EXPERT OPINION
the arguments on the violation of
the exclusive rights of the trademark
owner. In particular, our claim was
based on provisions of Article 1025.2
of the Civil Code, and Article 1.9 of
the Law which specifies that import of
trademarked goods is an independent
case of using the trademark, and
provisions of Article964.2 of the Civil
Code and Article34.1 of the Law, in
accordance with which the import of
marked goods without the its right
holder's consent is a violation of his
exclusive rights.
As a result, the Supreme Court of
Kazakhstan has cancelled the acts
issued by courts of the first and
appellate instances and sustained
the right holder’s claim concerning
violation of exclusive rights. Thus, our
firm has successfully protected the
right holder’s interests.
3. Further regulation of the
issue within the EEU
On October 25, 2016, a Draft Protocol
on Amendments to the Eurasian
Economic Union Treaty was adopted.
[1] In accordance with this draft,
certain types of goods are expected
to be exempt from the regional
exhaustion principle of exclusive rights
to a trademark. According to these
amendments, the import into EEU
territory of those marked goods that
are included in a corresponding list of
exemptions could be made without the
trademark owners’ consent. In particular,
this list of exemptions will include goods
that are not available in the union’s
domestic market and/or available in
insufficient quantities, and it is supposed
that EEU countries would have the right
to supplement this list based on state
interests[2]. At the moment, according
to information available in mass media
sources, this aforementioned list would
also include such goods as medicines,
medical products and auto spare parts.
Thus, it is possible that in the future
the parallel import with regard to some
categories of goods will be legalized.
4. Conclusion
Thus, in accordance with the current
legislation, only trademark owner
or parties having his/her consent
have the right to import marked
goods to the territory of EEU . This
restriction is aimed at protecting
the interests of trademark owners.
Entrepreneurs that are importing
marked goods should keep in mind
this restriction to avoid any risk of
further prohibition to dispose such
goods and, accordingly, the losses
which could be incurred as a result of
such prohibition.
However, we should also keep
in mind the possible changes
regarding the regulation of this
issue. In accordance with the draft
amendments to the EEU Treaty
mentioned above (the expected date
of adoption is not known yet), it is
assumed that some types of marked
goods will be allowed to be imported
into Kazakhstan without consent of
trademark owners.
Order of the Board of the Eurasian Economic Commission dated October 25, 2016 № 171 approving the draft order of the Council
of the Eurasian Economic Commission “On the draft protocol on amendments to the Eurasian Economic Union Treaty dated May 29,
2014”
1
In Atameken, the amendments to the EEU Treaty 2016 have been presented [Electronic resource]. See: http://palata.kz/ru/news/24864-
v-atameken-prezentovali-izmeneniya-v-dogovor-eaes
2
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