Market Integration and (the Limits of) the First Sale Rule in North American and European Trademark Law

This Article explores the intricate relationship between the exercise of trademark rights and the free movement of goods in the marketplace, and considers the effectiveness and the limitations of the principle of trademark first sale (also known as trademark exhaustion) in promoting the free movemen...

Full description

Saved in:
Bibliographic Details
Main Author: CALBOLI, Irene
Format: text
Language:English
Published: Institutional Knowledge at Singapore Management University 2011
Subjects:
Online Access:https://ink.library.smu.edu.sg/sol_research/1716
https://ink.library.smu.edu.sg/context/sol_research/article/3668/viewcontent/P_ID_53242_MarketIntegration.pdf
Tags: Add Tag
No Tags, Be the first to tag this record!
Institution: Singapore Management University
Language: English
id sg-smu-ink.sol_research-3668
record_format dspace
spelling sg-smu-ink.sol_research-36682016-05-18T01:24:06Z Market Integration and (the Limits of) the First Sale Rule in North American and European Trademark Law CALBOLI, Irene This Article explores the intricate relationship between the exercise of trademark rights and the free movement of goods in the marketplace, and considers the effectiveness and the limitations of the principle of trademark first sale (also known as trademark exhaustion) in promoting the free movement of goods across international borders, notably across members of free trade areas. In particular, this Article examines the application of the principle of trademark first sale and the resulting process of market integration that has characterized to date the members of NAFTA and the European Union. Based upon this comparison, this Article argues that the creation of an effective system of free movement of goods in free trade areas requires, at a minimum, the adoption of uniform national rules providing for the exhaustion of national trademark rights with respect to products lawfully distributed worldwide or, at least, in the territory of all members of those areas. This Article highlights, however, that effective market integration across free trade areas may be jeopardized when corporations can use material differences in product quality to control product distribution and prevent the free movement of goods even when members of these areas nominally permit the importation of products lawfully distributed internationally or, at least, in the territory of other members. Following the analysis of the approaches adopted by NAFTA and the European Union, this Article stresses that the convergence of national standards, the mutual recognition of product characteristics, or the acceptance into national markets of materially different products from other members carrying appropriate labels disclosing these differences can nonetheless overcome these barriers. Ultimately, this Article concludes that invoking trademark protection to segment the market against the parallel trade of genuine goods not only undermines the purpose of free trade areas; it also goes against the general scope of trademark protection, which protects consumers against confusion and trademark owners against illegitimate acts that could take unfair advantage of, or damage the reputation of, the marks, and does not include the prohibition of the resale of genuine goods that trademark owners themselves have introduced into the market, even if in the territory of another member of a free trade area. 2011-07-21T07:00:00Z text application/pdf https://ink.library.smu.edu.sg/sol_research/1716 https://ink.library.smu.edu.sg/context/sol_research/article/3668/viewcontent/P_ID_53242_MarketIntegration.pdf http://creativecommons.org/licenses/by-nc-nd/4.0/ Research Collection Yong Pung How School Of Law eng Institutional Knowledge at Singapore Management University Intellectual Property Law
institution Singapore Management University
building SMU Libraries
continent Asia
country Singapore
Singapore
content_provider SMU Libraries
collection InK@SMU
language English
topic Intellectual Property Law
spellingShingle Intellectual Property Law
CALBOLI, Irene
Market Integration and (the Limits of) the First Sale Rule in North American and European Trademark Law
description This Article explores the intricate relationship between the exercise of trademark rights and the free movement of goods in the marketplace, and considers the effectiveness and the limitations of the principle of trademark first sale (also known as trademark exhaustion) in promoting the free movement of goods across international borders, notably across members of free trade areas. In particular, this Article examines the application of the principle of trademark first sale and the resulting process of market integration that has characterized to date the members of NAFTA and the European Union. Based upon this comparison, this Article argues that the creation of an effective system of free movement of goods in free trade areas requires, at a minimum, the adoption of uniform national rules providing for the exhaustion of national trademark rights with respect to products lawfully distributed worldwide or, at least, in the territory of all members of those areas. This Article highlights, however, that effective market integration across free trade areas may be jeopardized when corporations can use material differences in product quality to control product distribution and prevent the free movement of goods even when members of these areas nominally permit the importation of products lawfully distributed internationally or, at least, in the territory of other members. Following the analysis of the approaches adopted by NAFTA and the European Union, this Article stresses that the convergence of national standards, the mutual recognition of product characteristics, or the acceptance into national markets of materially different products from other members carrying appropriate labels disclosing these differences can nonetheless overcome these barriers. Ultimately, this Article concludes that invoking trademark protection to segment the market against the parallel trade of genuine goods not only undermines the purpose of free trade areas; it also goes against the general scope of trademark protection, which protects consumers against confusion and trademark owners against illegitimate acts that could take unfair advantage of, or damage the reputation of, the marks, and does not include the prohibition of the resale of genuine goods that trademark owners themselves have introduced into the market, even if in the territory of another member of a free trade area.
format text
author CALBOLI, Irene
author_facet CALBOLI, Irene
author_sort CALBOLI, Irene
title Market Integration and (the Limits of) the First Sale Rule in North American and European Trademark Law
title_short Market Integration and (the Limits of) the First Sale Rule in North American and European Trademark Law
title_full Market Integration and (the Limits of) the First Sale Rule in North American and European Trademark Law
title_fullStr Market Integration and (the Limits of) the First Sale Rule in North American and European Trademark Law
title_full_unstemmed Market Integration and (the Limits of) the First Sale Rule in North American and European Trademark Law
title_sort market integration and (the limits of) the first sale rule in north american and european trademark law
publisher Institutional Knowledge at Singapore Management University
publishDate 2011
url https://ink.library.smu.edu.sg/sol_research/1716
https://ink.library.smu.edu.sg/context/sol_research/article/3668/viewcontent/P_ID_53242_MarketIntegration.pdf
_version_ 1772829312260505600