Infringement Determination Of Parallel Import Of Trademarks In Shanghai Free Trade Zone

The official opening of the Shanghai Free Trade Parallel Import Vehicle on February 15,2015 was the first time China's position on the issue of parallel importation of trademarks.The China(Shanghai)Free Trade Zone was used as a pilot field in the Free Trade Zone,even before the establishment of the region.After the introduction of parallel imported cars,China still has not established a law on the parallel importation of trademarks.However,in fact,China's Shanghai Free Trade Zone,other free trade areas,and non-free trade areas have all appeared parallel trademark import cases.Most of these cases are based on the principles of good faith in Article 48 and Article 57 of the Trademark Law and the Anti-Unfair Competition Law as the legal basis for the judgment.Through the case of parallel importation of trademarks in China and theoretical analysis,it is found that the current legal basis is not sufficient to resolve the parallel import infringement of trademarks.Because the above legal provisions do not directly regulate the parallel import of trademarks,that is,there is no clear trademark.Parallel imports are legal or not.The implementation of parallel imports of automobiles in the Shanghai Free Trade Zone indicates that there is a tendency for China to allow parallel imports of trademarks.According to published data on relevant platforms,there is an upward trend in parallel infringement of trademark infringements.Therefore,comprehensive consideration of the special economic forms of the free trade zone will accurately distinguish infringement boundaries.Has become a problem that needs to be solved.Based on this premise,this article discusses the infringement determination of parallel import in Shanghai Free Trade Zone from four parts.The first part is the theoretical part.First of all,the basic concept of the free trade zone and the unique features of the Shanghai Free Trade Zone are described.It shows that China's Shanghai Free Trade Zone has first tried the intellectual property protection in this field.significance.Second,the concept of the parallel import of trademarks and its production mechanism are briefly described.The mechanism of the parallel import of trademarks has an inseparable relationship with the characteristics of the free trade zone.The establishment of the free trade zone will inevitably lead to the parallel import of trademarks,and the trademark will be parallel.Import can also promote the free flow of goods and achieve the establishment of free trade zones.Therefore,in the brief part of the parallel importation of trademarks,the analysis of the legality of the parallel importation of trademarks in the Free Trade Zone was introduced.Finally,it is the theoretical analysis of the infringement of parallel importation of trademarks.The contention of infringement theory is reflected in the choice of the scope of the right exhaustion principle.This article tends to the international exhaustion principle,and believes that the infringement of trademark rights is of great significance to the protection of trademark functions.The second part is the inadequacy of China's trademark parallel import system and the status quo of the judiciary and the current infringement recognition system.The status quo of the judiciary is to analyze the juridical status quo of our country through a few classic cases of parallel imports of trademarks in China's Shanghai Free Trade Zone,other free trade areas,and non-free trade areas.In the current status of the system,it is from freedom.Trade agreements,trademark laws,unfair competition laws,and the analysis of China's policy provisions have led to the discovery of defects in China's parallel recognition of trademark infringement.This paper concludes that the existence of a gap in the system and the confusion of judicial practice have no evidence to show the necessity and urgency of resolving the issue of identifying infringement of parallel imports of trademarks in the Shanghai Free Trade Zone.The third part draws lessons from the advanced experience of the European Union and the United States.This section analyzes the system of parallel infringement of trademark infringements in the EU and the United States respectively.The EU adopts the principle of regional exhaustion on the issue of parallel importation of trademarks and restricts consumers in EU member states.The right to choose the EU's external goods is not in line with China's national conditions.This article does not favor adoption.While the United States allows the parallel import of trademarks,but the substantive differences and the absence of special and filing as a precondition for limited protection are relatively complete,this article tends to incorporate China's national conditions to introduce substantive differences,exceptions and additional special labeling system into our country.In line with local conditions,the trademark parallel import infringement system.The fourth part is the proposed part of solving the problem.The proposal is divided into two aspects,including the establishment of China's system and the improvement of the practical operation basis.In the establishment of the system,it is proposed to fill the legal gap of the “Trademark Law” and clarify the legality of the parallel import of trademarks,but under the premise of exceptions,the legal gap of the “Unfair Competition Law” should be filled,and the two categories of parallel importers should be clearly regulated.The recommendations for the improvement of the actual operation basis include the introduction of guiding cases to play a guiding role,the introduction of substantive differences in the United States,exceptions and rules for the attachment of special labels,and explicit and reasonable use of the content.The identification of the infringement of parallel import of trademarks in the Shanghai Free Trade Zone involves legal and policy provisions such as the "Trademark Law," "Unfair Competition Law," and "Customs Law." However,there are a lot of gaps in China's due regulations that make this problem.Mystery has greatly increased.This is obviously not conducive to the development of China's Shanghai Free Trade Zone.Therefore,China should fill in legal vacancies as soon as possible in the case of allowing parallel imports of trademarks,improve system construction,and correctly guide the parallel importation of trademarks in the Shanghai Free Trade Zone.