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]：
PS, although this subject matter has been addressed with some frequency following its negotiation. The European Court of Justice (ECJ) pioneered the exhaustion question in so far as it affected the movement of goods across borders. In 1964, shortly following the formation of the European Community, the ECJ was confronted in Consten and Grundig with an attempt by a manufacturer of audio equipment to prevent trade in its products among the member states by invoking parallel trademark rights. The ECJ immediately recognized that the goal of European market integration would be inhibited if trademark holders could block the free movement of goods, and at that early stage invoked competition law principles to preclude such action.
Prior to the TRIPS Agreement negotiations all ECJ member states were subject to the “intra-Community” exhaustion rule in all fields of IPR protection. There was an extensive body of case law in which the EC had refined this rule in particular contexts. In the field of trademarks, the Court allowed parallel traders flexibility in repackaging and labeling pharmaceuticals so long as this did not present a threat to consumer safety. The ECJ further indicated in the context of a decision on rental rights that a certain level of approximation of IPR laws among the member states was necessary to protect the interests of rights holders. EC member states were thus subject to a uniform rule of “intra-Community” or “regional” exhaustion across all fields of IP (or at least those with a sufficient level of approximation). Though not free from doubt, the EC rule on patents appeared to contemplate that only goods placed on the market in a member state would be subject to the rule of exhaustion. Thus, while the placing of a patented good on the market within the territory of the Community exhausted the patent holder’s rights and allowed free movement within the Community, the placing of a patented good on the market outside the Community did not affect the patent holder’s rights within the Community, and parallel importation could be blocked. EC member states maintained different approaches to international exhaustion in the field of trademarks, and until the adoption of the First Trade Marks Directive in 1988 the ECJ had not sought to impose a uniform approach. EC member states differed on the question whether the Directive mandated a uniform approach to the international exhaustion question. Prior to the TRIPS Agreement negotiations, member states also maintained different approaches to the international exhaustion question in the field of copyright. At the outset of the TRIPS negotiations in 1986, the EC did not approach the exhaustion question with a “single voice”. Other countries and regions had also considered the question of national or international exhaustion. Japan and Switzerland each had substantial jurisprudence on the subject. The countries of Latin America appeared largely to favour international exhaustion. Decision 85 on Industrial Property of the Andean Commission excluded the right to prevent importation from patent holders, effectively providing for international exhaustion. Decision 85 established an express rule of regional exhaustion in respect of trademarks. The European Court of Justice had identified that enforcement of national IPRs rules might play an important role in European efforts to integrate markets.
3. WTO jurisprudence
None of the WTO Dispute Settlement Body, Appellate Body nor any panel has been asked to interpret Article 6. There are no dispute settlement decisions that discuss it. However, as noted above, Ministers meeting in Doha adopted the Declaration on the TRIPS Agreement and Public Health that expressly addresses “the provisions in the TRIPS Agreement that are relevant to the exhaustion of intellectual property.” Paragraph 5(d) of the Doha Declaration does not limit its reference to Article 6 precisely to account for arguments from some Members and industry groups that other Articles override it by implication.
4. Relationship with other international instruments
Although there is some debate among legal experts as to precisely the character that should be ascribed to the Doha Declaration, there is no doubt that it will be taken into account by decision-making bodies in the context of dispute settlement. The Ministers clearly acted in Doha with a purpose, and there would be no reason to “recognize” an interpretation of the TRIPS Agreement if they did not intend this recognition to influence interpretation of the Agreement. The legal character of the Doha Declaration is discussed further in Chapters 6 and 33.
4.1 WTO Agreements
