With China's entry into WTO, intellectual property trade has become an important part of international trade. However, the development of trade liberalization has brought new problems to intellectual property protection, and there has been a serious conflict between parallel import and intellectual property protection in international trade liberalization. In this regard, in order to promote free trade, China should generally support parallel import, but at the micro level, we should limit the parallel import of patents and copyrights to achieve the harmonious development of their conflicts.
Keywords: international trade liberalization, parallel import, intellectual property protection, legal conflict and legal harmony
I. Introduction
According to Science and Technology Daily, one of the trends of 10 in contemporary international trade is that the development of intellectual property trade has become a reality that cannot be ignored in international trade. At the same time, the Agreement on Trade-related Intellectual Property Rights (TRIPS Agreement) is an important part of the WTO rules system. Its formation aims at fully and effectively protecting intellectual property rights in international trade through the establishment and implementation of rules, and preventing trade obstacles and trade distortions caused by ignoring or infringing intellectual property rights. The Impact of TRIPS Agreement on China's Foreign Trade "TRIPS Agreement", as a rule to standardize and unify the intellectual property trade behavior of WTO members, will have favorable and unfavorable impacts on developing countries in the long run, mainly as follows: 1. The beneficial effect is that (1) conforms to the trend and requirements of world economic development. (2) It is conducive to introducing international investment related to trade. (3) It is conducive to promoting the production and export of products with intellectual property rights in China. (4) It is conducive to enhancing our awareness of protecting intellectual property rights in international trade. (5) The channels for resolving intellectual property disputes have been established. 2. The adverse effects are mainly as follows: (1) The imbalance of intellectual property trade is increasing. (2) Competition in the intellectual property market will intensify. (3) Affect the growth of export production. (4) Trade disputes related to intellectual property protection will increase. It can be seen that with China's accession to the WTO, although the process of international trade liberalization has been accelerated, the problem of intellectual property protection of intellectual products has also followed, which has led to the need to promote economic development, vigorously promote international economic and trade liberalization, and attach importance to special treatment because of the special protection of intellectual products in various countries. Therefore, there is a dilemma of intellectual property protection in international trade, which I must face and solve.
Second, the liberalization of international trade: the necessity of parallel imports
The so-called parallel import (called "gray market" in the United States) refers to the behavior that in international trade, when an intellectual property owner's intellectual property is protected by more than two countries, a third party buys intellectual property products from foreign intellectual property owners and imports them into China for sale without the permission of the intellectual property owner or the exclusive license holder. For example, with the permission of intellectual property owner B in country B, A enjoys the intellectual property right of a product in country A, and C also obtains the same right in country C. If country D imports the product from country C without the permission of country A, such import constitutes parallel import. From this, we can draw the following characteristics: (1) The products imported from one country to another by the third party are obtained by legal means such as purchase. (2) It involves two fields. A third party obtains intellectual property products from one country and imports them into another country. Whether the laws of these two regions allow parallel imports depends on domestic laws. ⑶ There are two levels of legal relationship, one is the licensing and licensed relationship between the intellectual property rights holder and the counterpart through the licensing contract, or the intellectual property rights are protected by law in two regions, and the other is the import and export behavior of a third party who obtains intellectual property products from one country in good faith and sells them to another country. Therefore, the legality of parallel import, that is, whether parallel import infringes the rights of intellectual property rights holders, has become a long-standing dispute in the legal field. The existing international conventions on intellectual property protection and conventions related to intellectual property rights have failed to make a positive or negative conclusion on this. Due to the influence of legal traditions and economic policies of various countries, the legislative and judicial practices of various countries have different positions on whether parallel imports are infringement, which makes parallel imports fall into a "gray zone" for safeguarding rights. The main reason for parallel import is that the retail price of an intellectual property product in the importing country is higher than its wholesale price abroad. Driven by interests, importers will buy goods produced and sold abroad, and then sell them in the domestic market at a price lower than the normal price of their own countries, thus forming a situation in which importers compete with intellectual property owners or related licensees for similar commodity markets.
According to the theory of parallel import, a third party obtains intellectual products from a third country and sells them in China without the permission of the intellectual property right holder or the exclusive license holder, which will inevitably intensify the competition of the same product in China. Of course, this is in line with the trend of international trade liberalization. In order to improve transaction efficiency, parallel import should be encouraged to maximize the utility of knowledge products, which is in line with the spirit of the basic principles of WTO. In this way, knowledge products can circulate around the world, promote competition, improve product quality, and ultimately benefit social and economic development and meet the requirements of the era of international trade liberalization. Therefore, the development of international trade liberalization urgently needs parallel imports.
Third, intellectual property protection: parallel import is prohibited.
The intellectual property protection system at home and abroad originated from feudal society. Their embryonic form is the privilege granted by local officials in feudal society, or feudal monarchs and feudal countries through unconventional placards and decrees. Generally speaking, intellectual property, as a new form of property rights, is the product of the development of commodity economy and science and technology to a certain stage. The development of commodity economy not only makes the creators of knowledge products more aware of their rights, but also opens up a broad road for the market circulation of knowledge products. The development of science and technology provides the necessary conditions for the utilization and value realization of knowledge products. The contradiction between the regionality of intellectual property rights and the need of monopoly capitalists to seek the international market is exposed. This gives rise to the desire and requirement to sign international treaties. Since the end of 19, international multilateral conventions, regional conventions or bilateral agreements on intellectual property rights have been issued one after another. Among them, the Paris Convention signed by 1883 and the Berne Convention signed by 1886 have become the basic legal framework of the international protection system in the field of intellectual property rights. Since then, intellectual property protection has shown the characteristics of internationalization, and the internationalization trend of intellectual property protection and coordination has become more and more obvious. Especially since the 1970s, with the continuous expansion of exchanges and cooperation among countries in the fields of economy, science and technology, culture, etc., the internationalization of intellectual property rights has reached a new level. Intellectual property protection entered the international protection stage from the end of 19, which is the third leap of intellectual property system. This leap has continued to this day, and it has enabled intellectual property rights with strict regionality to be protected by other countries through certain channels and become international. Therefore, this will inevitably produce a regional theory, that is, the basic content of the regional theory is that intellectual property rights holders can obtain different intellectual property protection according to different laws, and all intellectual property rights are independent of each other. The realization and exhaustion of intellectual property rights in one country does not mean that intellectual property rights obtained by intellectual property rights holders according to other countries' laws are realized and exhausted in that country.
According to the regional principle of intellectual property protection, after intellectual products are protected according to law in China, they may not be able to ask other countries to give the same protection, because other countries are not obliged to give the same protection. Therefore, in China, they are specially protected by a country's laws, avoiding competitors in the same industry as much as possible to protect their exclusive rights in some countries, which is contrary to the basic trend of international trade freedom established by WTO. It can be seen that the extraordinary protection of intellectual property rights will limit the process of international trade liberalization, which is not conducive to the improvement of transaction efficiency, which runs counter to the parallel import that promotes international trade freedom. Therefore, intellectual property protection prohibits parallel imports.
Fourthly, the theoretical basis of the conflict between international trade liberalization and intellectual property protection.
Parallel import involves both intellectual property rights and trade issues. Intellectual property rights emphasize exclusivity, while trade emphasizes liberalization and opposes monopoly, thus forming fierce debates and contradictions on parallel imports. It is precisely because of this that in modern international trade, on the one hand, some countries prohibit or restrict parallel imports, on the other hand, parallel imports are increasing day by day, so that the international community cannot make unified regulations. Therefore, it is certain that the liberalization of international trade in parallel imports and the protection of intellectual property rights prohibiting parallel imports will inevitably conflict, and its theoretical basis mainly includes:
1. The principle of exhaustion of rights is the theoretical basis for supporting parallel import.
Exhaustion doctrine principle, also known as exhaustion doctrine, refers to intellectual property products produced under the permission of intellectual property rights holders or their authorized persons. After being put on the market for the first time, the right holder lost control of it and his rights were considered exhausted. Anyone who legally obtains the product is free to use, transfer and dispose of the intellectual property product, as long as the product is not used to infringe the exclusive rights of the intellectual property owner. No matter who uses or resells the product, it does not need the consent of the obligee, nor does it infringe the trademark right. The trademark owner shall not use the trademark right to prevent the further circulation of the trademark product. This is set up to balance the negative effects of intellectual property owners' exclusive rights, mainly to limit the rights of intellectual property owners, so as not to cause excessive monopoly and hinder the free circulation of products. This principle is widely used in the field of patents and trademarks, and is also reflected in the field of copyright. For example, once a commodity legally carrying a trademark is put on the market, the trademark owner loses control of it and his rights are regarded as exhausted. Anyone who sells the product again has no right to stop it. So parallel import is legal.
2. The principle of regionality is the theoretical pillar against parallel import.
The basic meaning of the principle of regionality is that intellectual property rights produced according to different laws are independent of other countries' laws, and intellectual property rights holders obtain them at different costs according to different laws. For example, if you apply for and get a patent in China, if you don't apply for a patent abroad, it is generally considered as public domain and cannot be patented abroad. If you want to get patent protection in other countries, you must apply and get authorization according to the laws of other countries. Due to the differences of national laws, each country decides whether to grant a patent right to its patent application according to its own laws, regardless of whether other countries grant a patent right to the patent application. The same is true of trademark rights.
At the same time, the establishment of a good intellectual property reputation in different countries is carried out separately, and different methods are adopted according to different situations in different countries. "A businessman probably wants his products to be slightly changed to meet different market demands, hobbies and preferences, but still uses the same trademark. This hope is very reasonable. If he can't stop parallel imports, he will find that this sales target will be frustrated, and (from the consumer's point of view) his reputation will be damaged by selling inappropriate goods, which is not in the public interest. " Because according to the laws of different countries, the cost of obtaining trademark rights is different, so the content, duration, scope and methods of trademark laws in different countries are different. Trademark rights are only the product of the laws of a sovereign country, so the trademark rights produced according to the laws of different countries are independent of each other. Obtaining a trademark right in one country cannot automatically obtain the same trademark right in other countries, that is, the trademark right obtained according to a country's laws is only valid and protected in that country, and it will not take effect once it leaves that country. Even for the same trademark, the trademark owner establishes the good reputation of his trademark in different countries, and obtains it in different ways according to the specific conditions of different countries. This is the so-called "trademark reputation independence theory". In fact, there is a similar situation in the field of copyright. "Regionality principle" and "Exhaustion principle" are still two important parallel principles at present, and they are also the theoretical basis against the view of parallel import. In the past, the "regional principle" occupied a dominant position, but in the future, the "exhaustion principle" will be used more and more. Mr. Zheng believes that "the application of the exhaustion doctrine Principle is also regional, although its rights have been exhausted in country A, but it has not been exercised in country B". Therefore, the exhaustion doctrine principle is also limited by the region. Even if a third party legally purchased the trademark owner's product abroad, but imported the product from abroad without permission, it still violated the trademark right. Therefore, parallel imports should be banned.
2. The principle of regionality is the theoretical pillar against parallel import.
The basic meaning of the principle of regionality is that intellectual property rights produced according to different laws are independent of other countries' laws, and intellectual property rights holders obtain them at different costs according to different laws. For example, if you apply for and get a patent in China, if you don't apply for a patent abroad, it is generally considered as public domain and cannot be patented abroad. If you want to get patent protection in other countries, you must apply and get authorization according to the laws of other countries. Due to the differences of national laws, each country decides whether to grant a patent right to its patent application according to its own laws, regardless of whether other countries grant a patent right to the patent application. The same is true of trademark rights.
At the same time, the establishment of a good intellectual property reputation in different countries is carried out separately, and different methods are adopted according to different situations in different countries. "A businessman probably wants his products to be slightly changed to meet different market demands, hobbies and preferences, but still uses the same trademark. This hope is very reasonable. If he can't stop parallel imports, he will find that this sales target will be frustrated, and (from the consumer's point of view) his reputation will be damaged by selling inappropriate goods, which is not in the public interest. " Because according to the laws of different countries, the cost of obtaining trademark rights is different, so the content, duration, scope and methods of trademark laws in different countries are different. Trademark rights are only the product of the laws of a sovereign country, so the trademark rights produced according to the laws of different countries are independent of each other. Obtaining a trademark right in one country cannot automatically obtain the same trademark right in other countries, that is, the trademark right obtained according to a country's laws is only valid and protected in that country, and it will not take effect once it leaves that country. Even for the same trademark, the trademark owner establishes the good reputation of his trademark in different countries, and obtains it in different ways according to the specific conditions of different countries. This is the so-called "trademark reputation independence theory". In fact, there is a similar situation in the field of copyright. "Regionality principle" and "Exhaustion principle" are still two important parallel principles at present, and they are also the theoretical basis against the view of parallel import. In the past, the "regional principle" occupied a dominant position, but in the future, the "exhaustion principle" will be used more and more. Mr. Zheng believes that "the application of the exhaustion doctrine Principle is also regional, although its rights have been exhausted in country A, but it has not been exercised in country B". Therefore, the exhaustion doctrine principle is also limited by the region. Even if a third party legally purchased the trademark owner's product abroad, but imported the product from abroad without permission, it still violated the trademark right. Therefore, parallel imports should be banned.
On the basis of weighing the two factors of parallel import and intellectual property protection, the author thinks that China should generally allow parallel import, mainly because: (1) intellectual property trade is an important part of international trade, and it cannot violate the rules of international trade and cannot be excluded from the trade of goods because of prohibition. Parallel import conforms to the general trend of international trade liberalization. (2) As China is generally a low-priced market, it is in China's trade interest to allow parallel imports. Considering our comprehensive trade volume and international development trend, China is still a low-priced market compared with most countries for a long time. Legalization of parallel imports will truly turn this comparative advantage into a competitive advantage. (3) As a big country of technology import, agreeing to parallel import is beneficial to improve the effect of technology import. Because of its relatively weak scientific research strength, China is a big technology importer. Most enterprises in China belong to licensees, hoping to improve the international competitiveness of their products by introducing technology. If parallel import is prohibited in China, Chinese enterprises will face market problems when producing and selling their products after importing technology, and the original intention of importing technology will not be realized. (4) Allowing the exception of implied license is beneficial to the introduction of technology. Considering China's technical level, we should strengthen the development of independent patent rights when the world's high-tech industries are developing rapidly and the world's industrial structure is adjusting rapidly. At the same time, on the basis of legal parallel import, patentees and licensees are allowed to make exceptions to the market of products in order to attract foreign technology and promote the rise of China's innovative technology level.
However, in the micro field, under the premise of implementing parallel import in general, we should vigorously develop parallel import in the trademark field and limit but not prohibit parallel import in the copyright and patent fields as much as possible. The main reasons are as follows: (1) Trademark is the fundamental symbol that distinguishes one enterprise from another. No matter which country it applies to, it should not be changed. It should promote the free competition of commodities and protect the interests of consumers. Using parallel import can prevent trademark owners from abusing their rights, promote the free circulation of goods and protect the fundamental interests of consumers. At the same time, allowing parallel imports will not have a huge impact on the domestic market. (2) The parallel import of patents and copyrights should be restricted, which can protect the interests of domestic rights holders or their licensors, encourage scientific innovation, enrich people's spiritual life, and is of great significance to combating illegal piracy and smuggling. There is no need to worry that a total ban on parallel imports will lead to unfair competition and monopoly, further damaging the interests of consumers.
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