In recent years, there has been considerable controversy in the industry over the scope of exhaustion of rights, especially in the field of trademark rights. For example, in current judicial practice, there are different opinions on the nature of dealers’ use of the right holder’s trademark. There are two viewpoints: the applicable trademark confusion judgment theory and the applicable exhaustion of rights theory. The author of this article believes that the exhaustion of applicable trademark rights should be used. Theory is appropriate.

The theory of exhaustion of trademark rights mainly means that the trademark owner cannot interfere with the further circulation of the goods such as resale, distribution, etc. after the goods are legally put on the market. The basic consideration of this theory is that a trademark, as an identifier to identify the source of goods, only needs to be controlled by the trademark owner when it is first put on the market. Subsequent circulation will not change this fact. If the goods have not reached the end user before If the trademark owner is still allowed to control the circulation channels of goods, it may obtain unreasonable rights and even hinder the free circulation of goods. In current judicial practice, there are different opinions on the nature of dealers’ use of the right holder’s trademark. There are two viewpoints: the trademark confusion theory and the exhaustion of rights theory. Although both theories are applicable, they are not applicable when determining the distribution of rights. When it comes to the nature of commercial use of the right holder’s trademark, the exhaustion theory of trademark rights is relatively close and is consistent with the special priority rule. The author believes that the exhaustion theory of trademark rights should be applied.

The principle of exhaustion of intellectual property rights has been accepted by most countries in the world since its development. However, with the expansion of the trade field and the scope of intellectual property protection, the scope of exhaustion of rights also has a larger scope. Disputes, especially in the field of trademark rights, are different from the protection methods of copyrights and patent rights. Trademark protection is only relative protection associated with goods or services. However, since trademark rights can be renewed indefinitely, it is also a long-term protection. , over-protection is obviously not conducive to the public interest. Therefore, despite the absolute nature of trademark rights, fair use should not be prohibited in principle under the condition that it will not cause confusion to others, and the exercise of trademark rights cannot be a tool for trademark owners to restrict competition. However, if the right holder intends to use the trademark to artificially divide the market, the scope of its protection will be limited. This is considered from the perspective of the trademark owner, and from the perspective of the dealer who sells the goods, that is, the trademark owner exercises the trademark The right cannot compete with the dealer's legal distribution rights.

A dealer’s legal distribution rights (mainly the right to further circulate the distributed goods) should first ensure that the products it purchases and distributes are genuine trademark products. Regardless of whether you purchase from an authorized agent or other dealers, as long as you purchase genuine trademark products, you are exercising your distribution rights properly. The purchase itself is the normal circulation of goods, and no one has the right to interfere. At the same time, the dealer has the right to use the product trademark for the purpose of selling its goods, that is, the dealer has the normal right to use the product trademark in business in accordance with local industry practices, but the extent of use should be such that it does not damage the reputation and image of the trademark. Cause serious damage and exceed the scope of fair use and cause consumers to misunderstand. In judicial practice, there are cases where the origin of genuine goods sold by dealers is questionable, but the author believes that even if the goods are not obtained through normal purchases or other legal channels, it cannot be concluded that the dealer has infringed the exclusive rights of the registered trademark of the right holder. The inevitable conclusion is that when judging the nature of a dealer's use of the right holder's trademark, judicial determination should still be made based on its specific use behavior.

Distributors usually use trademarks in the following ways: first, by using the goods themselves to display the trademark, including displaying, storing, and transporting goods; second, by using the trademark in advertisements, including on television, newspapers, and periodicals , exhibitions, flyers, windows, counters, posters and other media to publicize and promote; third, use the trademark on business cards, transaction documents, price lists, labels, product containers, instructions and other media.

The dealer's right to use a trademark comes from the implicit permission of the trademark owner. Once the trademark owner or a person with the trademark owner's permission puts the product on the market, it is deemed to have implicitly agreed that subsequent dealers have the right to use its trademark. The scope of this implicit permission includes dealers at all levels, except when the trademark owner has legitimate reasons to prevent dealers from improperly using the trademark, because the primary function of a trademark is to indicate the source and quality of the goods, and to combine the rights of different goods producers. Therefore, if the goods are legally put into the market and the dealer uses the trademark of the right holder, it causes damage to the quality of the goods or the goodwill of the trademark owner, or it exceeds the scope of reasonable use and causes misunderstanding among consumers. In such circumstances, the trademark owner has the right to file a lawsuit. At this time, the theory of exhaustion of trademark rights no longer applies. Trademark rights