| International Original Equipment Manufacturer refers to a processing method that the domestic processing side accept foreign principal’s delegation on behalf of their production and processing products, attached principal designated trademarks to the product, and finally the finished products are all exported to overseas. As the the domestic processing side of the International OEM does not enjoy trademark rights of the trademark which being attached, the principal only enjoys its trademark rights in its domestic side yet. Thence when the manufactured products are classified as the same or similar products with the same or similar trademarks belonging to domestic trademark owners, which raises a dispute that whether such acts should be judged as infringement of registered trademarks.China Trademark Law were modified in 2013, in which the provision of "trademark" and the introduction of "likelihood of confusion" play decisive roles in determining whether the International OEM constitutes trademark infringement. However, in view of theorists and practitioners understand the law still divided, the paper is divided into five parts to elaborate the issue.The first part starts with the general situation of International OEM and classifies it as well as states International OEM is a behavior that processing side accept foreign principal’s delegation to manufacture products in the usual sense. This section highlights the three major theories involving International OEM in the field of trademark: regional theory of trademark rights, trademark confusion theory and use of the trademarks on the meaning of trademark law. Meanwhile, analyzing the theories’ and practitioners’ arguments and reasons for whether International OEM constitutes infringement.The second part focuses on description of the specific provisions of the new "Trademark Law" relating to International OEM. First, by analyzing the "Trademark Law" provisions of Article 8 defines what kind of conduct constitutes the trademark-attached behavior. Secondly, to comprehensively interpret the "Trademark Law" Article 48, ranging from the use of the trademark should be in all kinds of commercial activities, to the purpose of which is to identify the origin of goods. Finally, the comparative analysis of the former "Trademark Law" Article 52 to the new "Trademark Law" Article 57 relating to the provisions of trademark infringement, described the role of "likelihood of confusion" on identifying trademark infringement. This part aims to state that processing side attaches marks on products doesn’t constitute using trademark by analyzing the former provisions.The third part comments on the reverse of attitude and application of law by analyzing the District Court and the Supreme Court in the adjudication of cases related to International OEM after the implementation of the new “Trademark Law”. Especially the changes of local courts from mechanically applying the specific Article to identify International OEM as trademark infringement, to recognized it as legitimate trade practices under the new "Trademark Law". Finally evaluating the new "Trademark Law" ’s Guiding Significance for courts after increasing substantive elements in identifying trademark infringement.The fourth part focuses on the relevant provisions and judicial practice of the United States, Germany and Japan, and demonstrates the use of trademark shall be "commercial" as a precondition. At the same time by summarizing specific practices of other countries’ Court, generalized their standards of "likelihood of confusion". In addition, to demonstrate that in the "Paris Convention", according to the independent trademark protection principles, our trademark has no right to claim trademark rights to the processing side. And analyzing the scope of the use of trademark under "TRIPS Agreement", which demonstrates the International OEM does not belong to the use of trademarks listed.The fifth part stresses on coming up with suggestions to improve the current “Trademark Law”’s relevant provisions of International OEM. First, comparing the former “Trademark Law” to the later, affirming “the use of trademark” and “likelihood of confusion” play a positive role in identifying trademark infringement. Secondly, give the proposals to improve and perfect “Trademark Law”’s normalization relating to International OEM: First of all, defining the purpose of using trademark is to make profit by trademarks themselves. Secondly,establishing specific standard in judging “likelihood of confusion” by express. Finally, providing the domestic processing side’s obligation of censorship to reduce disputes radically. |
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