No. 25: Trademark Exhaustion and Free Movement of Goods: A Comparative Analysis of the EU/EEA, NAFTA and ASEAN

Details

Author(s):
  • Irene Calboli
Publish Date:
August 25, 2016
Publication Title:
TTLF Working Papers
Publisher:
Stanford Law School
Format:
Working Paper
Citation(s):
  • Irene Calboli, Trademark Exhaustion and Free Movement of Goods: A Comparative Analysis of the EU/EEA, NAFTA and ASEAN, TTLF Working Papers, No. 25, Stanford-Vienna Transatlantic Technology Law Forum (2016).
Related Organization(s):

Abstract

This paper addresses the relationship between the principle of trademark exhaustion and the free movement of goods in the free trade areas by analyzing the different approaches that members choose regarding the national policies on trademark exhaustion and the direct impact on the free movement of goods within the free trade area. In particular, this paper examines the existing approaches to trademark exhaustion and parallel imports in the European Union (EU), the North American Free Trade Area (NAFTA), and the Association of Southeast Asian Nations (ASEAN), respectively. In the EU, as the free movement of goods and the internal single market have historically been recognized as a priority, the EU law explicitly imposes a consistent approach on exhaustion to all EU Members. Opposite to the EU, NAFTA Members never intended to create an internal market, thus, each NAFTA Member follows its own system of choice on trademark exhaustion. However, since all NAFTA Members have adopted the principle of international trademark exhaustion, the de facto free movement of trademarked goods exists. Meanwhile, ASEAN Members generally follow the principles of consensus and non-interference which has been commonly characterized as the “ASEAN way”. The same is true with respect to national exhaustion policies in ASEAN. To date, ASEAN Members follow different approaches on trademark exhaustion, which ultimately jeopardizes the possibility of free movement of trademark goods within ASEAN. After comparing the different experiences of the EU, NAFTA, and ASEAN, it is indicated that the different positions on trademark exhaustion largely depend on specific regional economic, political, and social conditions in the free trade areas. Still, a consistent position of trademark exhaustion—international or at least regional exhaustion— constitutes a crucial component to serve the very purpose of free trade areas to promote free trade, and to eliminate restrictions to legitimate trade.