| In the past decades,foreign-related OEM has become an extremely important form of China’s participation in international division of labor and cooperation,although it has played a great role in promoting the development of China’s economy,trademark infringement problems caused by it are common.However due to the domestic academic circles and judicial decisions related to foreign-related OEM,it is difficult for all parties to unify their attitudes towards whether the act infringes upon the legitimate rights and interests of the trademark owner,meanwhile the transformation of economic development in our country at present is under process,and the intellectual property rights protection strengthen ceaselessly with great importance attached,under the background of the globalization of e-commerce and the deepening of world economic exchanges,foreign-related OEM will still exist for a long time,how to correctly determine whether this act constitutes trademark infringement is very important to safeguard domestic processing party,domestic trademark owner and national economic interests.Based on the analysis of the main problems involved in the trademark dispute,this paper in order to clear the legal nature of foreign-related OEM,clarify whether it meets the requirements of the trademark infringement,puts forward suggestions on the perfection of the relevant specification by collecting and sorting of 78 judicial decisions which are eligible for foreign-related OEM in recent years,and combined with the relevant provisions of the trademark law in our country.In addition to the introduction and conclusion,this paper mainly includes five sections.The first section,through the understanding of the concept of foreign-related OEM,making clear its legal nature,pointing out the scope of the dispute to be discussed in this paper,and eliciting its predicament in judicial application which from the statistical judicial cases with the related different judicial requirements of their application.The second section,the behavior of trademark use is prerequisite to constitute trademark infringement,and through the regulations about the use of the trademark on the extraterritorial trademark law and the trademark law in our country,to analyses the behavior of trademark use in the processing of foreign-related OEM,then it is concluded that the behavior of the trademark use does not conform to the sense of use behavior in trademark law,meanwhile puts forward suggestions on the perfection of legal norms.The third section,on the basis of understanding the trademark use,through the introduction of the related regulations about confusion in the trademark law,to analyses the processing behavior of foreign-related OEM from the subject and field of confusion,then it is concluded that this behavior will neither lead to the relevant public confusion,nor constitute a trademark infringement,meanwhile puts forward the suggestions to perfect the theory of norms.The fourth section,one of the main reasons that domestic processing parties were identified as a trademark infringement is that they failed to exercise the "reasonable duty of care" in numerous judicial decisions,in fact by the civil law and intellectual property law in the analysis of the "reasonable duty of care",it is essential to determine liable for damages,but not as decision criteria for whether foreign-related OEM constitute trademark infringement or not.Considering the necessity of " reasonable duty of care" in legislation and judicatory,it should be considered as a factor to determine indirect infringement.The fifth section,in addition to the judicial practice according to the main recognition requirements to determine that foreign-related OEM does not constitute trademark infringement,under the specific needs of special circumstances,it is suggested that the court can reasonably apply the relevant recognition rules to determine the case constitutes trademark infringement,so as to balance and safeguard the interests of relevant operators and the country. |
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