Trade mark protection against parallel importers

When an overseas manufacturer exports to Australia, it may choose to set up a distributor in Australia under an exclusive distribution agreement. Unfortunately for the exclusive Australian distributor, unauthorised parties may source and sell in Australia genuine products which may have been originally manufactured and trade marked by the overseas manufacturer. This parallel importation by unauthorised parties strikes at the heart of the exclusive agreement between the overseas manufacturer and its Australian distributor. An important question is whether this type of parallel importation represents an infringement of the trade mark rights of the overseas manufacturer in Australia. The short answer to that question is that such conduct does not usually constitute trade mark infringement. Parallel importation of this nature is generally protected under section 123 of the Australian Trade Marks Act (Act). Under this section of the Act, no trade mark owner can claim