The Infringement Problems For Use Of Trademarks In OEM

With the deepening of reform and opening-up, China's manufacturing has played in international foreign trade plays more and more important role. Yet domestic processing enterprise in OEM production process, if OEM production of commodities by use of trademark and domestic trademark, who in the same or similar goods same or similar registered trademark, when domestic processing production enterprise will likely were domestic trademark, who filed trademark infringement claims. OEM processing enterprise to the use of trademarks of this kind of behavior is no constitute a trademark infringement, with the relevant laws and regulations in China at present is still not quite explicit provisions, the theory and practice viewpoint is not consistent, these are in some extent greatly affected our country OEM fast development, so it is necessary from a theoretical perspective and practical Angle to analyze and study. This paper is divided into five parts to discuss:The first part is the trademark infringement of OEM problems on a basic overview of OEM, and several typical types of tort form, thus a preliminary understanding and introduced in the use of the trademark infringement OEM background.The second part is for the use of the trademark infringement in domestic OEM the two most classic case analysis, including the 2000 shenzhen court case "and the" Nike 2008 Shanghai court " da acoustics" v "nine li to electronic" case. Based on the results of two court ruling collation different ideas, and then analyze its verdict, finds its failed to solve the problem.The third part from the Angle of trademark basic functions to discuss what is the use of the trademark law sense. This article from the origin and trademarks trademark the definition of the basic functions to discover trademark, and put forward the identification function is marking the premise condition, become a trademark for below these discussion on the theory and practice of the analysis the blackboard.The fourth part is one of the core part, from theory perspective of trademark behavior in OEM would constitute infringement. In this part of the OEM contract nature by recognition and the concept of products and commodities of the trademark law, compare and tries to understand "trademark law meaning up 52 in paragraph 1 of article the word" use "should some meaning, and found the legislation on deficiencies. The fifth part from the perspective of the practical use of the trademark OEM action is constitute infringement. Through the supreme people's court on the provisions of the relevant judicial explanation to explore the use of trademarks in OEM confuse principle of how to use. The infringing judgementThe sixth part is about our OEM export policy reflection. Economic and legal is interactive, economic policy affects legal formulation and implementation, and law making reasonable or not and will in turn promote or hinder the development of economy. This section to the current "customs protection of intellectual property rights ordinance in China as an example, discusses the treat OEM export policy now is reasonable, and legal system to the rest of the related policy laws lead to discrimination in immediate needs a comparison what OEM policy.