Research On Infringement Of Registered Trademarks In Foreign-related OEM

It is a controversial issue that the foreign related OEM characterized by “twoends out” is an infringement of trademark. From the judgment situation of the largenumber of cases, the whole trend transformed from“the tendency of infringementaffirmation” to “the tendency of not infringement affirmation”. The third amendmentof the Trademark Law laid a legal foundation for the above change through specifyingthe “using of trademark” and the introduction of the “likelihood of confusion”.However, the foreign related OEM of “using the same mark on the same goods” hasbeen judged by the “similarity standard” and the result was still infringement. Weshould discuss whether the legally distinction is appropriate.“Likelihood of confusion” is the most important criterion,.if the completeseparation of two markets, there’s no likelihood of confusion.This Amendment Actstated the “using of trademark” and prescribed a limit to the purpose of the“identification the source of goods”, but there was no explanation about theoccurrence stage of the “identification”. This essay claimed that the function ofidentifying the source of goods would only occur in the process of commoditycirculation other than extend to the process of the production. Because the OEMaction is in the process of production and cannot play a role in “identifying the sourceof goods”, so it was not belonged to the “using of trademark”.Compared with the foreign and domestic empirical research and the relevantlegal provision, we considered that the foreign related OEM characterized by “twoends out” doesn’t infringe the domestic trademark right.