Research On Trademark Infringement Judgment Of Goods Repackage And Resale

Nowadays,some goods are purchased and repacked by others without the producer after they enter the market circulation area.This kind of behavior does not destroy the product itself.It merely changes the packaging and appearance of the product.It seems that from this point of view,it is not a trademark infringement.However,in reality,such unauthorized changes in the packaging and resale of goods without the consent of the trademark owner have problems such as lowering goodwill,impairing quality,and causing consumers to confuse.Due to the limited number of cases related to the resale of trademark infringement in the judicial practice in China,the law has not made explicit provisions on this type of infringement,resulting that the academic community has not reached a consensus on its infringement judgments in judicial practice.The standards are not uniform,causing much controversy.This article attempts to start with the classic case of goods resale-the Fujiya case,in order to unveil the mystery of the resale behavior through research and analysis,to clarify the boundaries of this act of infringement,and to determine whether the trademark rights exhaustion can be applied.Through preliminary investigation,this article concludes that �resale is not included in trademark rights exhaustion,unless it is attached with a label to distinguish between them;the basis for goodsresale infringement judgments is still dominated by confusion and should be applied in our country.Article 57(7)of the Trademark Law concludes the determination of trademark infringement.�The creative results of this article is to study the concept of �intangible quality�proposed by EU scholars.It is a concept opposite to �tangible quality�.It can be used to explain why goods have only been repackaged and they have not changed themselves,but they have had a deteriorating quality.This is a damage to the goodwill.In addition,this article has new insights into genuine products.�Genuine� is not a product that has not undergone any change,but is a product not deceptive.This article also analyzes and compares the situation of Article 57(1)and(7)of the Trademark Law in China,and summarizes the legal provisions that should be applied to the resale of goods under different circumstances,and affirms the value of Article 57(7).This article mainly adopts literature research method,case analysis method and comparative research method.The text is divided into three chapters:The first chapter mainly focuses on the case Fuji and introduces the focus of the case.It introduces the definition of goods repackage and resale,and puts forward the legal problems caused by it.The problems caused by this kind of behavior mainly include: There is a mixed understanding of whether goods resale belongs to the category of trademark rights exhaustion;there are different views on whether the impairment of quality assurance function can become the main basis of infringement judgment;whether applying Article 57(7)is reasonable.The second chapter specifically analyzes the different types of repackage and resale behavior,and elaborates that this behavior is beyond the domain of trademark rights exhaustion.Because it can easily lead consumers to misunderstand and cause infringement.First introduces several types of repackage behavior,the concept of "intangible quality",indicating that the repackaging will damage the physical quality or even intangible quality.And the principle of trademark rights exhaustion cannot be applied into goods resale.Trademark rights exhaustion rules do not protect non-genuine products.However,there are exceptions to the principle that can be reasonable use of the trademark.The question that arises is how to determine that theresale of goods constitutes infringement.Through studying similar cases in Europe,America and Japan,it can be concluded that although quality control can be a reason for trademark infringement,trademark owners who want to claim infringement must prove that they have taken certain quality control measures.Whether or not it constitutes confusion is the main basis for whether such acts constitute infringement.However,according to the rules of disclosure in the Coty case,resaler may exclude the possibility of infringement if they attach a certain description mark.Therefore,confusion should be the main basis for determining infringement,and quality control is the supporting basis for infringement.The third chapter is to put forward some feasible suggestions on how to regulate the goods repackage and resale by the trademark law in our country.First of all,the instructions can rule out the possibility of infringement,but if the instructions do not have the effect of preventing consumer confusion,resale may still constitute infringement.Second,in some cases,where the nature of the goods itself does not change,it is most appropriate to apply the bottom-up clause to determine the infringement.Finally,when applying the bottom-up clause to judge the infringement,in order to prevent the trademark law from expanding the scope of infringement,it is necessary to specify the repackage and resale of goods in the scope of application of the bottom-up clause.