Parallel Importing in Australia : What is the Objective and is It Being Achieved?

The Australian law on parallel importing of trade marked goods appears to be inconsistent with the objectives of that law. A combination of the new legislation in 1995 and case law since that legislation has led to the erosion of a regulatory scheme which was previously more tolerant of parallel importing. The position that has emerged is that in many circumstances, parallel importing will constitute an indefensible infringement of a registered trade mark. Even if it would not constitute an infringement, a potential parallel importer will be unable to determine in advance of importation whether or not that importation will be lawful. The effect of the latter position is that potential parallel importers will be disinclined to engage in that practice and a de facto prohibition or impediment to parallel importing will exist that is inconsistent with the objectives of the law. In addition, some trade mark owners will be unable to prevent parallel importing simply because of the particular business structures that they have adopted, while some other trade mark owners will be able to take advantage of different business structures to effectively prevent parallel importing. This regulatory outcome is unsatisfactory. Parallel importing is either desirable from a policy perspective or it is not. If it is desirable, the legal regime affecting it should facilitate parallel importing. If it is not desirable to permit parallel importing, the legal regime should be equally clear that such activity is not permitted, regardless of the business structure adopted by any particular trade mark owner. The current twilight zone of legality generates uncertainty for both trade mark owners and importers, undermines the policy objectives surrounding parallel importing and invites re-arrangement of trade mark ownership without any benefits to the community flowing from such arrangements