商标产品平行进口法律问题研究

【作者】 倪静；

【导师】 张玉敏；

【作者基本信息】 西南政法大学 ， 民商法学， 2005， 硕士

【摘要】 有关商标产品平行进口问题是当今世界知识产权领域和国际贸易领域的热点问题之一。商标产品平行进口引发的权益纠纷,交织着各种不同的利益冲突,这种冲突涉及面之广,不仅在国际条约中有关这方面的制度设计是空白,在多数国家的国内法上也是一大盲点。 目前,我国有关商标产品平行进口的纠纷比较少见,但自从亚洲金融危机后这类现象逐渐出现在我国贸易领域。随着我国改革开放的不断深入,对外贸易的不断扩大,商标产品平行进口给我国带来的影响会越来越突出。我国至今为止还没有关于这方面的专门规定,因此,如何认定商标产品平行进口这一问题的性质,如何在实践中解决商标产品平行进口问题成为摆在学界、立法与司法部门面前的难题。 全文大约四万五千字,共分为三个部分。 第一部分,主要介绍商标产品平行进口的基础理论。笔者首先力图廓清商标产品平行进口的定义,分析了其广狭两种定义,并强调在本中论述的仅是狭义上的概念。为了使读者对此概念有更进一步的理解,笔者归纳出该现象的法律特征并对其进行了科学分类。接着,笔者对产生商标产品平行进口这一现象的原因进行总结,谈到了产生该现象的经济诱因、制度前提和背景条件。然后,笔者深入探讨了有关商标产品平行进口的传统理论和新兴理论,前者包括商标权利穷竭普遍性与地域性矛盾的理论和商标功能论,后者包括默示许可理论、进口权理论和国际贸易理论。最后,笔者谈到国际公约至今没有对这一有争议性的问题做出规定并就发达国家和发展中国家分别选取了几个有代表性的例子,向读者展示他们对待商标产品平行进口的态度。由此得出结论:世界上没有哪个国家对待商标产品平行进口是绝对的禁止或者允许,或多或少都有例外。但一般看来,从维护自身的经济利益出发,发达国家在对待这一问题时倾向于禁止,而发展中国家更倾向于允许一些。 第二部分,主要介绍欧盟有关商标产品平行进口的立法与实践。由于欧盟的主要目标之一是建立欧盟单一大市场,在这个市场内实现货物、人员、资本等生产要素的自由流动,因此欧盟立法者在宪法性条约《罗马条约》的指引下,在欧盟商标《一号指令》中明确允许欧盟范围内商标产品的平行进口。由此,商标权利人一旦同意将商标产品投放欧盟市场,就丧更多还原

【Abstract】 Now days, parallel import of trademark goods is one of the hot issues both in the fields of intellectual property rights and the international trade. The conflicts underlying this problem are very complicated, concerning lots of different interests. Therefore, there are no such agreements reached in the international treaties, and it is also a controversial problem in the legal frameworks of many internal countries.When it comes to our country, this kind of disputes is still occasional before, however, since the Asian finance crisis, this phenomenon has happened more and more frequently in our country. Moreover, with the deepening of our open and reform policy and the enlargement of our foreign trade, this problem would have an enormous impact on our country’s economy. Until now, there are still no such stipulations, which specially regulate this subject. So how to understand the nature of this problem and how to solve this problem in legal practice have become increasingly imminent to our legal scholars, legislators and judges.The number of words of this article is about forty-five thousand and there are three parts in this article.In part one, the writer discusses some basic theories of parallel import of trademark goods. Firstly, the writer gives two definition of this problem, including the wider one and the narrower one, and the writer stresses that this article only focuses on the latter one. In order to make readers more clearly understand this problem, the writer sumps up the legal features of the phenomena and divide it into several types according to scientific standards. Secondly, the writer concludes the reasons why this problem occurs in international trade, concerning the economic reason, system reason and the background. Thirdly, the writer reveals the basic legal theories, both traditional and burgeoning ones, about parallel import of trademark goods. The traditional theories include the contradiction between the universal doctrine of trademark right exhaustion and territorial doctrine of trademark right exhaustion, also the principle of trademark function. The burgeoning theories contain the implied consent theory, the import principle and the international trade rule. Lastly, the writer says that there is still no agreement in the TRIPS to regulate this problem because of great divergent opinions amongcountries. Besides, the writer selects some typical countries, including the developed and developing ones, to analyze their attitudes and practices on this subject.In part two, the writer systematically introduces the European Union legislation and legal practice on parallel import of trademark goods. The object of the European Union is to construct a single market among the member countries in the Union, and realize the free movement of goods, persons and capitals in this market. According to the Rome treaty, which can be categorized the constitutional law in the EU, the legislator of the EU regulates that the parallel import of trademark goods in the single market is permitted in the First Trademark Directive of the EU. Therefore, the trademark holder once agreed to put their trademark goods on the market of the European Union, he cannot take advantage of the trademark right to control the following commercialization of these goods in the EU. However, this Directive evades the problem of how to treat the trademark goods, which parallel import outside the Union market, until the Silhouette case. In this famous case, the EU meet such problem first time and finally express their attitude that trademark right is only exhausted in the Union market and the trademark holder can use this intellectual property right to prevent the trademark goods parallel importing from outside the EU market In the following Sebago case, the judges confirm their attitudes once again and think that the "consent" of the trademark holder to put their goods on the market must be unequivocal and it should be the parallel importer shoulders the burden of proof. However, in the Zino Davidoff case, the England judge tries to find a way to lighten the limit on the parallel imported goods that come from the third countries outside the EU. The Union judges also display lenient attitude on this issue, to some extent. Until now, whether the EU should take the regional trademark right exhaustion principle or international trademark exhaustion principle is still ardently discussed.In part three, the writer focuses on our country’s attitude toward the parallel import of trademark goods. Our country has meet such disputes in practice before, but there is no special rules to solve this kind of problem, moreover, we cannot find such articles which can regulate this problem in our current legislations, concerning the trademark law, anti-unfair competition law and contractual lawand so on. The Chinese scholars express their different ideas on this issue and provide some helpful solutions. The writer tries to find some beneficial inspiration from the EU practice and puts forward some constructive suggestions to this problem. Firstly, the author proposes that, in order to strengthen the trade cooperation among inland, Hong Kong and Macao, we can expressly permit parallel import of trademark goods among these areas in our legislation. Secondly, we can take the practical attitude to this problem, following the European Union’s example. So in the legislation we only permit the parallel import of trademark goods in the areas of inland, Hong Kong and Macao, as for other areas, it is no need to regulate explicitly in it. In the legal practice, the judges may, principally, allow parallel import. Of course, in order to protect the legitimate interest of trademark holders, if there are cases that seriously harm the trademark holders’ benefits, the consumer’s rights or the market order, the judges can take use of the trademark law, anti-unfair competition law and contractual law and so on to prevent such parallel imports.更多还原