The Research On Trademark Infringement In Foreign-related OEM

Foreign-related OEM means that the domestic processor produces the goods according to the requirement of overseas commissary and attaches the trademark offered by overseas commissary,and the domestic processor must delivery all the finished goods which will be marketed in external market to the overseas commissary,only receiving the processing fees.Because OEM meets the requirement of the allocation of labor resources and the international division of labor ,it has been developing rapidly and widly in the world.After the reform and opening of our country ,OEM firstly practiced in Dongguan city,Gongdong province.Along with the international economic globalization intensifying and the further deeping of the reform of our country gradually,OEM is also very quickly developing in our country,especially in the Pearl River Delta and Yangtze River Delta area,and has promoted China's economic development and the level of foreign trade development.Howerver, OEM encourages the economy of China, but it gives rise to many infringements of the trademark,which affecting the development of OEM,and also hindering the development of our country economy.These trademark infringement dispute cases are more complex,expecially,when overseas commissary has legitimate trademark right or right to use license,domestic other people registered the same or similar trademark on the same or similar goods,domestic processor delivers all finished goods to the overseas commissary and don't market the goods in the domestic market,whether this OEM conduct constitute the trademark infringement,there fierce disputes on this problem in theory circle and practice circle.The same case appeared different verdict,causing people unable to agree on which is right to this question,directly affecting the judical authority.Therefore,it is an urgent problem to be solved wherher the foreign-related OEM constitutes trademark infringement,and it is great practical significance to research this problem in order to unify people's opinions.This paper is divided into five parts to discuss this issue.The author mainly used the civil tort theory ,combined with the protection of trademark right in essence,theory of confusion to discuss in detail whether foreign-related OEM would constitute trademark infringement,what tort liability the infringer should bear,and what principle of imputation should be adopted.At last,the author come to the conclusion that the foreign-related OEM don't constitute trademark infringement and isn't liable for damages in tort liability.In the first part,the author briefly introduced and analyzed the two different judgement case to put forward the thesis which the author would study.In the second part,the author briefly introduced the concept of OEM,carried on the classification and analyzed the legal relationship and legal features of OEM.In the third and fourth parts,using the general civil tort theory,combined with the particularity of the protection of trademark right and the theory of confsion in trademark infringement,comparying with the law and cases of foreign and Taiwan region,the author demonstrated the trademark infringement in foreign-related OEM and come to conclusion that foreign-related OEM don't constitute trademark infringement.In the last part,in order to effectively solve this problem, the author suggested that the judge should use their right of discretion to apply the law of trademark accurately,and gave the relevant legislative proposals.