engleski

The EEA “Grey Market” in Trademarked Products: How Many Shades of Grey?

Choosing an exhaustion model is as choosing a shade of grey on a scale from white to black. In identifying fine nuances, one should bear in mind that at the end of the day this is a very much the issues resolved based on considerations belonging to the sphere of political economy. Undoubtedly, the exhaustion model has bearing over global and domestic trade and interests of different economic actors. From the macro- perspective, the exhaustion scheme should reflect the effective sense of balance between the concerns for global and national/EEA trade, the national/EU trademark system and the collective interests of consumers. From the micro- perspective, the exhaustion scheme should set the interests of the holder of the trademark against those of the acquirer of the product bearing the trademark. Considering that calls, mostly from the USA, for introducing international exhaustion in the EEA are gradually intensifying, re- examining the philosophies underlying the current regional exhaustion scheme in the EEA seems the desirable option. It is submitted that the at this point it is necessary to examine the need for rebalancing the conflicting interests. Some of the notorious consequences of the trademark exhaustion are splitting the market and price differentiation. With this in mind, it is important not to neglect the transecting concerns of economic development and the protection of consumers’ expectations in the global markets for trademarked products. In the absence of internationally agreed standards for exhaustion, the nation states or regional organisations will intend to generate benefits by ensuring free movement of goods and effective competition within national or regions borders, the EEA being one of the obvious examples. Yet the question has to be asked as to whether the system functions satisfactorily within its borders. Although an important justification for granting to the trademark holder the exclusive rights is to ensure the financial return for its investment in the development and improvement of the trademarked product, there is room for accommodation of other interests in a more efficient way than at present. It is submitted that on the scale form no exhaustion at all to international exhaustion (without complementary material-differences standards) there are countless shades of grey that need to be more deeply explored.

EU law, intellectual property, trademark, exhaustion, parallel importation

Ovaj rad je sufinancirala Hrvatska zaklada za znanost projektom br. 9366 pod nazivom “Pravni aspekti korportativnih akvizicija i restrukturiranje društava utemeljenih na znanju". This paper has been supported in part by the Croatian Science Foundation project no. 9366 “Legal Aspects of Corporate Acquisitions and Knowledge Driven Companies’ Restructuring”.