Source： LIAONING BANDCN LAW FIRM written by : Fangfang Wang
With the globalization of economic and the intense protect of intellectual property right (IPO) all over the
world, a trademark can be equally protected in many countries at the same time. Meanwhile, the labor
and material cost of the same product with the same trademark is different from county to country. When
a person, importing a product from low-cost country will be more easily dominates the market than the
domestic person owning trademark exclusive license with high expense.
Therefore, to gain more profit, many businessmen prefer to import low-cost product under the trademark,
under which disputes are likely to happen between the importers and the domestic persons who have
had exclusive trademark business license.
Then, Parallel import of trademark possibly comes up. Here, I’ll discuss how to deal with the infringement
on your right of trade exclusive license in China.
At first, Parallel import of trademark shall be defined. If a person legally imports a product with the same
trademarks as the one of the exclusive license of the domestic person without the consent of the person
having the ownership of trademark or the domestic person owning the right of trademark exclusive
license, the import activity is regarded as trademark parallel import.
In China, the Trademark Law and Against Unfair Competition protect the right of person who are obliges
of trademark or the domestic person who has exclusive license of trademark.
How to apply to these two laws to treat the disputes on the exclusive license of trademark?
According to Trademark Law and its relevant judicial interpretation, the person who has the exclusive
license of the trademark is entitled to wholly perform the right of the person who has the ownership of the
trademark.
Let’s make a example: now, you’re supposed as a person who has the exclusive license of trademark.
When you find the trademark parallel import activity of a importer, and then:
Choice A: you can directly sue the importer of parallel import to the People’s Court that the importer
imports the product with the same trademark with yours without your consent.
According to Chinese rules of burden of proof, the defendant must provide plenary testimony to prove
that he has got the consent of obligees of trademark or the person owning the exclusive business
license.
If the defendant fails to prove, the court will make a decision for you .
Choice B: you also can directly sue the importer of parallel import to the People’s Court according to
Against Unfair Competition Law.
At this time, you are responsible to assume the burden of proof, that’s to say, you must provide the
plenary testimony to prove that the defendant has carried out the unfair competition activity, otherwise,
you are absolutely loss your lawsuit.
To be honest, according to Against Unfair Law, the trademark parallel import is not within the scope of
the unfair competition activities, so it’s too hard to testify the importers has implemented unfair
competition activities.
If you fail to provide, the court will make a decision against you.
Finally, compared between Choice A and Choice B, if the person owning exclusive license of trademark
wants to prevent parallel import of trademark, in my opinion, the method of Choice A will be the best way.
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Topic: How to Treat Parallel Import of Trademark in China (Read 591 times)
