Trade mark holders may need to reassess their commercial and international marketing strategies as the proposed amendments to the parallel importation provisions of the trade marks act 1995 cth act take a step closer to enactment by the australian parliament the proposed amendments to the act, contained in the draft intellectual property laws amendment productivity. In canada and south africa, courts have considered but ulti mately rejected. Stack of old books by darren hester via flickr last week, the deadline passed for submissions to the productivity commissions study on the restrictions on the parallel importation of books to australia. Currently publishers buy a useitorlose it exclusive licence from an author to sell a book in australia. A markup is allowed because distribution costs in canada are greater, but the ceiling is designed to protect retailersand, indirectly, their customersfrom unfairly higher pricing in canada. The law before 6 july 2007 the following acts were prohibited under the previous version of our law. Canadas book importation regulations operate under the copyright act. The issue of parallel imports affects various business sectors and areas of law. See coming into force provision and notes, where applicable. Kasper the decision of the japanese supreme court in the bbs aluminum wheels casein 1997 has served to ignite an intense debate within japan as to the appropriate scope of protection that is to be afforded to inventions that are patented in japan and other countries and are imported from those other countries into. Research handbook on intellectual property exhaustion and. In the united states, legal precedent has established that parallel importation is. Parallel imports and trademark law sneha jain ils law college, law college road, pune 411 004, maharashtra received 31 july 2008, revised 8 january 2009 parallel importation has assumed much importance with the opening up of global markets and effective implementation of price differentials. The pc has unfortunately recommended not just that the government should allow parallel importation of books.
Australia canada china european union hong kong india ireland. Parallel importing is an unauthorized import of noncounterfeit goods into a country. Parallel imports are often referred to as grey product and are implicated in issues of international trade, and intellectual property parallel importing is based on concept of exhaustion of intellectual property rights. It is a term applied to goods protected by ip rights, including s, and produced with the permission of the rights holder overseas, but then imported into another. A useful appendix provides a synoptical overview on the rules of parallel importation in asia. Pdf the concepts of trademark exhaustion and parallel imports. The perennial issue of parallel imports and border enforcement. The book must be readily available to australians or they lose this licence.
French said her first book, diary of a wombat, would never have been published without the parallel importation law because international publishers would not take a risk on an australian book. Individuals refer to this as gray market goods, and most trades entail highpriced branded goods such as jewelry, cameras, tablets, and watches. Although this chapter focuses on canada, the canadian situation is compared. Using copyright to prevent parallel importation in. Eu law, european union, parallel imports, trademark exhaustion. Consequently, eu law protects and supports parallel imports as a tool for achieving and maintaining a single market.
Parallel importation therefore involves a conflict of interests between promoting competition and protecting the intellectual property rights of the trade mark owner. Parallel importatation restrictions prohibit the importation and sale of that copy of the book in australia. It is based in part on daniel gervais and susy frankel, international intellectual property rules and parallel importing, in research handbook on exhaustion and parallel. Australias debate on book imports, copyright and fair use. Parallel importation of books to australia part 1 book. For those unfamiliar with the terrain, the question of parallel importation arises at the boundaries of law and commercial practice across international markets. Trademark law contributions in legal studies pdf, epub, docx and torrent then this site is not for you. If youre a book store or wholesaler her, and you want to sell breath by tim winton, you have to sell the australian edition of breath from penguin. However, the legality of parallel importation in regard to drugs has yet to be ruled upon by a us court. As any book lover knows well, books in canada typically cost more than in the united states even when the canadian dollar is at par a longawaited senate report, released this week, analyzing price differences for goods on both sides of the border attempts to explain why, and offers one idea on how to close the gap. The parallel importer competes with the registered trade mark owner and its authorised distributors to sell the products in australia. Parallel importation and australian book publishing. Parallel importation by rose ann macgillivray author isbn.
Historically was used by new zealand authorised distributors to prevent parallel importation. The recommendation one of four overall is that the minister of. Hpra guide to parallel imports of human medicines autg0006 635 member state to which the product is to be imported. A parallel import is a noncounterfeit product imported from another country without the.
This therefore raises the question of whether parallel importation is lawful in south africa. Change is coming to australian parallel importation law what. Australia has allowed for parallel importation of books in one form or another since 1991 when the law was changed to allow for all parallel of all books that werent introduced in the australian market within 30 days of it being released elsewhere in the world. On the one hand, they strictly follow the laws of the market. Using copyright law to prevent parallel importation the canadian. The issue of parallel imports will not go away but there are other options to explore. For those who dont know, parallel importation restrictions pirs are part of our copyright act and prohibit importing by booksellers for resale. Specifically, the court curtailed the ability of the owner of ip rights in artistic works displayed on product packaging to prevent parallel importation in canada by. If youre looking for a free download links of parallel importation in u. Introduction overview of parallel importation competition policy and vertical restraints parallel importation and intellectual property rights trips. In australia, trade mark owners have been able to strategically use trade mark law to prevent parallel imports, by assigning registered australian trade marks to local licensees.
Research handbook on intellectual property exhaustion and parallel imports. A parallel import is a noncounterfeit product imported from another country without the permission of the intellectual property owner. Parallel imports are goods manufactured outside the jurisdiction by, or under the authority of, the owner of an industrial property right relating to those goods, but imported by someone other than his authorised importer or distributor. Parallel importing raises a number of legal concerns for manufacturers, brand owners, importers and consumers. The labor party, which is in opposition and youre probably aware that weve got an election coming up in. The article intends to analyze the closely correlated concepts of trademark exhaustion and parallel imports.
However, new changes to the law are making it increasingly difficult for australian trade mark owners to stop parallel importing. Using incidental intellectual property rights to block parallel imports. Parallel imports refer to the legal importation of products that have some form of. Framework for a canadian position on exhaustion of intellectual property. Venezuela recently struck down its more modern ip law in favor of adopting its previous law, passed in 1955, which favors the national exhaustion of rights. There is no guarantee books will be cheaper, but removing the restrictions will cause severe job losses in the publishing, book printing, packaging, and distribution industries. This practice, also referred to as buying around the licensed territorial supplier, is usually motivated by the possibility that sourcing through a foreign supplier. Drug packaging is one of the issues that should give prospective parallel importers pause. Introduction parallel imports are one of the most iridescent and enigmatic phenomena of international trade. There has now been a draft report published by the australian government productivity commission pc on intellectual property arrangements. The book makes a significant contribution to the quest for a proper balance between. A primer on parallel importation after lexmark the. The intent of parallel importing is to allow for the free flow of a competitive supply of the goods in question.
Parallel importation occurs when a retailer or institutional buyer imports copies of a title without sourcing them through the appropriate rights holder in the given territory. It is particularly vulnerable to the problems of counterfeits and parallel imports. Brazil expressly establishes the national exhaustion of rights, with some exceptions. Copyright and the parallel importation of goods into. Book retailers will suffer as their internetsavvy customers will continue to switch to overseas online services to acquire cheaper books. Change is coming to australian parallel importation law. I had intended to read the submissions and give a full summary of the pros and cons, but there are way too many for me to get through. Parallel imports new developments trademark law firm.
On may 30, 2017, the us supreme court released its opinion in impression products, inc. Parallel importation prohibitions and the politics of the. The concepts of trademark exhaustion and parallel imports. The below is an attempt to explain the underlying issuesin less than four pages. The perils of parallel importation modern aesthetics. We, the undersigned, ask the parliament to retain the current restrictions on the parallel importation of books for the following reasons. Case law suggests that imports which have been altered could constitute trademark infringement and, by extension, counterfeit products. The psa also found that the protection afforded by the importation provisions had fostered inefficiencies in distribution and stockholding within the industry. The australian book industry does not depend on tariffs or subsidies. Until recently, trade mark owners were able to stop parallel importers from selling these competing goods in certain circumstances. In any country, parallel importation occurs when a retailer or institutional.
For parallel importation to ireland, this means informing the hpra and the ma holder of the irishmarket product. The perennial issue of parallel imports and border. It would be inconsistent with this to repeal territorial otherwise known as parallel importation rules that guarantee those incentives and rewards. Parallel importation australian society of authors asa. One of the downfalls of parallel importation is that owners and manufacturers do not have proper control over what the parallel importer does with the brand and product. Labor defends import protection for australias book. The goods are imported without the express permission of the intellectual property owner. The obligation to inform the hpra is met by the procedure laid down in this section for submission of an. Some countries in latin america and the caribbean do not regulate parallel imports. Doing away with the parallel importation rules would pull the rug out from under the publishing industry, said jacqueline hushion, the executive director for external relations of the canadian. If a retailer parallel imports copies of a book when the distributor has met these requirements, the importation constitutes an infringement of. A view of the parallel imports issue from an international perspective.
The governments decision today is a great disappointment to those who favour free trade, competitive markets and cheap books. While kirtsaeng suggests parallel importation is legal, drugs are regulated by the government, which makes the issue significantly more complicated. Why parallel importation of books should be allowed the. Parallel importation law is set to change ip law watch.
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