A Study Of Trademark Violation In Foreign-related OEM

As China's reform and opening policy, export-oriented economy has become an important part of our economy. In international trade, foreign-related OEM is one of major trade patterns in China. As a cheap labor costs in developing countries, the number of export processing enterprises has rapidly increased, especially in the Pearl River Delta and Yangtze River Delta and the eastern coastal. China has become an important production base of the world's processing. In this case, companies often use foreign OEM business. However, foreign-related OEM often involves the use of trademark, and it can easily lead to trademark infringement dispute. It is an urgent to solve such problems in judicial practice. So it will be discussed in this paper.According to the foreign-related OEM 's real case of trademark infringement, this paper studied the the main reasons of infringement and non-infringement, and analyzed the material elements of trademark infringement ,"trademark use"legal issues and so on. In this paper, it proposed that solving the legal dispute should consider three aspects, including a reasonable explanation to China's"Trademark Law"Article 52(1), business customs administrative punishment and judicial convergence, and the different situations taking a different approach.This paper is divided into three parts: introduction, body and conclusion.The introduction parts briefly introduce the purpose and significance of this paper.The body parts are divided into three chapters.In the first chapter, the author focused on judicial practice caused by OEM typical cases of trademark infringement, and analyzed the main reasons and controversies of"Nike Case","RBI Case"and"JOLIDA case". And then the author pointed out that the cause of debating in the academic and the court is that they understood differently in"without the trademark registrant's permission, others use the registered trademarks in the same goods or similar goods, and same or similar trademarks"and"it may lead to consumer confusion or mistake".In the second chapter, the author straightly proposed that processing of goods and marking with the same trade marks registered trademark should not be recognized as a trademark infringement. In order to further enrich the view, the author demonstrated on three aspects, including"processors marking trademarks is not significant use in trademarks law","may lead to consumer confusion or mistake is the necessary condition of Trademark Law 52(1)"and"identifying infringement of this actions is not conducive to economic development". In this chapter, the author theoretically analyzed the purpose and functions of trademark. Meanwhile, the author also analyzed the status of the foreign processing trade and the existing legal provisions.In the third chapter, the author put forward recommendations for the second chapter. At first, the author pointed out that the Article 52(1) of"Trademark Law"should apply"likely to cause consumer confusion or mistake," as constituting "Trademark Law". This can completely solve the processing enterprises of heavy duty of care. Secondly, the author proposed to amend the foreign trade-related laws and regulations. At last, the author suggested to guide and regulate the OEM enterprises to improve awareness of intellectual property rights.Conclusion parts give a general summary to the this paper. The author once again stressed that the OEM enterprises'action does not constitute infringement.