Research On The Problem Of OEM Processing Of Trademark Infringement

With the development of economic globalization,States trade barriers have been broken,According to Ohlin’s factor endowments theory,China,as a labor-intensive country,should export labor-intensive products.Since the policy of reform and opening being carried out,China has adopted the export-oriented strategy,to develop labor intensive industries.Due to the low labor costs in China,OEM processing trade has been developing rapidly,especially foreign OEM.OEM processing trades not only promote China’s economic,but also solve many social problems of employment.The development of foreign OEM brought the benefits to China’s trade,but also triggered a series of trademark infringement.At present,the practitioners and theorists have relatively large differences in the recognized standard of trademark infringement in foreign OEM,Judicial practice in such cases has very different judgment,so it’s really urgent and necessary to solve the problem.As the relevant provisions of trademark infringement has changed in the third amendment to the Trademark Law,In this paper,the trademark infringement issues in foreign OEM are analyzed from the perspective of the new trademark law.In a narrow sense of the word,Foreign OEM refers to that the domestic processing party accept the commission of foreign trademark rights,processed products and attached to the foreign trademark logo,all products were sold abroad,the domestic processing party was paid in accordance with the contract.Foreign OEM is essentially a behavior contract processing,which is conformed to the legal characteristics of processing contract.China’s laws and regulations constitute of foreign OEM trademark infringement is not clearly defined,New trademark law about the provisions of the use of trademark,which was to make the further explanation and in trademark infringement introduced "likelihood of confusion",was of great significance to solve the foreign OEM trademark infringement problem.This article starts from the current situation of foreign OEM trademark infringement,then analyses the customs status and trademark infringement judicial situation of foreign OEM and reference to the views of scholars on this issue.By analyzing the case of trademark infringement and referring the scholars’ opinions,we can find the main disputes are concentrated on that whether a conduct constitutes trademark infringement are owing to the use of trademarks,the geographical nature of the trademark,likelihood of confusion,damage,etc.In the following,to solve the problem,this article makes a legal analysis of the effect of the use of trademarks,the geographical nature of the trademark,likelihood of confusion,damage and the balance of interests,and on this basis,this article proposes strategies about foreign OEM trademark infringement problems from the perspective of the judiciary,law enforcement agencies and enterprise.