商标权穷竭原则适用规则的反思与重构

TRIPS agreement recognizes the rule of exhaustion of intellectual property rights, but it does not define the connotation of exhaustion of intellectual property rights, but leaves it to the member states to define. In our country, the principle of exhaustion of patent right is only stipulated in the 69th article of patent law. The exhaustion of trademark rights is not stipulated in the trademark law, judicial interpretation and implementing regulations. In the academic circles and judicial practice of our country, it is generally believed that the principle of exhaustion of trademark right means that “After the commodity with its trademark is put on the market with the consent of the trademark owner, others may arbitrarily resell the commodity and the trademark owner has no right to prohibit it.” This leads to some problems in the application of exhaustion of trademark right. For example, the starting point of exhaustion of interest is defined as the first legal entry of goods into the market, which results in the entry of the goods of the obligee into the market without the will of the obligee (such as being stolen, lost, ultra vires and then entering the market), there may be situations in which the owner of the real right and the owner of the trademark both claim their rights against the seller; the end point of the exhaustion of the rights is not clear, and it is not clear whether the commodity form must remain the same, causes the second-hand goods recycling resale, the refurbishment resale to cause many infringement disputes. Many scholars suggest that the exception of exhaustion of trademark right should be set in the sale of new products, that is, the exhaustion of trademark right should be changed or damaged after the product is put into the market. Thus, reselling without the trademark owner’s repacking or even changing the sale environment without authorization will be considered as infringement. In order to reduce disputes, develop circular economy and create a good business environment, the exhaustion of trademark rights should be re-examined on the basis of balancing the interests of trademark owners and the public. The exhaustion of rights begins at the time when the trademark is affixed to the goods, and ends at the time when the goods first enter the hands of the end consumers (new product market), the prohibition of trademark is exhausted but the right of use is still there. From the consumer will be sold through the second-hand goods market to enter the hands of consumers again this stage (second-hand goods market), the right to use trademarks, the right to prohibit are exhausted. If the second-hand goods are not sold under the name of the new product, the trademark owner has no right to interfere. Where problems arise, such as the use of trademarks that reduce the quality of goods or services, impair or impair the goodwill carried in their trademarks, contract law, Consumer Protection Law, product quality law, Unfair competition law, etc. can be applied to solve the problem. Trademark law can not be used to solve all problems.