| Whether the behavior of attaching trademark on exported OEM goods constitutes trademark infringement is still a debatable point in our country.Although recent years have witnessed the emergent change from "infringement" to "non-infringement",theoretically,we have not yet formed a logical and rational explanation;this not only affects the stability of the law,but also causes many confusions for Chinese OEM enterprises.Based on the empirical analysis methods,the relevant cases in recent years are collected and arranged in this thesis.Combined with the related changes in "Chinese Trademark Law"(2013 Amendment)(hereinafter referred to as the "new trademark law"),the thesis aims at analyzing the major legal issues in the OEM trademark infringement dispute,clarifying the nature of OEM trademark dispute and trying to find out a solution to this kind of dispute.The existence of OEM trademark infringement disputes owns to the fact that problems about the components of trademark infringement in our country are exposure under the foreign-related nature of this behavior.Specifically,there are three aspects:first,what is trademark use;second,the correlation between likelihood of confusion and the trademark infringement;third,the status and role of reasonable care obligations.Whether belonging to trademark use,which is the basis of the confusion theory and of the reasonable care obligation,is the front problem trademark infringement.The function of identifying the source of goods or services was added as a limitation to the use of trademark in the "new trademark law".However,even without mention,this function has already been an essential part of trademark system.The change in the new amendment is just an emphasis of the already existed function,but not a new "limitation".The identification function of trademark exists in both the production phase and circulation and consumption stage.The goal of commercial activities is creating commercial impact rather than simply seeking profit.Besides,as different steps of a complete trading chain,both production and export are parts of the business activity.The trademark in the processing of OEM meets the requirements of source identifying and business activity and is a type trademark use.Confusion or likelihood of confusion is the key factor to judge trademark infringement.The introduction of confusion principle in the new amendment is not yet mature,which has led to theoretical divergences between "presumption of confusion" and "absolute confusion"in case of the use of an identical sign for identical goods or services,and caused logical contradiction in the situation of using in the course of trade identical or similar signs for goods or services which are identical or similar to those in respect of which the trademark is registered.The author thinks that it is more suitable for our country to use the physical similarity based confusion judgment criterion.In this case,OEM is not possible to cause confusion or likelihood of confusion."Reasonable care" has a high frequency both in the case of infringement and the case of non-infringement.This obligation is intended to investigate whether processors are subjectively in good faith.The author thinks that this obligation has no way to affect the nature of OEM regardless of processors' situation of fulfilling this obligation.Providing reasonable protection against unfair competition in accordance with the standard of"reasonable care" is a good way to solve those unfair competition behaviors which are hard for trademark law to regulate.And in this way,we can connect the trademark law with anti-unfair competition protection and achieve a reasonable path for the healthy development of overseas trade. |
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