Exhaustion of trademark rights in Kazakhstan under regional exhaustion in the Eurasian Economic Union
The regime of exhaustion of trademark rights for Kazakhstan in the context of high import of goods and free trade in the Eurasian Economic Union. Consideration of business and intellectual property legislation in relation to the exhaustion regime.
| Рубрика | Экономика и экономическая теория |
| Вид | статья |
| Язык | английский |
| Дата добавления | 20.07.2024 |
| Размер файла | 717,1 K |
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Therefore, although the exhaustion of trademark rights in Kazakhstan limits the rights of trademark owners, it allows them to effectively structure the licensing strategy, fight against parallel imports, plan a brand protection policy and protect themselves from counterfeiting.
Conclusions
Kazakhstan is upholding the regime of regional exhaustion of trademark rights, a concept encouraged by the Eurasian Economic Union. At the same time, local and regional legislations come into contradiction when the question is about the nationality of a trademark. With national trademark registration, the exhaustion regime becomes national, while in the case of international trademark registration, subject to a number of conditions, the exhaustion principle is regional. Though the political and economic intentions of the EAEU countries are to strive for regional exhaustion, there is still a position that such exhaustion is possible only in truly harmonised markets, International Trademark Association, Position Paper on Parallel Imports (INTA 2007) 5. and Kazakhstan, before fully applying the regional regime of exhaustion, should bring the market conditions in harmony with other members of the EAEU. Before that, it should be clearly understood that national exhaustion is also in place and should be considered.
As a result of exhaustion in Kazakhstan, trademark owners may struggle to prohibit actions such as using a trademarked product for its intended purpose or conditionally importing a product from another EAEU country. Exhaustion also leads to allowing the storage, offering for sale, and selling of products put into circulation by the trademark owner or with their consent. If trademark rights are exhausted for a particular product, further commercialisation of that product through the use of the trademark in signboards, advertising, printed materials, or business documentation might also go unprohibited.
However, although exhaustion is advantageous to legitimate consumers and resellers, it might still serve as a trademark owner's brand protection against parallel import and hidden counterfeiting, enabling the effective planning of protection strategies and leading to potential license transfer.
To improve the situation with exhaustion, Kazakhstan should consider amending its national legislation, particularly the Trademarks Law, by clarifying that exhaustion applies only when trademarked goods are placed into the market by the trademark owner or with their consent in the territory of Kazakhstan (not the EAEU). Additionally, clarification is needed regarding permissible actions with a trademark after exhaustion happened. These amendments could be done in Article 43-1 of the Trademarks Law of Kazakhstan. This recommendation could be a subject for discussion among other EAEU countries and other regional integration units worldwide. Such clarity would benefit trademark owners and their customers, ensuring a clear understanding of what actions can be done with a trademark post-exhaustion and on which territory those actions could be done.
References
1. Abbott FM, Parallel Importation: Economic and Social Welfare Dimensions (IISD 2007)
2. Bonadio E, `Parallel Imports in a Global Market: Should a Generalised International Exhaustion be the Next Step?' (2011) 33(3) European Intellectual Property Review 153.
3. Calboli I and Lee E (eds), Research Handbook on Intellectual Property Exhaustion and Parallel Imports (Edward Elgar Pub Ltd 2016).
4. Dinwoodie GB, `Trademarks and Territory: Detaching Trademark Law from the Nation-State' (2003) 41(3) Houston Law Review 885.
5. Donnelly DE, `Parallel Trade and International Harmonization of the Exhaustion of Rights Doctrine' (1997) 13(2) Santa Clara High Technology Law Journal 445.
6. Fink C, `Entering the Jungle of Intellectual Property Rights Exhaustion and Parallel Importation' in Fink C and Maskus KE (eds), Intellectual Property and Development: Lessons from Recent Economic Research (World Bank OUP 2005) 171.
7. Grigoriadis LG, `Exhaustion of Trade Mark Rights in the Eurasian Economic Union' (2016) 11(8) Journal of Intellectual Property Law & Practice 572
8. Grigoriadis LG, Trade Marks and Free Trade: A Global Analysis (Springer 2014).
9. Jain S, `Parallel Imports and Trademark Law' (2009) 14(1) Journal of Intellectual Property Rights 14.
10. Reed K, `Levi Strauss v Tesco and EU Trademark Exhaustion: A Proposal for Change' (2002) 23(1) Northwestern Journal of International Law & Business 139.
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