Research On Trademark Infringement Of Selling Refurbished Goods

The dispute on trademark infringement keeps rising due to the maturation of therefurbishment industry. However, there still lacks detailed stipulation on theinfringement issue of second circulation field in the intellectual property rightlegitimate system of our country. From the perspective of resource conservation, thegrowth of refurbishment industry is conducive to the avoidance of resource waste.Nevertheless, if the infringement issue remains unsettled, the development of thewhole industry will be impacted. Therefore, to promote the sales of refurbishmentindustry in a sound way, it is urgent to conduct analysis and research on theinfringement problem as well as construct a series of certain feasible rules. Combinedwith corresponding theories of trademark law, this article aims to analyze throughvarious points and to put forward guidelines to solve this problem.The thesis is divided into three chapters.The first chapter performs a detailed analysis on the definition and types of therefurbishment behavior, followed by a clarification of relevant concepts. On suchbasis, the paper gives instances to the problems involved in trademark infringementoccurring in refurbishment industry. Then it deals with the issue by taking reference tocertain legal theories such as trademark function, the likelihood of confusion andexhaustion of trademark theory. In the second chapter, the author first proceeds from the trademark function byfocusing on the impacts imposed by refurbishments upon the interests of trademarkrights owner, and further studies on the impairment of their interest caused bydifferent infringement behaviors. Next, on the basis of likelihood of the confusion,this part renders analysis on various types of refurbishment and discusses whethersuch behavior could generate confusion likelihood and how that happens. Later, inlight of the exhaustion of trademark right theory, it questions whether refurbishmentcould utilize such theory as counter-accusation excuse and studies on the special typesof refurbishment behavior. At last, from the perspective of trademark rights owner, thepaper analyzes whether contract limitation helps the trademark righter to solve theinfringe problem and whether limitation clauses violate the regulation ofanti-monopoly law.The third chapter initializes by summarizing the regulation of refurbishment inthe prevalent laws of China and extracts the common rule. Based on the analysis ofcontext, it discusses the validity of such rule in dealing with infringement issueoccurring in refurbishment behavior. Next, taking reference to the infringementjudgment rule of civil legal theory, the author suggests that in the process of solvingthis issue, the principle should adhere to the infringement identification and treatnon-infringement as exception. She further clarifies the condition of applyingexhaustion of trademark right in disputes, and provides comprehensive guidelines tothe identification of infringement issue in refurbishment.