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Trademark Act - Essay Example

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Summary
Given that the function of trademarks is to operate as an indication of origin, there is no justification for the law giving a trademark proprietor the right to prevent the parallel importation of its own trademarked goods."
Trademark law in the UK is governed by the Trademark Act 1994 (TA), it has concisely defined what a trademark is, what can gain the status of a trademark and the protections afforded to a trademark…
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Trademark Act

Download file to see previous pages... An example of a trademark is the Nike tick, which allows the consumer know they are buying Nike products; whilst if one buys a similar product with a picture of a puma on then the individual knows that it is a Puma product. Therefore if another producer started to sell products that had a Nike tick on then it would be a breach of the TA and this producer would be liable for this breach. The concept of trademark law is straightforward when one is dealing with two autonomous producers; however is the case of there being a breach of trademark protections in the case of parallel importing
The first question to ask is what is parallel importing Parallel importing is the situation when goods originate from the same producer or set of manufacturing licensees but are sold and produced in different countries. This may lead to a disparity in price, because in say Eastern European Countries the production and sale is a lot cheaper than that of the producer's counterpart in Western Europe. Therefore one has to consider whether the domestic producer can use trademark protections to stop middlemen from buying products from the cheaper nations and import them to sell in competition against the more expensive domestic producer1. Therefore can Trademark law as Cornish argues can be used to protect trademarks in parallel exportation issues; however with much difficulty in an open market:
Any intellectual property right may be used at the frontier of the higher-priced country to close off the entry of goods bought by a parallel importer in the lower-priced country, if those rights extend to the distributor's importation and are not regarded as ""exhausted" by the initial marketing abroad, i.e. by so-called ""international exhaustion". Whether the particular intellectual property law, or some other dictate of commercial policy (such as free movement of goods within the E.U.), calls for international exhaustion is a matter which legislative bodies everywhere find extraordinarily difficult to answer, and it is more often left to courts to arrive at a solution.2
Therefore introducing the question whether allowing their to be importation by a middle man who was correctly sold a product, in a country where a product has a cheaper price that that of the destination country, is in fact a breach of trademark law. This is a very difficult point of law because one could argue that yes it is because it is devaluing the product and its reputation in the country of destination, because the market values is devalued by the importation of a cheaper version of the product.3 Yet, on the other hand, on has to consider whether in fact there is a case of a trademark breach because the sale of the product was correctly done through a legitimate manufacturer of the product. If the product was bought legitimately, i.e. the product was made by an approved plant or licensee, then how could it be a breach of trademark law
The following section will consider the case law in this area. In the early case of Colgate Palmolive Ltd v Markwell Finance Ltd [1989] RPC 497 it was successfully proven that parallel imports are in fact a breach of trademark law, because it devalues the product, which breaches trademark law. The way that this case argued that parallel imp ...Download file to see next pagesRead More
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