Study On The Criterion Of Trademark Infringement Of Repaired Goods

With the expanding of the market of repaired goods,there are many problems.Such as trademark infringement between trademark owner and repaired goods seller.Tough some repaired goods sellers punished because of infringing trademark,there is still no criterion on this issue,and the rationality of some judgments are controversial,even the scholars cannot reach a decision.Thus,recent Chinese trademark law cannot clearly solve this problem,because of there is no rule about this specific problem.And the trademark infringement problem of the repaired goods with the original trademark is controversial.Concerning to this,it shall be divide into two categories: if the good is substantially changed and defined as reconstruction product,the goods seller infringes trademark,otherwise it is reasonable for the repaired good seller using the trademark to tell the truth.To apply this classification theory to legal practice,some available elements of the criterion are needed.In classifying repair and reconstruction,the difference of goods between trademark owners' and repaired good sellers' shall be considered first,including the physical difference and other differences like the service attached on the goods;afterwards if the repaired good is substantial changed still cannot decided,the alternative of original market shall also be considered.To fill the margin of the trade mark law on this issue,one more paragraph shall be added in article 59 of PRC Trademark Law,writing ‘After first sale of the good,if it is not substantially changed,the trademark owner cannot forbid others to resale it.”And during the judicial adoption,the two elements foregoing suggested can be used.Though this revising,the controversial of criminal cases can also be solved.What's more,formulating administrative regulation on this issue creates a healthy and orderly environment of the repaired goods market.