| Original Equipment Manufacturer(OEM) is not only an inevitable outcome of economic globalization and the social division of labor cooperation under the trend, but also a manifestation of the rational allocation of resources. While promoting the prosperity and development of foreign trade, OEM also suffered a series of trademark disputes. In recent years, the theory and practice about whether OEM constitutes trademark infringement have been at loggerheads over the issue, have been unable to reach a consensus. For this, the Supreme Court remains cautious, which is not clear. Judicial practice situations repeatedly appeared "codefendant different sentence". It is enough to find to solve the problem of the OEM imminently. OEM exists infrigement detemination of the difficult problems, depending on the complexity and particularity of its action. It not only involves the territoriality of trademark, use of trademark, likelihood of confusion and other legal issues, but also needs to consider the policy factor and the principle of balancing of interests. At first, this text begins to discuss and elaborate on these issues. Then, it concludes that the OEM doesn’t constitute trademark infringement. Finally, in view of the flaws of the current domestic laws and regulations, the author will propound some suggestions for perfecting, and put forward several measures to prevent infringement risks for the enterprise. The author wants to be able to solve the bottleneck problems which haunt the industry healthy development of OEM as soon as possible.The whole article divides into four parts:The first part, brings forward the focus of controversy this article. It briefly describes the facts of "Crocodile" case and "RBI" case, then highlights the inverse judicial decisions resulting from plot similar cases and the grounds of decision. The final purpose is to elicit controversy focus of this article.The second part, chiefly presents the production of the foreign-related OEM trademark infringement disputes. First of all, it introduces the basic situations of the foreign-related OEM, including the concept, legal attribute, types of trademark infringement involved of OEM. Secondly, it introduces the current situation of the foreign-related OEM trademark infringement disputes in our country. Its legitimacy status needs to be clear because the alleged infringement occurs frequently. Lastly, it specially elaborates three kinds of views in the judicial practice, including the infringement, non- infringement, whether an infringement of distinction, and lists some typical cases and perspectives.The third part, analyzes the focus of controversy. Through theoretical analysis of the regional principle, the use of trademark, likelihood of confusion, it can be clear that the OEM doesn’t violate the regional principle and logo attached behavior doesn’t belong to the use of trademark law sense, but belongs to a trademark infringement judgment in "commercial use". It also points out that confusion theory should be taken as the component of the trademark infringement, and also can be appiled to “Double the same”. In the end, it presents the conclusion of this article: the foreign-related OEM shall be deemed to be not constitute trademark infringement.The fourth part, put forwards the appropriate logic for trademark infringement judgment of the foreign-related OEM. Firstly, it proposes that policy factors should be considered whether the foreign-related OEM constitutes trademark infringement, and the principle of balancing the interests of this scale should also be noted. Secondly, it puts forward a proposal to solve the foreign-related OEM trademark infringements. On the one hand, the state should improve laws and regulations; on the other hand, enterprises should enhance the consciousness of risk prevention. |
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