Eu Law Free Movement Of Goods Essay Scholarships

Title

Trademark Exhaustion and Free Movement of Goods: A Comparative Analysis of the EU/EEA, NAFTA and ASEAN

Abstract

In this chapter, I address the relationship between the principle of trademark exhaustion and the free movement of goods in free trade areas. In particular, I analyze the existing approaches to trademark exhaustion and parallel imports in the following free trade areas: the European Union (EU), or rather the European Economic Area (EEA); the North American Free Trade Area (NAFTA); and the Association of Southeast Asian Nations (ASEAN). The results of this analysis highlight the different approaches that countries that are members of a free trade area may choose regarding national policies on trademark exhaustion—i.e., national, international, or regional trademark exhaustion as I explain below—and how these policies directly impact the free movement of goods within the free trade area. In particular, I note that it is only when all countries that are members of a free trade area consistently adopt a principle of international or regional trademark exhaustion that goods can freely move amongst these countries. Still, as the case of the EU/EEA demonstrates, the approach that countries adopt with respect to trademark exhaustion can also evolve over time and lead to a unified approach only at a second stage, particularly when the members of a free trade area agree to achieve a higher level of economic integration. In these instances, members of free trade areas are more likely to adopt a unified approach on trademark exhaustion that facilitates the free movement of goods within the free trade area. Other contributions in this volume comprehensively address the alternative approaches to intellectual property exhaustion. Building on these contributions, in section II, I elaborate on the principle of trademark exhaustion in the EU/EEA. In this section, I note that market integration has historically been a priority in the EU, thus EU law explicitly imposes a consistent approach on exhaustion to all EU/EEA Member States in order to promote free movement of goods and the internal market. In section III, I analyze the rules on trademark exhaustion in NAFTA. In this section, I note that, unlike in the EU/EEA, NAFTA members never intended to create a NAFTA internal market, thus, each NAFTA member follows its own system of choice on trademark exhaustion. Still, all NAFTA members have adopted the principle of international trademark exhaustion, which in turn permits the free movement of trademarked goods within NAFTA. Last, in section IV, I elaborate on the approach(es) adopted by the countries that are members of ASEAN. In this section, I stress that ASEAN members adopt a principle of non-interference with respect to national exhaustion policies (ASEAN members generally follow the principles of consensus and non-interference, referred to as the “ASEAN way,” as a general principle, not only with respect to intellectual property-related issues). In this section, I also note that, to date, ASEAN members follow different approaches on trademark exhaustion. Notably, several ASEAN members follow international exhaustion, while other members are silent on the issue or adopt the principle of national exhaustion. Differently than the situation in the EU/EEA and NAFTA, however, the approach adopted by ASEAN members ultimately results in preventing an effective free movement of trademarked goods within ASEAN.

Series

Research Handbooks in Intellectual Property

Editor

Irene Calboli & Edward Lee

Book Title

Research Handbook on Intellectual Property Exhaustion and Parallel Imports

Recommended Citation

Irene Calboli, Trademark Exhaustion and Free Movement of Goods: A Comparative Analysis of the EU/EEA, NAFTA and ASEAN, 367 (2016).
Available at: https://scholarship.law.tamu.edu/facscholar/738

In the EU’s single market (sometimes also called the internal market) people , goods , services , and money can move around the EU as freely as within a single country. Mutual recognition plays a central role in getting rid of barriers to trade.

EU citizens can study, live, shop, work and retire in any EU country - and enjoy products from all over Europe.

No more national barriers

To create this single market, hundreds of technical, legal and bureaucratic barriers to free trade and free movement between the EU’s member countries have been abolished.

As a result, companies have expanded their operations. The competition has brought prices down and given consumers more choice:

  • Phone calls in Europe cost a fraction of what they did 10 years ago
  • Many air fares have fallen significantly and new routes have opened up.
  • Many homes and businesses can now choose their electricity and gas suppliers.

At the same time, with the help of Europe’s various competition and regulatory authorities, the EU works to ensure that these greater freedoms don’t undermine fairness, consumer protection or environmental sustainability.

A huge business opportunity

European businesses selling in the EU have unrestricted access to nearly 500 million consumers, helping them to stay competitive. The single market is also attractive to foreign investors.

Economic integration can also be a great advantage in times of recession, allowing EU countries to continue trading with one another, rather than resorting to protectionist measures that would worsen the crisis.

Some barriers remain

Many obstacles remain, however, in areas where integration is taking longer:

  • fragmented national tax systems impede market integration and undermine efficiency
  • separate national markets still exist for financial services, energy and transport
  • e-commerce between EU countries has been slower to take off than at national level, and rules, standards and practices vary considerably
  • the services sector is lagging behind the goods markets (although it has been possible since 2006 for companies to offer a range of services abroad from their home base)
  • rules on the recognition of vocational qualifications need to be simplified to make it easier for qualified workers to find a job in another EU country.

The financial services market is a special case. The EU is seeking to build a strong, secure financial sector — while avoiding a repeat of the 2009 crisis — by supervising financial institutions, regulating complex financial products and requiring banks to hold more capital. The creation of the banking union transferred the mechanisms for bank supervision and resolution from national to EU level in several member countries. There are also plans to set up an EU-wide capital markets union to:

  • reduce fragmentation in financial markets
  • diversify sources of finance
  • strengthen flows of capital between EU countries
  • improve access to finance for businesses, particularly small and medium-sized companies.

External border checks

EU citizens do not need a passport to travel within the Schengen areas, which currently comprises 26 countries:

  • all EU countries except Bulgaria, Croatia, Cyprus, Ireland, Romania & the UK
  • Iceland, Lichtenstein, Norway & Switzerland

Although Schengen countries no longer carry out checks at internal borders, they have stepped up checks on the EU's external borders.

To ensure safety in the Schengen area, these countries have also increased police cooperation, in particular through hot pursuit and continued surveillance of suspects moving between countries. The Schengen Information System allows the police and customs and national border control authorities to circulate alerts about wanted or missing people or stolen vehicles and documents.

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