Study On Trademark Infringement In Foreign-related Original Equipment Manufacturing

The past decade has seen the rapid development of China in export economy and foreign-related original equipment manufacturing(OEM), which solves the problem of idle labor force and shortage of foreign exchange. Foreign-related OEM boosts the economic development. However, foreign-related OEM has a certain complexity because of its transnational specific and a number of parties involved in, moreover, it has to label trademark on the goods compared with ordinary production and processing, which easily causes to trademark disputes. Along with the foreign-related OEM being understood and accepted, the cases involving foreign-related OEM are also attracting more and more attentions. There is not unified agreement when identifying trademark infringement for the reason of the complexity of cases while foreign-related OEM has not been explicitly stipulated in law. Accordingly, it is common that similar cases have different verdicts, which not only affects our country’s judicial authority, but also hinders the development of foreign trade. Before the revision of Trademark Law, a calling for legislation to legislate whether the foreign-related OEM causes trademark infringement finally was not adopted into legislation. So the arguments never stop. While some studies have shown massive achievement in this area, the author still believes that it is essential to do some further research.This paper is divided into three parts: introduction, body and conclusion.The introduction parts briefly introduce the purpose and significance of this paper.The body parts are divided into four chapters.The first chapter summaries the basic information of the foreign-related OEM, including the concept, the legal attribute and the type of trademark infringement in foreign-related OEM. Then sum up the different opinion of trademark infringement in foreign-related OEM for the essay. 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, paving the way for the further analysis below. Point out that the reason why foreign-related OEM has considerable controversy, mainly because people have different understanding on “the use of trademark” and “likelihood of confusion”.The second chapter analyzes the nature of foreign-related OEM and compares the relationship between foreign-related OEM and “the use of trademark”. The Amendment Act stated “the use of trademark” and prescribed a limit to the purpose of the “identification the source of goods”. Comparative analyzing the correlated legislation between China and Taiwan in China, focusing on the functionality of trademark, it is obvious that the judgment of “the use of trademark” is the combine of judging the purpose and the effect. Foreign-related OEM is an act as a whole which is completed by the trustee and the client. The client is the real user of the trademark, although the trustee labels the trademark on the goods. The trustee is not the user of the trademark, so the trustee’s behavior doesn’t constitute an infringement of the exclusive right to use a registered trademark.The third chapter centers on the correct application of “likelihood of confusion”. The “absolute presumption” is overthrown according to the point of “TRIPS”. Then the definition standard of “likelihood of confusion” is figured out. The paper makes a discussion around four specific situations in foreign-related OEM and figure out that in those specific situations, the likelihood of confusion shall not be the sole criterion for constituting trademark infringement.The fourth chapter is a comprehensive analysis on the other factors, which shall influence the conclusion of trademark infringement in foreign-related OEM. These factors include the interest-balancing principle and the economic policy. From the point of the interest-balancing principle and the economic policy, the author further illustrates the personal view toward foreign-related OEM. Finally, mainly based on the earlier part of the paper, the author expounds her views on this kind of case.In the part of Conclusion, the author summed up the contents conclusively. The author considered that the foreign-related OEM doesn’t infringe the domestic trademark right.