Research On The Legal Problem Of Parallel Import Of Trademark Under The View Of Comparative Law

The implementation procedure of intellectual property rights involves certain limitations of rights,including exhaustion of the rights.Whether an exhaustion of the trademark/patent rights or an exhaustion of the copyright,both mean that after the lawful release of the product on the market,the right holder has no more control on this product,his control power has terminated in advance.The early exhaustion of the rights,according to the territoriality of the intellectual property rights,is restricted to one sovereign state's legal frame.Following the increasingly closer relationship between the intellectual property rights and the international trade,the cross regional circulation of commodities has been increasing.In order to open up the international market,the trademark owners have registered their trademarks in different countries at early stage.The intellectual property rights of a single product can be protected by two States's law at same time.When products are imported and sold from a higher pricing country to a lower pricing country by a third party and when there is a conflict with the exercise of exclusive rights by the trademark owner of the same products from the lower pricing country,it may lead to an international debate on the legitimacy of parallel import of trademarks."The Agreement on trade related intellectual property rights" for settling international trade conflicts only broadly stipulates that the member states should comply with international treaties and apply the most-favored-nation clause to the other member states's citizens but can not be used for solving the parallel import issues.Actually,parallel import is closely related to the international trade and its standpoint is closely related to the freedom of trade of sovereign states and also to the extend of trademark rights's protection.As a big trading country,China has to face more and more parallel trademark import conflicts in its judicial practice.But the Chinese "Trademark law" and other relevant laws and regulations have not mentioned that issue.If we look back at the Chinese "Patent Law" which has been revised three times,it has expressly authorized the parallel import.I will try to analyze the specific causes of parallel import of trademarks by using legal and economic theories in this paper.I think the price gap is the basic reason for the emergence of parallel import and I will explain the concept and characteristics of parallel import and the fundamental theory of parallel import of trademarks.Afterwards I will compare the legal system and legal practice in America,Europe,China and other countries and regions with different levels of development by classifying the solutions of parallel import issues into three categories:prohibition with exceptions,consent of trademark owner as condition for parallel import and authorization for flawless products.Combined with the pilot sales example of parallel import vehicles in China free trade area,I suggest to,having regard to Japanese law,put up articles in law which allow parallel import in general with exceptions.We hope to find a balance of interests for all parties including consumers in the game between the trademark owners and the importers.