Research On The Identification Of Trademark Infringement Involving Foreign Oem Processing

Foreign label processing is a domestic processing party in accordance with the requirements of the foreign commissioner,the trademark attached to the processing and manufacturing of goods,the domestic processing party will be delivered to the foreign commissioner,not in domestic circulation of an international trade mode,the essence of the two sides is a processing contract relationship.The results of the adjudication of trademark infringement involving foreign labeling and processing vary greatly,and the problems identified in judicial practice are whether the labeling and processing is a trademark use,whether the trademark use should be the antecedent element of trademark infringement,how to clarify the status of the possibility of confusion,and how to identify the scope of the "relevant public";Whether "duty of reasonable care +substantial damage" is an appropriate criterion for determining trademark infringement in relation to foreign labeling.After analyzing the elements of infringement of foreignlabeled processing trademarks one by one,we provide the theoretical basis for solving the disputes arising from this issue.In addition,by drawing on the foreign regulations on the determination of infringement of foreign-branded processing trademarks,a clear explanation of trademarked use is provided;in the process of considering the possibility of confusion,a multi-factor judgment method can be adopted.Based on the actual situation in China,the legislature should distinguish the different situations of trademark use and clarify the status of the possibility of confusion.The judiciary should unify the criteria for judging the use of trademarks and adopt comprehensive factors to determine the likelihood of confusion.Finally,as a law enforcement agency,Customs should establish a case information system shared with the court and a system of preexamination of intellectual property rights of goods in order to avoid many unconscious infringements.