Research On Issues Of The Use Of Trademark In Trademark Infringement Determination Of Foreign-Related Original Equipment Manufacturing

With the booming development of foreign trade and the accelerating pace of economic and social development,more and more enterprises choose the business mode of foreign-related Original Equipment Manufacture(OEM).Because of the special trade mode,the trademark disputes have become a thorny legal problem in the theoretical and practical circles.Since the"Nike" case happened more than 20 years ago,the dispute on trademark infringement cases of foreign-related OEM have never stopped.Due to the legal blank in Chinese trademark related laws,scholars have expressed their opinions on this issue for many years,but no consensus has been reached yet,and the attitude of judicial practice towards it also presents unstable changes.Use is the life of trademark,throughout the whole process of trademark acquisition,maintenance and infringement protection.The identification of the use of trademark in this kind of infringement case is the focus of disputes between Chinese intellectual property theory and practice circles.In-depth analysis of the use of trademark is the key point to crack such cases.Therefore,in combination with the basic principles of the use of trademark system,this paper will focus on the discussion of which factors should be considered in infringement cases of foreign-related OEM,whether the processing party’s behavior meets the conditions for the identification of the use of trademark,and the status of the use of trademark in trademark infringement.Based on the above problems,this article will start from the essential functions of the use of trademark analyze the legal basis of the concept of the use of trademark,combine with the current judicial status and the national conditions of the development of foreign trade,and put forward corresponding suggestions so as to solve the predicament of the use of trademark recognition in such cases and realize the maximization of legal and economic benefits.Specifically,this paper mainly discusses from the following aspects.First of all,the definition,behavioral elements and related trademark infringement issues of foreign-related OEM are clarified,and the research object of this paper is the recognition of the use of trademark.Secondly,by analyzing the different recognition ideas of foreign-related OEM between trademark infringement typical cases and cancellation of trademark non-use for three years typical cases,this paper analyzes the current difficulties of judicial organs in handling such cases,summarizes the evolution of their hearing ideas over the years with the attitude of the Supreme Court as the main line,and explores the reasons for the different recognition of the use of trademark.Thirdly,taking the essence of the use of trademark as the starting point,combined with the relevant regulations of the use of trademark in China,the United States,the European Union and Japan,the current disputes and different views on the issues related to the identification of the use of trademark are summarized.Finally,according to the focus of the dispute,the author puts forward some suggestions on trademark identification under the background of foreign-related OEM mode,and clarifies the identification method of the use of trademark in this kind of infringement judgment.