Research On Measures Of Transit Goods Border Protection Of Intellectual Property

With the further opening up to the world, especially influenced by the recent approval to launch the pilot free trade zones in Shanghai and Guangdong, the issue of the protection of intellectual property rights on transit goods border measures in China has been increasingly prominent. However, the domestic studies on this issue is still in the blank stage. Therefore, this thesis attempts to combine the relevant provisions of the international treaty and the judicial practice from all over the world, and elaborate the basic theory of the protection of intellectual property rights, in the hope of providing some humble opinions on our country’s law construction of border protection measures.The first section gives a basic overview on the intellectual property of transit goods border measures. At first, it summarizes the definition of transit goods according to domestic and foreign related legislation. And then it introduces the intellectual property border protection system and its relationship with transit goods. Finally, it points out that no final conclusion has yet been reached on whether the international border protection measures should apply to transit goods or not.The second section discusses the provisions on intellectual property protection of transit goods in international treaties and documents. Firstly, it sorts out the provisions relating to freedom of transit under the GATT regulations. And it clarifies that the provisions of freedom of transit in Article V of the GATT cannot serve as a clear basis for transit countries to take border protection measures for transit goods. Secondly, the TRIPS agreement related to border measures are analyzed in detail from the aspects such as legislative objectives, scope of protection, apply link. It discusses the legislative intention of the TRIPS agreement, then it touches upon annotate13stating a neither mandatory nor forbidden attitude towards members who take border measures in transit goods. Thirdly, it analyzes current international TRIPS-plus treaty. And then it discusses ATCA’s destruction of the balance between the obligee and respondent under the TRIPS agreement from the aspects of applicable link, law applicability, guarantee system and remedial measures. Furthermore, it introduces the border enforcement measures relating to intellectual property in the TPP negotiations, it finds out that the scope of border measures has been expanded to goods in transit. Finally, it concludes that the pattern of TRIPS-plus advocating international protection of intellectual property has become a matter of fact for each country.The third section offers a legal analysis on transit goods intellectual property border measures. First of all, it points out that the private right of intellectual property rights is the theoretical basis of intellectual property rights. Therefore, border measures serve as a means of public rights relief to the private rights, its legitimacy should be based on the private rights. And then it expounds the regional characteristics and irreplaceability of intellectual property rights, and makes a critical analysis on extraterritorial assumption and production hypothesis. And it also analyzes the legal applicability on the infringement of intellectual property rights.The fourth section presents suggestions for improving our transit goods border measures. At first, it summarizes the current legislation of border measures in our country and points out its insufficiency and inflexibility. And then considering the balance of intellectual property rights protection and trade freedom, applicable condition and protection mode, it puts forward suggestions for the perfection of transit goods border measures in China.