The Research Of The Trademark Infringement Of The Foreign OEM

With the development of the economic, the industry of processing has surpassed Japan to be the second country. There is substantial growth in the export to a large extent by the OEM,however the cases of the trademark infringement have increased gradually day by day. The topic of trademark infringement has become the focus of public under the wave of the financial crisis and the transformation in manufacturing. Many scholars and practitioners have appeal to legitimate the OEM and redefined the use of trademark by the law of trademark which would be modified for the third time. They proposed that the trademark infringement should be judged by the theory on confusion of trademark, what a pity it is still considered violate his right in the trademark because of our current law and conditions. The highest court of people as well as announced that the trademark infringement would be refereed by the fifty-two article of the law of trademark, regardless of the confusion of the citizen and the mind when he is producing the product. And the fault of manufacture just would be the reference in determining the responsibility. China not only the power in processing is strong, but also in faking and copying which has been criticized time to time. The industry of manufacturing would be turned as the scapegoat and our nation would be the basic of faking and copying. If the law consider the OEM as illegal without worrying the duty which as long as the trademark is authorized in any other country. Totally, in the author′s opinion, judge the infringement of the trademark should distinguish the different situation. There is important significance in the theory and the practice that Judge the trademark infringement with a rational attitude which combine the level of intellectual with the policy of the trade. The author has emphasized on the point such as the region of the trademark, the elements of infringement and the reason of defense. The paper would be analyzed with the method of induction, contrast and the illustration thought the principal and cases, at last it will give some advice from Legislation and the policy. Its purpose to finish this paper is to deepen the understanding of people to the trademark infringement.In addition to the introduction there are four parts in the paper, as following:PartⅠOutline the situation of the OEM. The first step is to introduce the history of produce and the development. The second step is to classify the OEM by the base which the principal has the right in his country or not, and then decide what the type is to be discussed in the paper. The third step is to analyze the feature of the OEM.PartⅡCompare the native legislation and the practice with the foreign country by the cases. To propose the controversy which come from different field and the related problem through the analysis of the cases.PartⅢAnalyze the theory of the OEM .The first part is about the legal issue of the behavior, including the relationship of the subject, the implication about the use of the trademark as well as the differences with others conduct. The second part is to research the standard of infringement, including the premise, foundation, responsibility and so on. The third part is to define the liability by the party's fault. The fourth part is to release the author's view on the basis of the above mentioned analysis.PartⅣPut forward the advice from the legislation and the policy which combine with the current condition and the status.