The Identification Of Fair Use Of Trademarks In Parallel Import Sales

In recent years,with the rapid development of international economic and China's economy,the number of cross-border trade is increasing,and the parallel import of goods is extremely frequent.Because of the complexity of the parallel import of trademarks and the imbalance of economic development in various countries(regions),international conventions related to intellectual property have adopted a avoidance attitude towards it.However,there are great differences between legislation and judicial practice in different countries(regions),and there is no clear legal provisions in China.Although there has been a gradual consensus on some issues concerning parallel imports of trademarks,there are still great differences in the recognition of the rational use of parallel imports.Because the existing legal provisions are not perfect,the court can only make judgments according to the jurisprudence in the trial practice,and the judgment lacks strong legal support.At the same time,because of the different theoretical understanding,the reasons and even the results of the judgment of different courts are obviously inconsistent.On the basis of summarizing the judgment of typical cases in China and the legislative and judicial practice of parallel import of trademarks in major countries(regions),this paper analyzes the basic theoretical problems of fair use of trademarks,and then concludes that:the first step is to determine whether the use of trademarks in the sale of parallel imported goods constitutes trademark infringement;Whether it belongs to the trademark use behavior in the process of selling parallel imported goods,which means,whether it meets the constitutive requirements of the trademark parallel import behavior;whether the parallel imported goods have substantive differences with the goods already owned by the trademark owner in China;At the same time,the trademark use behavior needs to be in the scale of indicative rational use.In all,three conditions must be met: the importer's use of the trademark must be in good faith and necessary;the use of the trademark must be indicative;and the use of the trademark must not be mistaken as having a specific commercial relationship with the trademark owner.