Study On Trademark Infringement In Foreign-related Original Equipment Manufacturing(OEM)

As a response to and reflect on the amendments of China Trademark Law, this thesis focuses on the concept of “use of trademark” and constitutive requirements of trademark infringement provided for in the new Trademark Law. Through analyses on different courts’ judgments with different outcomes, we find out the main points in this disparity, then resolve the problems one by one, at the end we reach the conclusion of the inappropriateness of constitutive requirements of trademark infringement in the new law. As a suggestion, we advise a reconstitution of trademark infringement standard in the trademark law system.“Affixation of trademark” in foreign-oriented OEM is denied as “use of trademark” because, without the use intention of domestic manufacturers, the trademark’s affixation is merely an inevitable result of fulfilment of obligation, or, trademarks under this circumstances do not perform its distinguishing function. However, these arguments distort the concept of “use of trademark” on purpose just for the sake of exempting t he foreign-oriented OEM from infringement liability. A special manifestation cannot cover up the nature of use.The principle of “Likelihood of Confusion” is a core rule to infringement affirmation in trademark laws around the world. Our old Trademark Law’s insufficiency in understanding this principle leads to confusions when it is applied to cases. However, the new Trademark Law taking example from Europe leaves alone our country’s trademark theories and practices, which will definitely cause unfairness in application. The correct path is taking the rule of “Presumed Likelihood of Confusion” into our trademark law system.The principle of “Reasonable Care” as a demurrer resorted to by the defendant is sometimes accepted by the court. However, this lega l principle sets a rule relating to the subjective fault of infringers, whilst the trademark infringement can be established without such subjective fault. As a conclusion, it’s inappropriate for the court to accept the principle of “Reasonable Care” as a demurrer. Besides, it reveals chaos in law’s application in these cases.Customs enforcement measures of our country directly give rise to the numerousness and frequency of foreign-oriented OEM’s legal disputes, given that our customs suspend the release o f exported goods pursuant to China Trademark Law, under which these goods may be declared illegal. These excessive enforcement measures incur criticism, which is followed with the suggestion of a revision on China Customs’ Protection Regulations of Intellectual Property Rights. Nevertheless, such a revised law is not the key to resolve these disputes. The correct path is taking the principle of “Presumed Likelihood of Confusion” into Anti-unfair Competition Law so as to reconstruct the identification standard of trademark infringement, as well as meet the international protection level.