Intellectual Property Rights and International Free Trade — New Jurisprudence of International Exhaustion Doctrine Under Traditional Legal System
Journal of International Commercial Law and Technology, Vol. 7, Issue 3, pp.176-211, 2012
36 Pages Posted: 11 Jul 2012 Last revised: 2 Jan 2015
Date Written: 2012
The interaction between the exhaustion of intellectual property rights and the parallel importation has been being one of the most controversial issues under international intellectual property laws. Since each country in the global community has faced discrepant political, economic and social backgrounds, the divergent exhaustion doctrine seems to be preferred around the global community. Nonetheless, there are two main potential defects in this position corresponding to Article six of the TRIPS Agreement. One is reflected in the worry about whether the national decision of the exhaustion doctrine is exactly based on reconciling the protection of intellectual property rights and the maintenance of international free trade. Another concern involves the possibility that some developed countries with strong bargaining power would force the developing countries to adopt the exhaustion doctrine favorable to the fulfillment of the specific economic policy of the developed countries through bilateral or multilateral trade negotiations. In view of the potential defects in the international undecided attitude about the exhaustion doctrine and the consequential influence, in this author’s view, it is necessary to establish a globally harmonized exhaustion doctrine in the WTO or WIPO to implicate the optimal interest balance between intellectual property rights and international free trade. Consequently, the main purposes of this article is to assure that intellectual property law — in particular, the exhaustion doctrine — is the optimal legal approach to deal with the issue of the conflict between intellectual property rights and international free trade. Meanwhile, this article is also to determine that the international exhaustion doctrine is the optimal legal model for the harmonization goal by examining the theoretical arguments and observing legal experience in the global community.
Keywords: intellectual property rights, international free trade, the exhaustion doctrine, parallel importation, international exhaustion, price discrimination, patent, trademark, copyright,
JEL Classification: O34
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