EXHAUSTION OF TRADEMARK RIGHTS IN KAZAKHSTAN UNDER REGIONAL EXHAUSTION IN THE EURASIAN ECONOMIC UNION

Abstract

Background: This article aims to examine the trademark rights exhaustion regime for Kazakhstan in the context of a high level of importation of goods and free trade in the Eurasian Economic Union1 (hereinafter “EAEU”). It addresses consumers’ interests and discusses business and intellectual property (hereinafter “IP”) law in relation to the exhaustion regime. It discusses trademark use in Kazakhstan, the prohibition of such use by trademark owners, and the limits of a trademark owner’s right to prohibit such use. While national and regional legislations introduce the regime of regional exhaustion of trademark rights in Kazakhstan, their legal constructions contain gaps and mutually exclusive provisions which create uncertainty for trademark owners and courts, thereby enabling infringement in the form of parallel import. Methods: To achieve the goal of this article, the authors applied a set of methods consisting of content analysis and case study. Particularly, the authors analysed the national and regional legislation applicable in Kazakhstan and examined the existing court practice that reveals certain problems with the exhaustion of trademark rights. Moreover, the article includes a comparative analysis of legislation from the United Kingdom (hereinafter “UK”), the European Union (hereinafter “EU”), and select Eastern European countries. Results: Thus, the paper provides an overview of the currently implemented regime of exhaustion in Kazakhstan and its application in the EAEU and examines the challenges created by uncertainties regarding which rights are being exhausted. Conclusions: Kazakhstan is upholding the regime of regional exhaustion of trademark rights. At the same time, local and regional legislation contradict each other when the regulation concerns the national identification of a trademark. With the national registration of a trademark, the exhaustion regime becomes national. In contrast, in the case of international trademark registration, subject to several conditions, the exhaustion principle is regional.