Research On Trademark Infringement In Foreign-Related OEM

Different scholars have different views on the issue of trademark infringement of foreign-related OEM processing.The opinions of the practical and theoretical circles are mainly divided into three categories of tortism,non-infringement and infringement based on reasonable attention.All of them put forward their own reasons to support their views.The theory of tortion believes that the principle of regionality as the basic principle of intellectual property rights should protect the registered trademark owners in China and the foreign-related OEM processing in accordance with Article 57 of China's Trademark Law should constitute trademark infringement.The theory of non-infringement believes that the processing of OEM is not the use of the meaning of trademark law and that the export of all OEM products will not cause confusion in China.Therefore,it is not appropriate to recognize that foreign-related OEM processing constitutes trademark infringement.The theory of infringement,which is conditional on reasonable duty of care,believes that foreign-related OEM processing cannot directly determine whether it constitutes a trademark infringement,and whether it has constituted a reasonable infringement according to whether the OEM has performed reasonable duty of care.Foreign-related OEM processing will cause controversy.It is nothing but China's disagreement on the standard of trademark infringement and the application of specific components.After reviewing the judgments of the past years and related theories,it is necessary to analyze whether foreign-related OEM processing constitutes trademark infringement.Judge.Whether to allow foreign-related OEM processing cases to be different from the trademark infringement determination rules stipulated in the Trademark Law,that is,whether the “ reasonable duty of care + substantive damage standard” affects the qualitative nature of foreign-related OEM processing.Whether the foreign-related OEM processing conforms to the general rule of trademark infringement determination: whether the situation specified in the first paragraph of Article 57 of the Trademark Law considers“confusion”and whether it constitutes the use of the trademark.After analysis,it is concluded that foreign OEM processing constitutes trademark infringement in theory.Even if the theoretical constitutes infringement in the specific practice,including the judicial and administrative law enforcement,there will be differences.Therefore,corresponding solutions should be taken to implement the theory in practice and control.The processing of OEM processing protects the legitimate rights and interests of trademark owners in China.