Exhaustion
means if the marked goods are once placed on the market by the owner of the
trademark or by any other person with his consent, the owner cannot prevent
subsequent sales of the goods in the same market, as the ‘exclusive right’ is
exhausted after the first sale of the goods and cannot be exercised twice in
respect of the same goods. Doctrine of exhaustion is a defence in the hands of
the parallel importer.
The
way in which a country coexists with other countries can have a profound effect
on the way it operates the doctrine of exhaustion[1].
Under the international regime three forms of exhaustion have been recognized.
These are:-
·
National Exhaustion - where the owner exhausts
his right only if the marked goods are sold for the first time domestically.
·
Regional Exhaustion - where the rights are exhausted
only if the first sale occurs within his own country or any country within a
region.
·
International
Exhaustion - where
rights are exhausted irrespective of the place where the marked goods are first
put for sale.
Domestic/national
Exhaustion:
This
means that, “if the good are sold for the first time in the domestic market or
within the territory of the country in which the trademark is registered, the
owner of the trademark loses his right over the goods and cannot prevent
subsequent sales of the same in the domestic market within the country.
However, if the goods are sold for the first time in a different country beyond
the jurisdiction of the nation in which the trademark is registered, then the
owner can invoke his trademark right to prevent the importation of such goods
into the domestic market”. India has adopted this form of exhaustion under the
section 30 of the Trademarks Act, 1999.
Regional Exhaustion
Regional
Exhaustion means: “If the goods bearing a trademark are put on sale in any
country within the specific region by the owner or with is consent, the owner
cannot stop subsequent sale of that product in his own country or in any
country within the region. But if the goods are put on sale in a country outside
the region, the owner can prevent anyone who imports the goods into that region
and subsequent all them[2]”.
The EU has adopted regional exhaustion where by ‘sale in one country is equal to
it being an act of sale in any other country within the region.
International/Global
Exhaustion
Global
exhaustion operates on the premise that if goods bearing a trademark are once
sold in a specific country by the owner or with his consent, he cannot stop
subsequent sale of those goods either in his own country or in any other
country. This doctrine works on the assumption that the whole world is one
market or one country and thus goods once sold in any part of such market or
country operates as exhaustion of rights of the trademark owner over such
goods.
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