The Analysis Of Trademark Parallel Imports

The speed of economic has been growing fast since the reform and opening up in China,the level of international trade enhances unceasingly.Since the 1990 s,the academia for the research of whether the trademark parallel import should be legal is becoming more and more deeply.Since the judgment for the law case of Lux soap parallel import has gone into effect,the number of case related to it has been growing.Through the analyzing and integrating for the existing theoretical research and judicial practice experience,we can see that the mainstream academic point of view is based on two basic principles of intellectual property-the principle of territoriality and the principle of exhaustion doctrine.And it is combined with other countries' legislation and judicial practice and the strength increasing objective current conditions of our country in the world trade stage.They are tending to believe it is in compliance with legal and realistic development needs in China to recognize the legitimacy of the trademark parallel import activities.Based on the basic point of view like this,compare the Lux soap parallel import case happened in the twentieth century and the French wine parallel import case at the beginning of the article and put forward the main problems: whether result of judgment has rationality and legitimacy,and how can it give the significance to the relevant law's supplement and complete for our country in the future.In the aspect of legal theory analysis,I start the analysis from the traditional theory of the principle of territoriality and the principle of exhaustion doctrine,and then discussed the relationship between them further.We can get the viewpoint of three new ideas for theory research: the basic function of trademark,the purpose of setting the right of trademark in the trademark law and balancing interests.Specifically,from the point of view for the basic function of trademark,the trademark as the object of symbolic intellectual property has three functions: identification,quality assurance and advertising functions.Because of trademark parallel imports only can give negative impact on quality assurance function,if it needs to be limited,we should proceed from maintaining quality assurance function of trademark.From the point of thepurpose of setting the right of trademark in the trademark law,we should not consider whether the behavior has damaged the exclusive interests of the trademark owner,but whether it has made harm to the logo interests of trademark owner when judging whether the trademark parallel import has caused infringement.From the point of view of balancing interests,we should consider to balance the protection of trademark rights and ownership.From the above three aspects to discuss the legality of the trademark parallel import behavior can improve the richness of the argument,It can be a more powerful argument for the final conclusions.Using comparative study method to compare and analyze the four patterns(legal,regional legal,forbid but has exceptions and illegal)of typical countries and regions' relevant legal system and judicial practice experience to summarize the experience our country can learn.With the help of system research method to explain the current related laws,and then puts forward the corresponding legislative suggestions: Whether analyze from the theory of law aspects for intellectual property rights protection,or from the perspective of the current trade interests consideration for our country,determining the trademark parallel import is legal in principle is imperative.Based on the status quo that there are not any clear legal provisions for the problem,we can follow the EU model to build a convention on regional integration international trade to allow trademark parallel import,with the Trademark Law and Anti-Unfair Competition Law,the Anti-Monopoly Law,etc.to determine the legitimacy of the trademark parallel import behavior in principle.And based on the principles of substantial differences to limit and standardize the trademark parallel import,we should ensure that the trademark parallel import does behavior not harm the goodwill of the trademark owner and the legitimate rights and interests of consumers.