concurring.
I agree that Weil cannot prevail on any issues, hence I concur in the judgment. Moreover, I join in Parts I and II and footnote 14 of the majority opinion, subject to comments herein, which condition that joinder only peripherally. However, I do not join in Parts III and IV of the majority opinion because I take a different approach to the issues discussed in those sections. I write at length because of the conceptual difficulty of the issues, which implicate the current status of the territoriality, exhaustion and source doctrines in international trademark law, matters which the majority opinion found it unnecessary to address in any detail in view of its approach, yet which are of considerable legal and economic importance.
The majority bases its conclusion with respect to section 32 on the plain language of the Lanham Act.1 I do not believe, however, that our task is so simple. The Lanham Act is only one facet of our governing trademark law, which is composed of the Act, the evolving common law, and international law, e.g., treaties.2 Therefore, I find it necessary to inquire into the nature and scope of trademark rights.
I do not agree with the majority’s “plain reading” and its apparent rejection of the notion that section 32 protects genuine goods. Moreover, while the majority’s analysis of the A. Bourjois & Co. v. Katzel, 260 U.S. 689, 43 S.Ct. 244, 67 L.Ed. 464 (1923), decision is tailored to this case, I *676believe that the majority has, however unintentionally, created untoward precedent by reading Katzel in one sense too broadly (implying that it should apply across the board, whenever the independent markholder is the victim of parallel importation), and in another sense too narrowly (insofar as it seems to suggest that Katzel can only be applied where the foreign manufacturer is wholly independent of the domestic markholder). In my view, Katzel is an example of a court sitting in equity at work, not a blanket change of trademark law. I also believe that the majority places too much reliance on K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 108 S.Ct. 1811, 100 L.Ed.2d 313 (1988), insofar as it appears to rely on it as a vehicle for interpretation of all of Weil’s claims, even though K Mart addressed only § 526 of the Tariff Act and not the Lanham Act. I have looked instead to the law of this Circuit, the Paris Convention, and the history of trademark rights.
I conclude that trademarks are still territorial and that the source theory of trademark law is no longer viable. These conclusions lead me to believe, in contrast to the majority, that under current trademark law, genuine goods with genuine marks can serve as the basis for an infringement suit. I also believe that the record supports the view that Jalyn has imported genuine goods of lower quality than Weil’s goods, creating the possibility of a likelihood of confusion. If so, Weil therefore has arguably satisfied the typical section 32 requirements on that ground as well. I do not believe, however, that Weil should prevail in this case.
Weil is a wholly owned subsidiary and as such has a complete unity of interest with its parent, Lladro, and therefore, self-help available to one is a fortiori available to the other. By sending into the stream of commerce identically marked goods of mixed quality, but only providing premium quality goods to Weil, and not informing the public of the different levels of quality, Lladro has in effect engineered the possibility of a likelihood of confusion and therefore infringement in this case. This is not the sort of injury trademark infringement actions under the Lanham Act were intended to remedy. And even if there is no material difference in quality, I believe that Weil has failed to make an adequate showing of independent good will. Thus, I conclude that Weil cannot prevail, because it has failed to prove cognizable likelihood of confusion, and I concur with the majority’s conclusion that summary judgment in favor of Weil on the section 32 claim should be vacated and judgment entered in favor of Jalyn.
I. SECTION 32 OF THE LANHAM ACT
The majority has apparently rejected the notion that section 32, interpreted in light of the developing common law and international law of trademarks,3 analytically contemplates protection of genuine goods where the domestic markholder is affiliated with a foreign manufacturer. I disagree. And I find no indication in the language or history of the Act that affiliated trademark owners are to receive lesser protections than nonaffiliated trademark owners. I address these important concepts in light of the doctrinal underpinnings of international trademark law — the territoriality and source theories — and of the unity of interest notions implicated by Katzel and K Mart.
A. The Territoriality Theory
The territoriality theory of trademark law was first introduced in this country by the Supreme Court decision of A. Bourjois & Co. v. Katzel, 260 U.S. 689, 43 S.Ct. 244, 67 L.Ed. 464 (1923). The majority opinion limits the application of the territoriality theory to the case 1 scenario, relying on Katzel. Maj. op. at 669. I disagree.
*677The Supreme Court in Katzel permitted an injunction to issue pursuant to section 27 of the Trade-Mark Act of 1905 where a wholly independent domestic corporation and assignee of a foreign corporation’s trademark suffered a loss of business due to parallel imports.4 Justice Holmes wrote: “It is said that the trade-mark here is that of the French house and truly indicates the origin of the goods. But that is not accurate. It is the trade-mark of the plaintiff only in the United States.... ” Katzel, 260 U.S. at 692, 43 S.Ct. at 245.
Under Justice Holmes’s theory, the validity of a trademark may only be determined within the boundaries of the country in question. Carrying this reasoning to its logical extension, if an entity owns the United States trademark, it has rights under the United States trademark laws regardless of whether the manufacturer is domestic or foreign, affiliated or not. Judge Leval has stated the principles underlying the territoriality theory most eloquently:
This principle [territoriality] recognizes that a trademark has a separate legal existence under each country’s laws, and that its proper lawful function is not necessarily to specify the origin or manufacture of a good (although it may incidentally do that), but rather to symbolize the domestic goodwill of the domestic markholder so that the consuming public may rely with an expectation of consistency on the domestic reputation earned for the mark by its owner, and the owner of the mark may be confident that his goodwill and reputation (the value of the mark) will not be injured through use of the mark by others in domestic commerce.
Osawa & Co. v. B & H Photo, 589 F.Supp. 1163, 1171-72 (S.D.N.Y.1984).5
*678Katzel is often invoked as proof of the viability of the territoriality theory in the United States. I do not believe, however, that Katzel is sufficient to justify that conclusion, as I discuss infra. Rather, we must find other grounds if we are to conclude that the territoriality theory is alive and well in American trademark jurisprudence.
As I read the majority opinion, it concludes that Katzel, should only be applied when the foreign manufacturer is wholly independent of the domestic markholder and that it “creat[es] an exception to the general application of trademark law,” Maj. op. at 669, implying that it should apply across-the-board to all situations in which a wholly independent markholder is the victim of parallel importation.6 I would interpret the holding of Katzel in a different way.
The powers of a court sitting in equity are to be applied on a case-by-case basis. As I see it, Katzel did not create a blanket trademark rule, but rather was a clear exercise of the flexible equitable powers of the Court and an attempt to remedy what was perceived to be unfair in an individual case. I therefore do not believe that Kat-zel mandates protection of independent domestic markholders who are assignees of foreign manufacturers in every instance. I also do not believe that Katzel precludes the possibility that an equitable remedy might be available even when the United States company is affiliated with a foreign manufacturer. For instance, in a case in which two affiliated companies have become over the years increasingly independent, such that the two entities are essentially independent, there may be reason for the court to exercise its equitable powers to protect the good will and investment in the trademark that the American company has individually developed over the years. Alternatively, an equitable remedy may also be called for in the case of a foreign company that does not wholly own its American subsidiary, for example, where the foreign affiliated company only owns ten percent of the American markholder’s company. Cf. infra note 13. As I have explained supra, Katzel does not militate against the conclusion that an affiliated company may receive trademark protection pursuant to equity.
Although Katzel has never been reversed, and hence has some presumptive viability, because I view it as a decision that does not mandate a particular result in later cases, I do not think that it provides sufficient justification for the conclusion that the territoriality theory is alive and well in American trademark law. The key to the conundrum is that the Lanham Act is a statute addressing the rights of domestic trademark holders in the United States, and does not provide explicit guidance with respect to the harder issues of trademark rights in the international context. The place to look for the answer to the question whether the United States recognizes the *679territoriality theory in the context of international trademark rights is not domestic trademark law, but rather international law, as expressed in treaties.
As the district court pointed out, the United States is a signatory and member of the Paris Convention for the Protection of Industrial Property, as amended at Stockholm on July 14, 1967, which carries the force of law and recognizes that trademark rights are territorial. See 618 F.Supp. 700, 705 n. 1. The Convention states that
A mark duly registered in a country of the Union shall be regarded as independent of marks registered in other countries of the Union, including the country of origin.
Paris Convention, Article 6(3). The Paris Convention is the law in the United States by virtue of Article VI of the Constitution and is explicitly implemented by the Lan-ham Act in section 44(b), 15 U.S.C. § 1126(b) (1982). See Vanity Fair Mills, Inc. v. T. Eaton Co., 234 F.2d 633, 640 (2d Cir.), cert. denied, 352 U.S. 871, 77 S.Ct. 96, 1 L.Ed.2d 76 (1956); Davidoff Extension S.A. v. Davidoff International, Inc., 221 U.S.P.Q. 465, 467, 1983 WL 203 (S.D.Fla.1983). Therefore, United States trademark law expressly recognizes trademark rights as territorial. I must conclude therefore that even though the Lladro trademark is owned by others outside the United States, Weil may own the American trademark in Lladro products in the United States, and that those trademark rights are separate from whatever trademark rights the Lladro parents own in other countries. What good these rights do it in this case is, of course, another matter, as I will explain infra.
B. Katzel and K Mart
The majority opinion further buttresses its conclusion that Katzel is inapplicable to the facts of this case by arguing that such a conclusion is consistent with the holding of K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 108 S.Ct. 1811, 100 L.Ed.2d 313 (1988). I am not persuaded that K Mart is helpful on this point. First, K Mart addressed the question whether tariff regulations promulgated by the Customs Service precluding importation of gray market goods in certain circumstances were a reasonable interpretation of section 526 of the Tariff Act. The Court found that they were. The Court did not hold that all domestic markholders affiliated with foreign manufacturers are precluded from protecting their rights to their trademarks under the Lanham Act. Therefore, we must be careful in invoking K Mart in the Lanham Act context.
Second, to say that a narrow reading of Katzel is more consistent with the holding of K Mart than a more expansive reading does not provide a basis for the conclusion that section 32 should be construed one way or the other. A narrow reading of Katzel is consistent with K Mart, because the statute under examination in K Mart was passed solely and explicitly in response to the Court of Appeals’ holding in Katzel, which was reversed by the Supreme Court. See K Mart, 108 S.Ct. at 1824 (Brennan, J., concurring) (“Congress’ sole goal [in passing section 526] was to overrule Katzel.”). In short, both the Congress and the Supreme Court overruled the Court of Appeals’ specific holding in Katzel. Therefore, one would expect a later Supreme Court case (K Mart) upholding regulations as consistent with a statute passed under the same impetus as that informing an earlier Supreme Court case (Katzel) to be consistent with that earlier case.
Third, and most important in my view, is the fact that even though both the Congress and the Supreme Court responded negatively to the Court of Appeals’ decision in Katzel, their responses are fundamentally different. They are different because the two branches’ powers are different. Legislation, by its nature, provides a blanket rule to be applied to certain specified circumstances. Section 526 of the Tariff Act permits the party in the Katzel situation to benefit from a blanket exclusion of parallel imports. The Supreme Court decision provides for equitable remedies in the face of inequities that can only be addressed on a case-by-case basis. In Katzel, the Supreme Court provided a second weapon over and above the statutory weap*680on for the trademark holder harmed by parallel importation.
However, just as there is no reason to believe that the Supreme Court meant for its equitable remedy to apply to every situation in which a domestic markholder is independent of a foreign manufacturer, there is no reason to believe that the Supreme Court in Katzel intended to preclude equitable remedies for domestic markhold-ers who are affiliated with foreign manufacturers.
I note in this regard that Katzel was explicitly based on section 27 of the TradeMark Law of 1905, the predecessor of section 42. Katzel did not address section 16, the predecessor of section 32. Therefore, Katzel does not directly govern the law of trademark infringement, but only the law of importation of infringing marks. Therefore, aside from its example of the exercise of equitable powers to expand trademark law, I believe that the holding of Katzel helps neither side with respect to section 32. If it expands trademark law, as Weil argues, it only does so in the context of section 42, not section 32; if it is to be strictly limited to its facts, as Jalyn and amicus 47th Street Photo argue, it only limits section 42, not section 32.
To put the distinction between Katzel and K Mart another way, the trigger for the statutory customs protection described in K Mart is independence of domestic and foreign entities. The trigger for the judicial trademark remedy based on Katzel is the presence of inequities in a parallel importation context. Thus, I differ with the majority’s use of K Mart as a yardstick by which to measure the reach of Katzel and therefore the scope of section 32.
C. The Source Theory
The majority holds that the Lanham Act terms “ ‘copy,’ ‘simulate,’ ‘counterfeit’ and ‘imitate’ have readily comprehensible ordinary meanings.” Maj. op. at 671. But the majority goes on to read Katzel as mandating an exception to the ordinary meanings in the case of a domestic entity wholly independent of its foreign manufacturer. Id. at 673.7 Under this view, the statute covers copies, simulations, counterfeits, and imitations and genuine goods of independent domestic entities, and, in short, covers all trademark situations except those in which the domestic entity is affiliated with the foreign manufacturer. As discussed supra, I do not believe that the Katzel decision resulted in a blanket amendment of the statute such that nonaf-filiated companies may get trademark protection for genuine goods but affiliated companies may not. I would seek other authority for the claim that the trademark statute governs or does not govern genuine goods. In my view, that authority arises out of the developing common law of trademarks, particularly Premier Dental Products Co. v. Darby Dental Supply Co., 794 F.2d 850 (3d Cir.), cert. denied, 479 U.S. 950, 107 S.Ct. 436, 93 L.Ed.2d 385 (1986), in this Circuit. I conclude that the Lanham Act potentially covers all genuine goods, not just those competing with the goods of an independent domestic company.
I believe that the authority for the proposition that genuine goods come under the purview of the Lanham Act can be found in part in the fact that trademark protection is no longer based solely or even primarily on the source of origin theory of trademark. Early in the history of trademark law, one of the sole bases for protection of trademarks was the protection of the public against confusion as to its source of origin. In other words, trademarks were valuable, because they identified the owner of the good. However, as the law developed, the trademark was no longer merely the source of information with respect to ownership, but rather the public came to believe that the trademark represented a certain level of product quality arising from one source.
*681See 1 J. Gilson, Trademark Protection and Practice § 1.03[1] (1988); F. Schechter, The Rational Basis of Trademark Protection, 40 Harv.L.Rev. 813 (1927).
In 1962, Congress amended section 32 of the Lanham Act. The italicized portion of the following provision was deleted: the infringement must be “likely to cause confusion, or to cause mistake, or to deceive purchasers as to the source of origin of such goods or services.” J. Gilson, supra, § 1.03[1]. The amendment was intended to broaden the scope of the Act so that source of origin was no longer a necessary element of an infringement action. See Syntex Laboratories, Inc. v. Norwich Pharmacal Co., 437 F.2d 566, 568 (2d Cir.1971); Osawa, 589 F.Supp. at 1173. As this Court stated in Premier Dental,
one need not manufacture a product to possess goodwill in it. In particular, it has been consistently held that if an exclusive distributor is known as the exclusive domestic source and as the one who stands behind the product in this country, it may own and enforce the trademark.
What is relevant is whether the trademark has become sufficiently associated with Premier to justify the inference that buyers under that name are its customers. It is enough ‘if the article be known as coming from a single, though anonymous source.’
794 F.2d at 856 (quoting Coty, Inc. v. LeBlume Import Co., Inc., 292 F. 264, 267 (S.D.N.Y.), aff'd, 293 F. 344 (2d Cir.1923)).
Thus, even if there were a source requirement in the statute, the identity of the source of the goods need not be known by the consumer:
[A] respectable segment of modern authority following the ‘origin’ view recognizes that the consumer is probably not familiar with the manufacturer of the trademarked product he buys. Thus, even where the ‘origin’ of the product is anonymous, and cannot be named by the consumer, a trademark may still function to denote origin where the consumer assumes that products bearing it come from the same source.
J. Gilson, supra, § 1.03[1]. Therefore, a trademark is not protected necessarily because it signifies a source of manufacturing origin.
If a trademark signifies a level of quality and not necessarily an identifiable source of origin, then trademark rights need not rest on whether the public can identify the manufacturer of the product, as the majority opinion implicitly suggests. Maj. op. at 669. Rather, the rights rest on whether the public identifies a particular level of quality when it sees a trademark on a product. Therefore, the markholder need not be the manufacturer, but may have trademark rights in the manufacturer’s goods distinct, i.e., in different countries, from those the manufacturer retains. A fortiori, a genuine good marked with a genuine mark will have different legal consequences, depending on the country. And there may be a different entity in each country with the right to control those goods with that mark.8
The majority states that the “framers of the trademark act did not contemplate the instance in which the ‘source’ of a trademarked good would be different from its place of manufacture.” Maj. op. at 673. Whether the “framers” contemplated such a possibility or not, the current Act recognizes the possibility that a trademark owner may not be the manufacturer in section 45, which states that a trademark may be “adopted and used by a manufacturer or merchant.” 15 U.S.C. § 1127.
Hence, I disagree with the majority’s reliance on the plain meaning of section 32 and conclude that under the developing trademark law, and more specifically Premier Dental, that the source theory of trademark protection is no longer viable. Because the source of origin theory no longer exists as the primary criterion for *682enforcement of the trademark laws and in view of the viability of the territoriality theory, absent other considerations, I believe that Weil should be able to sustain a challenge under section 32 to Jalyn’s parallel importation even though the goods which it claims are infringing are genuine goods with genuine marks.9
D. Unity of Interest
In Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, 104 S.Ct. 2731, 81 L.Ed.2d 628 (1984), the Supreme Court said the following about the unity of interest between a corporate parent and its wholly owned subsidiary:
A parent and its wholly owned subsidiary have a complete unity of interest. Their objectives are common, not disparate; their general corporate actions are guided or determined not by two separate corporate consciousnesses, but one.
467 U.S. at 771, 104 S.Ct. at 2741. In my view, this concept makes as much sense in the trademark context as it did in the antitrust context of Copperweld. Therefore, the unity of interest between a wholly owned subsidiary and its parent should be held to exist as a matter of law in the trademark context. Because of their unity of interest, we may attribute those self-help remedies available to the parent to be available a fortiori available to the subsidiary. The importance of this concept in this case becomes apparent infra.
I turn now to an application of these principles to the case at bar.
E. Application of Section 32 to the Record
Section 32(1)(a) of the Lanham Act, 15 U.S.C. § 1114(1)(a) prohibits
use in commerce [of] any reproduction, counterfeit, copy, or colorable imitation of a registered mark in connection with the sale, offering for sale, distribution, or advertising of any goods or services on or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive....
The majority states that “[consumers who purchase Jalyn imported Lladro porcelain get precisely what they believed that they were purchasing,” concluding that Weil is therefore not injured by Jalyn’s imports. Maj. op. at 672. It is not clear to me that this is correct. The parties have stipulated to the fact that Weil only imports premium quality Lladro products, but Jalyn imports a mixture of premium quality and less than premium quality products. See Dist.Ct.Op. at 31 (sealed in published opinion).
The parties stipulated to the following for the purposes of the summary judgment motions:
There are four levels of quality for the porcelain made by Lladro, S.A. The lowest quality is destroyed and not sold. Porcelain of the next level of quality are designated ‘seconds’ and such items are only sold at Lladro, S.A.’s factory outlet in Valencia, Spain, as ‘seconds,’ after the ‘flower’ logo has been physically removed.
The remaining quality categories are ‘A’ first quality and ‘B’ first quality, ‘A’ being a higher grade level than ‘B’. Lla-dro, S.A.’s grading of its porcelain into ‘A’ and ‘B’ categories of quality is highly confidential and its customers and purchasers throughout the world and in the United States are not made aware of this internal grading of quality. No evidence has been submitted by either party as to the magnitude of the difference in quality between ‘A’ first quality and ‘B’ first quality.
*683Appellee’s Br. at 8. All levels bear the same trademark.
Under these circumstances, those consumers buying Lladro in the United States, who have developed expectations with respect to Lladro’s products on the basis of Weil’s performance over the years, are possibly being deceived as to the quality of the product when they buy Jalyn-imported goods. Arguably then, the importation of the goods by Jalyn is not only resulting in deception of the public, but it is also harming Weil’s investment in goodwill. Therefore, under both of the policies set forth by the majority,10 the competing parallel imports in this case could be banned by the Lanham Act. I therefore disagree with the majority’s assertion that “Weil’s investment in and sponsorship of its trademark is not adversely affected because the goodwill that stands behind its product is not diminished by an association with goods of a lesser quality.” Maj. op. at 672.
Quite to the contrary, Weil’s investment in creation of goodwill and reputation for quality could well be harmed by Jalyn’s importation of Lladro mixed-quality goods.11 Thus, I believe that Weil has a colorable claim under section 32 as the district court found and that the district court did not err when it determined that Weil could be injured by Jalyn’s importation. However, “ ‘it is a “familiar rule, that a thing may be within the letter of the statute and yet not within the statute, because not within its spirit, nor within the intention of its makers.” ’ ” K Mart, 108 S.Ct. at 1821-22 (Brennan, J., concurring) (quoting Steelworkers v. Weber, 443 U.S. 193, 201, 99 S.Ct. 2721, 2726, 61 L.Ed.2d 480 (1979) (quoting Holy Trinity Church v. United States, 143 U.S. 457, 459, 12 S.Ct. 511, 512, 36 L.Ed. 226 (1892))).
Neither the equities of this case nor the goals of the Lanham Act permit me to conclude that Weil should find a remedy for its claimed injury in this case. The source of the confusion in this case is not Jalyn, but Weil’s parent, Lladro. As discussed supra, I would hold that a wholly owned subsidiary and its parent have, as the Supreme Court in Copperweld stated, “a complete unity of interest.” 467 U.S. at 771, 104 S.Ct. at 2741. I therefore believe that the injury here is self-inflicted and that likelihood of confusion has not been established as that phrase was intended under the Lanham Act. To protect Weil’s interest in its American trademark, Weil’s parent, Lladro, could affix different trademarks to each corresponding level of quality, different trademarks to those products imported into the United States by Weil and those sold elsewhere in the world, and/or inform the public of the differences in quality, thereby precluding the possibility of deception or confusion.12
*684Moreover, if Lladro has forbidden Jalyn from disclosing the different levels of quality, it has engineered the injury to Weil by preventing Jalyn from differentiating its products from Weil’s. If Lladro is in fact engineering the possibility of infringement by selling its lesser quality products with the same trademark as its higher quality goods and also prohibiting its buyers from disclosing those differing levels of quality to consumers, then I do not believe that the equities should permit recovery under the Lanham Act even though Weil may have satisfied its technical requirements. In fact, to find otherwise would add an entirely new and mischievous gloss on the meaning of likelihood of confusion.
But even if Lladro would permit Jalyn to reveal the differing levels of quality of its goods so as to mitigate the likelihood of confusion, the fact remains that Lladro has full power to use different trademarks for different levels of quality and thereby prevent the harm to Weil’s reputation resulting from Jalyn’s importation of lesser quality Lladro products. Lladro also has a more effective remedy against infringement of the trademark owned by Weil; it may refuse to sell its goods to American importers or it may sell only on the condition of restrictions on resale, as the majority notes. See maj. op. at 668 n. 10 (quoting K Mart, 108 S.Ct. at 1823 (Brennan, J., concurring)). I would hold therefore that the wholly owned subsidiary whose parent sells products on the open market deficient in quality (as compared to those imported by its subsidiary), but marked identically, may not prevail on a section 32 claim where the only evidence of likelihood of confusion is the claim that different quality goods are on the market with identical trademarks.
In my view, once we refuse to recognize the different levels of quality as support for Weil’s argument with respect to likelihood of confusion, Weil could not, in any event, prevail. That was virtually the only evidence relied upon by the district court in concluding a likelihood of confusion. See Dist.Ct.Op. at 31 (not in published opinion because under seal, see 618 F.Supp. at 713-14). A fortiori, even if we set aside the evidence with respect to different quality levels, Weil has failed to produce evidence creating a genuine issue of material fact with respect to likelihood of confusion.
Yet, even if Weil/Lladro had not created the opportunity for infringement by marketing two different levels of quality bearing the identical mark, I do not believe Weil could prevail. This is largely because Weil is a wholly owned subsidiary. Because Weil and Lladro share a unity of interest, I believe that Weil would have an extremely difficult if not impossible time proving a separate and independent good will. See Premier Dental, 852 F.2d at 855. Indeed, the evidence it produced before the district court with respect to advertising and inspection of the products is inadequate to create a genuine issue of material fact as to separate and independent good will in my view.13
In summary, nothing in the Act itself or the developing trademark common law and international law would necessarily pre-*685elude protection of genuine goods with genuine marks. Thus, analytically, the district court was correct. But the aims of the Act, protection of the public from deception and protection of the markholder from harm to his investment in goodwill, are not served by providing protection in this situation. I would not expand the definition of likelihood of confusion to a situation in which a wholly owned subsidiary and foreign parent create the confusion by affixing the same mark to goods different in quality. Therefore, I concur with the majority opinion’s judgment that the district court erred by granting summary judgment in favor of Weil. I too would enter judgment in favor of Jalyn on the section 32 claim.
II. SECTION 33
For the same reasons that I believe that section 32 should be available in the parallel importation context, I also believe that section 33 should be available. But neither should be available in this particular context. Section 33 provides evidentiary advantages for the registrant, precluding the necessity of proving all of the elements of section 32 in order for the party to prevail on an infringement claim, but I do not believe it differs from 32 in any other respect significant for consideration in this case.
III. CONCLUSION
I sum, I have a fundamentally different understanding from the majority of the state of trademark law in the United States at this time. Under the currently viable theory of territoriality and the fact that the product’s source of origin is no longer the basis on which trademark rights are based, I cannot say that a United States markholder affiliated with a foreign manufacturer cannot maintain an infringement suit under the Lanham Act.
I am confident, however, that the Lan-ham Act was not intended to provide foreign manufacturers the power to engineer the possibility of infringement by labelling goods of different levels of quality with the same trademark and thereby creating confusion.
For these reasons, I would hold that Weil has failed to prove likelihood of confusion as that phrase was intended to be understood under the Lanham Act. In my view, a wholly owned subsidiary and its parent have a complete unity of interest and therefore self-help available to the parent is a fortiori available to the subsidiary. Moreover, the spirit of the Lanham Act would not tolerate an expansion of the definition of likelihood of confusion such that a parent may create the likelihood of confusion by affixing the identical trademark to premium and lower quality goods and then sending the lower quality goods into the stream of commerce to compete with its subsidiary’s premium goods. In this case, Lladro and therefore Weil could easily prevent the potential confusion and deception of the public and thus preclude any injury from infringement. For these reasons, I conclude that Weil may not recover under either sections 32 or 33 of the Lanham Act.
. I do not address § 42 in this concurrence, because I join in the majority’s conclusion with respect to § 42 as stated in its footnote 14. See maj. op. at 671 n. 14. I agree with the majority’s conclusion that § 42 is not available in the context of parallel importation, but I would come to that conclusion based on the history of the enactment of the section rather than its plain language.
. The international status of trademarks is far from settled. See Note, Vivitar Corp. v. United States and Osawa & Co. v. B & H Photo: The Issue of Common Control in the Parallel Importation of Trademarked Goods, 17 L. & P. Int’l Bus. 179, 197 (1985).
. The law of trademarks is an amalgam of statutory provisions, treaties, and common law. “It is generally stated that trade-mark statutes merely grant procedural rather than substantive rights.” Note, Trade-Mark Infringement: The Power of an American Trade-Mark Owner to Prevent the Importation of the Authentic Product Manufactured by a Foreign Company, 64 Yale L.J. 557, 561 (1955).
. The reasoning of Katzel was affirmed by the Supreme Court in A. Bourjois & Co. v. Aldridge, 263 U.S. 675, 44 S.Ct. 4, 68 L.Ed. 501 (1923) (per curiam), which answered affirmatively questions certified at 292 F. 1013, 1014 (2d Cir.1922), whether § 27 of the Trade-Mark Law of 1905 barred importation of goods produced abroad and bearing the genuine trademark where a foreign markowner assigned its United States trademark rights to an independent United States entity.
. The territoriality theory was a repudiation of the universality theory that a mark is either universally valid or invalid. See Osawa, 589 F.Supp. at 1171 (describing the theory of universality: "if a trademark was lawfully affixed to merchandise in one country, the merchandise would carry that mark lawfully wherever it went”). The universality theory is no longer viable. See, e.g., K Mart Corp. v. Cartier, Inc., — U.S. -, 108 S.Ct. 1811, 1822, 100 L.Ed.2d 313 (1988) (Brennan, J., concurring).
The doctrine of exhaustion developed as a corollary to the universality theory. Under this doctrine, once the markholder has sold an item, the subsequent sale of that item cannot serve as the basis for an infringement suit. The relevant issue for this case with respect to exhaustion is whether the doctrine of exhaustion is meant to apply only within the borders of a sovereign or whether it applies universally, such that a sale in one country prevents an infringement suit in another.
The latter position would make no sense in the context of the territoriality of trademarks. "[I]n international trade, a trademark symbolizes the geographically distinct goodwill of the domestic owner of the mark.” Note, The Gray Market Case: Trademark Rights v. Consumer Interests, 61 Notre Dame L.Rev. 838, 853 (1986). If every time a foreign manufacturer placed its product on the market, the trademark rights were universally exhausted, then the territoriality theory of trademark rights would lose most of its force and the right to control the trademark of an internationally available good in a given country would not be of much value. In fact, if the exhaustion theory were viable, that would mean that once a manufacturer sold the product to the domestic markholder, the product’s trademark rights were exhausted and the domestic markholder could not assert his rights under the trademark laws. That makes no sense where trademark rights may rest in non-manufacturers and the Lanham Act recognizes the validity of the assignment of trademarks.
The more coherent way to view exhaustion in the context of the territoriality theory is to view it as applying individually to each markholder such that a markholder only exhausts its own trademark rights upon sale of the item, and not the trademark rights of other markholders in other countries. See Note, The Greying of American Trademarks: The Genuine Goods Exclusion Act and the Incongruity of Customs Regulation 19 C.F.R. § 133.21, 54 Fordham L.Rev. 83, 109 (1985) (“When local goodwill is established, only the foreign trademark owner's rights are exhausted by sale to the U.S. trademark owner. Thus, the U.S. trademark owner’s rights over its trademark exist until it sells the trademarked good in the domestic market.” (footnotes omitted)). Thus, even if the exhaustion theory is valid within the borders of a sovereignty, it cannot be valid with respect to all *678sales of trademarked goods in light of the viability of the territoriality theory in international trademark law.
. I note some uncertainty as to whether the majority understands Katzel as effectively amending trademark law or as a case solely turning on its facts. In contrast to my observation in the text, the majority also seems to say that the Katzel decision is not an across-the-board rule, but rather a rule to be applied on a case-by-case basis. It states that this case does not present the "compelling circumstances” found in Katzel, Maj. op. at 668, implying that the result could be different if the circumstances were compelling and finds that "even if Weil loses some share of its United States market to Jalyn, it nonetheless benefits from the profits it received as part of the corporate entity from which Jalyn purchased the goods abroad. Moreover ... [Weil] has an obvious self-help mechanism: it can cease the sale to Jalyn abroad and thereby eliminate effectively its United States competition with Weil.” Id. If the majority is attempting an individualized determination of the equities in applying Katzel, I believe that to be the better methodology.
It is more likely, however, that it is not applying the rule on a case-by-case basis, because its assertions with respect to "self-help mechanisms” are not supported in the record, but are generalized presumptions about the relationship between wholly owned subsidiaries and their parents. The district court had no facts before it with respect to Weil’s and Lladro Exportado-ra’s corporate relationship relating to profits or elimination of competition abroad. At all events, I agree with the majority’s implicit assumption that all wholly owned subsidiaries should be treated as having a unity of interest with their parents, as I discuss infra.
. I believe that the majority undercuts its own plain language analysis in footnote 19 of its opinion. Where the "language of the trademark act will be read one way in light of the circumstances of some cases ... and that same language will be read another way in all other circumstances,” it seems to me that the plain language cannot control our disposition of the case. Maj. op. at 673 n. 19. Rather, we must look beyond the plain language and examine the Act and trademark law as a whole.
. These principles were the foundation of Weil’s summary judgment motion — of the money it spent and the efforts it made to establish the Lladro products provided and distributed by it so as to create public identification of Weil as the source of the buyer’s assurance of quality.
. I admit that trademark law would be more streamlined if neither § 32 nor § 42 applied to genuine goods. Both Jalyn and amicus 47th Street Photo have argued forcefully that we must interpret these provisions in tandem. However, there is no internal conflict in finding that an article may be imported, but may also form the basis of a trademark infringement suit. As this concurrence makes clear, cases involving genuine goods, although based on sound trademark principles, must be carefully analyzed to ascertain that the aims of the Lanham Act are being furthered. Therefore, even though genuine goods may be imported pursuant to § 42, they may or may not provide the basis for an infringement suit.
. The majority sets forth two policies behind the Lanham Act: (1) “protection against consumer deception” and (2) "protection of the trademark holder’s investment in goodwill,” concluding that "neither of the goals is undermined by the importation of genuine goods as in this case.” Maj. op. at 672.
. It is at this juncture that I take issue with the majority’s reliance on the Ninth Circuit case of NEC Electronics v. CAL Circuit Abco, 810 F.2d 1506 (9th Cir.), cert. denied, — U.S.-, 108 S.Ct. 152, 98 L.Ed.2d 108 (1987). I have dealt substantively with the approach taken in NEC in the text of this concurrence. In addition to these substantive objections, I believe that NEC is distinguishable from this case on its own terms. In that case, the Ninth Circuit also held that trademark law generally does not reach the sale of genuine goods bearing a true mark where the domestic markholder is not independent of the foreign manufacturer. The court stated that "[t]he reason is that trademark law is designed to prevent sellers from confusing or deceiving consumers about the origin or make of a product, which confusion ordinarily does not exist when a genuine article bearing a true mark is sold.” 810 F.2d at 1509. That reason does not operate in this case, because here we have the real possibility of confusion and deception of the public because of the use of the same trademark on apparently similar goods of varying levels of quality. Therefore, I believe that the justification for the rule announced in NEC does not apply here and that trademark law should apply even though the goods are genuine and even though the domestic markholder is affiliated with the foreign manufacturer.
.In fact, Lladro removes the flower logo from the second lowest level of quality products. The products with the lowest level of quality are destroyed. See supra at 682.
. Moreover, there would be few if any instances in which Weil/Lladro could not prevent the possibility of infringement, making Lanham Act protection inappropriate in most instances. I note in passing that this principle is a corollary to the principles of equity implicit in the Katzel decision — there, complete independence between the manufacturer and the distributor precluded the independent domestic markholder from preventing the infringement. Here, the complete unity of the manufacturer and the distributor/subsidiary makes it possible for the domestic markholder to be charged with prevention of the infringement.
The much more difficult case in my view and one we do not address here today is the case of the less than wholly owned subsidiary. For example, a unity of interest may or may not exist between a subsidiary and its parent where the parent owns 20, 40, or even 60 percent of the subsidiary. I also note that this would be a more difficult case if the infringement suit had been brought, e.g., the day after the purchase of Weil by Lladro.