A Study Of Trademark Infringement Of Foreign Original Equipment Manufacture

Domestic processors and overseas custom contractors signing processing contracts,and producing branded products according to the requirements of overseas customs and exporting them to designated countries(usually called OEM)has been a common phenomenon in recent years.Whether the behavior constitutes a trademark infringement against registered trademark right holders in China has not been conclusive in both theory and judicial practice.Based on the basic characteristics of the foreign-related processing and the typical foreign-related processing cases in recent years,this article analyzes the legal issues that affect the identification of infringement in this type of disputes,in order to clarify the disputes related to OEM disputes,find a better solution for these issues and achieve a balance of interests between domestic processors,overseas custom-made merchants,and Chinese registered trademark owners.Judging by the reasons for the foreign-related trademark infringement cases in recent years,we can see that the main reason for the continuing disputes in this type of cases is the problems existing in the foreign-related licensing process.There are generally three aspects: first,the difference between trademark use in the sense of Trademark Law and trademark use in the non-Trademark Law;second,confusion of the application of the principle in the determination of trademark infringement;third,the role of reasonable attention to the role of duty.The definition of trademark use in the "Trademark Law" in China emphasizes "behavior characteristics" and "functional characteristics".The behavioral characteristics are used in business,and the functional characteristics are to identify the source of goods or services.The premise of the identification function is that the commodity is used in commerce.Therefore,the precondition for the use of the trademark is that the commodity enters into the circulation field,and in the process of circulation,the relevant public is exposed to the commodity marked by the trademark.If a trademark loses its recognition function in a commercial activity,it cannot be said to be trademark use in the sense of Trademark Law.It can only be regarded as trademark use in the non-Trademark Law.In the foreign-related licensing process,domestic processors' behavior is trademark use in the non-Trademark Law,and the use of trademarks by overseas customisers is the “trademark use” in the sense of trademark law.After analyzing the foreign-related processing in the form of “trademark use”,we can conclude that the domestic processor's behavior does not constitute a trademark infringement,but whether the overseas brand-customer's trademark use behavior constitutes trademark infringement requires needs further explanation.Through the application of the confusion principle,we can find that in the foreign-related licensing process,the branded goods are not sold in the Chinese market,and the relevant public has not come into contact with the branded goods.Therefore,the foreign-related licensing processing will not cause confusion in our legal region.Without the possibility of confusion,it can be concluded that foreign-related licensing processing will not result in trademark infringementAfter analyzing the foreign-related licensing processing operations with the “trademark use” and “confusing principle”,we can conclude that the trade form will not infringe upon the legitimate rights and interests of registered trademark right holders in China.However,looking at the judicial practice of China's foreign-made processing trade,the probability of “reasonable duty of care” is high in the recognition of trademark infringement.Judicial practice usually identifies domestic processors who have not fulfilled their “reasonable duty of care” as trademark infringers and requires them to assume trademark infringement liability.However,the author believes that whether the domestic processor fulfills the obligation or not will not affect the recognition of trademark infringement of foreign-related processing and licensing.The “reasonable duty of care” cannot govern the foreign-related licensing and processing by the “Trademark Law”,but it can appropriately provide protection against unfair competition based on the “Unfair Competition Law” and open up a reasonable path conducive to the healthy development of foreign trade.