Study On Trademark Infringement In Foreign-related Original Equipment Manufacturing (OEM)

OEM is an inevitable outcome of economic globalization and optimized allocation oflabor, and especially prevails in the coastal zones. Cross-border intellectual propertydisputes were always triggered due to some foreign elements of OEM. Among allkinds of disputes, the trademark dispute raised by one OEM model which products aremanufactured domestically and sold back abroad without any sale in domestic areas,is the most typical and controversial one. Over the past decade, all circles includingacademic, judicial, and enforcement, have debated a lot on this issue and have notreach a consensus yet, and a large number of similar cases come up in different areas.The complexity of the behaviour of OEM determines the difficulty of its infringementjudgment, which involves lots of academic issues such as the territoriality oftrademark, the use of trademark, the constituted elements of trademark infringement,as well as the likelihood of confusion principle. Using empirical analysis method, thisthesis goes on the basis of characteristics of OEM and the reasons for the disputes,analyses two opposite opinions and reasons for both supporting infringement andnon-infringement, then summarizes some basic issues in foreign-related OEM andfocuses on the applicability of the likelihood of confusion principle in trademarkinfringement judgement, and finally concludes the general rules for determiningtrademark infringement as well as makes some suggestions for legislativeimprovements of trademark laws and regulations. Specifically, this thesis includesfour parts as follows: The first chapter mainly introduces the generation of foreign-related OEM trademarkinfringement disputes, draws forth a most controversial OEM model which productsare manufactured domestically and sold back abroad without any sale in domesticareas, explains the inner reason for this dispute and summarizes the specific hot issuesin practice.The second chapter, by empirical analysis and exhibition of domestic and foreigncases, expounds the two opposite opinions of supporting and opposing theconstitution of trademark infringement of OEM in judicial practice, summarizes thereasons for each opinions, as well as shows the particularity and complexity offoreign-related OEM demonstrated by the sway of judicial attitude.The third chapter analyses the status of likelihood of confusion principle and the“dichotomy” of the application of likelihood of confusionin our trademark law, thenfurther discusses the applicable dilemma of this principle in determination oftrademark infringement of foreign-related OEM.The fourth chapter discusses the proper logic for infringement judgement offoreign-related OEM and gives an overall clarifications to different issues concerned.This chapter, firstly discusses some basic issues such as the relationship of the twoparties in OEM, whether the labeling act constitutes the use of trademark, theinfluence of rush registration on determination of trademark infringement, and theundertaking of infringement liability, so as to clear away the theoretical barriers forinfringement determination; secondly, discusses the core issue of how likelihood ofconfusion can apply to OEM behaviour and proofs from five aspects that OEMbehaviour will not constitute trademark infringement because it will not causeconfusion to the public; finally, conclude a general rule and logic for determination oftrademark infringement and make some suggestions to the legislative improvementsof trademark laws and regulations regarding to the defects reflected in the OEMissues.