| Parallel imports is an international trade problem related to intellectual property. It widely exists in three fields, trademark, patent and copyright. The problem has caused the attention of many governments and its theoretic research has been greatly improved. Since the right of importing is not regulated by trademark laws in most of the countries and the regional feature of trademark is not as serious as that of patent, the problem of parallel imports in the field of trademark right is especially outstanding. After China's access to World Trade Organization, China probes more into the world economy. Cases concerning trademark parallel imports have been gradually increased, which makes people pay more attention to the problem of parallel imports. Therefore, trademark parallel imports is chosen as the research subject of this article. By the systematic research of its concept, characteristics, expression forms, the comparative study of its conflict of interests and legislation, judicial practice of other countries(regions), and the deep discussing of current situation of trademark parallel imports in China, a conclusion is made: it is necessary to establish laws concerning trademark parallel imports in China which take the attitude of "generally permitting but with certain exceptions". This article includes three parts, namely foreword, text and conclusion, reading about 30,000 characters. The text is the main part, which include four parts.Part 1, the Introduction of Trademark Parallel Imports.Trademark goods in parallel imports are goods which are placed on the market with the consent of the trademark owner in one country, but subsequently imported without the consent of the trademark owner or user into another country. Trademark parallel imports is a wide concept with several forms and unique characteristics.Part 2, Conflict of Interests in Trademark Parallel Imports and Legislation, Judicial Practice of Some Countries and Regions Regarding the Problem.There are conflicts of principles and interests in parallel imports: conflict between the principle of international exhaustion and the principle of national exhaustion of trademarks, conflict between liberalization of trade and protection of domestic interests, conflict between private interests and public interest, conflict between trademark holders and consumers, conflict between the importer and the trademark holder.Although certain provisions in national laws have regulated parallel imports of trademarks, different jurisdictions have taken quite different positions. However, after carefully analyzing the legislation and cases of Japan, Korea, America, and Europe, we can find out something in common. First, the interests of consumers have been highly respected in all the jurisdictions. Second, national and regional interests have been the decisive factor in choosing the way to address the issue of parallel imports. Although international organizations are promoting trade liberalization worldwide, countries will not sacrifice their national interests totally in the near future.Part 3, Trademark Parallel Imports in China. At present, major intellectual property laws in China and regulations at administrative level do not show any clear standpoint towards parallel imports. Cases concerning parallel imports of trademarks are still rare till now. Courts have use different methods in dealing with the two famous cases (the "LUX" case and the "AN'GE" case) and expressed different attitudes towards this issue. Questions remain these cases. The first problem is that whether parallel imported goods that are of lower quality or even substantial differences from trademark goods sold in Mainland China are permitted or not. The second problem is that whether parallel imported goods which are of the same quality as those marked by authorized dealers in China but have been repackaged are allowed or not. The third problem is that which regulations can be considered the legal foundation for permitting or forbidding parallel imports of trademarks? Is it Trademark Law, the Chinese Anti-Unfair Competition Law, or the Law of China on the Protection of the Rights and Interests of Consumers? Or is the principles in those laws govern this issue? The debate among scholars on this topic in China is very hot. The voice for parallel imports is as strong as the voice against parallel imports.Part 4, Legislation Suggestions for Dealing with Trademark Parallel Imports in China.The establishment of certain laws regulating trademark parallel imports can not be delayed. As China has been a WTO Member, the tariff rate has been lowered and the non-tariff barriers have been reduced gradually. Meanwhile, the market economy of China has been greatly improved and China has been more involved in international trade with other countries. All these have made China more concerned with the issue of trademark parallel imports and made us rethink about related legislative situation. The establishment of certain laws and rules regulating trademark parallel imports is not only important for the Customs to execute effective protection measures on the border and for the courts to follow exact standards, but also important for protecting fair competition in the market and consumer interests.The attitude of legislation in China towards trademark parallel imports should be "Generally permitting but with certain exceptions". For China, permitting trademark parallel imports will benefit the national trade interests, permitting trademark parallel imports is in accord with the trend of global trade liberalization, and is good for protecting market competition and consumer interests in China. However, to some extent, permitting parallel imports will make China less attractive to foreign direct investments and will probably cause consumer confusion. In order to enhance the positive effects of trademark parallel imports and overcome the negative effects of them to the greatest degree, the attitude of legislation in China towards trademark parallel imports should be "Generally permitting but with certain exceptions". However, such a suggested attitude is based upon economic, political, legislative conditions at the moment and in the near future. It should be under continuous revisions to meet the national needs in the long run.For the procedure of legislation, in my view, it is better to regulate trademark parallel imports through judicial explanations and adjudication opinions of the Supreme Court at first. The establishment of statutory laws concerning trademark parallel imports will be needed later. Taking Competition Law as the most important law to regulate trademark parallel imports, we should combine it with Trademark Law, Contract Law, Trade Law, Customs Law, Quality of Product Law and Consumers Law.For the content, generally, the principle of international exhaustion of trademark rights should be adopted to permit trademark parallel imports. However, certain exceptions to the general permission of trademark parallel imports should be established, which are governed by the principle of national exhaustion of trademark rights. Those exceptions are as follows: First, trademark parallel imports which have caused market and consumer confusion or which are highly likely to cause such confusion should be prohibited. Second, "free-riding" act of parallel importers should be prohibited. Third, trademark parallel importers should be prohibited to damage trademark reputation by inappropriate repackaging, relabelling, and advertising.Moreover, certain obligations of related enterprises dealing with the problem of trademark parallel imports should be confirmed by national laws: First, companies should carefully draft the trademark license contract, especially the contract terms concerning the right of franchise and the issue of parallel imports. Second, companies should make full use of the trademark licensing contract recordal system in China. Third, companies should advertise for their exclusive licenses and assess and investigate the quantity, quality, sales and history of imports by people who are suspected of trademark parallel imports. Fourth, companies should not only focus on local trademark protection but also make full use of measures in foreign markets. |
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