The Issue Of Trademark Infringment In Subpackage

In order to increase sales volume,distributors often plan various promotional activities,such as mixed sale of products or sub-package sale of large commodities to cater to consumers’ psychology.Some sub-packages are completed with the permission of the obligee,some sub-packages are done by themselves,and the sub-packaged products are packed with or affixed with the trademark of the trademark owner or marked with the identity of the subpacker.How to determine the legal nature of the act of license trademark has once become a hot issue in practice.The main points of this thesis are as follows: firstly,it briefly introduces the case of "Bu Er Jia",combs out the controversial focus of trademark infringement in subpacking from the academic discussion;secondly,it summarizes the common sub-packing types,which are the same as the original packaging information,the sub-packing of special commodities and the sub-packing of identifying the sub-packer’s identity.It starts with the relationship between trademark function and trademark infringement.Finally,starting with the reasons of trademark infringement defense,it analyses whether the trademark rights can be exhausted,trademark indicative use,trade practices and other reasons for the defense of trademark infringement.The research idea of this thesis is to take the " Bu Er Jia " as an example,summarize the controversial focus of trademark infringement in the sub-package,summarize the characteristics of several typical sub-packages,and analyze whether sub-packages constitute trademark infringement from the perspective of trademark function and trademark infringement defense reasons.The first part of this article briefly introduces the case of " Bu Er Jia " that defendants divides the candies and use the trademarks of Bu Er Jia company in the package.The court considers that the defendant damages the quality protection function of the trademark and constitutes trademark infringement.This thesis synthesizes the comments of the academic circles on such cases as " Bu Er Jia " and concludes that the controversial focus of trademark infringement in subpackage is whether subpackage will destroy trademark function,and then constitute trademark infringement,as well as the establishment and application of such defenses as exhaustion of trademark rights,indicative use of trademarks and commercial practices.Then the second part divides the classified packing types into the same packing information as the original packaging,the special goods and the sub-packages indicating the identity of the sub-packers.In this thesis,the characteristics of the three types of sub-packing and typical cases at home and abroad are expounded in order to carry out the demonstration of the third and fourth parts.The third part discusses the influence of subpackge on trademark function from the angle of relationship between trademark function and trademark infringement.This thesis holds that the understanding of the source function of trademark identification should include the function of trademark quality assurance and advertisement.Identifying the source is to establish the only stable link between trademark and trademark owner.The stable link depends on the quality of the commodity and the means of promotion and publicity.The same sub-package as the original packaging information may damage the trademark identification function,the sub-package of special commodities may damage the trademark quality protection function,indicating the sub-packer’s identity will not damage the trademark function.The fourth part deals with the application of trademark infringement defense in subpackage.This article holds that except subpackage marked with the sub-packer’s identity the use of sub-package trademarks falls into the scope of prohibition of trademark,and the use of sub-package trademarks does not meet the requirements of indicative use of trademarks.The trade practices cann’t become the defense reasons of constituting infringment.