Comparative Study On Trademark Infringement Issue Arising From International OEM

As a result of the increasingly frequent foreign trade in China especially in the coastareas, the advantage of the inexpensiveness of the labor force in China, and thedisadvantage of lack of core technology, the processing trade has come to be animportant trade pattern of cross border trade. Along with the OEM being understoodand accepted, the cases involving OEM are also attracting more and more attentions;corresponding rules shall be formulated and implemented at a proper time. The keyissue I paid much attention is trademark infringement. Since OEM has obviousterritoriality, and is a special trade form due to the economic situations and developingpatterns of different countries, America and Europe Union have not formulate therules which have pertinences to OEM. However, in order to prompt the process oftrademark right legislation of China, I still took examples from the legislation oftrademark infringement in America and Europe Union, and compared the trademarklaw of China to the rules in the international conventions, so as to solve the problemsabout trademark infringement through changing the common legislation.I did research on the legislation and practice in America and Europe Union, and thentheoretically analyzed OEM and the situation of practice in America and EuropeUnion, finally I gave my suggestions to the legislation of China.This article could be divided into three parts: Preamble, Main Body and Conclusion. The purpose and purport of writing this article, the current situation domestically andabroad of the research on the problems suggested in this article, and the summary ofthe existing literature, are described in the part of Preamble.The main body contains four chapters.In Chapter One, I studied for the definition, classification and the legal relationsinvolved on the theoretic level. I also analyzed the probable situations of trademarkinfringement in the process of OEM.In Chapter Two, starting from the view of America and Europe Union, I analyzed thelegislations and other regulations of trademark infringement which might be related toOEM, and analyzed the practice in relative cases; after all I combined the legislationwith the practice, so as to reach a primary conclusion.In Chapter Three, the famous TRIPs was selected by me, the rules on trademarkinfringement in the treaty was analyzed, so that the references on the settlement of thedisputes on OEM could be provided.In Chapter Four, began with the analysis on classical cases about trademarkinfringement arising from OEM, I analyzed the points of disputes and reasons ofjudgments in the above mentioned cases, and concluded the processing mode of thesecases, and summarized the deficiency of the legislation in China, and then discussedon the standard of judgment and the assumption of responsibilities. Throughout thecomparison of the regulations and practices between China and America and EuropeUnion, and the comparison of the regulations between TRIPs and the legislation inChina, I proposed the suggestions on the improvement of the legislation and on thepractice pattern.I suggested modifying the laws and regulations related to OEM, including TrademarkLaw and The Rules on Customs Protection of Intellectual Property Rights, etc.In the part of Conclusion, I summed up the contents of this article and emphasized that the definition of business use shall be clarified, the likelihood of confusion shallbe brought into legislation, and the means of determine the degree of recognitions ofthe public to the trademarks; I also provided advices on the amendment of regulationsand rules on custom and industrial and commercial administration, so that thereasonably interests of the Chinese processors could be well protected.