Policies And Regulations: Trademark Infringement Analysis Of Foreign Clothing OEM Processing

Since the reform and opening up, many enterprises in Guangdong, Fujian, Zhejiang and other places in China have made OEM processing for foreign enterprises in accordance with the "three to one subsidy" trade mode, and achieved considerable economic benefits. P

After decades of development, China has become the "world factory" of global OEM processing and has made great contributions to China's export trade.

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< p > according to statistics, China's textile and garment exports account for 20% of the total world textile and clothing exports, of which 90% are exported by OEM and 10% by independent brands.

It can be seen that the OEM plays an important role in China's clothing export.

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< p > however, there are many trademark infringement disputes in OEM.

In particular, the legal nature of the use of trademarks in OEM processing is controversial in academia, business circles and the judiciary. In practice, the results of similar cases are quite different, making it difficult for clothing enterprises to predict the legal consequences of OEM processing.

To a large extent, this situation has troubled the development of China's garment OEM industry.

It is the third revision of the trademark law. It puts forward the analysis viewpoint to teach the readers.

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< p > > strong > 1, < /strong > a href= "http:// http://www.91se91.com/news/list.aspx Classid=101112107102" > strong > foreign clothing < /strong > < /a > > strong > OEM.

< p > OEM processing, also known as "licensed processing" and "OEM", means that the processing party is dependent on the processing and production of the product that is attached to a specific trademark, and the product is delivered to a given party, and the trade method of processing fees is collected from the ordering party.

Narrow OEM refers to the OEM mode. Generalized OEM processing can also include ODM, OBM, reverse OEM processing and so on.

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< p > China's trademark law fifty-second provides the types of trademark infringement, which can be summarized as the use of infringement, sales infringement, identification infringement, reverse passing off and other infringement.

Among them, the use of infringement is the most controversial.

There are basically several types of infringing situations in foreign clothing OEM processing.

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< p > (1) the authorized person has no registered trademark inside or outside the country, but entrustment the domestic processing party to carry out the OEM processing; < /p >

< p > (2) the ordering party does not have a registered trademark in China, has registered trademark abroad, and entrust the domestic processing party to sell the OEM processing clothing in China.

There is no dispute about the above 2 cases of trademark infringement; < /p >

< p > (3) the most important and most controversial form of processing in China's clothing enterprises is the most important and most controversial form of processing. The basic characteristics are: (1) the fixed party is an overseas enterprise or individual; the processing party is a domestic garment enterprise; the contract has the nature of foreign affairs; second, the trademark of the fixed party is wholly or legally authorized by foreign companies, but has not been registered in China; (3) the same or similar trademarks have been registered by others in the same or similar commodities in China;

Whether this kind of OEM is a trademark infringement has not been established for many years in academia, business circles and the judiciary.

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< p > < strong > two, main points and cases < /strong > < /p >

< p > 1. finds that the typical cases and reasons for trademark infringement constitute < /p >.

< p > typical cases of trademark infringement in foreign clothing OEM processing are the cases of trademark infringement of Nike company, Spain CIDESPORT company, Zhejiang livestock import and Export Corporation and Jiaxing Yin Xing garment factory because of processing NIKE men's ski clothes.

After 2 years' trial, the Shenzhen intermediate people's court ruled that the US Nike company is the exclusive right holder of Nike trademark in China, and no one in China can infringe on its exclusive right to use the registered trademark.

Although Spanish Company has the exclusive right to trade mark NIKE in Spain, the trademark of Nike company of the United States is protected by Chinese law based on the regionality of trademark.

The three defendants were judged to be infringing, the Spanish Company paid 200 thousand yuan for damages, the Zhejiang import and export company made a compensation of 40 thousand yuan, and the Jiaxing garment factory compensated 60 thousand yuan.

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< p > 2. does not constitute a typical case and reason for trademark infringement. < /p >

The typical case of "P >" does not constitute infringement. It is a lawsuit affirming the trademark not infringement by the Wuxi International Trade Co., Ltd. v. Hongkong Pudong New Area fish Co., Ltd., which was judged by the court of Pudong New Area, Shanghai in 2010.

First instance verdict: confirming that the use of "Crocodile and map" and "CROCODILE" trademarks on the cotton woven ladies' jeans exported to South Korea does not constitute infringement of the exclusive right to use registered trademarks.

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< p > 3. difference, < a href= "http:// http://www.91se91.com/news/list.aspx Classid=101112107107" > trademark infringement < /a > affirmation view < /p >

< p > for foreign related OEM processing parties who use the same trademark on the same commodity, they shall be deemed to be infringing.

Those who use the same or different trademarks on different commodities or use different trademarks on the same or different goods will not be deemed to constitute trademark infringement.

Because the products processed by OEM are not sold in China, there is no possibility of confusion among domestic consumers, and the law does not identify them as similar commodities. At the same time, OEM products are different from domestic registered trademarks. Under the circumstances of all export products, domestic consumers are not likely to be confused, and are not legally recognized as similar trademarks.

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< p > < strong > three, the legal boundary of trademark usage in foreign garment OEM processing < /strong > < /p >

< p > 1. is the identification of trademark infringement based on confusion? < /p >

< p > the basic function of trademark is to distinguish the similar goods or services provided by different operators, so as to avoid consumers' misidentification.

With this function, the trade mark will be meaningless except for decoration.

Therefore, the principle of confusion is a basic principle peculiar to trademark law.

The World Intellectual Property Organization (TRIPS) and the vast majority of countries have taken the "consumer confusion" as the most basic criteria for trademark infringement, such as the "Lanham law", the European Union's trademark law and the Trademark Law of the India.

The eighth provision of China's trademark law stipulates: "anything that distinguishes the goods of natural persons, legal persons or other organizations from those of others."

Logo,...

It can be applied for registration as a trademark. "

Indicating that indistinguishes can not be applied for registration of trademarks, which is a generalization of the basic functions of trademarks.

However, in the fifty-second and 1 paragraphs of the trademark law, the tort law is specified by enumeration: "without the permission of the trademark registrant, the trademark which is the same or similar to the registered trademark on the same commodity or similar commodity is a violation of the exclusive right to use the registered trademark."

That is to say, "use" trademark without the permission of the trademark owner can identify infringement, whether or not it leads to confusion.

Obviously, the "trademark law" does not lead to "consumer confusion" as a necessary condition for infringement.

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< p > under the framework of China's current trademark law, most of them support the recognition that trademark infringement is not caused by confusion, such as the fifty-second article and first paragraph of the trademark law, and the opinions of the Supreme People's Court on Several Issues concerning the overall situation of the intellectual property trial service under the current economic situation (2009). It is clear that the infringement does not need to take into account the confounding factors. The notice on trademark management in foreign trade (1995) also mentions that infringement is not identified as confusion.

Although the judicial interpretation of the Supreme People's court in 2002 interpreted the "misunderstandings of the relevant public" as an important element to identify certain trademark infringement acts, "confusion possibility" is limited to judging whether the goods are similar or similar to trademarks, rather than the conditions for infringement.

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< p > trademark infringement, regardless of its form of expression, is essentially a direct or indirect damage to the function of trademark recognition. Therefore, it is necessary for the relevant public to confuse or possibly confuse the source of the product, so as to determine whether it constitutes a necessary standard to infringe trademark rights.

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P > the regional principle of "a href=" "http:// http://www.91se91.com/news/list.aspx? Classid=101112107101" > intellectual property "/a >", only goods in a country's circulation can be used to constitute trademark infringement.

In the processing of foreign clothing OEM, garment processing enterprises will sell all the OEM garments authorized by law to foreign countries, and there will be no trade practices in China. The relevant public will be exposed to the product in the domestic market and will not be confused or misidentified with the registered trademarks of their trademark owners. Therefore, they should not be regarded as infringing.

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