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]：
As discussed earlier, Article 6 specifically refers to settlement of disputes under the TRIPS Agreement. This leaves open the possibility that provisions of TRIPS relevant to the issue of exhaustion of rights will be applied in dispute settlement under other WTO Agreements. As also mentioned, a claim might arise under the GATT 1994 that enforcement of IPRs to prevent importation of goods involves application of measures equivalent to quotas. If a Member permitted the adoption of a technical standard that incorporates IPR-protected subject matter, questions might arise regarding the extent to which the IPR-holder could control use or modification of the standard, implicating TRIPS rules relevant to exhaustion under the TBT Agreement. Since audio-visual services, as example, frequently incorporate IPR protected elements, it is certainly possible that a GATS dispute could implicate provisions of TRIPS relevant to exhaustion. The relationship between TRIPS provisions relevant to exhaustion, including Article 6, and other WTO Agreements, remains to be determined in dispute settlement. There are different views among legal experts regarding whether Article 6 precludes exhaustion issues from being considered under other WTO Agreements. The “plain text” of Article 6 does not appear to preclude TRIPS rules relevant to exhaustion from being applied in dispute settlement under other agreements, but this does not exclude the possibility that TRIPS will be found to “occupy the field” of exhaustion subject matter as a special agreement governing trade and IPRs subject matter, or lex specialis.
4.2 Other international instruments
In December 1996 two new treaties with respect to intellectual property rights were adopted at WIPO: the Copyright Treaty (WCT) and the Performances and Phonograms Treaty (WPPT). These two treaties include provisions with respect to the exhaustion of rights that, like Article 6, reflect lack of agreement among governments on a unified approach to exhaustion of rights issues. Several of the “agreed statements” to each of the WIPO Copyright Treaty and the WPPT address issues related to the issue of exhaustion, for example, by attempting to clarify distinctions between rights to redistribute physical copies of protected works and digital copies of such works. The WCT and WPPT are not incorporated in TRIPS, and their rules (including agreed statements) are not subject to WTO dispute settlement. At present, there are a limited number of state parties to these agreements. However, it is possible that in the future these agreements will have sufficiently wide adherence among WTO Members that a dispute settlement panel or the AB might look to them as evidence of state practice in interpreting related copyright provisions of TRIPS.
5. Comments, including economic and social implications
There is considerable debate regarding the economic and social implications of different exhaustion of rights regimes. It is important to acknowledge at the outset that the same conclusions may not apply to all forms of IPRs, or for that matter to different goods and services protected by these different forms. There may or may not be a single optimum exhaustion rule. With that said, there are a few general observations that can be made. First, rules of exhaustion are designed to foster competition among producers, and to benefit consumers. Exhaustion of IPRs limits the legal capacity of producers to control the movement of goods and services after the first sale or lawful placing on the market, and reduces the potential for trade-restrictive (including anti-competitive) behaviours. As a “first principle”, it is to the consumer’s advantage that exhaustion of rights is accepted.
Similar arguments are often made to promote higher levels of IPR protection generally, and there is good reason to be sceptical about the need for higher levels of protection and increasing returns to IPR-holders at a cost to the public of higher prices. A second argument is that parallel imports hurt developing country interests because, if goods placed on the market in developing countries can freely flow to developed countries, producers will refrain from charging lower prices in developing countries.
