Parallel Importation in U.S. Trademark Law (Contributions in Legal Studies)

15+ million members; + million publications; k+ research projects trade- marked goods as well as the trade mark exhaustion regime in the EU and the. US . . Thomas Hays, Parallel Importation Under EU Law (Thompson, Sweet & Maxwell ) exhaustion in the recent legal history of the US.
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Should copyright, patent, and trademark laws follow the same regime? Should countries attempt to harmonize their approaches? To what extent should living matters and self-replicating technologies be subject to the principle of exhaustion? The Handbook offers insights to the challenges surrounding these questions and highlights how one answer does not fit all. Available to subscribers on. M fb tw in. Recommend to librarian Title: This Research Handbook explores issues related to the principle of exhaustion of intellectual property rights.

To date, the application of this principle continues to vary from country to country, and there is increasing pressure to clarify the extent of its application both at the national level and in the context of international trade with respect to parallel imports. Notably, from the Americas to the European Union, Asia-Pacific, and Africa, courts and policy makers are asking similar questions: The goal of this book is to explore these questions. The book also highlights how a one-size answer may not fit all the current challenges that the courts and policy makers are facing in this area.

Intellectual property - Part 1

This Research Handbook will be of interest to academics, judges and other practitioners looking for an in-depth study on the topic, offering both of detailed analysis of the current state of play, and a discussion of the challenges that arise on a global scale. The contributions to this important volume ably interface the two legal concepts. The book makes a significant contribution to the quest for a proper balance between freer trade and legitimate exclusivity of different forms of IPRs.

It is essential reading for all interested in the state of the law on parallel trading in different jurisdictions and the prospects of future and shared developments in international law aiming at a proper balance conducive to welfare and prosperity. Collectively the chapters of this Handbook offer the reader a systematic and in-depth treatment of the theoretical, jurisdictional and contextual complexities of the concept. Irene Calboli and Edward Lee have produced an editorial tour de force. The volume offers a framework and a detailed examination of the impact of parallel imports within each of the regimes of copyright, patent, and trademark.

The fact that the goods do not carry a notice of prohibition of sales on the EC market does not imply consent.


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The fact that the trade mark owner has transferred the ownership of the goods bearing the trade mark without imposing any contractual restrictions does not imply consent. Enforcement mechanisms and border control measures were enacted at Community level in order to prevent the infringement of intellectual property rights.


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It enables the right holder who suspects that certain goods infringe his intellectual property rights to lodge a written application for action with the relevant customs authorities, giving an accurate and detailed description of the goods in question, information concerning the nature of the fraud and the name and address of the contact person appointed by the right-holder. Customs authorities may take action against such goods when goods are entered for release for free circulation or export within the Community or when they are found during checks on goods entering or leaving the Community customs territory, placed under a suspensive procedure, in the process of being re-exported, or placed in a free zone or free warehouse.

The measures consist mainly of detention by the customs authorities of suspected goods, for a certain period of time, subject to the right holder undertaking legal action against the infringer. Member States may set up a simplified procedure to enable the customs authorities to have the goods destroyed. If a decision is given on the merits of the case, at the request of the applicant, the judicial authorities may order the recall of the goods which have been found to infringe an intellectual property right and the destruction of counterfeit or pirated goods.

Parallel/Grey imports v. Exhaustion

If the decision found an infringement of an intellectual property right, judicial authorities may issue against the infringer an injunction aimed at prohibiting the continuation of the infringement, which may be subject to a recurring penalty payment. Measures prohibiting the release for free circulation, export, re-export or entry for a suspensive procedure of counterfeit and pirated goods apply to goods in external transit [a customs procedure allowing the movement of non-Community goods from one point to another within the customs territory of the Community without those goods being subject to import duties or other charges under the Community Customs Code], as stated in the Polo v.

It does not matter whether the holder of the right or those entitled under him have their registered office in a Member State or outside the Community. Even if the external transit of non-Community goods is not subject to import duties, nor to other measures of commercial policy, it is not devoid of effect on the internal market. The risk is that counterfeit goods may be placed under the external transit procedure and may be fraudulently brought on to the Community market. The case concerned the attachment of the Aquafresh trade mark on original goods imported from South Africa, stored by Class International, owner of those goods, in a warehouse in Rotterdam.

The ECJ ruled that placing non-Community goods bearing a mark under a suspensive customs procedure such as that of external transit is not, per se, interference with the right of the proprietor of the mark to control the initial marketing in the Community. The case involved the detention in France, on suspicion of infringement of trade mark, of original spare parts for cars manufactured in Spain and being transported to Poland before its accession to the EU. The ECJ considered that the transit does not involve any marketing of the goods in question, therefore it is not liable to infringe the specific subject-matter of the trade mark and cannot be justified on the ground of protection of industrial and commercial property art.

Research Handbook on Intellectual Property Exhaustion and Parallel Imports

Montex manufactured jeans by exporting the different pieces to Poland, including distinctive signs, under the customs seal procedure, having the pieces sewn together on Polish territory and bringing the completed trousers back to Ireland. Diesel has no protection for the sign in the territory of Ireland. The dispute concerned an application for an order prohibiting the transit through German territory of goods belonging to Montex bearing the sign Diesel, identical to the registered German trade mark. US laws consider that once a genuine trademarked product is placed on the global marketplace anywhere in the world, by or with the consent of the trademark owner, the trademark owner may not control the further distribution of that product under a theory of trademark infringement.

With regard to ECJ cases, exceptions to the principle of Community exhaustion were frequent in relation to pharmaceutical products in cases such as Bristol-Myers Squibb and Others v. The ECJ ruled that pharmaceutical trademark owners could restrain the further marketing of their products which have been repackaged, unless: In the Loendersloot v. Nu inteleg de ce nu s-a scris acest articol in limba romana.

Suntem, desigur, multe persoane care intelegem lb. De ce nu se scrie in limba nostra draga? Refuz sa cred ca ne este rusine cu numele de roman! Bine documentat, ofera multe informatii ce altfel ar fi necesitat ore bune de cautare.

Research Handbook on Intellectual Property Exhaustion and Parallel Imports

La ce intrebare nu am gasit insa raspuns, intrebarea care nu-mi da pace de multa vreme, este urmatoarea: Este clar ca dreptul producatorului asupra marcii este epuizat. Dar nu-mi este la fel de clar in ce masura distribuitorul se poate folosi de dreptul dobandit asupra marcii pentru a interzice tertilor sa importe produsul in cel de-al II-lea stat avand in vedere principiul teritorialitatii dreptului la marca. In cazul prezentei unui contract intre producator si distribuitor, s-ar putea vorbi de o partajare a pietei market share , functie si de cota de piata a produsului.

Dar in cazul absentei unui astfel de contract?

Oricum, inca o data felicitari autorului articolului! Multumesc, Dragos, pentru felicitari, ideile din articol urmeaza a fi dezvoltate intr-un articol mai amplu, care va fi ulterior publicat, in limba romana. Ultimately, fair, free and undistorted competition on the market is discouraged.


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Intellectual property rights are, by nature, exclusive and territorial. At present, different law systems use one of the three standards of intellectual property rights exhaustion: The principle of Community exhaustion The principle of community exhaustion applies to all types of intellectual property rights. The European Court of Justice jurisprudence brought further clarifications to the principle of community exhaustion: Consent is required in respect of each individual item of the product put on the EC market.

The burden of proving tacit consent rests on the parallel importer.