Legal Research On Parallel Importation In Trademarks

Parallel import is about products that are legitimately produced and marketed abroad with the consent of the owner of the trademark rights but are then imported into a country or territory without the agreement of that owner or of the exclusive licensee in the place of importation. The imported products are not the same as pirated or counterfeit goods by reason of the close relationship between trademarks and the movement of goods.The doctrine of the exhaustion of intellectual property rights, of the essential function of trademarks and of the independent credit standing of trademarks, are the key theories for the matter of parallel imports. All of these theories can be found in the current international conventions and national or regional practice to problem of parallel imports in trademarks.It is a traditional way to research parallel importation in trademarks by Trademark Law. But it is not a good way. Because parallel imports in trademarks don't infringe the exclusive rights of trademarks, we can't forbid parallel import by Trademark Law.Some scholars want to solve the problem of parallel importation by Contract Law. It is unreasonable. We must pay attention to the relativity nature of contract. Parallel importer is not a party of the contract that is concluded by the owner of trademark with others.The essence of competition law is to deal with the economic phenomena that are uncertain. It protects the interests of competitors, commonality, and consumers. It is a reasonable way to regulate the parallel importation in trademarks by competition law.Although the cases of parallel importation used to be quite rare in China, the situation is shifting due to China's entry into the WTO and the changing global economic environment. There is an urgent need to seek a solution for parallel importation in China especially in trademarks field. From my personal point of view, considering the present economic, ideological and social situation in China, international exhaustion would be the better choice for the general mechanism, but which definitely should be supplemented by exceptional provisions when other legitimate interests, such as consumer protection and free competition, are so requested. The exceptions can be legislated in the Competition Law. Of course, Customs Law and Foreign Trade Law can be regarded as auxiliary regulations. A complete system can be established through these efforts.