Research On The Trademark Infringement Problems Of “Bottles Recycling”

“Bottles Recycling”means the phenomenon of some manufacturers recycle bottles of products, such as beer,drinks,ink,gas and perfume,and so on,which are produced by other manufacturers and having been put into market before,and refill their own products into the recycled bottles and put them back into the market. “Bottles Recycling”is a common phenomenon in our country and is also in accordance with national policies and industry practices,but it has caused a series of trademark infringement cases recent years, especially in beer industry. Recently, “Shanghai Budweiser beer case”and “chongqing beer case”have been push into the forefront. The two courts have made a different decision under the same case. In fact, from the judicial practices at home and abroad,including the recycling beer bottles, other recycling containers, such as vinegar and soy sauce containers, gas cylinders, milk bottles and hair conditioner containers,also intrigued similar trademark infringement problems.In “Bottles Recycling” cases, although each specific case is not identical, but the main dispute is the same,that is,whether defendants infringe the the plaintiff’s trademark ownership if defendants recycled the bottles with a particular trademark of the plaintiff and refill their own products into the recycled bottles with defendants’ s trademark or posting a description label on the bottles. Both the judicial apparatus in practice and the jurists in research have quite different opinions on these controversial problems. The main controversies are focused on: whether “Bottles Recycling” constitutes trademark use, whether “Bottles Recycling” is possible to cause public confusion, whether the principle of the exhaustion of trademark rights and other factors,such as national policies and industry practices, can be applied to “Bottles Recycling” cases. As “Bottles Recycling” cases are increasing in our country, the above different views directly affect the infringement determination and law application of the “Bottles Recycling” cases.Therefore,it is necessary to identify and further research these problems.Firstly,in order to resolve the problem of whether “Bottles Recycling” constitutes trademark use,we need to clarity the definition of trademark use and how to measure the trademark use. Although Article 48 of the new trademark law regulates the definition of trademark use,the Article 48 is so simple and abstract that it raises two questions:one of the question is what is the role of trademark use in trademark infringement judgment and whether it is the logic premise of trademark infringement judgment?The other question is how to understand the meaning of “commercial activities” and “in order to identify the source of the goods” in the Article 48 of the new trademark law?This thesis analyzes these problems and concludes that trademark use is the logic premise of trademark infringement judgment and trademark use and the possibility of causing public confusion are the two independent factors in judging trademark infringement. This thesis also Sums up the two constitutive requirements of trademark use:(1)Trademark use is a kind of commercial behaviors for the purpose of obtaining the economic advantages;(2) Trademark use is intent to establish economic ties between specific trademark and particular goods or services. If businessmen recycled bottles without covering the trademark on the bottle, such behavior conforms to the above two constitutive requirements and therefore constitutes trademark use.After solving the first question,we will face the second question,namely whether “Bottles Recycling” is possible to cause public confusion. Because businessmen “Bottles Recycling” is identical with a registered trademark in connection with the same goods(Hereinafter referred to as “double same situation”), in order to judge whether businessmen “Bottles Recycling” is possible to cause public confusion,we must answer the following question,that is, in judging trademark infringement in double same situation,whether we should consider the possibility of causing public confusion. The judicial apparatus in practice and the jurists in research have a totally opposite opinion on this problem:The first kind of view points out that confusion possibility in double same situation shall be regarded as presumed a likelihood of confusion and can be overturned in the case of the contrary evidence.But the second kind of view thinks that confusion possibility is presumption of absolute and can never be overturned. This thesis analyzes this problem by studying the nature and functions of the trademark law, the legislative intent and the judicial practices of both the European Union and the China and finally concludes that in judging trademark infringement in double same situation,we shall stick to the confusion theory and confusion possibility can be overturned in the case of the contrary evidence. Then this article continue study the the domestic and foreign cases in relation to“Bottles Recycling” and summarizes the seven factors which contribute to judging confusion possibility in“Bottles Recycling” cases. In such cases,Courts should have comprehensive consideration of the the seven factors according to the particular case.In terms of the third question,namely whether the principle of the exhaustion of trademark rights can be applied to “Bottles Recycling”cases, there are some disputes in the theoretical circle. This thesis analyzes the basic principle and connotation of the exhaustion of trademark rights combining with the domestic and foreign relevant judicial practices and summarizes the following two constitutive requirements of principle of the exhaustion of trademark rights:(1) Resale goods source should be legal;(2) Resale goods should have identity. “Identity” here refers to the quality of resale goods does not change or damage.In the case of “Bottles Recycling”, recycling businessmen will refill their own products into the recycled bottles before putting them back into the market.This conduct causes substantial change in the content of the products and resale goods do not have identity.Consequently, the principle of the exhaustion of trademark rights can’t be applied to “Bottles Recycling” cases.In dealing with the “Bottles Recycling” cases,some courts have considered industry practices, national policies and competition order as infringement judgment factors. This thesis concludes that: Firstly, the premise of courts considering industry practices as the judicial basis is that the industry practices must not conflict with present laws and public order and good morals.In the case of conflicts between trademark law and industry practices, courts should not consider industry practices as the judicial basis.Secondly, national policies in relation to recycling should not either conflict with present laws. If it is in contradiction of the trademark rights of trademark holder, trademark rights should be protected firstly.At last,through studying the legislative source and basic principle of trademark law combining with the relevant cases of European Union, this thesis points out that when it is difficult for courts to judge confusion possibility, courts may consider competition order as infringement judgment factors at that time.There are two main reasons to explain why the judicial apparatus in practice and the jurists in research have controversies in “Bottles Recycling” cases,one is that the current courts in China have different judgment standards of trademark infringement and lack of the practical experiences to handle with similar cases.The other one is that although national regulations or policies,such as “recycling management of renewable resources” and “The notice of some issues about implementation of beer mandatory national standards”, encourage manufacturers to recycle bottles, the above national regulations or policies do not stipulate related responsibility and obligation of recycling businessmen.The lack of laws and regulations have led to widespread dislocation in bottle recycling market. So in order to better solve the “Bottles Recycling” issues,we need not only to unify the standards of judgment in “Bottles Recycling”cases,but also take some measures to improve legislation. From current legislation all over the world, some contries adopt two legislative modes to regulate bottles recycling:one is separate legislation; the other one is special regulations of such behaviors in the trademark infringement section of the criminal law. For the considerations of China’s basic national conditions and legislative precedent, this thesis suggests the best approach is to introduce a administrative regulation aimed specially at bottles recycling,which specifically provides the responsibility and obligation of recycling businessmen.