Research Into Problems About Parallel Import Of Intellectual Property Products

Problems about parallel import of intellectual property products are becoming increasingly serious, however, there is no international treaty to regulate it definitely and all nations as well as regions have failed to adopt a unified legislative and judicial attitude towards it. In our current legal system, only patent law stipulates import rights of patent owner, but there is no relevant regulation in trademark law and copyright law. Starting with an actual relevant case and based upon clarification of concepts, theoretic discussion and demonstrative analysis, this thesis tries to construct a relevant legal system to regulate parallel import problems of our country.In the part of introduction, this thesis starts with some case of legal practice, which further brings about many problems the thesis tries to demonstrate and solve. The text can be divided into the following three chapters:The first chapter: the basic problems of parallel import of intellectual property products. This chapter mainly discusses three issues: one, analysis of the concept of parallel import; two, classification of parallel import; three, system of occurrence of parallel import.First, this thesis firstly introduces and analyses other scholars'concepts of parallel import, and based upon the critical analysis, the thesis sums up several essential elements of parallel import, i.e. impersonality element, personality element, object element, trans-border element, competition relationship element, and etc. Subsequently, I put forward my own viewpoint: parallel import means that when a product has been granted legal protection from a country or region, a third party, without license from the owner of intellectual property rights or the licensee from the country or region, sells the same intellectual property products in the country or region gained from another country or region where the products are legally produced and sold.Second, I discuss classification of parallel import according to different standards, and indicate the positive meanings of the classification in the research into problems about parallel import.Third, I explain the system of occurrence of parallel import from the point of system support, legal inducement and economic factor, and indicate that economic factor is the ultimate reason of the occurrence of parallel import.The second chapter: critical consideration of relevant traditional theories of parallel import. This chapter discusses two problems: one, critical consideration of relevant traditional theories of parallel; two, benefit balance theory.First, I critically consider relevant traditional theories of parallel import such as territorial principal, exhaustion of rights, implied permission and etc; indicate their deficiency and predicament and put forward my own viewpoint. Firstly, territorial principal mainly means that the generation, alteration and termination of intellectual property rights in every country and region shall not be affected by law of other countries and regions. This principal can not serve as legal judgment criterion of products manufactured and sold according to laws of other countries. Secondly, the principle of exhaustion of rights can only solve the problem about export-oriented commodities sold at home, but is useless to other types of parallel import. Meanwhile, I indicate that there is no legal basis to divide exhaustion of rights into national exhaustion of rights and international exhaustion of rights, and ultimately analyze the limitation of the implied permission theory in solving problems of parallel import.Second, Based upon the foresaid analysis, I draw the benefit balance theory. I analyze and discuss the benefit balance relationship between the parties of parallel import, take the patent products parallel import of typical countries and regions as examples and analyze the value and role of benefit balance theory in solving the problems of parallel import from the point of demonstration.The third chapter: the countermeasure consideration on problems about parallel import of our country. In this part, I clearly indicate that benefit balance of our country's realities is the theoretical basis of construction of legal system of parallel import. With the theoretical basis as stating point, I discuss the legal system regulating problems about parallel import of our country from the point of patent law, trademark law, customs supervision and other laws and regulations. To sum up, in my view, in order to foster innovation and promote prosperity and development of science and culture, with some exceptions parallel import of patent products and copyright products shall be prohibited in principle; to satisfy the reasonable demand of public interests, with some exceptions based upon benefit balance to properly balance the relationship between demand of public interests and exclusive rights of owners of intellectual property rights, parallel import of trademark products shall be allowed in principle. Besides, I put forward my own view on the positive role played by customs supervision and other laws and regulations in solving parallel import problems.