Trademark Parallel Imports

Parallel import of the trademark rights has been a hot topic in the field of intellectual property rights and has been discussed for a long time, which is accompanied with the development of intellectual property and the International trade liberalization. The legal community has made a lot of controversies on whether prohibit or allow trademark parallel importation. Most of the arguments illustrate this problem with two academic statements, the exhaustion of rights theory and the principle of Intellectual Property territoriality. In recent years there are also articles from the aspect of trademark function to explore this problem and has achieved some progress. In this article the writer tries to avoid to make the choice of whether we should forbid or allow trademark parallel import, but hope to find a solution to this problem in judicial cases. First, the writer uses the legal basic theory by legal nexus. We will comprehend trademark parallel importation in three elements (the subject, object and the contents). The writer will point out some misunderstanding that widespread in legal community on this issue. On that basis, we will discuss the rights of holders in importstate, especially the exclusive import rights. Second, On the basis of the above understanding, the writer analyses two theories, the exhaustion of rights theory and the principle of Intellectual Property territoriality and come to a conclusion that neither these two theories can solve the problem very well. Then the writer will analyses the theory of trademark function and suggest that it is a good way to solve the trademark parallel import problem. The essence of trademark parallel importation problem is the conflict of interests both between countries and private. In the third and forth part, the writer analyses the trademark parallel imports through the relevant cases and states the legislation and judicial practice of U.S., Europe and Japan regarding to trademark parallel imports issue, which has a very important guide in our legislation and judicial practice. On the basis of above conclusion, the writer suggests there is no need to make special law to solve this problem. In order to maximize our interests, China can use the theory of trademark function and the laws that we already have to solve judicial cases. And in the meantime to make all parties to achieve balance.