Trademark Infringement. Given License Processing

Original Equipment Manufacture(OEM) means that processor product the goods according to the requirement of commissary and attaches the trademark offered by commissary,then all the finished goods will be returned to commissary.Along with economic globalization and trade liberalization,there are thousands of manufacturing companies engaging in OEM for many large multinational corporations.OEM encourages the economy of China,while it makes many processing enterprises into the troubles of infringing the trademark. On one hand,the enterprises are lack of awareness of the Intellectual Property Law;on the other hand,there are fierce disputes over the determination of the trademark infringement in OEM.The case of "NIKE trademark" judged by Shenzhen Intermediate People's Court makes the author thinks about how to determinate the infringement of trademark in OEM.In fact,not only in terms of trademark infringement theory and the relevant legal provisions but also for the consideration of the interests of the State,it's not rational to conclude that the processor or the commissary infringe the domestic registered trademark in the "NIKE trademark case".Therefore,it's necessary to understand correctly the trademark infringement in OEM.At present,there is no comprehensive or systematic study on the determination of trademark infringement in OEM.This paper will focus on the concept and characteristics of OEM,and analyze the classfication of trademark infringement in OEM and how to confirm it.The analysis is based on the theory of trademark infringement.At a later part,I put forward related proposals in order to solve practical problems.Generally,this paper can be divided into five parts.The first part is to outline the OEM in which I summarize the concept,legal characteristics and the formation as well as development of OEM.There are narrow and broad senses for OEM,only narrow definition is adopted.I analyze the main rights and duties between the processor and the commissary,the distinguishment between OEM and related concepts are also presented.For the next step I analyze the emergence of OEM under the international and domestic backgrounds,without breaking away from the reference of economic theory.At last I focus on the practice and point out the necessity of researching in the trademark infringement in OEM.The second part is about the basic trademark infringement theory that will help the further explication in the next part.Here this part develops with the perspectives of confusion theory based on the recognition of trademark.The confusion theory is the core principle to determine the trademark infringement. Subsequently I presents the concept of the violations,tortuous liability.In the field of trademark infringement,stopping damage and compensation stands for the two main civil liabilities.Stopping damage should adopt with no-fault principle,and compensation:fault principle.The third part is the most important one in this paper,where I list the classfication of trademark infringement in OEM and how to discern it.First of all,I analyze the nature of the processor giving the production to the commissary for comparing the differences between the saling behavior and the processing.Secondly,what is "the trademark use"? The trademark use is significant in trademark law.It can be used to judge whether an act will infringe the trademark rights.In comparing the legislation of other countries,"the trademark use" should be for the purpose of sales as the essential requirement. The processor attaching trademark on the goods in OEM is not the actual use of trademark,just because the processor's delivery of goods to the commissary is not for its own sale.Next,I enumerate and analyze the classifications of OEM, furthermore,discuss how to distinguish and make a final discretion in each type.The fourth part is about the "Nike trademark case".With in-depth analysis, the author believes that the commissary and processor wouldn't infringe the trademark if the processor attach trademark for commissary which is the same or similar to the domestic registered one and used on the same or similar goods sold abroad.The fifth part is legislative proposals on the settlement of the trademark infringement in OEM.First,the legislature should make it clear that whether or not "confuse" is the principles of trademark infringement judgement in the trademark law.And we should regulate the purpose for sale as the element of "the trademark use".It should promulgate relevant judicial interpretation to deal with disputes of the practice in the trademark infringement.Then I analyze that the customs protection of intellectual property rights Ordinance should not be amended.But for the foreign OEM,the customs can take a more flexible approach in dealing with infringement.For example,if the processor can provide the certification of trademark rights and it does not infringe the trademark in the importing country,the customs should not detain the goods.