World Monitor Magazine April 2017 - Page 50

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: v-atameken-prezentovali-izmeneniya-v-dogovor-eaes 2 46 world monitor