Principles of Exhaustion of Trademark Rights in International Trade: Theory and Current Problems

This master's thesis focuses on the analysis of two interrelated institutions of trademark rights exhaustion and parallel imports in the context of the impact of their regulation on balancing the rights of trademark owners, resellers and consumers. The first chapter describes this institution and examines its legal nature. At the global level, there are three approaches to regulating the exhaustion of trademark rights, and each of them reflects the interests of different market participants. By applying an international approach to the exhaustion of rights, states give priority to the interests of consumers and competition in the market, while the application of a national regime maximizes the legal protection of trademark rights, and it can be considered as a spectrum. When choosing a particular regime, countries are guided by various factors, including the characteristics of their own market and the markets of neighboring countries. The lack of detailed regulation of the principle of exhaustion within TRIPS, as well as harmonization of approaches at the international level, has led to the formation of the TRIPS+ phenomenon, which is an extension of the principle of exhaustion in the light of interests of certain countries through the conclusion of regional treaties. In the second chapter, the models of application of trademark exhaustion principle and their features were analyzed using the example of specific jurisdictions, taking into account the political and economic reasons. In the third chapter, the main topic is the latest legal problems in the field under consideration, such as selling the processing original goods, digital exhaustion of rights and the parallel import in pharmaceuticals, as well as difficulties associated with the burden of proof. Furthermore, the effectiveness of regulating the principle of exhaustion within the concept of differentiated approach was also analyzed. One of the key questions in this sphere is what is the most effective way to regulate the parallel imports in order to reach the most possible balance between private interests of producers and consumers. Thereby, author comes to the conclusion that the use of different approaches to regulate the issue of exhaustion of intellectual property rights causes difficulties, since importing and exporting countries apply different approaches to assessing the legality of parallel imports, participants in trade activities cannot independently assess risks and rely on legal certainty. In this regard, there is currently a need to develop a harmonized approach to the regulation of exhaustion of rights and parallel imports.