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IP As Property / IP Rights Licensing / Gray Market I. Defining the problem There is no uniform international definition of parallel
imports, although they are usually considered genuine goods initially
placed on the market in one country by a trademark owner, or with the
owner's consent, that subsequently find their way into another country
for sale there without the trademark owner's authorization. In a simple
example, a manufacturer sells its products through different distributors
in the United States and in Mexico. However, due to various factors
in each country, the products are sold in the United States at a higher
price. Enterprising parties in the United States learn of this incongruity,
arrange to obtain the products in Mexico, and resell them in the United
States at a price that undercuts the authorized US distributors. After
the US distributors complain that they are being undersold, the manufacturer
wants to stop these parallel imports and the problem begins.
National legal systems are remarkably inconsistent
about whether, and under what circumstances, parallel imports violate
trademark laws. The national view depends largely upon how a trademark's
function is defined and also upon whether the legislators or judiciary
have sided with consumers or with manufacturers and distributors.
Consumers desire genuine products at lower prices.
Free trade and market competition advocates generally regard parallel
imports as beneficial, otherwise trademark owners partition markets
and impede free and fair trade.
Trademark owners, licensees and their authorized distributors
usually disagree. Parallel imports undermine normal distribution channels
and frustrate authorized dealers who challenge the premiums paid to
the trademark owner for genuine goods when competitors are underselling
them. Moreover, varied pricing structures may be justified on grounds
that are not related to blatant price-fixing; costs for local marketing,
promotion, advertising, regulatory compliance, product liability and
research should be passed along to local consumers. Therefore, trademark
owners, their licensees and authorized distributors understandably believe
that unauthorized distributors benefit unfairly by escaping these financial
burdens.
Other legitimate reasons may render parallel imports
undesirable, such as consumer protection. Consumers purchasing genuine
products expect that they are sold through authorized distribution channels
overseen by the trademark owners or their licensees. Unwary consumers
are surprised that their "genuine" products do not carry the warranties
and service guarantees that accompany authorized sales, and that rebates
offered to purchasers of authorized products will not be extended for
their "genuine" purchases.
Public health and safety concerns also drive trademark
owners to prevent parallel imports. Products destined for sale in one
country that do not comply with the safety standards of another country
may harm unwitting purchasers. Improper handling or storage by unauthorized
distributors may lead to spoilage or damage. Consumers receiving foreign
language instructions may, without proper instructions, misuse the products
and cause injury. Also, manufacturers have difficulty recalling parallel
imports.
These consequences cause negative consumer experiences
that damage the goodwill and reputation of the trademarks, their owners,
and their licensees and authorized distributors.
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