶61,620.