Research On Parallel Imports Of Intellectual Property And Legal Measures In China

The so-called Parallel Imports, generally refers to, when some intellectual property is protected by a two or more countries in international trade, in the framework of one country, the other people without intellectual property rights people's or exclusive of the country permit holders' consent, carry out the import and sale of the intellectual property while the people with concent doing same thing. Because of intellectual property products of parallel imports have greater price advantage than general intellectual property products, so these are liked by consumers, and this emerging problem of parallel imports is on the lack of legal regulation ,so with the development of international trade, in business chase driven nature of the benefits, more and more people carry out parallel imports.However, the issue of parallel imports not only has conflicts with the traditional intellectual property law, but also violates the benefits of intellectual property rights people to a large extent, some developed countries begin to make new legislative regulation of the intellectual property about parallel imports, and with its influence to reach a consensus in a number of international conventions and treaties on this issue. Of course, their efforts have achieved some results. A lot of national legislation and international treaties have special provisions on intellectual property rights issue of parallel imports.In recent years, despite the problem of parallel imports of intellectual property rights is a hot spot theory on the international protection of intellectual property rights, but in the end, there is any definite conclusion in the international and China's academic circles that whether to permit parallel importation. A few years ago, the problem of parallel imports is not very conspicuous in our country. However, after china's joining the WTO, its free trade with countries around the world Expanding ,the continuous declining in tariff levels, the reducing in non-tariff barriers ,parallel imports increasingly become the problem faced by most importers and exporters. And because of lacking legislative deficiencies about parallel imports in domestic, making the courts do not have a specific guideline in similar cases, a lot of contradictions in the case arise. In view of these questions, this article hopes that after doing system theory analysis on parallel imports, drawing on international and developed countries legislation and jurisprudence, to provide some suggestions for China's making intellectual property legislation about parallel imports.This article's research ideas is from the phenomenon to the level of theory to practice, comprehensive using of a comparative analysis of inductive methods, beginning from the nature and characteristics of parallel imports , using theoretical analysis of parallel imports as the breakthrough, in-depth analysing of the pros and cons of parallel imports, and finally in drawing on international legal practice, propose a legislative solution on how to deal with the issue of parallel imports in our country. This text is divided into four parts:The first part is "an overview of parallel imports of intellectual property rights." This part exposits mainly from three aspects of the issue of parallel imports,including parallel imports' definition and manifestations, parallel imports' characteristics and the contact and the difference between parallel imports and the related concepts.For the definition and characteristics of parallel imports, the author summarizes the different interpretations of scholars at home and abroad, and after that comes to my own views. The so-called Parallel Imports, generally refers to, when some intellectual property be protected by a two or more countries in international trade, in the framework of one country , people without intellectual property rights people or exclusive of the country permit holders' consent to carry out the import and sale of the intellectual property while the people with concent doing same thing. In this section, in particular, it should be noted that three types of parallel imports and the economic and legal reasons of parallel imports.The second part is "the conflict theory of being for or being against parallel imports." This part is one of the emphasis of the article, and it's an important theoretical tool to analyze parallel imports for the author. The author uses various theories of supporting parallel imports and against parallel imports as basic point,analyses the principle of domestic exhaustion and the principle of international exhaustion, public and private interests ,the free trade policy and intellectual property protection ,to get Theoretical basis of supporting or opposing parallel imports. The third part is "analysis of the pros and cons of parallel imports." The issue of parallel imports has become a no-win question, mainly because of its positive and negative, and the advantage between pros and cons is not very clear. The author analyses the benefits and losses of different parties in parallel imports from micro-and macro-angle, hopes that through this practice analysis, makes people being able to more clearly understand the advantages and disadvantages of parallel imports, and finally find a factual basis countermeasures proposed legislation of parallel importation.The forth part is "the principles and legislative provisions deal with parallel imports in international protection of intellectual property rights." This part is divided into two aspects " the legislative and judicial practice of parallel imports in developed countries " and " provisions regarding parallel imports in TRIPS and the CISG " to state the current situation of international intellectual property protection of parallel imports.First of all, the United States, the European Union and Japan are the world's most developed countries and regions,their related intellectual property legislation is far ahead with our country. Secondly, China is a party to TRIPS and the CISG, so we should comply with these two conventions provisions regarding the issue of parallel imports, and in order to maintain a domestic law consistent with international law, such provisions should also be timely to introduce into domestic law.Therefore, learning the current international intellectual property legal status of parallel imports is an important reference for China's legislation in this area.The fifth part is " our country's legal response on parallel imports problem."This is the focus of this article, any theoretical analysis should eventually returns to the practice, and a formal response to the theory is a combination point between practice and theory. From the legislative point of view, there are not specific provisions of parallel imports in the existing Chinese law, but the development of reality asks of our country's legal response to this issue as soon as possible in order to carry well out international trade activities and make better protection of intellectual property rights.To respond to this question, we must first have specific position and attitude to this issue. Treating of the parallel imports of trade mark, we should have restrictions on the permit; and treating of patents and copyrights of parallel imports,we should take the prohibition, but allow the existence of exceptional circumstances permit.To solve the problem is harder than to raise questions, to construct is more difficult than to crtice. Finally, in the face of this problem, how to raise the legal response, the author, mainly puts forward some constructive suggestions from two aspects including improvement of legislation and comprehensive adjustment.