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Essential information

Title: national key book publishing plan in 12th Five-Year: comparative study on legal regulation of parallel import

Price: 48 yuan

Author: Wang Chunyan

Publisher: Renmin University of China press

Publication date: 2012-05-01

ISBN:9787300156231

Word count:

Page number: 245

Revision: 1

Binding: paperback

Folio:

Commodity logo: jd11015099

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\\n is considered as the most complicated problem in the field of international trade, which is considered as the most complicated problem in the field of international trade. On the basis of comparative study, this paper evaluates the existing regulatory methods, and puts forward suggestions and comments on the legal regulation of parallel imports in china.

Synopsis


In the field of international trade, parallel import has a long history. This is an international trade problem caused by intellectual property rights. It is regarded as one of the most complicated phenomena related to intellectual property rights in the field of international trade. Parallel imports generally refers to without intellectual property rights (copyright, patent and trademark owners) or exclusive licensee authorized by the people who own the rights or consent by the delivery of a particular market to imported products, intellectual property rights or exclusive license by the country or region where. It reflects the conflict between intellectual property rights trade and goods trade, and the contradiction between intellectual property protection and international trade liberalization. The "12th Five-Year" national key publishing planning: a comparative study of the legal regulation of parallel imports "based on the existing research on the combination of the legal framework of WTO multilateral trade system, at the same time using a variety of methods, the problem of parallel imports through multi perspective studies systematically and thoroughly. On the basis of describing the problem, the author pays attention to the analysis and justification of the justification of the problem, that is, why and how to build a clear theoretical framework and effective analytical tools.

Catalog


Chapter one: summary of parallel imports
What is parallel import in the first section?
First, the regional nature of intellectual property rights and parallel intellectual property rights
Two. Parallel import and grey market
Three. Characteristics and forms of parallel imports
The mechanism of second parallel imports
First, the multilateral trading system, one of the institutional prerequisites for parallel imports
Two, licensing system and transnational corporation system the institutional premise of parallel import two
Three, the price difference of the same commodity in different countries - the economic incentives of parallel imports
Conflict of rights in third parallel imports
I. The correlation between intellectual property rights and products -- trade related intellectual property rights
Two, the transfer of ownership of goods and the transfer of intellectual property
Three, the restriction between rights and the balance of interests
The advantages and disadvantages of fourth parallel imports and the analysis of their legitimacy
Analysis of advantages and disadvantages of parallel imports
Two, the legitimacy of parallel import between prohibition and permission

The second chapter is the analysis of the principle of exhaustion of rights
The first section outlines the principle of exhaustion of rights.
The principle of exhaustion of rights, the meaning of a
- two, the decisive factor to the exhaustion of rights
Section second is "exhaustion of rights"
First, the right groups in intellectual property rights (bundleofrights)
Two, by the "Exhaustion" rights
Theoretical basis of the principle of exhaustion of rights in section third
The scope of validity of the principle of exhaustion of rights of the fourth day space
Scope of validity, the principle of exhaustion of rights of the space
Two different explanations, about the exhaustion of rights scope and its reason
The fifth section TRIPs and the principle of exhaustion of rights
The sixth section at the international exhaustion doctrine from different angles
First, the principle of exhaustion of international relations from the two principles and regional and independent protection
Two, from the WTO multilateral trade system at the principle of international exhaustion
Three, from the perspective of interest analysis principle of international exhaustion

The third chapter, the right of identification mark and parallel import
The first section is about the concept, function and content of trademark
First, the concept of trademark
Two. Function of trademark
Three. Content of trademark right
Second section trademark function and parallel import
First, the source recognition function and the parallel import of trademark goods
Two, the quality guarantee function and the parallel import of trademark goods
Three, the difference between the relevant goods
The double purpose of trademark protection in third sections
First, the meaning and historical evolution of the dual purpose of trademark protection
Two. The application of double purpose theory of trademark protection in parallel import cases
The fourth section is "counterfeit", "free rider" and parallel import
First, the counterfeit problem in parallel imports
Two, "free rider" problem in parallel imports
The fifth section universality principle and regionalism principle
First, universality principle and its application in parallel import cases
Two, regional principle and its application in parallel import cases
Sixth summary of this chapter

The fourth chapter, the right of creative achievement and parallel import
The first section is the protection model of creative achievements
Second patent rights and parallel imports
First, import rights and parallel imports
Two, the balance of interests in parallel imports of patented products
Three. The regulation method of parallel import of patented products
The third section copyright and parallel import
I. legislation on regulating parallel import of copyright products
Two. The theoretical basis of copyright protection and the regulation of parallel import

The fifth chapter deals with the adjustment of parallel import by license agreement and sales contract
Section 1 intellectual property rights licensing agreement
First, the concept of licensing agreement
Two. Types of intellectual property licensing agreements
Three. The effect of exclusive license agreement
Four. Basic requirements of license agreement
The second section implied license principle
First, implied license principle and its origin
Two. General standards of implied license
Three. The application of implied license principle in the field of parallel import
The third section constrains parallel imports through licensing agreements and sales contracts
First, the meaning of the obligee's representation - consent and its significance
Two. Regional restrictions in licensing agreements and their constraints on parallel imports
Three. Restriction of geographical restrictions on parallel imports in sales contracts --- Taking British and Japanese precedents as examples
The fourth section of the competition law regulation on regional restrictions
First, the nature of regional restrictions
Two. The coordination between the principle of freedom of contract and the principle of fair competition

The sixth chapter is to compare and learn from the regulation and dispute resolution of parallel import
The first section analyzes and comments on the existing legal regulation methods in other countries and regions
First, the diversified pattern
Two. Coordination solution
Three, the choice of multiple values
The second section of China's parallel import reality and the necessity of legal regulation
First, the reality of parallel imports
Two, the necessity of legal regulation
Regulation and dispute resolution of third parallel imports
First, draw lessons from the existing legal regulation methods
Two. Settlement of disputes
Reference
Postscript

Author introduction


Wang Chunyan, associate professor, School of law, Renmin University of China, project leader of knowledge sharing in mainland china. He graduated from Zhejiang University (Hangzhou University, 1984), Peking University (1986) and Renmin University of China (2003). 1996~1997 and 2003-2004 worked in the Law School of Harvard University as a visiting research, Harvard University School of law and is the first scholar Zhang Weiren Center for East Asian legal studies. Published "intellectual property" (1996), "in the works of expression and substantial similarity between works" (2000), "trade in intellectual property rights and real right conflict resolution principles" (2003) and other papers, he presided over the completion of "intellectual property permits" (2003), English works OpenEducationalResourcesinthePeople "sRepublicofChina:Achievements, ChallengesandProspectsforDevelopment (UNESCO, 2011).

abstract


Preface
In the field of international trade, parallel import has a long history. This is an international trade problem caused by intellectual property rights. It is regarded as one of the most complicated phenomena related to intellectual property rights in the field of international trade. The parallel import (ParallelImporta-tion, translation scholars in Taiwan province of China as the "parallel import"), generally refers to people without intellectual property rights (copyright, patent and trademark owners or exclusive licensee) authorized by the people who own the rights to consent or put in a particular market. To import products, intellectual property rights or exclusive license by the country or region where. It reflects the conflict between intellectual property rights trade and goods trade, and the contradiction between intellectual property protection and international trade liberalization. The relationship between intellectual property and international trade has become increasingly close, parallel imports into the World Trade Organization (WTO) is an important topic in the multilateral trade system.
With the signing of WTO's agreement on trade related intellectual property rights (TRIPs), intellectual property rights have become an important component of the WTO multilateral trading system. This means that the relationship between intellectual property rights and international trade is more closely related. The main goal of the WTO protocol is to provide adequate opportunity for competition among all members of the trade, it is regarded as a commitment to open, fair and non distorting competition rules; and promote fair competition is one of the basic principles. In the "preface" of the establishment of WTO protocol, the goal of WTO is stated as: "the expansion of trade in goods and services", "eliminate discrimination" in international trade relations, and the development of a comprehensive, more dynamic and durable multilateral trading system". In this connection, the basic rule of international trade established by it is that "export goods should generally be allowed to enter the importing country completely and freely."." According to the WTO agreement, in addition to some exceptions, the promise of trade liberalization is generally applicable to all members. 2
Incorporating intellectual property into the framework of WTO means that the exclusivity of intellectual property rights must be subordinated to the rules of international trade and competition. This reflects the relationship between intellectual property and international trade are stated in the preamble of TRIPs objectives, namely reducing distortions and obstacles to international trade, to promote intellectual property rights effectively and fully protected, and ensure that measures and procedures to enforce intellectual property rights itself does not become a legitimate trade barriers. This goal is exactly the same as WTO's goal. While the traditional relationship between intellectual property and competition, especially the exhaustion and parallel trade, began to change in the global governance level, make people through a new perspective to discuss the long existing problems. 3
Parallel imports reflects the perplexing interests, the relationship between the interests of intellectual property, including consumers, parallel importers, including between small and medium-sized enterprises and multinational enterprises interests, even including developing and developed countries of the interests between the interests of the relationship; both the relationship between private interests, such as the relationship between between intellectual property and parallel importers, including the relationship between private interests and public interests, such as between the obligee and the public interest. At the same time, involving multiple aspects of the parallel import, which involves some basic theoretical problems of intellectual property system in practice, issues related to international trade; both legislative and judicial related countries, also relates to regional treaties and relevant international treaties, especially the WTO protocol. It is a combination of theoretical and practical, domestic and international law issues.
The basic theory of parallel import of the intellectual property involved include: copyright and patent trademark right exhaustion principle; regional and independent principle of intellectual property; intellectual property licensing system. On the issue of licensing, it also involves the relationship between intellectual property protection and anti unfair competition. The study of this issue is of great significance to the construction of the basic theory of China's intellectual property system.
Because of the parallel import involves many perplexing interests and theoretical issues, at the international level, so far, this problem still failed to reach a consensus, the relevant international treaties such as the TRIPs of the problem also will not buy. In the national and regional levels, to the problem of attitude, showing a variety of state, for example, in the countries and regions in the Asia Pacific, Japan, Singapore, Thailand and Malaysia tend to permit parallel imports, including Japan and Singapore, is also regarded as the most free parallel import region; take a different approach to relates to different types of intellectual property products in some other countries or regions. For example, for the parallel import of trademark products, most of the countries or regions not banned, among them, India, Australia, New Zealand and China's Hongkong and Taiwan regions with the attitude of the parallel import of trademark products; and for the parallel import of copyright products, there are relatively large differences, such as Australia and New Zealand. Allow the China's Taiwan region is prohibited. Compared with other Asia Pacific countries and regions, Chinese, the parallel import legislation is the most lacking, there is no relevant legal provisions and judicial decisions in the problem of parallel imports. (2) this problem has only attracted attention in mainland China in recent years. With the development of international trade, the relationship between international trade and intellectual property rights have become increasingly close, after China's accession to the WTO will face a new topic of international trade a lot, including the problem of parallel imports more and more, regard the implementation of appropriate legal regulation, stability has become increasingly urgent. At the same time, in the face of numerous current national legislation and judicial practice as well as the international treaty adopted on the issue of complex attitude in China on this issue should take what kind of approach, it accords with national conditions, but also conform to the international trend, is a crucial issue. Therefore, the study of this problem has important practical significance for the design of the relevant legal system and the healthy development of economy and trade in china.
Since 1970s, the issue of parallel import has gradually attracted the attention of western scholars, from 1990s up to now, the problem has been in the field of intellectual property rights is one of the most concern. Fourth, in many countries and regions, such as the European Union, the United States, Japan, China's Hongkong and Taiwan, this issue has attracted much attention and controversy. At present, other countries and regions on the current situation of the research on the following characteristics: first, the parallel import of the legality of the issue has been controversial, since there is no consensus; differences mainly due to the basic theory of the intellectual property system, that is regional and independent intellectual property rights, and different understanding of the principle of exhaustion of right of copyright, patent and trademark right. Second, in the research method, mainly adopts the methods of analysis and empirical comparison method, combined with the relevant court (such as the European Court of justice, the Supreme Court of the United States, Japan's Supreme Court and the high court in London, England) the typical cases, the legitimacy of the issue of parallel import. Third, from the beginning of study "exhaustion of rights" principle as the center of the original to diversify not only from the exhaustion of right angle, but also from the perspective of Contract Law Research on contract plays a role in related problems.
In our country, the research works about parallel import has appeared since 1990s in the late start, from the domestic literature about parallel importation, parallel import related concepts in the field remains to be clarified, the relations between the various theories and rules between them remains to be combed; most of them are from a certain intellectual property rights as the object of study, involving trademark parallel imports, and the lack of research on the common problems of parallel imports; in the research perspective, mainly in the "exhaustion of rights" principle as the center, the lack of diversified research perspective; in the research method, mainly confined to comparative law provisions, the lack of comparative analysis of different the legislative and judicial practice of various countries and regions of the substance and the social reasons; at the conclusion of the study, or stay in either this or that two yuan. The choice, or the lack of adequate argument, makes it persuasive. In addition, there is a notable difference between the conclusions of the study and the contradiction caused by the deviation in the comparative study. 1.
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