Research On Trademark Infringement In OEM Cases

During the critical period of China’s economic transformation,under the background of varying sentences from several courts in OEM cases,the 2001 "Trademark Law" was amended in 2013.This brought about a significant change to law fifty-seven: If the same trademark is used on the same commodity as the registered trademark owner,this will be determined as infringement.If one uses a trademark similar to the registered trademark on the same product,or uses a trademark identical or similar to its registered trademark on similar goods such that it could cause confusion,this will be regarded as tort.As a result of these changes,the dispute on how to determine the case of OEM is becoming increasingly intense.The Chinese judgement document site states that the main reasons for verifying OEM cases without infringement are as follows: the act of attaching a trademark is not a use in the sense of the trademark law and that will not cause consumers’ confusion.And the main reasons for the infringement of such cases are: first,based on the principle of territoriality,foreign clients do not enjoy the trademark right in China;Second,the use of the same trademark on the same commodity constitutes direct infringement;Finally,factories did not provide sufficient evidence of its behavior.In view of the above reasons,we can find that in judicial practice,such cases have the following disputes or problems: how to understand and deal with the concept of OEM,principle of territoriality,the application of legal issues,the concept of the use of trademarks,and the principles of trademark confusion.I believe that during China’s economic transition period,in order to subvert the dilemma of a low-end industrial chain,preferential treatment should not be given to the OEM cases and should determine these cases infringement.First of all,OEM behavior is a trademark use behavior,because the use of trademark behavior is not necessarily limited to the circulation area.Not only that,but due to the violation of the trademark subsidiary function(advertising function,investment function,etc.)without infringement of the core function,it is deemed not to infringe.Secondly,with regard to the principle of confusion,because the constituent elements of trademark law in China are drawn from the structure ofthe EU’s similar laws,the concept of the EU trademark law should be upheld,rather than using the American trademark law to explain China’s law.Furthermore,the customs should improve law enforcement procedures,and the court should establish a diversified dispute resolution mechanism to explore the construction of litigation docking and the new model of efficient approval.Finally,enterprises should be careful to sign OEM contracts,and should be clear about the terms of intellectual property liability sharing in the contract.