商标领域的平行进口问题
[摘 要]：随着经济全球化、区域经济一体化和世界贸易自由化步伐的加快、我国对外贸易的深入以及各国在国际贸易资源优势上存在的差异，这就催生了商标领域内的平行进口问题。通过对商标平行进口问题的研究发现：商标平行进口问题是一个与知识产权有关的贸易问题。它涉及知识产权权利人利益的保护问题；同时，它又与贸易自由化、消费者权益保护问题密切相关。商标平行进口问题一直存在较大的争议，商标权的权利用尽原则和地域性原则分别为支持和反对商标平行进口提供了理论基础。用价值分析的方法论证了商标权的国际用尽原则，并基于该原则支持平行进口，同时对商标领域内的平行进口的基本问题、国际条约、各国立法以及我国的应对措施进行阐述。根据我国的国情提出：对于平行进口问题，原则上禁止商标的平行进口的行为，但在一定条件下例外地允许平行进口。
[英文摘要]：With the development of economic globalization and regional economic integration and liberalization of world trade, in-depth of China's foreign trade, on the existing differences of States in international trade resources on the edge, which marks the birth in the field of parallel imports. Through investigation of the trademarks of parallel imports founds that: Trademarks of Parallel Imports are a trade issues problem related to intellectual property rights. It involves the interests of intellectual property rights protection issues. At the same time, it is closely related to the trade liberalization and the consumer protection issues. Trademarks of parallel imports have been a lot of controversial, the exhaustion of trademark rights principles and principles for regional supporting and opposing the parallel importation of trademark provide a theoretical basis. In value analysis method, this paper demonstrates principle of international exhaustion of trademark rights and supports parallel imports based on the principle of parallel imports, while the scrap elaborates the basal questions of parallel imports, international treaties, national legislation and measures to deal with China. According to China's national conditions: The issue of parallel imports, in principle, to prohibit the parallel importation of trademark, but under certain conditions, an exception to allow parallel importation.
[关 键 字]：商标 平行进口 权利用尽 地域性
[论文正文]：
[英文摘要]：With the development of economic globalization and regional economic integration and liberalization of world trade, in-depth of China's foreign trade, on the existing differences of States in international trade resources on the edge, which marks the birth in the field of parallel imports. Through investigation of the trademarks of parallel imports founds that: Trademarks of Parallel Imports are a trade issues problem related to intellectual property rights. It involves the interests of intellectual property rights protection issues. At the same time, it is closely related to the trade liberalization and the consumer protection issues. Trademarks of parallel imports have been a lot of controversial, the exhaustion of trademark rights principles and principles for regional supporting and opposing the parallel importation of trademark provide a theoretical basis. In value analysis method, this paper demonstrates principle of international exhaustion of trademark rights and supports parallel imports based on the principle of parallel imports, while the scrap elaborates the basal questions of parallel imports, international treaties, national legislation and measures to deal with China. According to China's national conditions: The issue of parallel imports, in principle, to prohibit the parallel importation of trademark, but under certain conditions, an exception to allow parallel importation.
[关 键 字]：商标 平行进口 权利用尽 地域性
[论文正文]：
nal basis.
IPRs are typically granted by national authorities. With the grant of an IPR, the patent, trademark or copyright holder obtains a “bundle of rights” that it may exercise within the territory of the granting authority. When a good or service is first sold or marketed in a country, this exhausts the IPR embodied in it. Yet the same IPR holder may hold equivalent or “parallel” rights in many countries. The Coca-Cola Company, again for illustrative purposes, may hold trademark registrations for the Coca-Cola mark in every country of the world. A country may choose to recognize that exhaustion of an IPR occurs when a good or service is first sold or marketed outside its own borders. That is, the first sale or marketing under a “parallel” patent, trademark or copyright abroad exhausts the IPR holder’s rights within that country. If exhaustion occurs when a good or service is first sold or marketed outside a country, the IPR holder within the country may not oppose importation on the basis of its IPR. The importation of a good or service as to which exhaustion of an IPR has occurred abroad is commonly referred to as “parallel importation”, and the goods and services subject to such trade are commonly referred to as “parallel imports”. Since goods and services subject to exhaustion of IPRS are exported as well as imported, the subject matter of trade in such goods is commonly referred to as “parallel trade”. If a country recognizes a doctrine of “national” exhaustion, an IPR holder’s right to control movement of a good or service is only extinguished by the first sale or marketing of a good or service within the territory of that country. If a country recognizes a doctrine of “regional” exhaustion, an IPR holder’s right to control movement is extinguished when a good or service is first sold or marketed in any country of the region. If a country recognizes a doctrine of “international exhaustion”, an IPR holder’s right to control movement is extinguished when a good or service is first sold or marketed anywhere in the world. The flow of goods and services across borders is significantly affected by the exhaustion doctrine that WTO Members choose to adopt. Under a doctrine of international exhaustion, goods and services flow freely across borders after they have been first sold or placed on the market under certain conditions anywhere in the world. Under a doctrine of national exhaustion, the movement of goods and services maybe blocked by IPR holders. Under national exhaustion, IPR holders have the power to segregate markets.
There is considerable debate concerning whether granting IPR holders the power to segregate markets is good or bad from various perspectives ? economic, social, political and cultural. From the standpoint of those favouring open markets and competition, it may appear fundamentally inconsistent to permit intellectual property to serve as a mechanism to inhibit trade. Yet IPR holders argue that there are positive dimensions to market segregation, and corollary price discrimination. During the GATT TRIPS negotiations, there was fairly extensive discussion of the exhaustion issue, but governments did not come close to agreeing upon a single set of exhaustion rules for the new WTO.
2. History of the provision--Situation pre-TRIPS
Prior to negotiation of the TRIPS Agreement governments maintained different policies and rules on the subject of exhaustion of intellectual property rights in so far as those policies and rules affected international trade. The situation in Europe and in the United States was rather complicated, as countries not only followed different approaches to the questions of national, regional and international exhaustion, but often differentiated their policies and rules depending upon the type of IPR affected. In the United States, for example, the Supreme Court had addressed the issue of exhaustion in the field of trademarks, and interpreted domestic law to establish a “common control” doctrine. If a product protected by a U.S. trademark was first sold abroad by a company owned or under common control with a company in the United States, the U.S. trademark could not be invoked to prevent parallel imports. However, if the product was first sold abroad by an independent company, or a licensee of the U.S. trademark holder, parallel imports could be blocked. The Supreme Court had never expressly addressed the question of parallel importation in the field of patents. Several important Court of Appeals decisions held in favour of international exhaustion of patent rights. There was some contrary opinion at the district court level. In the field of copyright, there was little in the way of judicial decision regarding national and international exhaustion prior to TRI
