A Study On Trademark Infringement Determination Of Foreign-Related Original Equipment Manufacturing

With the continuous development of foreign trade,such disputes occur frequently in the business model of foreign-related OEM trade.From the “NIKE” trademark infringement case in 2001 to the “HONDAKIT” trademark infringement case in 2019,the determination of trademark infringement has not been finalized.The judiciary’s attitude towards such cases has been changing,from infringement to noninfringement to compromise to infringement.It not only affects China’s judicial authority,but also hinders the development of China’s foreign economy and trade.The theoretical research and discussion on this issue has never stopped,and scholars have elaborated their own views from different perspectives and come to different opinions.This paper will analyze and study the issue around the basic principles of trademark law.This paper takes the essence of trademark use as the base point,analyzes the relationship between trademark use and trademark infringement from the perspective of the function of trademark,consumer awareness,trademark protection and the difference with the likelihood of confusion.And then the paper defines trademark use as the commercial use of trademark to establish an economic connection between goods and trademarks.On this basis,this paper will analyze the influence of the territoriality of intellectual property rights on trademark use.And this paper will make a conclusion that the use of a mark by a processing party in foreign-related OEM does not constitute trademark use.The second problem is the application of likelihood of confusion in the determination of trademark infringement,i.e.,the relationship between the likelihood of confusion element and the similarity element,and the application of the likelihood of confusion standard in the case of dual identity.In this paper,the behavior of foreign-licensed processing is discussed in different situations to analyze from the perspective of direct trademark infringement and indirect trademark infringement.Lastly,the paper concludes that foreign-related OEM does not constitute either direct or indirect trademark infringement,but there are exceptions.If the processing party exceeds the content of the commission contract and sells the processed goods with the trademark in China,it will constitute direct trademark infringement.And if the processing party knows that the commissioner will sell the goods back to China when it accepts the commission,it will still carry out the processing under a fixed license,which will constitute indirect trademark infringement.Whether a behavior is infringement not only involves the basic principles of trademark law,but also is affected by various factors of policy.There is no shortage of foreignrelated OEM trademark infringement determination by a variety of policies,but the essence should return to the basic issues of trademark law.The special nature of the trade mode of foreign-related OEM does not change the rules of trademark infringement determination.The foreign-related OEM behavior should be evaluated whether it constitute trademark use,and then the infringement should be determined according to the confusion possibility standard.In addition,the application of the principle of territoriality of trademark rights should be embodied as a restriction on trademark use rather than the recognition of the relevant public.