Trademark Product Is The Parallel Importation Of Legal Issues

Now days, parallel import of trademark goods is one of the hot issues both in the fields of intellectual property rights and the international trade. The conflicts underlying this problem are very complicated, concerning lots of different interests. Therefore, there are no such agreements reached in the international treaties, and it is also a controversial problem in the legal frameworks of many internal countries.When it comes to our country, this kind of disputes is still occasional before, however, since the Asian finance crisis, this phenomenon has happened more and more frequently in our country. Moreover, with the deepening of our open and reform policy and the enlargement of our foreign trade, this problem would have an enormous impact on our country's economy. Until now, there are still no such stipulations, which specially regulate this subject. So how to understand the nature of this problem and how to solve this problem in legal practice have become increasingly imminent to our legal scholars, legislators and judges.The number of words of this article is about forty-five thousand and there are three parts in this article.In part one, the writer discusses some basic theories of parallel import of trademark goods. Firstly, the writer gives two definition of this problem, including the wider one and the narrower one, and the writer stresses that this article only focuses on the latter one. In order to make readers more clearly understand this problem, the writer sumps up the legal features of the phenomena and divide it into several types according to scientific standards. Secondly, the writer concludes the reasons why this problem occurs in international trade, concerning the economic reason, system reason and the background. Thirdly, the writer reveals the basic legal theories, both traditional and burgeoning ones, about parallel import of trademark goods. The traditional theories include the contradiction between the universal doctrine of trademark right exhaustion and territorial doctrine of trademark right exhaustion, also the principle of trademark function. The burgeoning theories contain the implied consent theory, the import principle and the international trade rule. Lastly, the writer says that there is still no agreement in the TRIPS to regulate this problem because of great divergent opinions amongcountries. Besides, the writer selects some typical countries, including the developed and developing ones, to analyze their attitudes and practices on this subject.In part two, the writer systematically introduces the European Union legislation and legal practice on parallel import of trademark goods. The object of the European Union is to construct a single market among the member countries in the Union, and realize the free movement of goods, persons and capitals in this market. According to the Rome treaty, which can be categorized the constitutional law in the EU, the legislator of the EU regulates that the parallel import of trademark goods in the single market is permitted in the First Trademark Directive of the EU. Therefore, the trademark holder once agreed to put their trademark goods on the market of the European Union, he cannot take advantage of the trademark right to control the following commercialization of these goods in the EU. However, this Directive evades the problem of how to treat the trademark goods, which parallel import outside the Union market, until the Silhouette case. In this famous case, the EU meet such problem first time and finally express their attitude that trademark right is only exhausted in the Union market and the trademark holder can use this intellectual property right to prevent the trademark goods parallel importing from outside the EU market In the following Sebago case, the judges confirm their attitudes once again and think that the "consent" of the trademark holder to put their goods on the market must be unequivocal and it should be the parallel importer shoulders the burden of proof. However, in the Zino Davidoff case, the England judge tries to find a way to lighten the limit on the parallel imported goods that come from the third countries outside the EU. The Union judges also display lenient attitude on this issue, to some extent. Until now, whether the EU should take the regional trademark right exhaustion principle or international trademark exhaustion principle is still ardently discussed.In part three, the writer focuses on our country's attitude toward the parallel import of trademark goods. Our country has meet such disputes in practice before, but there is no special rules to solve this kind of problem, moreover, we cannot find such articles which can regulate this problem in our current legislations, concerning the trademark law, anti-unfair competition law and contractual lawand so on. The Chinese scholars express their different ideas on this issue and provide some helpful solutions. The writer tries to find some beneficial inspiration from the EU practice and puts forward some constructive suggestions to this problem. Firstly, the author proposes that, in order to strengthen the trade cooperation among inland, Hong Kong and Macao, we can expressly permit parallel import of trademark goods among these areas in our legislation. Secondly, we can take the practical attitude to this problem, following the European Union's example. So in the legislation we only permit the parallel import of trademark goods in the areas of inland, Hong Kong and Macao, as for other areas, it is no need to regulate explicitly in it. In the legal practice, the judges may, principally, allow parallel import. Of course, in order to protect the legitimate interest of trademark holders, if there are cases that seriously harm the trademark holders' benefits, the consumer's rights or the market order, the judges can take use of the trademark law, anti-unfair competition law and contractual law and so on to prevent such parallel imports.