Research On Parallel Import Of Trademark Commodities

The problem of parallel importation is a complex one and the problem of parallel importation of trademark commodities is even more complex for it is closely related with the interests of different agents like the public, trademark holders, exclusive conferees of trademarks, importers, etc. The different attitudes of different nations towards parallel importation of trademark commodities are the reflection of the conflict between the liberalization of international trade and the national protectionism and at the same time this is also a reflection of the complexity of the problem itself. In practice, parallel importation of trademark commodities is determined by the requirements of the development of a country's economy. At the special stage of China's economic development, the permission of parallel importation of trademark commodities can not only promote our economic development to some extent and bring forth some benefit to the public, but also accelerate the steps of our reform and opening up. At the same time, institutional choice should be comprehensive and we should enhance the protection of relevant agents of interests via institutional design.This paper is divided into four chapters.Chapter one is devoted to the discussion of the occurrence of parallel importation of trademark commodities and the relevant legal problems. Parallel importation of trademark commodities refers to the importation of trademark commodities bought legally from abroad by an importer without the permission of the trademark holder when the trademark or the use the trademark have already been protected by the national law. The commodities in parallel importation should enjoy protection in at least two countries. The regional nature of trademark determines the fact that trademarks of different countries are independent from each other, therefore making the right of the holder of one trademark have different source of right in different countries and regions, hence the occurrence of legal disputes in parallel importation.The legal problems caused by parallel importation manifest themselves mainly in its legality in trademark law and that in competition law. In the field of trademark law, these exists the problem whether the trademark holder has the right to prohibit parallel importation of commodities protected under trademark law as well as the problem concerning the legality of parallel importation. In theory, the problem is about the conflict between theories about the exhaustion of right and the regional nature of trademarks. The theory of the exhaustion of right, stepping from the protection of public interests, holds that in order to avoid consumer's confusion and mistakes in terms of the origin of the commodities, the trademark holder should be the sole source of the trademark commodities. The protection of the consumers can be realized simply by the putting into market of the trademark and commodities by the trademark holder. At the same time, parallel importation can bring forward the competition between the parallel importer and the trademark holder, thus making consumers benefit. So much so, the interference of the trademark holders with the continual of the circulation of commodities legally put into the market is illegal. The theory of the regionalist nature of trademark holds that the intellectual property right incurred by different laws of different countries should be independent form each other and the content and effectiveness of the right should only be recognized by the law upon which this right is incurred. According to this theory, the theory of the exhaustion of right is nationalistic in nature and the exhaustion of right only happen within the boundary of one nation but there is no exhaustion of right in an international stature. Therefore, the exhaustion of the trademark in one country does not necessarily mean that it is exhausted in another; in other words, the exploitation of trademark right also has a regionalist feature. The fact that parallel importation of trademark commodities does not constitute tort of trademark does not imply that the behavior of importers receives not constraint. In order to determine whether the" behavior of importers should be regulated by the anti-trust law, we should take into our consideration the following points: 1, the implementation of the duty to clarify the origin of the relevant commodities; 2, the implementation of the duty to clarify the quality of the commodities; 3, whether there are detriment to the credit of the commodities.Chapter two dwells on the investigation of the balance of interests of different agents in the process of parallel importation of trademark commodities. Parallel importation of trademark commodities touches upon the interests of agents like trademark holders, the exclusive conferees of trademark, importers, and the public of the importing country. There are different conflicts between these interest groups. 1, the conflict between individual interest and public interest. If parallel importation is permitted, the exclusive possession of trademark will be affected and so does the interest of the trademark holder. At the same time, we should also take into our consideration the benefits brought to the consumers by parallel importation. If parallel importation is prohibited, it is certainly to the detriment of the importing country. This is the conflict between the individual interest of trademark holder and the public interest of society. 2, the conflict of interest between trademark holder, the exclusive conferee of trademark and the parallel importer. If parallel importation is permitted, many low-price commodities of the same brand will be imported and this will lead to competition within the same brand and the exclusive right of the exclusive holder of the trademark will be affected and in its final analysis the exclusive right may be impracticable. Trademark holders, with their huge investment into the enlargement of market and their failure to harvest profit, will lose their initiative to permit or transfer intellectual property. And on the other hand, parallel importers will benefit immensely. If parallel importation is permitted, the interests of trademark holders and exclusive conferees of trademark will be protected to the fullest extent. This will drive them to invest more in intellectual property and thus realizing the advancement of technical innovation. However, from the perspective of importers, the prohibition of parallel importation will in a certain degree limit and hinder the free circulation of commodities and thus the liberalization of trade as a whole. Furthermore, this will limit competition and turn the whole thing into monopoly. At last, the public will not be able to benefit from technical advancement.Chapter three is mainly about the introduction to the legislation about parallel importation of trademark commodities of an international as well as a national stature with a view to further our own legislation in this respect. From the point of view of the comparison between international treaties and national legislation, the policies of USA and EU are different in terms of parallel importation of trademark commodities. The different policies pursued by different countries reflect the different inclination of protection of different interest agents. The relevant international treaties do not prohibit parallel importation of trademark commodities as a whole, and only the illegal trademarks and the fake ones are prohibited; as to USA, parallel importation is basically prohibited but its attitude is not clear-cut. EU employs the policy of regional exhaustion, however, when the problem of parallel importation is confronted with trade liberalism, it is another matter. From these facts we can conclude that one's attitude towards parallel importation if closely related to the level of economic development of that country and at the same time this attitude is not unchangeable. At different stages of economic development, a country will employ different policies concerning international trade in order to realize the maximization of its interests in this process. With the steady development of social economy, and driven by trade liberalism, the attitudes of different countries concerning parallel importation of trademark commodities will be more and more clear and the distance between them will be significantly shortened.Chapter four mainly proposes legislative suggestions concerning parallel importation of trademark commodities in China. For the reason that we do not have legislative basis concerning parallel importation of trademark commodities and the fact that the international treaties we entered also do not have clear rulings about this, we do not have any law to rely on when confronted with relevant cases. This will lead to different decisions about the same case due to the difference between individual cognition. This embarrassment reveals fully in the two cases "AN", and "GN". This embarrassment is not temporary in nature and it tends to be worse with the steady development of economy. Taking into consideration of our present condition, we should make permission as rule and prohibition as an exception concerning parallel important in our trademark law. We should also pay due attention to the protection and relief provision for the right of the exclusive conferee of trademark.