Lastly, at the current stage, China only has the Anti-Unfair Competition Law, but without Antitrust Law. Therefore, there are no real safeguards against abuses of monopolistic or anti-competitive behavior which might happen in the local market. Permitting parallel importation of trademarked goods, to some extent, could play a role of mitigating unfair monopoly of the trademark owners in order to maintain sound market order. Although it is true that in the short run, interests of domestic trademark proprietors are harmed by the presence of parallel imports in the market, it is asserted that the picture is incomplete. [FN34] The loss of domestic trademark proprietors from such competition would be largely offset by the gain they would make from the reduction in tariff and elimination of quota system upon China''s WTO accession. [FN35]
To conclude, in the progressively globalized world, free trade has been gaining increasing popularity. Striking the balance among a variety of interests, parallel importation of trademarked goods in China, the advantages outweigh the disadvantages.
【作者简介】
Liu Lu ：2008 LL.M. graduate student at HKU
【注释】FN1] Cindy Wai Chi Wong, “Parallel Importation of Trademarked Goods in Hong Kong and China”(2004) 34 HKLJ 151.
The “Lux” case and the“AN’GE” case, the details of which are analyzed in the third section of this article.
See article 52(1) and 52(5) of the New Trademark Law of PRC(2001).
Keith E. Maskus, “Parallel Imports In Pharmaceuticals: Implications for Competition And Prices In Developing Countries--Final Report To World Intellectual Property Organization”, April 2001.
From Wikipedia, the free encyclopedia, available at
http://en.wikipedia.org/wiki/Grey_market Gene M Grossman and Edwin L. –C.Lai, “Parallel Imports and Price Controls”, July 2006, available at
http://nt2.fas.nus.edu.sg/ecs/res/IO/22012007.pdf.
See Wu Jian-chuang, "Legal Questions on Parallel Imports arose from the Shanghai Unilever Trademark case" (in Chinese) (2000) Part 2, available at
http://article.chinalawinfo.com.eproxy1.lib.hku.hk/article/user/article_display.asp? ArticleID=20221.
See note 1 above.
See note 7 above.
Yuan Xiao-dong, "Balance Required in Approaching Parallel Battle" (2002) MIP 36, 38 (July/August).
See note 5 above.
Shira R. Yashor, "Competing in the Shadowy Gray: Protecting Domestic Trademark Holders from Gray Marketeers Under the Lanham Act" (1992) 59 U Chi L Rev 1363, 1369-1371
Peter Drahos, The Universality of Intellectual Property Rights: Orgins and Development”, available at
www.wipo.int/tk/en/hr/paneldiscussion/papers/pdf/drahos.pdf For more explanation of the two principles, see Friedrich-Karl Beier, "Territoriality of Trademark Law and International Trade" 1 IIC 48.
Chi Shaojie, “Exclusive Right to a Licensed Trademark: A Defense against parallel importation?” available at
www.lawinfochina.com/dispfree.asp?db=4&id=40 - 21k.
Alan J. Kasper, “A View of the Parallel Imports Issue From An International Perspective”, available at
www.sughrue.com/.../Presentation/PublicationAttachment/bb332de0-2005-48be-b0f4-1f5a991feabc/par_imports.htm.
See note 16 above.
See note 16 above.
19 USC §1526 (1999).
Carl Baudenbacher, "Trademark Law and Parallel Imports in a Globalized World - Recent Developments in Europe, with Special Regard to Legal Situation in the United States" (1999) 22 Fordham Int''l LJ 645, 679
37 Fed Reg 20,678 (1972) (codified at 19 CFR §133 (1981)).
19 CFR §133.21(c).
Mark S. Sommers, "US Grey Market Goods: What''s In, What''s Out" 7 EIPR 269, 272.
982 F 2d 633 (1st Cir 1992).
Ibid., p 640.
19 CFR § 133.23(b).
See note 16 above.
“Protecting Trade Marks”, R. G. C. Jenkins & Co., available at
http://www.jenkins-ip.com/serv/t_trad03.htm#intro.
S. K. Verma, "Exhaustion of Intellectual Property Rights and Free Trade - Art 6 of the TRIPS Agreement" (1998) 29 IIC 534, 553.
“2006 Trade Policy Agenda and 2005 Annual Report”, March 2006, available at
http://www.ustr.gov/assets/Document_Library/Reports_Publications/2006/
2006_Trade_Policy_Agenda/asset_upload_file897_9076.pdf Keith E. Maskus and Yongmin Chen, “Vertical Price Control and Parallel Imports: Theory and Evidence”, Review of International Economics,12(4) ,551-570,2004.
Patrick Kenny & Patrick Mcnutt, “Competition, Parallel Imports & Trademark Exhaustion: Two Wrongs From A Trademark Right”, December 1999, Competition Authority Discussion Paper.
See note 1 above.
See note 1 above.
Nine months after joining the WTO, the average tariff rate of more than 5,000 kinds of products has dropped to 12 per cent from 15.3 per cent and more than 200 kinds of products requiring licences and subject to quotas have had these restrictions removed. See "Foreign Trade Booming Since WTO Entry", China Daily, 27 Aug 2002, available at: http://
www.china.org.cn/english/40525.htm>.
