| Along with the deepening of economic globalization and the stablishment of China's "World Factory" status ,more and more domestic enterprises engaged in OEM and the related export business. However, in recent years, more and more of China's OEM will trigger the trademark infringement, prompt us to re-examine the legal issues of OEM. Appeared frequently in the practice of OEM infringement case, on the one hand, have far-reaching effects on our country's economic interests, on the other hand, show that China's trademark infringement theory is far from perfect. This paper will use the theory of trademark laws by analyzing a case to assessment the legal issues the OEM, point out that the OEM does not constitute trademark infringement, a clear set of OEM should be legalized, and try to make relevant legislative proposals.In addition to the introduction, the full text can devide for four parts, about 17,000 characters, and the main elements are as blow:PARTⅠ:A summary of the case and referees of findings. This case is trademark infringement disputes about OEM. Nike the United States in China enjoy "NIKE" trademarks, the use of approved goods is sportswear. In Spain, Spain FLORA BERTRAND MARA companies also enjoy "NIKE" trademark registered for the type of sport clothing. Spain CIDESPORT commissioned domestic companies to manufactured NIKE male ski jacket, with providing the raw materials and clothing marked NIKE logo clothing and packaging plastic bags. Upon completion of clothing manufacture, domestic companies should export to Spain, delivered to the client company . The plaintiff (the United States company)accused that the three accused (Spanish company and two domestic companies) have violated the exclusive right of its trademark in connection with the case, and asked the three accused to stop infringement, and pay for the damages.Though trying ,Court believed that plaintiff's NIKE trademark which registers in China is under the protection of our country's trademark law. Because the trademark rights have the localization, although Spanish CIDESPORT Corporation has the legitimate exclusive rights i to the NIKE trademark n Spanish, but it does not enjoy the exclusive rights to the NIKE trademark in China. Accordingly the three accused are in an infringement verdict.PARTⅡ:The controversy of the case . points of contention about the case decision is mainly on whether caused "confusion" and "harm" ,and whether constituted the "use" of the trademark of infringement ,thus formed a case would constitute an infringement on the two opposing views.PARTⅢ: Assessments for the nature of OEM. This part mainly based on foreign trade characteristics of the OEM , the purpose of trademark law, and confusion theory, try to point out that the case will not cause confusion, the reputation of the trademark owners have no damage, the case does not constitute the "use" in the trademark infringement sense, which did not constitute a trademark infringement. Moreover, in terms of applicable law and to promote the liberalization of international trade obligations and our country's economic policy perspective, the paper added proving the OEM be identified as trademark infringement is unsuitable.PARTⅣ: The conclusion of the study. This part bases on the trademark infringement trial in some practice, points out there are a lot of trademarks, "Symbol protection" mode, focusing only on the registered trademark symbol itself of the protection, not the goodwill represented by the trademark protection, contrary to the basic tenets of trademark protection, large quantities of the OEM was identified as trademark infringement. China should amended "Trademark Law" as soon as possible with positioning, "to protect the interests of consumers" as the first purpose. In addition to clearly recognize the trademark confusion theory, and which concepts such as "confusing" and "damage", "use" to be clearly defined, in particularly, the 'use' in trademark infringement sense should contain the purpose of marketing. |
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