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Research On Trademark Infringement Of Selling Refurbished Goods

Posted on:2019-06-10Degree:MasterType:Thesis
Country:ChinaCandidate:Y WuFull Text:PDF
GTID:2416330596952404Subject:Intellectual property
Abstract/Summary:PDF Full Text Request
Electronic products are updated rapidly.At the same time,the flea market of those products is also expanding.National policies in the field of second-hand goods,including the electronics industry,also tend to encourage recycling and reusing.However,the complex status quo present in the industry and the absence of related laws and regulations related to recycling have caused many infringement and criminal acts in this field,which is also increasing.Among them,there are many civil,administrative and criminal problems arising from trademark infringement of selling refurbished goods.Through the analysis of the domestic and foreign classic cases,legislations,international treaties and classic cases and theories related to the likelihood of confusion and defense of trademark infringement,I find that the likelihood of confusion of different kinds of refurbishment sale should be analyzed in a specific way.We can also take the characteristics of the refurbishment goods itself,the conditions of the industry,the defendants' intention as to confusion and some other factors into consideration.Besides,public investigation can be used to corroborate the likelihood of confusion.At the same time,from the aspects of the essence of confusion or the expansion meaning of confusion,I find that if the refurbishment sale does harm to the intention of the quality assurance of the trademark,it may also cause consumers' confusion,destroy the quality assurance function of the trademark,andthen constitute a trademark infringement;If the act is a repaired refurbishment sale,the actors don't gain improper interest,and the information of the refurbished product is published through an appropriate way,which may reduce or eliminate consumer confusion,it isn't a trademark infringement,which is collateral use of trademark;Also it isn't a trademark infringement when there aren't changes as to the nature or status of products,and the actors disclose the information of product fully,which is exhaustion of trademark rights.Specifically,the problems of judgments on trademark infringement are derived from the analysis of five related cases,so those problems need to be further studied.Then I review the existing literature both at home and abroad.On this basis,I define the behavior of refurbishment sale from the aspects of definition and characteristics of it and classify the behavior in accordance with certain standards at the same time.After further understanding of the behavior,I find its problems lie in the judgment of trademark infringement,including the likelihood of confusion and the defense of trademark infringement.Afterwards,I study the evolution of domestic and international legislation and the specific meaning related to the likelihood of confusion,and analyze the relationship between trademark function and the likelihood of confusion.Finally,I come to the conclusion that the judgment of trademark infringement with regard to refurbishment sale should be based on the likelihood of confusion.After that,I study the defenses of trademark infringement and the applications of them.If the refurbishment sale is a repaired,the act is in line with honest practices in industrial or commercial matters,and the actor exhibits the product information in a proper way,we can use the collateral use of trademark to defense trademark infringement;If the refurbishment sale is a repaired,the information of goods is fully disclosed and the nature or status of goods aren't changed,we can use the defense of exhaustion of trademark rights.Based on the research above,I provide some suggestions for the judicial practice of trademark infringement judgment of the refurbishment sale: analyzing the possible infringement of trademark from the aspect of likelihood of confusion and applying trademark infringement defense based on the specific circumstances of individual cases.Meanwhile,I analyze the trademarkinfringement of the refurbishment sale particularly and find some factors used in analyzing trademark infringement.The conclusion partly reiterated the problems and the related conclusions drawn in this paper.
Keywords/Search Tags:Refurbishment Sale, Likelihood of Confusion, Trademark Function, Collateral Use of Trademark, Exhaustion of Trademark Rights
PDF Full Text Request
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