Discussion On Judicial Judgment Rules Of Trademark Infringement In Foreign - Related

With the continuous progress of economic globalization and China’s reform and opening up,foreign related Original Equipment Manufacture industry develops rapidly.Relatively low labor force price reduces production costs,which is the favorable factor to attract overseas trademark rights here. In recent years, especially in China’s southeast coastal areas, the quantity of foreign related OEM enterprises increases with each passing day. However, along with the rise of development of the processing industry, trademark infringement disputes come one after another, many small and medium enterprises engaged in the licensing process are frequently seized by the customs due to exit products, or even be sued in the dilemma of tort damages.Whether the use of trademark constitute infringement become a theorical and practical highly controversial topic. The thesis is not only related to the development and survival of many processing enterprises in China,the balance of the interests of all parties,and the economic policy orientation,but also closely bound up to China’s international status and prestige. This paper focuses on the nature of OEM,regional trademark rights, likelihood of confusion, the balance of interests in four areas,which aims to demonstrate legal foreign related Original Equipment Manufacture does not constitute trademark infringement.This paper consists of four chapters to launch the elaboration:Chapter one is to legally comment on the foreign related OEM and trademark issues.which makes legal category definition from definitions, characteristics and advantages. With the legal nature of contract of hired and use of the trademark both discussed,licensing trademark issues of foreign OEM industry are fully expounded under China’s current legal system.Chapter two is to empirically analyze foreign related OEM and trademark issues combined with infringement and tort negative two contrary to results of the typical case from the judicial practice.Among them, citing newly well-known case such as" NIKE case"," JOLIDA case","Crocodile case" in foreign realted OEM disputes,the paper make a detailed analysis of the two types of sentences based on different reasons, summed up the two party disputes.Whether directly quote "Trademark Law" Clause52,or introduce likelihood of confusion principle to a conclusion,considering national policy guidance and balanced interests of all parties in practice, we will elaborate the trademark infringement judgment and justice value orientation in the end.Chapter three is the main body of this article,with the theoretical basis of trademark infringement judgment in foreign related OEM discussed from four respects, and to inspect the relevant foreign legislation to confirm the point of view of this article:Legally foreign related OEM behavior does not constitute a violation of trademark.The chapter is to demonstrate from the act nature, the likelihood of confusion,the regional trademark rights,the law of value orientation to balance of the interests in four different perspective. Especially in the likelihood of confusion principles section,we draw from multiple foreign " Trademark Law " legislation on the principles, and respectively analyses and comments, apart from the introduction of EU legislation, American trademark law, also of India, South Africa, Australia and other countries of the relevant legislation.Chapter four is the last chapter to specifically discuss foreign related OEM standard in China.To summarize relevant legislation of our country, propose some changes and legislative design on China’s trademark law and judicial interpretation of the relevant system, mainly including:" likelihood of confusion " standard introduction of trademark legislation, newly against foreign related OEM behavior of judicial interpretation to separate provisions, to strengthen the domestic OEM review obligations legislative regulation.On the basis of legislative design,we will draw a thinking mode, providing administrative authorities and court in practical with effective method. On the other hand, under the current legislative situation in China,from domestic OEM enterprises standpoint,combined with generally existing prominent problems of them,the paper are aim to construct perfect enterprise system measures for domestic processing enterprises,as far as possible to avoid the risk of infringement, reduce the burden and loss of domestic processing enterprises.