Page 20 - วารสารกฎหมาย ศาลอุทธรณ์คดีชํานัญพิเศษ

วารสารกฎหมาย ศาลอุทธรณ์คดีชำานัญพิเศษ

The essay proceeds as follows. In Part II, I offer a brief review of ASEAN and
emphasize how ASEAN members follow the so-called ASEAN Way, a general policy

based on consensus and non-interference into other ASEAN Members’ national policies.
In this Part, I additionally describe the principle of IP exhaustion in general. In Part III,

I survey the approaches adopted by individual ASEAN Members regarding trademark,
patent, and copyright exhaustion, and note the lack of any harmonization with respect
to this principle within ASEAN Members. In Part IV, I build on the survey in Part III,
and criticize the lack of consistent policies on IP exhaustion as a barrier to the effective

free movement of goods in ASEAN. I thus take the view that ASEAN Members should
consider adopting individual domestic policy on international IP exhaustion, which

would permit the imports of goods from all countries worldwide, not only other ASEAN
Members. This solution would both allow ASEAN Members to have autonomy over
their respective trade-related agendas with non-ASEAN countries as well as it would
permit the free movement of goods across ASEAN Members. To the contrary, I support

that adopting a common policy on ASEAN regional exhaustion—similar to the approach
currently adopted by the European Union (EU)—would be less advisable for ASEAN

Members. This solution would allow parallel trade within ASEAN Members, yet it
would permit blocking of imports from outside the region, which could run against the
principle of non-interference in ASEAN.

As a disclaimer, my analysis in this essay is focused on the free movement of
genuine (non-counterfeited) goods. Further, my analysis is limited to the trade in physical

goods (sold both through traditional channels in the brick-and-mortar environment and
online), and does not extend to the issue of free movement of digital goods. I additionally
do not focus on the impact of contracts (primarily licensing agreements), and the

instances where contracts are used to limit the resale of products in foreign markets.
These agreements are recognized as valid in some (but not all) jurisdictions in ASEAN.
Similarly, I do not address the competition-related aspects of these contracts, which

could be found to represent anticompetitive practices. Finally, in this essay, I do not
provide data related to level of development, the domestic industries, and other economic
data of individual ASEAN Members. These data may in fact be relevant to justify

different domestic policies on IP exhaustion. Still, as I have noted before several times

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