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The connotation of exhaustion of trademark rights

Third, the connotation of exhaustion of trademark rights-exhaustion of label rights or exhaustion of commodity rights? Turning to the field of trademark rights, this problem is easier to understand. The basic function of trademarks is to distinguish goods and services produced or distributed by different enterprises. [xi] Then the purpose of the right holder to label the goods is obviously to identify the goods or the services they provide. Therefore, the connotation of exhaustion of trademark rights is that when there is a conflict between trademark rights and the ownership of the sold trademark goods, the former gives way to the latter and is exhausted. That is to say, the exhaustion of trademark rights means that the trademark owner loses control over the further punishment of the goods he put on the market, not that the trademark label itself is exhausted as a thing. As far as the author is concerned, the act of buying goods can be understood as that the buyer has bought the tangible goods themselves, and at the same time has obtained the right to use this trademark to identify this commodity in future transactions. Therefore, the buyer of goods with a trademark can continue to use the trademark to identify the goods in future trade activities, but he has not obtained the right to use the trademark itself at will. In this sense, if a trademark is accidentally damaged, he can continue to mark the goods with the same trademark, which does not infringe the exclusive rights of the trademark owner. However, if he tears off the trademark on the purchased goods to mark other goods, it is no longer the exhaustion of trademark rights, but a typical trademark infringement. However, if the third party changes the outer packaging of the trademark product instead of changing the trademark, does the principle of exhaustion of rights apply to the trademark product? The Hoffman-La Roche v. Centrafarm case in Germany involves this situation. In the case, the defendant repackaged the plaintiff's trademark products into a larger box that was popular in the German market, reprinted the trademark of the plaintiff Roche company on the box, and added some information of his own. In the trial, the court reiterated the "main function" of trademarks to identify products to consumers or end users, to distinguish products from different sources and to prevent any confusion. And put forward three Roche elements to test whether repackaging is infringement: (1) repackaging does not affect the Original condition of the product; (2) The repackager has fulfilled the obligation of notice; (3) The package clearly indicates who is responsible for repackaging. The author believes that this issue cannot be generalized, and the above three elements of Roche give us a good enlightenment. If repackaging leads to the confusion or misunderstanding of the origin of the product, and the "main function" of the trademark is destroyed, the trademark product should not be exhausted, and the trademark owner can prohibit the further circulation of the repackaged product. However, if this repackaging behavior is approved by the trademark owner, or does not hinder consumers' identification of commodity producers, then the principle of exhaustion of rights and the spirit of free trade should still play a role, and the trademark owner has no right to prohibit the further circulation of repackaged trademark products.