Satish Kumar Rai & Gurtejpal Singh from ILS Law College, Pune, analyse the recent development in Parallel Imports and its implications in the Trademark law.
Abstract
The burgeoning cross-border trade brings with it complex novelty concern with respect to the trademarked goods and further leading to bewilderment among the consumers of those goods. Trademark of the goods since its inception, is being employed as an indicator of the origin of the goods and has also helped the trademark owners or proprietors to protect their goods and develop a brand image in turn. The increase in the global trade lately and price disparity of the same goods in different States, made economic, trade and IP organisations consider and re-define the extent of rights enjoyed by the trademark proprietor with respect to the goods re-sold by the third party, once legitimately procured by the proprietor himself. One such formal platform on an international echelon was TRIPS negotiations where the exhaustion of trademark rights were extensively discussed and debated only to end with no consensus leading to keeping it open for the States’ domestic legislations to adopt either to allow imports of trademarked goods by a third party or to follow the contrary. India in its domestic legislation despite of not providing the principle of exhaustion explicitly have inherently and intrinsically endowed with the same. The interpreters of law, the judiciary of India, bestowed with the chore of social engineering has been precarious in construing the system of exhaustion followed by the Indian law, the latest ruling being in favour of International Exhaustion allowing imports by the third party known as Parallel Imports, only to be challenged in the Apex Court. The principle of trademark exhaustion raises considerable political economic issues and it is in constant evolution and improvement.