| The issue of the standards for determining the infringement of foreign-related OEM trademarks has been controversial for a long time.In judicial practice,there have been a large number of cases with similar cases but different judgment conclusions,as well as cases with similar judgment conclusions but completely different judgment logic and legal application.The reasons for this mainly lie in the understanding of the essential attributes of trademarks,the grasp of the constituent elements of trademark use,the interpretation of the territoriality of trademark right,the relationship between the use of trademarks and the types of trademark infringement,the consideration of the possibility of confusion,and the different types of trademark infringement.The basic concepts and theoretical understanding of trademark law such as constituent elements are blurred.In order to properly solve the problem of trademark infringement determination standards for foreign-related OEM and processing trademarks,this paper takes the contention focus of foreign-related OEM trademark infringement issues as the research core,adopts research methods such as literature research and case analysis,and analyzes trademarks based on the attributes and functions of trademarks.The connotation of "trademark use" in the context of infringement in the protection system,analyzed the relationship between "trademark use" and the types of trademark infringement in the context of infringement,and clarified the factors for consideration of the possibility of confusion.The different roles played in the OEM process,the criteria for determining direct trademark infringement are applicable to the orderer,and the criteria for determining direct trademark infringement and indirect trademark infringement in the contractor are applicable,so that the trademarks of two different subjects in the foreign-related OEM process are applied.Infringement determination can be carried out on two tracks,each in its own place and in its own place.Specifically,on the premise that the foreign orderer and the domestic contractor are subject to distinction,different infringement clauses apply,and the standards for determining trademark infringement are different: First,the relevant domestic behaviors of foreign orderers are applied.,the criteria for determining direct trademark infringement stipulated in Article 57(1)and(2)of the Trademark Law shall be applied,that is,"trademark use" + "possibility of confusion" in the context of infringement.When all OEM products are exported abroad and circulated in China,although their behavior constitutes "trademark use" in the context of infringement,it does not constitute direct trademark infringement because there is no possibility of confusion;Circumstances in which the use of foreign trademarks may cause confusion among the relevant public in my country,that is,the direct infringement of the trademark that may cause confusion among the relevant public in China because the branded products sold abroad have returned or may return to my country,even if the extraterritorial effect of domestic trademark rights is recognized It is difficult to directly regulate the application of China’s Trademark Law,but it can be indirectly regulated by applying Article 65 of China’s Trademark Law according to the principle of "immediate infringement".In addition,for domestic contractors,according to the provisions of Article 57(1)and(2)of the Trademark Law,they believe that although they have affixed trademarks on the processed products,this behavior does not constitute infringement.Therefore,the“trademark use” in the context will not constitute direct trademark infringement.Therefore,the criteria for assisting infringement in indirect trademark infringement stipulated in Article57(6)of the Trademark Law shall be applied to it,that is,“objective”."Providing convenience" + "subjective intention",it is believed that its behavior can become an act of providing convenience for direct infringement of the foreign maker’s trademark,and the examination of whether it is subjectively "intentional" determines whether it can constitute a contributory infringement.In addition,for the participants in the domestic circulation process when the branded products are returned to China,the domestic trademark owner can sue them for trademark infringement liability in a separate case. |
