A Legal Analysis And Countermeasure Study Of Trademark Infringement In Foreign-related OEM

China is a developing country with labor-intensive and low price, sincethe reform and opening up, more and more companies look towards the Chinesemarket. China, in particular in coastal areas has become the world’sfactory, OEM processing enterprises is flourishing in China’s coastalcities. The development of OEM brought the benefits to China’s trade, butalso triggered a series of trademark infringement. At present, thepractitioners and theorists has relatively large differences fortrademark infringement in the foreign OEM, but the Supreme People’s Courthas a cautious attitude unwilling to stand。Judicial practice in such caseshas very different judgment, so we can see the urgency and necessity tosolve the trademark infringement in OEM. This article will focus on theOEM trademark infringement issues to discuss.This paper start from the judicial practice in the judgment of theforeign-related trademark infringement in OEM, for practitioners andtheorists believe that the OEM constitute trademark infringement casesand point of view, the foreign OEM does not constitute a trademarkinfringement caser representative view of point of view,as well asforeign OEM constitute infringement should be treated differently to sortout the analysis, summed up the foreign OEM trademark infringement disputeprimarily focus on the trademark protection of regional principlesrecognized by the confusion in the trademark infringement, from thepurpose of trademark law, the regional of trademark protection, thetrademark confusion theory, the use of the trademark to make a legalanalysis on these issues, and on this basis, from the perspective of thelegislation, customs and enterprise response to Post Some proposals ofthe licensing process for trademark infringement problems.This paper is divided into three parts: introduction, body andconclusion.The introduction parts briefly introduce the purpose and significanceof this paper, and make a definition of OEM of the article discusses, that is, the OEM we discuss include the following elements (1) The foreignPrincipal have a real and effective trademark rights in their country orproduct sales place;(2) In our country, someone has already registeredthe same or similar trademark to the commissioning party with foreigntrademarks, and the categories of OEM goods the same or similar to thedomestic registered trademark approved;(3) After the completion of theOEM production, the processing enterprises of our country delivered allof the product to the foreign Principal and the product doesn’t sale anyin our country market.The body parts are divided into three chapters.In the first chapter, the author focused on sorting out the cases fromthe administration of justice in the OEM trademark infringement, analysisand comparison the cases and view of the OEM does not constitute trademarkinfringement, the OEM constitutes trademark infringement, as well as OEMconstitute infringement should be treated differently, and pointed outthat the reason why practice on the OEM processing behavior hasconsiderable controversy, mainly because people have differentunderstanding on the purpose of trademark law, the regional of trademarkprotection, and the use of trademarks,as well as the position of confusiontheoretical in the identify of trademark infringement.In the second chapter, the author defines the point of her view first,think that the OEM conduct did not constitute trademark infringement. Theauthor demonstrate her view from the analysis of the legislative purposeof trademark law, the territorial principle of trademark protection, OEMprocessing behavior not belong to “the use of the trademark”oftrademark law, as well as the necessary of confusion theory beingcondition of trademark infringement recognized.In the third chapter, because there is no corresponding law, thesubversive judgment in the judicial practice has seriously affected thedevelopment of OEM companies. From the analysis of second chapter,combined with the customs and their own characteristics, the author givesome recommendations on OEM trademark infringement, from the legislativepoint of view, the law enforcement perspective and the perspective of theenterprise itself.In the conclusion parts, the author summarize of the article andstressed that the foreign-related OEM conduct did not constitutetrademark infringement once again.