| With the increasing integration of national economies worldwide, there have been more and more problems concerning intellectual property in the international trade area, and one of them is parallel import. Parallel import, also called gray market import, comes into being in this way: if a certain type of intellectual property has secured protection in both countries, say, A and B, and the importers of country A purchase products from the market of country B where the obligee of intellectual property or the authorized party produces and sells the product, then the unauthorized behavior of importers of country A to market the product in its own country is therefore regarded as parallel import. Parallel import has the following main characteristics: (1) It occurs during the course of an international trade; (2) The concerned intellectual property of the imported product is legally protected in the importing country. (3) The imported product must be the " authentic merchandise" made and sold by obligee and the authorized party. (4) The import of merchandise is not supposed to be authorized by obligee。The problem associated with the legitimacy of parallel import in the field of intellectual property has constantly brought about disputes on an international scale, the essence of which stays upon whether the intellectual property exhaustion doctrine or regionalization doctrine should be applied to the problem. Exhaustion doctrine, namely, first sale doctrine, is interpreted as: once a certain commercial product under the the protection of intellectual property is produced and put into the market by the obligee of intellectual property or the authorized, the economic rights of the intellectual property come to futility, and any utilization or indirect sale of the product does not constitute the violation of intellectual property. Regionalization doctrine refers the intellectual property protection in different countries should entirely depend on domestic legislation of the country, who empowers the intellectual property, that is, if the country where the interested party acquires intellectual property has relevant intellectual property legislation, the unauthorized importing of intellectual property goods is considered as a tort in accordance with the legislation. As shown from above, behavior of the parallel importer infringes upon the intellectual property if regionalization doctrine applied; whereas it does not encroach on the law with the application of exhaustion doctrine.As for whether parallel import being a tort on intellectual property, the previous international intellectual property convention does not stipulate; neither does the WTO newly signed TRIPS. In addition, views on this point held by legislature and judicature practices differ from country to country. This is because parallel import is not only a matter of legality, also, it involves various respects including politics, economy, trade, etc. Furthermore, trade policies often determine a country's legislation. This dissertation, combined with the realistic national conditions in China, analyzes the legislative practices and judicial precedents existing in the US, EU, Japan, Australia, etc., thus providing reference and experience for Chinese legislating.In terms of parallel import of patents, whether it constitutes a violation on intellectual property, according to legal regulations in the majority of countries, relies greatly upon if the obligee of patents has imposed restrictions on the product's resale regions. As long as the obligee of patents has ever undertaken such restrictons, of which the purchaser is fairly aware, regardless presently or afterwards, the purchaser's resale behavior should be regarded as a tort. In the light of legislations in different nations coupled with the current state of our own country, after integrately analyzing the benefits brought by parallel import of patents to respective party involved and balancing its pros and cons, it is thus highly suggested that the principle of permitting paral... |
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