Research On The Trademark Infringement In Parallel Import

In general,a goodwill parallel importer can defend infringement on the ground of "legal source","legitimate indicative use",etc.If a parallel importer uses a trademark to propagate and sell goods in an improper manner in China,the issue of trademark infringement will be involved.The main manifestations in practice are the infringing use of trademarks on goods or service,and the improper use of trademarks which constitute false publicity and unfair competition.The article starts with some controversies in parallel imports,and the ultimate goal is to sort out some ideas for identifying and preventing infringement from specific case in performance.The perspective of the subjects involved in parallel importation,generally involves the trademark owner,the trademark licensee of the importing country,the parallel importer,and sometimes the supervisor who related to the parallel importer.For these subjects,it is important to be able to accurately identify and avoid infringements.In current parallel imports,selling parallel imported products has been clearly affirmed Non-infringement.More infringements occur in scenarios associated to selling goods,for instance,using trademarks to indicate the true source of the goods they sell.Regardless of whether it is above the Internet or offline,there may be several types of infringements in publicity and sales:first,promotion for goods through trademark usage beyond the legitimate and instructive scope;second,the infringement on the trademark which has been registered on service and goods in the same time;third,the content promoted of trademark use is inconsistent with the facts and constituted false propaganda;Fourth,if the trademark infringement conducted by the parallel importers in where the business governor indulges them,there will be a consequence for the governor that constituted a helping infringement.Further if there is a competitive relationship between the business managers and the trademark owners,it will also constitute unfair competition.Fifth,the act of packaging or refitting creates a substantial difference between parallel imports and genuine domestic brand goods,which not only constitute trademark infringement but also constitute the act of selling products violating trademark rights.For the determination of trademark infringement in parallel imports,a necessary precondition is the objective facts that using of trademarks exists.The meanings of trademark use and trademark infringement differs in trademark law.The use of trademarks is a general expression covering usage in all forms under the trademark law and is description of objective using acts.The trademark infringement is the legal evaluation over objective using behavior.As for the use in sales,from the typical cases involving some brands such as"PRADA","FENDI","GUCCI" in practice,as to indicating the source of selling products,parallel importers using brand trademarks should follow the legitimacy,rationality,and directiveness,and mind the boundary between legitimate instructions and the possibility of causing confusion.If a single right holder's trademark is used alone or prominently in stores operating different brands in aim to create source instructions,and there is a lack of explanatory text,the relevant public mistakenly produces the impression that the sales subject is an authorized person by the trademark owner;or a parallel importer or store operators use the names of other companies for their own sales promotion without authorization;it is easy for consumers to misunderstand to a certain extent.The use of trademarks in these improper ways may constitute trademark infringement and unfair competition.It should be noted in these situations that sometimes the brand logo is registered on different types of goods or services at the same time.When a parallel importer uses a trademark and objectively has the function of indicating the source of the service,it is easy for the relevant public to think that the service of the parallel importer is related to the service of the trademark owner,which will cause confusion to the source of the service and constitute an infringement of the service trademark on the relevant category of the trademark owner.The scope of responsibility of the shopping mall management mainly comes from whether to suppress the infringement of trademarks by parallel importers,and whether they use parallel imported trademarks to promote their image while acknowledge that there is a competitive relationship between them and trademark owner.If competitive relationship does exist,they still allowed the parallel importers under their management to infringe on the use of the brand trademark,or themselves took the opportunity to attract more purchasing power by use the brand trademark in advertising,those actions will constitute false propaganda or unfair competition and should bear liability for infringement.Parallel importers should follow the principle of good faith.When there is a difference in quality,origin,service,etc.between the products they sell and those of domestic distributors,and the domestic trademark owner has obtained an independent trademark reputation,then they should protect the consumer's right to know by presenting the truth in an appropriate way.If the divergence between parallel imports and domestic products is large enough to form a "substantial difference" and the relevant public will change the extent of their consumption choices when they know the difference,the trademark owner has the rightful reason to prohibit it.Repackaging and sub-packaging of goods may occur in parallel imports as well.When repackaging affects the identification or quality of the goods,causing consumers to have a reasonable doubt about the origin of the imported goods or a decline in the recognition or trust of the trademark,which usually constitutes a trademark infringement.If the unauthorized application of the trademark in Chinese or the removal of the product identification code or the repackaging conducted an unbefitting impact on the identification of the product and affected the quality instruction of trademark,resulting in consumers reducing the level of trust and approval of the trademark or doubting the true source of imported goods,usually constitutes trademark infringement.