A Research On Whether Reselling Genuine Products Infringes Trademark Right

The essence of trademark illustrates that trademark is a combination of mark and the product information that the mark represents.The lack of either element cannot make a trademark.Therefore,all infringement of the exclusive right to use a trademark shares a common characteristic: it sabotages the specific combination of mark and the product information that the mark represents,cuts off the link between the trademark right holders,trademark and correspondent product and prevents the accomplishment of trademark function,thus increasing the “searching cost” of the whole society and eventually reducing social economic efficiency.The legislative aim of trademark law is to promote free competition and economic development and to protect the interests of both trademark right holders and consumers,which makes the development of social economy more efficient and fair.Based on the case of “Fjiya Co.v.Qian and Taobao Co.”,this essay mainly analyses if the act of those middlemen,who resell the products that have been bought from circulation market to make profits,is illegal or not.The typical way of infringing trademark right is to put those trademarks that are identical or similar to the registered(trademark right holders')trademarks on the identical or similar products without consent,which contributes to the confusion of consumers and eventually leads to trademark infringement.The first two articles of section 57 of Trademark Law of PRC emphasize on the protection of consumer interests.But Qian claimed in this case that what he once sold in the market were genuine products that had been bought through authorized channels rather than counterfeit.Besides,he provided correspondent invoices to demonstrate its authenticity.However,the current Trademark Law is unlikely to regulate these infringing acts properly.This essay attempts to define a clearer boundary for the expanding trademark right through the analysis of some typical cases and articles at home and abroad.This dissertation is divided into four parts:First,it clarifies the problems that this article is meant to solve through an introduction to the case of “Fjiya Co.v.Qian and Taobao Co.”,and concludes the focus of dispute to pave the way for the following further discussion.What's more,it will identify the legal nature of reselling genuine products through exploring the relationship among three different subjects(the relationship between property right holders and the exhaustion of trademark right,the relationship between consumer and the denial of exhaustion of trademark right,the relationship between trademark right holders and trademark derivative functions),Furthermore,the thesis demonstrates the existing issues of reselling genuine products under current trademark right protecting system,and offers some ideas about the reasons that account for the emergence of the issues.Also,some approaches to the problems are put forward from the perspective of trademark derivative functions and economic policies.In the end,based on the analyses above and combining the existing issues of reselling genuine products under present Trademark Law,the thesis proposes several suggestions on how to make the trademark right protection better.