New Regulations On Trademark Registration And Processing

The use of OEM is essentially a kind of trademark licensing practice. From the contract law, it can also be considered that this behavior is only a contractual obligation of the contractor in processing the contract.

If the act is identified as infringement, the domestic processing enterprises are faced with the embarrassing situation of being accused of infringement, and must be bound by the contract to bear the liability for breach of contract, which will produce very unfair results.

From the point of view of foreign trade, it will also be harmful to China's processing enterprises to undertake foreign trade processing business, and will affect the development of foreign trade.

To sum up, for the use of OEM, it can not be judged as infringement in judicial practice.

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The basic role of itself is to distinguish the source of goods or services from the confusion of the relevant public or consumers.

Therefore, trademark must be significant. Most of the behaviors that confuse consumers easily are suspected to infringe the exclusive right to use registered trademarks.

"Confusion" or "confusion may" is the identification of trademark usage.

Boundaries.

The judgment of trademark infringement in China is based on confusion theory.

In the practice of judicial practice and administrative law enforcement, it is often encountered how to identify "confusion", such as deciding whether a licensed processing act constitutes a trademark infringement.

In determining whether the use of action constitutes a "confusion", objectively speaking, on the one hand, use the same.

Trademark, the law directly presumed that the act necessarily constitutes confusion. On the other hand, whether the use of the approximate registered trademark constitutes a "confusion" needs to be investigated in combination with various factors, such as the approximate degree between the trademarks, the difference and popularity of the goods, etc. subjectively, it is necessary to misunderstand or mislead the relevant public before it can be judged as infringement.

As mentioned before, the licensing cooperation relationship is actually a trademark licensing contract, and there are two opinions on whether the OEM usage constitutes infringement.

One view is that infringement is caused by the fact that the use of OEM is objectively the use of the same trademark on other commodities, which will cause consumers' misidentification and confusion.

Another view is that it does not constitute infringement. The reason is that the licensed products have not yet entered the circulation field, but only exist in the production and processing links, not to mention consumption. Therefore, it is believed that there is no basis for causing consumers' misidentification and confusion.

However, enterprises should develop their own brands and not rely on the brand's luck to develop.