Research On Predicament And Countermeasure In Identification Of Infringement Of Trademark Goods From Parallel Import

Through the observation over cases of trademark goods' parallel import happened in China recent years,there are new points put forward,as like resellers changing trademark goods' character,using trademark on the goods,goods from parallel import being different from domestic goods and so on.Settle such disputes with principle of exhaustion of rights need several exceptions for each point.On the contrary,the theory of trademark's functions can be more flexible to solve them.This thesis aimed at solving the identification of infringement of trademark goods from parallel import by the theory of trademark functions,looking for the exact trademark function for disputes and the rule to cognizance trademark function's derogation.In chapter one,find problems that firstly trail basis were different by cases,some cases based on principle of exhaustion of rights but some based on infringement of trademark's functions.Even if trails based on the latter,which derogatory function can be recognized and how it can be,the answer is changeable.In chapter two,two theories mentioned above were in analysis to reach the conclusion that the theory of trademark functions is more suitable.The principle ofexhaustion of rights contradicts the principle of regional rights of intellectual property,requires a balance between rights of consumers and trademark righters even national trade policy.The basic function of trademark is to separate goods from various providers.From the ability of distinction,trademark's owner can be encouraged to improve quality and service to attract consume.On general cases about trademark infringement,likelihood of confusion can be found as standard to judge if that function of trademark be destroyed.In chapter three,which function of trademark should be protected in parallel import needs to be clear.Recognition function demands true goods to be imported.Trademark's owner has rights to take actions like providing different goods to different markets with a purpose to control quality of their goods,which reflects the function of quality assurance.Advertising function makes it possible that trademark's owner builds independent goodwill of trademark on single market.In conclusion of this chapter,functions of trademark in recognition and quality assurance require legal protection,same to independent goodwill.The purpose of chapter four is to determine the specific rule to distinguish whether functions of trademark be broken or not,where likelihoods of confusion in source and quality separation play a role.When goods from parallel import have a diverse source from domestic goods with same trademark,goods be changed without a legal reason,or resellers using the mark on goods as a trademark,infringement of trademark can be reached because perhaps confusion of goods' source will be occurred.If goods from import have material difference,or resellers' behavior damages trademark owner's right to control quality of their goods,infringement of trademark also can be recognized with the reason of likelihood of quality's confusion.To maintain fair,resellers infringe trademark right when its owner proved a existence of independent goodwill.