Does s 122A of the Trade Marks Act Achieve the Australian Government's Policy Goal of Allowing for the Parallel Importation of Genuine Goods?

摘要

The Australian Government's policy goal is to allow for the parallel importation of genuine goods. Section 122A of the Trade Marks Act 1995 (Cth) purported to rectify the unsatisfactory operation of the now- repealed s 123(1) defence, which was intended to operate as a defence to trade mark infringement when the goods being imported were genuine. The s 123 defence remains in force in relation to services. This article begins by exploring the arguments on both sides of the parallel importation debate, the history of s 123(1) and the likely effectiveness of s 122A. It argues the new defence reduces the risk of parallel importers infringing the relevant trade mark. It then demonstrates how trade mark owners and licensees could nonetheless implement and enforce contractual devices that restrict parallel import activity. This in turn leads to a call for further law reform. This article proposes explicitly prohibiting restrictions on parallel import activity and introducing proactive safety laws to address some concerns trade mark owners and licensees have regarding the safety of parallel imports. Finally, this article suggests measures to limit the detrimental effect parallel imports may have on brand reputation.