Page 26 - วารสารกฎหมาย ศาลอุทธรณ์คดีชํานัญพิเศษ

วารสารกฎหมาย ศาลอุทธรณ์คดีชำานัญพิเศษ

the first sale of a good, or a batch of goods, only if the sale has occurred in one of the
member countries of a regional organization that follows this principle as a common

rule for all members. Under this system, the imports of products originating from third
countries remain unlawful and can be stopped as infringement. To date, regional

exhaustion is the common policy adopted by EU Member States, reflecting the need to
balancing free movement of goods with IP protection and regional trade interests.
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Hence, even though countries remain free to select their preferred approach
regarding their domestic exhaustion policy, the only way to secure free movement of

goods in a free trade area or regional organization is by limiting, amongst other trade-
related barriers, the enforcement of national IP rights towards genuine goods. To the
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contrary, in the absence of a common policy such a regional exhaustion, or in the absence

of parallel domestic position favoring international exhaustion (by agreement or
coincidence), goods cannot freely move across the regional territory, unless when these
movements are authorized by the intellectual property owners.

Still, not adopting a common policy on the issue is not unique to ASEAN
Members. With the exception of the EU, no international agreement indicates what

domestic position individual countries should adopt in this respect. Moreover, TRIPS
does not address the issue of IP exhaustion in the context of the harmonization of IP

rights, as overtly emphasized in Article 6 of TRIPS. As a result, without explicit
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direction to find a common policy, countries remain free to select their respective rules
on IP exhaustion based on a variety of national interests, including the size of their

markets and the level of development. In particular, countries tend to adopt the national
policy that best promotes national interests by balancing the interests of (a) IP owners

who desire control of cross-border trade of their products and the ability to set prices;
(b) third party importers importing/exporting the goods that they lawfully purchased
(generally in lower cost markets to be exported in higher cost markets); and (c)

governments favoring either the protection of national markets and allowing price

28 Id.
29 Id.
30 TRIPS, supra note 19, art. 6.

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