The ASEAN Way or No Way? A Closer Look at the Absence of a Common Rule on Intellectual Property Exhaustion in ASEAN and the Impact on the ASEAN Market

Abstract

The Symposium in which this essay is published features recent developments in the law of intellectual property (IP) in Asia. In this essay, I focus on the Association of South East-Asian Nations (ASEAN), a region that I have had the opportunity to visit extensively in the past several years. In particular, I analyze the enforcement of IP rights in the context of the application of the principle of IP exhaustion in individual ASEAN Members, and the relationship between this principle and free movement of goods within the ASEAN region. In the past, I have addressed the same topic with respect to the laws applicable in the European Union (EU) and the North American Free Trade Area (NAFTA). As the principle of IP exhaustion states that the owners of IP rights are no longer entitled to control the distribution of their products after the first lawful sale in the marketplace, the extent of the application of this principle to cross border trade is crucial for the free movement of goods in free trade areas.

The essay proceeds as follows. In Part II, I offer a brief review of ASEAN and emphasize how ASEAN members follow the socalled ASEAN Way, a general policy based on consensus and noninterference into other ASEAN Members’ national policies. In this Part, I additionally describe the principle of IP exhaustion in general. In Part III, I survey the approaches adopted by individual ASEAN Members regarding trademark, patent, and copyright exhaustion and note the lack of any harmonization with respect to this principle within ASEAN Members. In Part IV, I build on the survey in Part III, and criticize the lack of consistent policies on IP exhaustion as a barrier to the effective free movement of goods in ASEAN. I thus take the view that ASEAN Members should consider adopting individual domestic policy on international IP exhaustion, which would permit the imports of goods from all countries worldwide, not only other ASEAN Members. This solution would both allow ASEAN Members to have autonomy over their respective traderelated agendas with non-ASEAN countries as well as it would permit the free movement of goods across ASEAN Members. To the contrary, I support that adopting a common policy on ASEAN regional exhaustion—similar to the approach currently adopted by the European Union (EU)—would be less advisable for ASEAN Members. This solution would allow parallel trade within ASEAN Members, yet it would permit blocking of imports from outside the region, which could run against the principle of non-interference in ASEAN.