Trademark infringement in connection with parallel importation
Parallel importation involving intellectual property rights and the doctrine of exhaustion have evoked different theories from which no consensus has been achieved in national legislatures worldwide. Meanwhile, the issue has been dodged in various international treaties, for example, the TRIPs Agreement provides in Article 6 that “ nothing in this Agreement shall be used to address the issue of the exhaustion of intellectual property rights.”
In China, parallel importation, particularly the issue of trademark parallel importation, has been a hot topic in theoretical discussions. Based on the relevant legislations and domestic judicial precedents, this article makes a preliminary discussion about legal issues surrounding trademark infringement in parallel importation without going into detail about many issues, in a bid to solicit more valuable opinions.
Practices and controversies of trademark parallel import in China
Parallel importation of trademarks has always been a hot and thorny issue in the fields of IP and the international trade and is hotly debated internationally. Because occurrences of parallel importation emerged relatively late in China, the majority of the general public has never heard of this concept, and even within the industry quite a number of people cannot tell clearly what on earth parallel importation is. At present China’s Trademark Law, implementing regulations and other relevant laws don’t have explicit provisions on parallel importation, leaving statutory blanks in this regard.
Overview of regulations on parallel importation in China
Before the 2009 revision of the Patent Law, Chinese laws did not address the issue of parallel importation. China revised the Patent Law, Copyright Law and Trademark Law in 2000 and 2001 respectively, however, the revised basic IP laws all failed to address the issue of parallel importation. Similarly, China’s Anti-Unfair Competition Law, Foreign Trade Law, Customs Law and other laws and regulations don’t address this issue either. Because of the lack of legal basis regarding parallel importation in China, the IP owner is unable to find a legal foundation; the owner has no idea of China’s attitudes towards parallel importation in the event of any occurrences, and can in no way foresee the outcome of the case.
Trademark parallel importation requires urgent legislation
Parallel importation has been regarded as an archaic topic in the areas of international trade and intellectual property (IP) rights. Despite years of theoretical debates and national legal practices, no consensus has yet been reached as to how to respond. Compared with the parallel importation of patents and copyrights, the issue of trademark parallel importation seems to stand out more prominently.