The Study Of Criteria For Judging The Infringement Of Trademark In OEM Concerning Foreign Parties

As OEM concerning foreign parties industry has being developing in southeast coast China, the problem of trademark infringement related to OEM is growing in judicial practice and academia as well. From 2000 to 2008, all the courts of Southeastern Coast China have heard many such cases. The focus of controversy for the cases on the author statistics and analysis is that different court has different criteria for judging the infringement of trademark, resulting in various decisions in such courts. From the perspective of theoretical research, the doctrine of trademark confusion is the dominant ideology of criteria for judging the infringement of trademark at home and abroad, the doctrine of trademark confusion which is employed in the field of OEM concerning foreign parties not only facilitate the operation of justice, but also is benefit to Chinese OEM industries. From the perspective of balance of interests, Chinese GDP growth has depended on foreign trade, and processing trade accounts for the major part of foreign trade, confusion theory as criteria for judging the infringement of trademark helps maintain Chinese advantage in foreign trade. From the perspective of judicial practice in China, the judicial application extended the like and approximate of Article 52 1) of Trademark Law to the confusion of standards, it has also been supported in the theory and judicial practice. Based on the confusion of standards, in the field of OEM concerning foreign parties, if the trademark of commissioned OEM products abroad and domestic trademark owners is identical or similar, which it will not lead to confusion of consumers, the trademark does not constitute trademark infringement. From the legislative point of view on Chinese Trademark Law, it is necessary that the doctrine of trademark confusion is defined to criteria for judging the infringement of trademark to solve the current chaos judicial practice. base on the doctrine, by introducing a few case the paper will raise some questions; Secondly, it will sort out dispute and idea of these questions of courts at home and abroad, and sum up the lessons and experience of judicial practice; Thirdly, from the perspective of the theory of trademark law, it will identify the criteria for judging the infringement of trademark; Fourthly, from the perspective of the theory of international law, it will analyze our country's obligations in the field of OEM concerning foreign parties, and the affect which the obligations have on the criteria for judging the infringement of trademark; Fifthly, from the perspective of the balance between international trade and intellectual property protection, it will analyze the criteria for judging the infringement of trademark in the field of OEM concerning foreign parties; Finally, from the perspective of the jurisprudential, it will analyze the judicial interpretation and application of the Trademark Law Article 52 1) in practice.