Research On Trademark Infringement In Foreign-related OEM Processing

As a common type of trademark infringement in judicial,Original Equipment Manufacture how to settle the processing behavior qualitative the problem there has always been controversial.Ruling,the Supreme Court by PRETUL case and dongfeng case determining Original Equipment Manufacture settle the processing behavior does not belong to the trademark law,the "use of trademark" stipulated in the article 48,and determine its not constitute infringement.At this point,special processing of foreign-related disputes seem to have been solved.However,this not the conclusion of infringement for the reverse of the new card processing cannot very good solve.This author to comb foreign-related calm brand processing cases,expectations for the foreign brand processing infringement law qualitative provide a reasonable solution.This article besides the introduction and conclusion,the text is divided into four chapters.The introduction mainly metasomatism selected topic background and research purpose of this article.First chapter by carding the foreign-related calm brand processing cases of calendar year,with the tendency of the justice department for such cases as the clue,it can be divided into three stages.Every stage of the judicial tendency can present a strong policy guidance.Based on the judgment,the author found that lead to such cases have not been able to very good solution for two reasons.One is to the trademark law,the provisions of article 48 "recognition" discrimination is not clear,hard to decide whether the behavior belongs to trademark use.Another is the trademark of "trademark law" article 57 "confusion" explanation is not clear,will not cause confusion has always been a judicial debate.Special processing for the emergence of new anti foreign trademark infringement dispute,the thinking of the court to judge it's hard to do a reasonable solution.Problem is used around the trademark,the second chapter mainly studies the behavior of branded law qualitative.Is the precondition of trademark infringement exists on the use of trademarks,to accurately grasp the sex with the order of judgment.Must not be confused with the trademark use results.In addition to the objective of trademark use,person also need to let the brand recognition.Recognition is the basic function of the trademark,it requires that the trademark is concise,but memory can be associated with a specific source.In trademark infringement,it only needs to distinguish with other goods,does not need accurate cognition of the relevant public.:as long as the infringement of trademark use objectively can convey information,it can be used as trademarks.The third chapter analyzes the confusion theory in the foreign-related licensing processing cases.The confusion theory is only used when the goods and trademarks are similar.The use of the same mark on the same item can be directly identified as a trademark infringement.The confusion theory is based on the relevant public.It is generally believed that the relevant public has no access to the possibility of OEM products.Therefore,the court will directly determine that there is no possibility of confusion.However,under special circumstances,through the network,domestic consumers are still exposed to the possibility of OEM products.Therefore,foreign-related licensing processing is necessary to establish the possibility of confusion based on the case.Based on the views of the first two chapters,this chapter proposes recommendations for the judgment of foreign-related licensing processing cases.The fourth chapter mainly establishes the conditions of reasonable attention and substantive damage.In the foreign-related licensing process,the reasonable duty of care can determine the liability of the infringer.Substantial confusion can either determine the specific amount of compensation or reinforce the confusion theory.