Page 46 - วารสารกฎหมาย ศาลอุทธรณ์คดีชํานัญพิเศษ

วารสารกฎหมาย ศาลอุทธรณ์คดีชำานัญพิเศษ

As mentioned earlier, ASEAN Members have two options to achieve a fully
operating internal market where goods can freely move, including goods protected by

IP rights. They could opt for an EU/EEA-type system of regional exhaustion, but all
ASEAN Members would need to change their national laws and allow intra-ASEAN

free movement while prohibiting parallel imports from outside ASEAN. Or they could
opt for a system where each ASEAN Member would follow a principle of international
exhaustion for all domestic IP rights. In the latter case, a shift for most ASEAN Members’

domestic policies would still be required in favour of a generalized principle of
international exhaustion. Hence, each ASEAN Member would also be able to continue

a nationally-independent trade policy and admit as legal imports goods coming non
ASEAN countries. As I mentioned in the Introduction, the latter solution seems to be
the solution more congruent (for the time being), with the principle of non-interference

(or perhaps “less-interference”) and the ASEAN-Way, as ASEAN Members would not
be required to grant other ASEAN-Members preferential treatment over third-party
foreign countries and could continue independent trade-related policies with these

countries while still fostering a legal environment for goods to freely move across
ASEAN.

In summary, while legitimate reasons may exist for ASEAN Members to retain
the current inconsistent status quo regarding the regulation of IP exhaustion at the

domestic level, including nationally-driven trade policies, the exercise of domestic IP
laws should not create barriers to the free movement of legitimate genuine goods within
ASEAN moving forward. Simply put, this amounts to a disguised barrier to legitimate

trade within ASEAN and stands against the principle of free movement of goods adopted
as one of the defining principles of ASEAN and the AEC. Accordingly, ASEAN Members

should consistently adopt rules that would not permit the domestic enforcement of IP
rights to interfere with the free movement of goods across ASEAN so long as those
goods are genuine. Implementing the rules is not urgent, but should be implemented at

some point, or else the ASEAN and the AEC will not enjoy a fully functioning internal
market.

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