Interesting fact pattern. KT Tape is the brightly colored tape you see on athletes. Both photos above are from its snazzy website. LT alleges that it determined that a batch of its product was below its quality standard. It contracted with defendant, Mr. Dumpster (that name again is Mr. Dumpster) to dispose of the product (for $435). Instead, Mr. Dumpster sold the tape (allegedly representing that the product was first quality).

So here we have the trademark owner affixing the mark to the goods but this dumpster-quality batch was (allegedly) materially different than an authorized batch, and thus actionable ‘gray goods.’

Also, there’s the $435 breach of contract action.

mr dumpster
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