Research On The Foreign-related Original Equipment Manufacturer (OEM) In Trademark Infringement Judgement

With the rapid development of Chinese foreign trade and the strengthening of the trend of economic globalization,OEM,as one of the ways to effectively integrate the world's resources,not only solves the employment problem of a large number of idle laborers in China,but also further promotes the development of our foreign trade economy.However,for over ten years in the past,domestic OEM enterprises have frequently encountered cases of trademark infringement disputes.Among them,the most controversial situation is that overseas trademark owners have entrusted domestic OEM enterprises to produce products,and processed products are all exported and the same or similar trademarks are used on the same or similar products with domestic trademark owners during this period.Due to the lack of a clear legislative provisions,in our country concerning foreign affairs disagreement on whether the foreign-related OEM constitutes trademark infringement.First,there are two views in theory and practice field: “infringement theory” and “negative infringement theory”.Infringement theory said that according to the trademark territoriality and the similarity from Article 52 of the Trademark Law which is believed that the use of the same or similar trademarks on the same or similar goods is an infringement of the exclusive right of the trademark.Negative infringement theory,based on the use of trademarks and the likelihood of confusion,is considered that the attached trademark does not identify the trademark within the territory of a country,and only identify the source of the commodity outside the country.The attached trademark is not a trademark use,and all the processed products are not exported,which will not cause confusion to domestic correlation public.This kind of uncertainty in the theory and practice field has seriously affected the development of the foreign-related OEM industry,which is not helpful to the development of Chinese economy and trade.This paper analyzes the relevant theories of judging criterion for trademark infringement of foreign-related OEM and combines the judicial status and existing problems.Based on the investigation of extraterritorial legislation and theoretical experience,this paper proposes perfect suggestions for determination of foreign-related OEM trademark infringement.Firstly,this paper starting from the basic concept of foreign-related OEM,clarifies its legal features,legal nature and legal protection.Secondly,it starts from the judicial status quo of the trademark infringement of foreign-related OEM,and analyzes and summarizes the typical judicial cases to conclude with the court decisions and the judging criteria.Through analysis of specific cases,the focus of foreignrelated OEM is obtained.Thirdly,based on the focus of the debate,the judging criteria is studied at the current stage to carry out theoretical research and analysis of practical application problems.Finally,on the basis of the previous analysis and discussion,proposing a series of suggestions for the determination of foreign-related OEM trademark infringement by drawing on the legislative experience of the United States,EU,Japan and so on.