Research On The Trademark Infringement Identification Of Resale After Repackaging

Resale after repackaging is a common link in the supply chain of market transactions,which is produced in response to market demand.Its behavior has not changed the trademark and the commodity entity other than the packaging form.There is a clear difference between the behavior of changing the packaging form and the typical trademark infringement,i.e.,the commodity entity sold is the genuine article that originates from the proprietor of the registered trademark.The analyzing logic of the resale after repackaging infringement is as follows:First,to determine the various forms of the resale after repackaging.Second,to analyze the legal nature of trademark behavior in resale after repackaging,and to determine whether the resale after repackaging is applicable to the exhaustion of trademark.Third,for the resale after repackaging of the use of trademark that does not apply to the trademark exhaustion rule,to conduct a further study of the rules of the trademark infringement to judge in turn referring to the trademark law,article 57.Finally,to apply trademark infringement principle to judge the resale after repackaging that cannot be judged using trademark infringement rules.In the part of resale after repackaging form,the paper studied the factors affecting the resale after repacking form,including:packaging form,packaging specification,packaging quality,packaging decoration,and packaging information.Packaging can be divided into small packaging and medium packaging.Repackaging form consists of component packaging,incremental packaging,demolition packaging,replacement packaging.The four types of packaging are combined with packaging specifications,packaging quality,packaging decoration and packaging information to form a complex and complicated resale after repackaging(36 kinds in total).In the part of the use of trademark,the paper analyzed the essential characteristics and the constitutive elements of the use of trademark.The use of trademark for resale after repackaging is not a reasonable use of trademark,but only a use of trademark.In the part of judging the application of the trademark exhaustion,the constitutive requirements of trademark exhaustion are analyzed,i.e.,there is no change in the product,the status of the goods,and the exception of the trademark exhaustion(the quality of the goods is damaged,the packaging is dismantled,the components of the countable items are packed,the incremental packaging,the replacement of the packaging has not changed the quality of the packaging,and the original trademark has been retained,which are applicable to the trademark exhaustion).In the part of trademark infringement rules judgment,the paper determined the trademark infringement of resale after repackaging pursuant to item 1,item2,item4,and item 5 in the first paragraph of article 57 of the trademark law.Based on the analysis,in the resale after repackaging,to change the packaging quality and the packaging decoration and to add the description will not cause confusion;but to add a new trademark can lead to confusion and infringement.Item 4,paragraph 1,article 57 of the trademark law is limited to "trademark identification",not "packaging".In the resale after repackaging,"replacing the original trademark with new trademark" and "removing the original trademark" constitute the Reverse Passing-off,which belongs to the trademark infringement.In the part of the principle judgement of the trademark infringement,the paper demonstrated that damage of trademark function is the basis of trademark infringement.There are three kinds of trademark functions:recognition function,quality guarantee function and advertisement publicity function.Specific decision criteria on damage of trademark function include:recognition function impairment-confusion standard,quality assurance function impairment——impairment standard,advertisement propaganda function impairment-propaganda standard damage.The partial resale after repackaging infringes on the quality guarantee function and advertising function of the trademark,which constitutes trademark infringement.The trademark infringement determination of resale after repackaging cannot be generalized,and it should be judged according to its different repackaging form.The process of infringement determination should not only be judged from the criterion of trademark infringement,but also from other infringement exceptions,such as reasonable use and trademark exhaustion.It is necessary to judge using the rules of trademark infringement and the principle of trademark infringement.The judgment standard of infringement of trademark is a normal play of trademark function,which should be the criterion of "other damages" in item7 paragraphl article 57 of the trademark law,and also the core standard of trademark infringement in our country.