Research On The Problem Of Trademark Infringement Determination In The Reselling Of Used Goods

With the development of the refurbished market,more and more refurbished products are sold with the original trademark,which has caused many trademark infringement disputes.Due to the lack of clear provisions in the law,the courts have different understandings on whether the use of the original trademark to sell refurbished products infringes the trademark right,and there are great differences in the theoretical circles.These disputes not only affect the interests of the parties,but also damage judicial credibility to a certain extent.Therefore,it is necessary to study the issue of trademark infringement determination in the refurbished sale of used goods.In the process of determining trademark infringement for the refurbished sale of used goods,first of all,it is necessary to discuss the legal nature of the use of the original trademark on the refurbished product.Only the use of the original trademark constitutes trademark use may be trademark infringement.Secondly,it is necessary to explore whether there is a possibility of confusion in the sale of refurbished products with the original trademark.The determination of this issue requires the application of confusion theory.Our country has not clearly defined what is confusion and the categories of confusion,In practice,confusion also tends to expand,which leads to different understandings of the possibility of confusion in the theoretical circles and courts,and differences in application.By sorting out relevant cases and analyzing confusion theory,it is found that not all substantive refurbished products will cause confusion if they retain their original trademarks,and not all non-substantially refurbished products retain their original trademarks will not cause confusion.The confusion is related to whether the refurbisher fulfills the refurbishment information disclosure obligation.Finally,it is necessary to analyze the infringement defense reasons for refurbishment sales.The defense reasons for trademark infringement in refurbishment sales cases mainly include the principle of exhaustion of trademark rights and fair use of trademarks.The Trademark Law does not stipulate the principle of exhaustion of trademark rights.Although the theoretical circle and judicial practice mostly think that it belongs to the defense grounds of trademark infringement,because the products have changed after refurbishment and the principle has not been incorporated into the law,because the refurbished products have changed and this principle has not been incorporated into the law,the application of the principle of exhaustion of trademark rights has caused great controversy.Therefore,before the legislation does not stipulate the principle,it is not appropriate to apply the principle alone.In addition,if the original trademark is retained to indicate that some parts of the refurbished goods come from the trademark owner,and the use behavior conforms to the requirements of good faith,reasonableness,and commercial practice,it constitutes an indicative fair use.To solve the problem of trademark infringement determination in the refurbished sale of used goods,first of all,it is necessary to clarify the thinking of trademark infringement,unify the infringement determination standards,and analyze the trademark use,the possibility of confusion,and the infringement defense in turn for the reselling of the original trademark.Secondly,it is necessary to improve the restrictive clauses of trademark rights,expand the scope of legitimate use in the trademark law and add the principle of exhaustion of trademark rights.Finally,administrative regulations can be developed to regulate the use of refurbished signs.