Research On The Problem Of OEM Processing Of Trademark Infringement

Since the reform and opening up in our country,the import and export trade isincreasing.With the development of global economic integration,especially in theexport sector, the way of export trade has been changed from the traditional and thelimitations of the barriers to global and diversity.Because of the low labor cost,preferential export tax rebates and other advantages, the foreign OEM orientedprocessing trade gradually occupy half of the market economy in China’s foreigntrade, China has become the largest OEM processing base in the world. Because ofthe trade of OEM, the economy will increase, the small and medium-sized enterprise’scapital will accumulate and the social employment will be solved. However, theforeign OEM is different from the general mode of processing trade.The processingnot only will processthe products,both also attach the trademarks which belong to thehirer to the processing products according to the hirer requirements.When thetrademark of OEM is the same or similar to the trademark owner’s trademark in ourcountry,are the OEM products infringing goods?Will the OEM processing bear theinfringer’s liability?The series of problems in our overseas OEM processing tradedevelopment have been disputed in the judicial practice and there is no uniformstandard and qualitative.The problems have increasing the domestic processingenterprises in the processing trade risk,hindering the development of processing trade and distressing for customs, industry and commerce administrative organs to enforceintellectual property rights.The trademark rights to OEM attached a trademark is a trademark of people withinthe territory of China as the research object, combined with the civil law, intellectualproperty law, trademark law and other relevant law knowledge, comprehensive use ofhermeneutics, historical analysis, sociological analysis, through to the OEM productsconstitute an infringement or argument, trademark law of the legislative purpose,trademark, trademark feature functions such as basic understanding and definition tothe customs as an example to see the administration departments of our countryintellectual property enforcement attitudes and practices, focus on trademark OEMprocessing mode is not constitute infringement, and the related system specificationimprovement recommendations. Apart from Chapter1the Introduction, the paper hasthree other Chapters.Chapter2is the analysis of legal relations concerning foreign OEM processing andtrademark infringement theory controversy. Focus on the analysis of the main partiesof the legal relationship of foreign OEM processing, characteristics and importance,and cited the current theory and practice of foreign OEM processing whether thetrademark constitutes the territory of trademark right infringement dispute people,adverse effects and foreign OEM brand tort dispute caused by. List and analysis fromthe two theories and judicial practice point of view, that is mainly whether belongs tothe trademark use behaviors, likelihood of confusion is the trademark infringement,trademark elements of regional right principle and the understanding of whether theforeign OEM act constitutes a focus of dispute of trademark infringement. Amongthem, the enforcement of intellectual property administrative department to the maincustoms as an example, the influence of see cause adverse problems of trademarkinfringement disputes arising from foreign OEM processing from three angles ofjudicial organs, trademark rights, the new "trademark law". Foreign-related disputesOEM processing need clear of trademark infringement.Chapter3of the combination of the new provisions in the "trademark law" from fiveaspects: the essential attribute of the use of trademarks, trademark, trademark confusion, trademark and trademark right balance of interests of this foreign OEMprocessing does not constitute a "direct infringement" principle argument to prove,that play the legal significance trademark logo on the source function the trademarkOEM attached trademark is not a commercial circulation, will not cause the domesticconsumer confusion, should not constitute trademark infringement principle, but alsoto maintain the relative balance in foreign trade industry development and theprotection of intellectual property rights, is conducive to the protection of the interestsof all parties.Chapter4from the main responsibility, helping behavior, subjective intention ofthis three elements of foreign OEM processing does not constitute "indirectinfringement" argument to prove. This paper thinks that the indirect infringementshould be based on the premise of direct infringement, entrusted by foreign party asthe main subject of liability, whether it constitutes the tort should be identified withthe sales objective country law instead of the law of our country. In our country, theentrusting party does not constitute direct infringement, is the processing side"helping behavior" did not constitute "indirect infringement", and the subjectiveintention is not constitute trademark infringement elements, so the processing sideregardless of subjective fault or not does not constitute trademark infringement, whichis also in line with the principle of territoriality of intellectual property.