Parallel import means that patented or marked goods are purchased.doc
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1、Parallel importations. New perspectives.*Parallel import means that patented or marked goods are purchased in a foreign market and resold in the domestic market. These are known as passive parallel imports.Instead, active parallel imports occur when foreign licensees enter the market in competition
2、with the holder of the patent or of the trade mark(*) Paper carried out in PRIN research 2007, MIUR, “Enforcement ed effettivit delle tutele nel diritto commerciale” (coord. Prof. V. Di Cataldo).Lavoro realizzato nellambito della ricerca PRIN 2007, cofinanziata dal MIUR, “Enforcement ed effettivit d
3、elle tutele nel diritto commerciale” (coord. Prof. V. Di Cataldo). Conley, Parallel imports: the tired debate of the exhaustion of intellectual property rights and why the WTO should harmonize the haphazard laws of the international community, in Tulane Journal of International and Comparative Law,
4、2007, 189, 190 s.There are three kinds of principles that can hypothetically regulate the parallel importations (known also as gray market). First, there is the principle of national exhaustion. It means that the patent or the trade mark holder can prevent the importation of the product in the marke
5、t where he is owner of the intellectual property right.Diametrically contrary is the international exhaustion principle. In this theory the intellectual property right is consumed as soon as goods are placed in the market, so that they can freely circulate. In Japan Tokyo High Court (in 1995) applye
6、d the international exhaustion rule (BBS Kraftfahrzeug Technik AG v. Kabushiki Kaisha Racimex Japan and Kabushiki Kaisha JapAuto Prods) See Mueller, Janice M., An introduction to patent law, New York, 2006, 441. See also Correa, Carlos M., Trade related aspects of intellectual property rights. A com
7、mentary on the TRIPS Agreement, Oxford-New York, 2007, 81, mark 10; Fink, Carsten, Entering the jungle of intellectual property rights exhaustion and parallel importation, in Intellectual property and development. Lessons from recent economic research, ed. by Fink e Maskus, Washington, 2005, 174 and
8、 185, mark 8. The sentence turned over the leading case Brunswick (1969, Osaka District Court). According to the Brunswick case parallel importation was unlawful if goods were already patented in Japan Matsushita, Mitsuo, Issues regarding parallel importation of trademarked and patented products and
9、 competition policy in Japan, in Intellectual property: trade, competition, and sustainable development, ed. Cottier e Mavroidis, Ann Arbor, 2003, 192. Finally, in 1997, the Japanese Supreme Court didnt use the international exhaustion principle, and decided that holder of a patent in Japan and in a
10、nother country cant oppose to importation in Japan of the same product, except demonstrating that the gray market was contractually prohibited (and there was evidence on the product) Matsushita, Mitsuo, Issues regarding parallel importation of trademarked and patented products and competition policy
11、 in Japan, in Intellectual property: trade, competition, and sustainable development, ed. Cottier e Mavroidis, Ann Arbor, 2003, 193. . Its possible to note that in Australia is in force the international exhaustion principle for trade marks and for patents, but for patents this principle can be cont
12、ractually restricted by the patent holder Maskus, Keith E. e Chen, Yongmin, Parallel imports in a model of vertical distribution: theory, evidence, and policy, in Intellectual property and development. Lessons from recent economic research, ed. by Fink e Maskus, Washington, 2005, 189, 193 s.The thir
13、d solution is the European Union one. In the E.U. is in force the European Union exhaustion principle. Goods patented (or marked) traded for the first time in the European Union or in the European Economic Area can be freely traded inside European Union (or European Economic Area). The patent or tra
14、de mark holder can, instead, opposite to parallel importations inside E.U. or E.E.A. if good was traded for the first time only outside E.U. or E.E.A.In U.S.A. the doctrine of exhaustion is accepted by jurisprudence. U.S. Government, instead, has been always adverse international exhaustion. During
15、the negotiations of TRIPS agreement U.S. Government expressed his contrary view (with reference to patents and specially drugs). The U.S. Government opinion is founded on the need to defend the research possibility of enterprises that want to patent their inventions Trips, sec. 6, set countries free
16、 to choose international exhaustion principle, with the only limit of not discriminating (see Correa, Carlos M., Trade related aspects of intellectual property rights. A commentary on the TRIPS Agreement, Oxford-New York, 2007, 78; Watal, Jayashree, Parallel imports and IPR-based dominant positiuons
17、: where do Indias interest lie?, in Intellectual property: trade, competition, and sustainable development, ed. Cottier e Mavroidis, Ann Arbor, 2003, 201; Fink, Carsten, Entering the jungle of intellectual property rights exhaustion and parallel importation, in Intellectual property and development.
18、 Lessons from recent economic research, ed. by Fink e Maskus, Washington, 2005, 173). Same reasoning is possible to find in NAFTA (North American Free Trade Agreement) and MERCOSUR (Mercado Comn del Sur): Fink, Carsten, Entering the jungle of intellectual property rights exhaustion and parallel impo
19、rtation, in Intellectual property and development. Lessons from recent economic research, ed. by Fink e Maskus, Washington, 2005, 173.In this way of thinking parallel importations can harm the research capability of the enterprises, because this kind of capability needs a suitable exploitation of th
20、e patent and this utilization can be damaged by parallel importations from countries where the price product is lower.The only exception in the U.S. legislation is the common control exception for trade marks, that allows gray market if the national trade mark holder coincide with the foreign trade
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