Research On The Recognition Of OEM Trademark Infringement

OEM is the outcome of economic globalization and deepen of society divide the work.Since three decades of reform and opening up, with its labor, energy and domestic marketadvantages, the Pearl River and Yangtze River Delta region attracts enterprise from all overthe world to construct production manufacturing base. So far, trade export processing hasbecome one of the main means of foreign trade in our country, therefore, China has becomethe "world factory".But OEM business often involves the use of the trademark, especially in recent years,there has been large numbers of associated trademark infringement dispute cases in judicialpractice.In view of this, with referring to the Nian Nianhong international food limited companyand I.Schroeder KG、Xiamen international trade limited company’s trademark infringementdispute case, much emphasize was put on the trademark geographical principle, the trademarkconfusion theory and tort theory, on which this, from the perspective of economic, weproposed that the OME conduct didn’t constitute trademark infringement, as well as itsimportant significance in balancing the all parties’ interests and promoting the development ofChina’s free trade.In addition to the introduction，this paper includes five parts.The first part is a basic overview of the trademark dispute case between Nian Nianhonginternational food limited company and I.Schroeder KG、Xiamen international trade limitedcompany.In the second part,we discuss the various attitudes on the matter of the trademark disputecases in the trial practice, and the focus and conflicts involved in it.I.E.whether thedefendant’s trademark behavior in OEM would constitute infringement. The third part is the core of the paper. This part mainly demonstrates the view from fiveaspects, including the legislative purpose of trademark law, foreign-related OEM does notviolate the trademark geographical principle, does not cause the likelihood of trademarkconfusion, does not belong to the “the use of trademark” as well as does not damage thegoodwill of domestic trademark owner. As he the dominant ideology of criteria forrecognizing the trademark infringement at home and abroad, the likelihood of trademarkconfusion is the key point to elaborate of this part. From the angle of the recognition functionof trademark, the author draws the conclusion that the foreign-related OEM behavior is onlytrademark attached behavior, and won’t cause the relevant public’s misunderstanding.The fifth part is the economic analysis of foreign-related OEM behavior. This partmainly explains the economics foundation of foreign-related OEM from analyzing thecomparative advantage theory，natural resource theory and value chain theory.The fifth part from the perspective of balance of interests, the development of processingtrade has an important role in maintaining and promoting the development of foreign tradeand economy of our country. The paper finally points out that we should maintain a cautiousattitude, recognizing its legitimacy and rationality, looking forward to promoting thetransformation and upgrading of enterprises in our country.