Research On The Quality Assurance Function Of Trademark

At present, there is not enough research on the topic of assurance function of trademark from the theoretical perspective; and on the other hand, various opinions concerning the topic are arising out of the cases. In addition to theoretical analysis, the topic should be researched in the concrete practice of trademark law; and the conclusion should result from numerous cases and the latest commercial developments. This essay adopts the foregoing research ideas and puts forward the following opinions which are said that the quality assurance function of trademark is not an independent interest protected by trademark law; and the quality assurance obligation is not the mandatory requirement of trademark law.The methodologies adopted in this essay are historical approach, case study method and comparative study method. The main body of this essay contains four chapters:Chapter one: Analysis on the origin and establishment of quality assurance function by historical approach and drawings on the practical meaning. Introduction on the legal problems in relation to quality assurance function from the judicial and theoretical perspectives.Chapter two: The quality assurance function of trademark is not an independent interest protected by trademark law. Firstly, in the course of sub-distribution of goods, when the quality is modified and the exception of exhaustion of rights occurs, the principle of judging infringement is based on whether the source identification function is damaged. Secondly, concerning the parallel import of trademark, in regardless of the goodwill or quality damage standard in European, or the substantial difference standard in America, or the rule revealed in the Michelin case in China, the courts insist that only the source identification function is damaged and the consumers are confused, legality of parallel import of trademark is denied. Thirdly, in the circumstances of non-typical infringement of trademark, for example, the goods sold are genuine; however the trademark on the goods is actually used by the owner on the different level quality of goods. Although the court has discussed the quality assurance function, but has judged the infringement based on whether the source identification function is damaged.Chapter three: The quality assurance obligation is not the mandatory requirement of trademark law. Firstly, the owner of the trademark shall not undertake the quality assurance obligation. Because even the owner changes the quality of the goods, the consumers do not enjoy the title to bring a suit in accordance to the trademark law; and even if the owner does not observe the forgoing obligations, the trademark would not be withdrawn by the trademark office. Secondly, the quality assurance obligation of the licensor is no longer keeping pace with the judicial and commercial practice. On one hand, the quality assurance obligation is hardly required in the related case rules. On the other hand, the quality obligation cannot be applied to the latest commercial practice, such as promotional licensing. Thirdly, quality assurance obligation is not the mandatory requirement for the assignee of the trademark.Chapter four: Introduction and comments on the provisions concerning the quality assurance function in the Chinese trademark law. And in accordance with the forgoing theoretical analysis and practice outside our country, some advice is given to modify and improve the related provisions.