Study On The Legality Of Parallel Import Of Trademarks In Free Trade Zones

With powerful development of construction of free trade zone,loose commercial environment and taxation policy provided a beneficial background for our import and export,with continuous increase of international trading activities,“parallel import”becomes a contradictory point of trading disputes.At the beginning of 1990s,scholarship circle started to research legality of trademark parallel import.According to current theoretical research basis,our Merchandise Marks Act and relevant legislation have no stipulation about it,however,legislation's unclear definition makes judicial practice field lack unified legal adoption standard and cannot solve disputes in a better way.The 19^th CPC National Congress Report pointed out to give free trade zone larger reform autonomy.As experimental field of revolution and reform,many free trade zones launched trial policy about automobile parallel import and provided reproducible and extensible experience for relevant legislation.Combining with comparison and observation to extraterritorial trademark parallel import,the author thinks that it undoubtedly a favorable moment of make first trial to trademark parallel import.The paper made legality research on trademark parallel import of free trade from following four parts,extend from behavioral theory to system design.First part is expression to basic theory of trademark parallel import of free trade zone.First is to state free trade zone in the form of FTZ,and mainly emphasized on management model of“open frontline and control second-line”;it pointed out that establishment of our free trade zone is a great measure of first trial and deepening reform and opening up second is to generalize trademark parallel import from meaning,cause and feature,we haven't made any stipulation about this content,this generalization made a clearer identification to trademark parallel import theory.Third is to analyze system value of trademark parallel import,it expounded from balance of trade liberalization and trade protectionism,balance of exhaustion of rights principle and balance of consumers interests and interests of trademark owner,however,legality identification of trademark parallel import is realization of trade liberalization,adopting principle of exhaustion of international rights and system value of protecting consumers interests.Second part is availability and dilemma of trademark parallel import of free trade zone.Availability means free trade zone has larger reform autonomy in policy and more bright opening,many free trade zones have launched trial policy of parallel import automobile,and provided more beneficial environment for our leading of this law stipulation;With the opportunity to revise the Merchandise Marks Act,it conforms to the establishment characteristics of the free trade area,and products of trademark parallel import are not only certified products but have advantage of low price,more beneficial to consumers'expiry interests protection.The dilemma includes three aspects,one is there is no legislative stipulation for this kind of case in domestic;second is with continuous increase of case quantity,judicial practice lacks unified legal adoption standard;third is lack of sound and complete supporting measures.Third part is extraterritorial investigation of trademark parallel import of free trade zone.TRIPS agreement has no defined stipulation about every member has right to decide whether trademark parallel import is allowed according to their measures to local conditions;EU adopts regional exhaustion principle,the stipulation can only restrict members of the community,which means trademark parallel import is allowed in principle,American foreign trade zone and Korean economic free zone are in the form of FTZ,the two countries free trade zones is controlled by customs laws,American customs regulations believed that commodities of parallel import don't constitute an infringement is decide by whether there marked labels which meet the requirement,Korean economic free zones adopted conditional allowance principle;European free trade zones and Northern America free trade zones are in the form of FTA,among of it,European free trade zones adopt international exhaustion principle to allow trademark parallel import,but Northern America free trade zone has no stipulation about this.It summarized some available referential experience for us on the basis of contrast and analysis to extraterritorial experience,various countries have no defined forbidden stipulation to trademark parallel import.Forth part is realization path of legality selection of trademark parallel import of free trade zone.Firstly,it should define basic value orientation of trademark parallel import of free trade zone and balance interest of all parties.Then to make specific system improvement,including improvement to legislative rules,there can make relevant disciplined documents in free trade zone;discipline adoption standard of judicial practice,it is available to establish guiding case as reference standard,and relevant supporting measures,such as improvement to customs laws,bonded system and after-sale service.So that to make legality selection of trademark parallel import of free trade zone more available,this experience can bring reproducible and extensible experience for nationwide relevant identification.