On Legal Regulation Of Parallel Importation In International Trade Of Intellectual Property Rights

Parallel importation (PI) shows different forms in different fields. It is bias to generally call it good or bad, and it seems inflexible to simply say yes or no to it. Also, PI is changing with the development of economy and trade of one certain country. To importing country, that showing consent to PI in a certain period is beneficial doesn't mean the same effect in the future; today's prohibition may not be fit for tomorrow's conditions. Because of these factors, there is not explicit rule in international law. While most countries don't show absolute consent or prohibition in their national laws. From the perspective of legal regulation, it is necessary to regulate PI respectively under different condition because PI shows different forms and complex relations of interest which makes each form a specific one. In all forms of PI, PI in international trade of intellectual property rights (IPR) is so difficult to effectively regulate because the conflict of interests it gives birth to is very complicated.As to legal regulation of ordinary PI, the conflict of interests being concerned is between parallel importer and IPR owner who is the first seller for IPR goods. While the legal regulation of PI in international trade of IPR unavoidedly dwells in the relation of IPR trade, because the key conflict of interests has been in the relation between parallel importer and the right holder in importing country. However, it unevitably shows limitations to apply the present main legal basis for PI regulation to deal with PI in international trade of IPR. The limitation mainly reflects neglect to relation of IPR trade. Of course, traditional methods also work to PI in international transfer of IPR and non-exclusive license. But, to PI in international exclusive lisence and international franchise which are more universal, those legal grounds including intellectual property law, contract law and anti-unfair competition law pay little attention to relation of IPR trade and independent status and interest of exclusive licensee, which means those ways cannot lead to effective regulation. Therefore, after the analysis of interest conflicts caused by PI in international trade of IPR, the essay proposed that PI in international trade of IPR should be regulated under rules of international law of IPR trade. Although international law of IPR trade mainly regulates relation of IPR trade but not directly regulates PI, it also can be the legal basis for PI regulation because of the close connection between IPR trade and PI. Getting rid of controversy on legality and attitude to PI, the essay proposed a path to realize an effective regulation to PI. Rules of international law of IPR trade on one hand can be legal ground for prohibiting PI. On the other hand, they can be applied to regulat the restrictive behaviors to PI, as a result of which PI is permitted. It is just the requirement of effective regulation to apply different rules under different conditions. The essay is divided into four parts.Chapter one is the clarification of PI in international trade of IPR and interest conflicts it gives birth to."International trade of IPR"is not only the perspective of this essay but also the scope of PI disscussed, and also because this defination is difficult to distinguish with other similar ones, it is nessary to first clear up its history and clarify its implication. Then the essay introduced controversies about defination of PI and clarify its basic implication. These illustrations are all indispensible for clearly clarifying the object of this essay. Following the above contents, the essay demonstrated implications of PI in international trade of IPR and particularity as well as complexity of interest conflicts it leads to. Particularity of PI in international exclusive license and complexity of interest conflicts it produces are specially emphasized.Chapter two shows the comment and analysis to regulation on PI under intellectual property law. This part first introduced the principles, judicial practices and controversies involved of regulation on PI under doctrine on exhaustion of IPR, rules of right of importation and rules of infringement of trademark rights. Based on the introductions, the essay analyzed limitations of the above paths. The first two are mainly applied into the relation between PI and IPR owner who is usually the first seller of IPR goods. They cannot be directly applied to regulat the interest conflict between PI and right holder in importing country who is the licensee in IPR trade. The difficulty of the third path lies in the fact that PI goods are genuine goods and they are impoted through legal channel.Chapter three shows the comment and analysis to regulation on PI under contract law and anti-unfair competition law. This part first introduced the principles, judicial practices and controversies involved of regulation on PI under implied license theory, territory restriction clause and obligation of right guarantee in sales contract of IPR goods, as well as rules of anti-unfair competition law. Based on the introductions, it analyzed limitations of the above paths. The limitation of applying implied license theory lies in the difficulty to prove existence of"implied license"and the unpropriety that the right holder in importing country cannot stop PI because of the implied license between the first seller and parallel importer. Although the territory restriction clause and obligation of right guarantee in sales contract of IPR goods can be applied to restrict PI of back selling, they cannot be applied to effectively restrict PI in international trade of IPR. The limitation of applying anti-unfair competition law lies in the difficulty to prove PI coming up to criteria of unfair competition behavior.Chapter four proposes and testifies realization of effective regulation on PI in international trade of IPR under international law of IPR trade. The effective regulation is demonstrated by two aspects. On one hand, national institutions in international law of IPR trade can be legal ground for the court to affirm parallel importers'intention of infringement, which supports that parallel importer infringed the right of exclusive licensee in importing country. Thus, PI is banned. On the other hand, anti-trust rules in international law of IPR trade can be applied to regulate the unproprietory restrictive behaviors to PI of two parties of IPR trade. Therefore, PI is permitted. This method of regulation on PI has been applied in the precedents in some asian and european countries, and it also can be applied in China's PI regulation practices.