Date of
Judgment: February 27, 2003
Issuing
Authority: Supreme Court
Level of
the Issuing Authority: Final Instance
Type of
Procedure: Judicial（Civil）
Subject
Matter: Trademarks
Summary
of the judgment (decision):
1. If a
person other than a holder of a trademark right in Japan imports goods
identical with the goods designated for the trademark right, by affixing
thereto a trademark identical with the registered trademark, such act of
importation is deemed to be what is generally referred to as parallel
importation of genuine goods, and it is therefore deemed to not be
substantially illegal for infringing the trademark right under the following
conditions: (1) the trademark has been legally affixed to the import goods by a
holder of a trademark right in a foreign country or a person licensed by the
trademark right holder, (2) the trademark right holder in the foreign country
and the trademark right holder in Japan are the same person or have a
relationship wherein they can be regarded as being legally or economically
identical with each other, and hence the trademark affixed to the import goods
indicates the same source as that indicated by the registered trademark in
Japan, and (3) since the trademark right holder in Japan is in the position to
be able to control the quality of the import goods directly or indirectly, the
import goods and the goods carrying the registered trademark held by the
trademark right holder in Japan are judged to be not substantially different in
terms of the quality guaranteed by the registered trademark.
2. Importation of goods to which a trademark
identical with a trademark registered in Japan has been affixed by a person
licensed by a holder of a trademark right in a foreign country to use the
trademark cannot be regarded as parallel importation of genuine goods and
therefore this does not fall under the case wherein such act is deemed to not
be illegal, under the circumstances presented in the judgment, such as that the
licensee has breached the clauses in the license agreement providing for the
limitations on the countries where the licensee is authorized to engage in
production, etc. and on the prohibition of subcontracted production without the
consent of the trademark right holder, and has subcontracted the production of
goods to a factory located in the country not covered by the license, without
the consent of the trademark right holder.