Research On The Parallel Import Of Trademark Commodities

Before China's accession to the WTO,although China is in a low-price market,due to China's high tariffs and trade barriers,even if foreign-owned products with price advantages are imported into China,plus international freight transportation costs and tariffs,Profits are severely compressed,so more smuggling of evasive tariffs than parallel imports.However,after joining the WTO,in order to meet the international trade market,China has adjusted tariffs.In 2015,it lowered tariffs on daily consumer goods such as clothing and cosmetics.In 2017,it also applied food,medicine,clothing,shoes and hats,daily chemicals,etc.Various types of consumer goods continued to cut tariffs,and in 2018,1585 tariffs were lowered.With a series of tax reduction measures,parallel importers are profitable.At the same time,China has established free trade zones and bonded zones,and vigorously develops international trade in policy.In recent years,with the comprehensiveness of Tesco International,Amazon and other Haitao websites.Flowering,the improvement of domestic consumption levels and the change of consumption concept have made China's parallel import problems more complicated and disputes have increased.Since the 1990s,academic circles have been increasingly studying the issue of the legality of parallel importation of trademarks.Since the parallel import case-the LUX soap decision has been in force,the number of related cases has also increased.From the combing of typical judicial cases,it can be seen that the judicial practice in our country currently has different qualitative and different judgments.From the analysis and integration of the existing theoretical research,it can be seen that the mainstream academic viewpoint is based on the two basic theories of intellectual property-regional theory and the theory of exhaustion of rights,and is supported by the implied licensing theory.Comprehensively examine the relevant experience of foreign legislation and judicial practice,draw on the mature part of its regulatory model,and consider the current dependence on foreign trade and the status quo of intellectual property development in China,and tend to adopt the "permitted mode of exception in principle" to regulate trademark goods.The parallel import behavior is in line with the legal principles and the needs of China's real economic development.Whether it is from the legal level of intellectual property protection or from the perspective of current trade interests,it is imperative to determine the parallel importation of trademarks in principle.Specifically,first of all,from the perspective of the basic functions of trademarks,trademarks as the object of identification intellectual property have three major functions:identification,quality assurance and advertising functions.Parallel import of trademarks may only have a certain negative impact on the quality assurance function of trademarks.If it is necessary to restrict them,it should start from the perspective of maintaining the quality assurance function of trademarks.Secondly,from the perspective of the legislative purpose of the trademark law,judging whether the parallel importation of trademarks causes infringement should not consider whether such acts harm the exclusive interests of the trademark owners,but should consider whether the parallel import behavior damages the trademark interests of the trademark owners.From the perspective of balance of interests,we must pay attention to the equitable protection of trademark rights,consumers and parallel importers.Finally,based on the current status of clear legal provisions on this issue in China,we have set such a legality recognition model:to confirm whether it meets the constituent elements of the parallel importation of trademarks——to determine whether the behavioral process may lead to related ordinary consumers.Misunderstanding or damage to goodwil——to determine whether it constitutes unfair competition——ultimately determines whether the act is legal or not.This model uses system interpretation to expand the scope of application of the law.And it can follow the legislative provisions of Taiwan Province of China to adopt a regulatory model that allows trademarks to be imported in parallel but has exceptions,and proposes to amend relevant legislative provisions in China.In order to regulate the parallel import of trademark goods in China to adapt to China's economic and trade development.