A Study On The Infringement Of Foreign-related Licensed Processing Trademarks

In recent decades,trademark infringement disputes caused by foreign-related licensing and processing activities have occurred continuously.Whether this act constitutes an infringement on the exclusive right of domestic trademark owners to use registered trademarks has not reached a unified conclusion in the theoretical circles and judicial practice,and the phenomenon of different judgments in the same case occurs from time to time.The controversy focuses mainly on whether foreign-related license-fixing and processing acts belong to the status of "trademark use" and "confusion possibility" in the judgment of trademark infringement in the sense of China’s trademark law.This article sums up the focus of disputes and analyses the reasons through the analysis of the current judicial situation.It focuses on the understanding of "trademark use" in the Trademark Law and the position of "confusion principle" in the identification of trademark infringement.On this basis,it puts forward its own views and suggestions to improve legislation.The main body of the article is divided into three chapters.The first chapter defines the concept of foreign-related licensed processing,clarifies that the types of trademark infringement disputes discussed in this paper are the most common ones in practice.Then,by combing the domestic legislative status quo,i.e.judicial status quo,it concludes that the current differences in judicial practice on this issue are mainly concentrated in foreign-related licensed processing acts.Whether it constitutes the position of "trademark use" and "confusion possibility" in the judgment of trademark infringement in China’s trademark law.The second chapter is the analysis and discussion of the problems summarized in the first chapter.The first section refers to the inconsistent understanding of the legal norms of the Trademark Law on the use of trademarks,which leads to different opinions on whether foreign-related licensed processing acts constitute "trademarkuse".Then,by investigating the provisions and understandings of trademark use in foreign legislation,and combining with the provisions and meanings of trademark use provisions in the Trips Agreement,it is concluded that the use of trademarks by the processors in foreign-related licensed processing in China should belong to the act of "trademark use" in the current trademark law.Section II first analyses the difficulties encountered in the application of the confusion principle in the case of "double identical" in China’s foreign-related licensed processing cases.Then it points out that the improper introduction of the confusion principle in the amendment of China’s trademark law results in the dilemma of the application of the confusion principle in the case of "double identical" by analyzing the provisions and practice of the European Union and other countries on the confusion principle.Main cause.Section 3firstly analyses the application of the duty of reasonable care in judicial judgment,then through the theoretical analysis of the duty of reasonable care and the characteristics of intellectual property infringement identification,it comes to the conclusion that the duty of reasonable care does not affect the identification of the nature of foreign-related licensed processing acts,and should not be regarded as a factor for trademark judgment of infringement.In the third chapter,combined with the analysis of the second chapter,the author puts forward some suggestions to improve the legislation on the possibility of confusion under "double identities" and gives his own opinions on the logic of judging infringement of foreign-related licensed processing trademarks.