Research On The Trademark Infringement Problem Relation With OEM

As a type of trade processing, foreign-related OEM began to develop in several coastal provinces in southern China since the Reform and Open Policy. After China joined the WTO, the foreign-related OEM industry, which has already been developing, became the pillar industry of our foreign trade with the help of cheap labor source. However, the speedy development of the foreign-related OEM frequently brings about trademark infringement matters in practice. And to an extent, it hinders the development of those corporations, whose main mode of production is foreign-related OEM. We don’t have detail rules on defining the trademark infringement involved in foreign-related OEM in our country’s laws and regulations. Hence, we could only resort to the1st rule of the52nd item of the Trademark Law. Nevertheless, due to the complication of the law on foreign-related OEM, many judicial organs apply the1st rule of the52nd item of the Trademark Law and the3rd item of the Implement Regulations on the Trademark Law mechanically, and affirm that it infringed the exclusive right to use trademark of the trademark owners. This kind of unreasonable judicial practice would impede the rights of our manufacturing corporations.Starting from the status quo of our foreign-related OEM, with referring to the CROCODILE Case, foreign-related OEM whether it composed the trademark infringement. Much emphasize is put on the detail connotation of Regionalism, the Theory of Confusion Possibility, the Meaning of the Usage of Trademark, on which base, we think of suggestions on how could the legislation body, the judicial organ and the corporations do to protect the foreign-related OEM in our country.This article includes four chapters:Chapter I:Briefings on the case and the focus and conflicts involved in it. This chapter focus on the introduction of the case, and analyze the key point and conflicts in it. I.E. whether to take the Regionalism and the Theory of Confusion Possibility into consideration when applying the1st rule of the52nd item of the Trademark Law; how to understand the Use of Trademark in the3rd item of the Implement Regulations on the Trademark Law.Chapter Ⅱ:The analysis of the legal nature of foreign-related OEM. This chapter firstly defines the Foreign-Related OEM, and compares it to the definitions of Trademark Parallel Imports and Original Design Manufacture, after which we analyze the legal nature of the foreign-related OEM.Chapter Ⅲ:The recognition of trademark infringement involved in foreign-related OEM. In this chapter, we discuss different concepts on the matter of trademark infringement involved in foreign-related OEM, by which we draw the key point out. Afterwards, we make the conclusion that it doesn’t make the trademark infringement through the further analysis on the Regionalism, the Theory of Confusion Possibility and the Meaning of the Usage of Trademark.Chapter Ⅳ:The meditation on this case. In this chapter, we come up with suggestions on protecting manufacturing corporations from the dispute of trademark:the legislation body should complete the laws and regulations related to the trademark; the judicial organ should analyze cases with a thorough thought with both subjective and objective perspectives; corporations take more actions to protect themselves, avoid offending law and violating others’ exclusive right to use trademark.