Parallel importation - abuse of intellectual property rights, legislative responses : a comparative survey

Abstract

Problems of parallel imports are causing increasing concern in the area of intellectual property protection. After more than twenty years debate and legal practices, the general principles for dealing with these problems have been found and affirmed in the developed countries. However, as the world trade climate changes, a freer international marketplace is being created, and free trade zones are being established. The problems of parallel imports need now therefore to be looked at from a new angle - that of the new trade environment This thesis seeks a possible solution to those problems by examining practices relating to parallel imports in three groups of countries which are linked by special regional free trading arrangements: the EEC, Canada and US FTA, Australia and NZ CER. An overview of the general issues of parallel imports is presented in the early chapters as a basis for the analysis of the practice of these groups of countries. This thesis suggests that parallel imports in general are compatible with free trade and therefore the exhaustion of rights principle should be considered for international application within free trade zones. However, the scope of application of the principle should be considered taking account of the different social and economic situations of each free trade zone. Furthermore, an exception to the application of the principle should be made in relation to the intellectual property rights of independent proprietors. It is also suggested that in the absence of intellectual property law protection, other legislation such as for anti-trust and fair competition may be used in the case of parallel importing where that involves passing off or consumer misleading and deception.