The exhaustion of trademark rights in the European Unionand Turkey as a 'non-eu' member of the customs union: From a trade related point of view: International or regional exhaustion?
Başlık çevirisi mevcut değil.
- Tez No: 723768
- Danışmanlar: Belirtilmemiş.
- Tez Türü: Yüksek Lisans
- Konular: Uluslararası Ticaret, Uluslararası İlişkiler, International Trade, International Relations
- Anahtar Kelimeler: Belirtilmemiş.
- Yıl: 2018
- Dil: İngilizce
- Üniversite: Universiteit Leiden
- Enstitü: Yurtdışı Enstitü
- Ana Bilim Dalı: Belirtilmemiş.
- Bilim Dalı: Belirtilmemiş.
- Sayfa Sayısı: 57
Özet
Özet yok.
Özet (Çeviri)
The exhaustion of trademark rights is a principle aiming to balance the interest of trademark owners with the interest of other actors of trade by limiting the monopoly right of the trademark owner. Exhaustion principle can be divided into three categories in terms of its geographical scope of application: national exhaustion, regional exhaustion and international exhaustion. The choice between these three regimes is made by the legislators of States and international organizations considering numerous factors and has substantial effects on international trade. In EU law, regional exhaustion of trademark rights in the territory of EEA countries is accepted. However, after the entry into force of the first Trademark Directive, a discussion emerged among the EU Institutions and Member States regarding the interpretation of Article 7 where the regional exhaustion was codified for the first time. While some argued that the words 'in the Community' (now 'in the Union') indicated the abolishment of the possibility of individual Member States to retain the international exhaustion regime in their domestic laws, others claimed that Article 7 only provided for a minimum harmonization and Member States were free to provide for international exhaustio n. Despite the existence of considerable opposing views, the CJEU, in Silhouette, ruled that the Member States are not allowed to retain or establish international exhaustion regime individually. Despite recognizing the possibility of providing for international exhaustion in bi(multi)lateral agreements with non-Member States, the Commission accepted the prohibition of international exhaustion as well. However, the debate regarding the most desirable exhaustion regime has continued between scholars and various interest groups. The opponents of international exhaustion argued that if international exhaustion is accepted, the lower productions costs in third countries will put European businesses in a competitive disadvantage and cause them to withdraw from the European market. Furthermore, international exhaustion will disincentivize the investment by reducing the economic reward of the trademark owners and eventually harm consumers. On the other hand, the proponents of international exhaustion emphasized the potential increase in the competitive pressure that parallel trades from all over the world will create on the European businesses causing them to lower their prices. As a result, consumers will benefit from the dropped prices and an increase in the freedom in worldwide trade will be guaranteed in line with the trend towards globalization. In the end, this argument proves to be a subjective one depending on one's expectations from trade and the interest that it wishes to protect. Considering the latest 5 developments, the EU seems to adopt a narrower exhaustion regime even within the EEA and is not likely to change its current position towards international exhaustion any time soon. Turkey's position as the only non-EU Member of the Customs Union is important in this respect. With the Ankara Agreement concluded between the EEC and Turkey in 1963, a Customs Union requiring the prohibition of customs duties and all charges having equivalent effect was established between these two Parties. In 1995, the Decision No. 1/95 of the EC-Turkey Association Council, implemented the last phase of the Customs Union as prescribed by the Ankara Agreement and its Additional Protocol. However, in Article 10 of Annex 8 to this Decision, the possibility of exhaustion of intellectual property rights between Turkey and EC was excluded. This has raised the question regarding the compatibility of such exclusion provided by an Association Council decision with the Ankara Agreement. The Customs Union aims to abolish the trade barriers between two parties and presupposes the existence of exhaustion principle exclusion of which undermines the objectives of the Customs Union and Ankara Agreement. A rule which allows the import and export only for the trademark owner and other commercially related parties substantially limits the trade between two parties. In this respect, the Decision No. 1/95 is contrary to the objectives of the Ankara Agreement. According to the case law of the CJEU, agreements relating to the association relationship between Turkey and the EU are an integral part of the EU law and directly effective provided the conditions are met. In this respect, Articles 5, 6 and 7 of the Ankara Agreement are directly effective and binding on the EU and its Members. Furthermore, the Ankara Agreement and the Additional Protocol are in a primary position compared to the decisions of the Association Council. As a result, Decision No. 1/95 should be deemed invalid as it contradicts a higher source of law in the hierarchy of norms and Turkey should be included in the regional exhaustion regime. However, this is a 'two-way street' where Turkey has to comply with the requirements of the regional exhaustion as well. Nevertheless, Turkey, by its latest Industrial Property Rights Act of 2017, provided for international exhaustion. In order to guarantee the attainment of the policy objectives that the EU observed when precluding the international exhaustion, Turkey should bring its law in line with the EEA-wide exhaustion. Otherwise, the disparity between the geographical boundaries of exhaustion principle within the EEA may undermine the free movement of goods 6 and services by causing market partition and may put the European businesses in a competitive disadvantage as argued by the CJEU and the Commission.
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