Study On The Indirect Infring Ement Of Trademark

Legal rules regulating trademark infringement is the center of trademark legislation and the standard of judging trademark infringement is the essence of trademark infringement legislation. In our country, at the beginning of the legislation for Trademark Law, restricted by economic conditions and technical means, the type of infringement upon trademark is single and the infringement cost is relatively high. Therefore, to investigate the person of direct infringement can save the legal right of the owner of trademark. But with development and advancement of economic condition, means for exchange and technical methods, the types of infringement is diversified and the cost of infringement is low. Different from the direct infringement of trademark, indirect infringement increases. So the trademark legislation which only regulates the direct infringement act is unable to reach the goal of protecting trademark. Compared with the impeccable rules of indirect infringement upon trademark in some developed countries, the current trademark legislation in our country doesn't give a systematic regulation on indirect infringement upon trademark. But in recent years, with the emergence of relative cases, academic circles begin to do in-depth studies on indirect liability for tort and judicial department also carries out case studies. To sum up, China urgently needs to set up rules of international levels on indirect infringement upon trademark.This thesis starts with the concept of indirect infringement upon trademark and analyzes the dividing line between direct infringement upon trademark and the indirect one. Combing the typical cases and legislative situation domestic and overseas, the thesis proposes the assumption of establishing liability system for indirect infringement in our country. The thesis is mainly divided into three parts: the first part is about the basic theories of indirect infringement upon trademark, including the concept of indirect infringement, researches at home and abroad, survey of the current legislation and the apparent dividing line between direct infringement and indirect infringement. This is because the study on the issue of indirect infringement upon trademark must first draws a clear line between direct infringement and indirect infringement. According to the author of this thesis, different from the direct infringement upon trademark, the kinds of punishment of indirect infringement upon trademark lies in the different kinds of subjective faults committed by the doers of indirect infringement. The second part of the thesis combines the typical cases domestic and overseas and systematically elaborates the types of indirect infringement upon trademark, which includes the one providing tools for infringement, the one providing site for infringement, the one instigating and enticing others to carry out infringement act, the one provide assistance for the infringement ac, and analyzes the means to identify the types of liability of the doers of indirect infringement. The third part, based on the current legislation in our country, proposes the suggestion of perfecting legislation. The point is our country should set up systematic legislation for the liability of indirect infringement upon trademark. The author holds that it is necessary to present the respective conditions and principles of liability fixation of direct infringement and direct infringement. The introduction of "Confusing Theory" into the identification of direct infringement can remove fixed license processing from the act of infringement upon trademark. Meanwhile, the identification of the subjective state of "confuse" and "awareness" etc not only needs clear standard of legislation, but also needs the judge's subjective judgment in individual case. So there is a high demand of the judge's principle of discretional evidence. As to how to make the purpose of legislation consistent to the judicial practice and how to be judicial in the judgment of infringement at, that is the issue which the academic circles and practice are actively exploring and the problem the author is actively thinking over.