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Foreign "OEM" contract shall remain applicable trademark law of China

  the moment, foreign OEM (OEM, commonly known as "OEM") violations of registered trademarks in China, China's trademark law do apply theoretical problem more urgent problems in practice. OEM contracts, contractor pursuant to order products of foreign companies in China, all the products are exported, not sold in China, China's producer's name does not appear on the product. This situation is governed by the laws of China, namely whether the OEM may violate trademark rights in China, has a different understanding of the industry.
the fact that it does not constitute an infringement, on the grounds that the contractor, China is not the trademark owner without using trademarks to identify its goods does not constitute a trademark law of China "commodities on" does not belong to China's trademark law in the sense of business transactions. So foreign OEM-like behavior, should not be made under the trademark law of China, found a violation of trademark rights in China. Also, this type of contract is a processing contract, object is a pure product of the production process, is not a commodity in the trademark sense, related products to overseas destinations, into a commodity in the trademark sense.
in my opinion, these ideas will be trademark infringement is limited to direct infringement, trademark law applies only to the extent the circulation, so it is worth looking into. In fact, China's trademark law entirely suitable for foreign OEM contracts.
a. China trademark law ban anyone without license using registered trademark
China trademark law 52nd article main paper provides: "has following behavior one of of, are is violations registered trademark dedicated right", which 1th items was finds for violations registered trademark dedicated right of behavior that for "without trademark registered people of license, in with a commodity or similar commodity Shang using with registered trademark same or approximate of trademark of". That is, the 52nd article main text of the trademark law and the 1th and not be prohibited subject to further qualification, that is, not restricted "in their commodities on the" constitute trademark infringement. So, in OEM contract relationship, Chinese manufacturers, although not the trademark owner without the trademark to identify its business, but still cannot escape the framework of trademark law article 52nd, similar behavior still belongs to trademark infringement.
II. apply the provisions of the trademark law of China article 52nd 1th production
China's trademark law provisions 2nd 52nd: "violations of the right to exclusive use of a registered trademark goods on sale" constitutes trademark infringement. This standardized, clearly aimed at circulation. By contrast, the provisions of the trademark law article 52nd 1th one of the specifications of, clearly aimed at the production area.
trademark in any country, not only to adjust for commodity circulation, and also adjust for commodity-producing areas. Trademark owner not only has the right to license others to sell logo merchandise, also has the right to license others to produce trademark goods. The right to authorize others to producing trademark goods, are trademarks of basic human rights, is a major source of licensing revenue. No person shall, without permission of the trademark shall not at the same, the process of the production of similar goods, use of a registered trademark, even if it is for the production of others.
last year, in national range within carried out of combat violations intellectual property and producing fake commodity special action in the, Supreme People's Court had released had simple production field in the trademark crime of criminal case: accused maijianxing without "ZIPPO" registered trademark all license, in its business of Zhongshan Dongfeng card road metal products factory processing "ZIPPO" lighter shell, accessories, and delegate Zhongshan Xiaolan town Lilian hardware processing shop in above lighter accessories Shang with laser printed "ZIPPO" Graphic identity, rental after rental housing parts are assembled into finished products and packaging and storage. Final maijianxing was sentenced to 5 years imprisonment, and fined 1 million Yuan.
such cases clearly state that in our country, as long as it is without permission from the trademark registration, in the same kind of goods or similar goods using the registered trademark identical with or similar to the trademark, even if no sale, only production, also constitute trademark infringement violations and even criminal behavior, without the need for sales and export cooperation.
. "on the product" is not
the scope of protection of the trademark law trademark law article 52nd 1th prohibited "under the same, similar goods used" trademark, only registered trademark protection under the scope of goods, namely, trademark protection is limited to "equal or similar goods" and not "different, not similar goods." In fact, this is the category in the delineation of the infringing goods, instead of requiring the scope of application of the trademark law.
China trademark law 52nd article main paper of provides is "has following behavior one of of, are is violations registered trademark dedicated right", here of provides is trademark law applies of range, that regardless of is production, and sales, and warehouse, and transport, and mailing, and agent import and export, and provides loan, and funds, and account, and invoice, and proved, and license documents of, without trademark right people license using registered trademark of, are constitute trademark infringement.
, technical regulations for infringing goods category rising for the scope of application of the provisions of the trademark law, there is no legal basis.
IV. processing contracts at least constitute contributory infringement
2nd paragraph of China's trademark law practice 50th article: intentional infringement of a registered trade mark the exclusive right to provide warehousing, transportation, mailing, concealing facilities belonging to acts of violations of the right to exclusive use of registered trademarks.
Supreme People's Court, and highest people's Procuratorate on handle violations intellectual property criminal case specific application legal several problem of explained 16th article provides: knows others implementation violations intellectual property crime, and for its provides loan, and funds, and account, and invoice, and proved, and license documents, or provides production, and business places or transport, and store, and agent import and export, convenience conditions, and help of, to violations intellectual property crime of accomplice punished.
Help on trademark infringement in China, help crime constitutes infringement, relevant provisions of common crime. Involving a variety of business practices, which can produce the contract, as provided in the contract, business location, contract warehousing, transportation, mailing, concealing, import and export agent and so on. The common characteristics of these contracts is that are unrelated to production of trade mark goods; can be said only for the production of "product" rather than as a commodity, provides warehousing, transportation, mailing, concealing, import and export agency services; contract provided in the Labour Party are not in own use the registered trade mark on goods, but still can constitute infringement, a common crime. Reasons are subjective, and subjective fault of tort knew or should have known each other; objectively, have helped the actual behavior. These two points, in the OEM contracts, too.
compared to the storage, warehousing, transport contracts, processing contracts in the provision of services are the same, service providers are not trademark owners, but knew or should have known the warehousing, transportation, storage, mail is a trademark of infringing products, constitute contributory infringement, infringement.
but closer to processing contracts and commodity trading. Storage, warehousing, transportation, and production, OEM, or even nothing, but processing contract involves not only providing labor and deliver tangible outcomes; processing contractor are direct logo, used in the commodities and their packages, so processing the contractor liable, guarantee the products and do not violate trademarks, intellectual property rights in China.
OEM relationship, processing contractor, China is a Chinese legal person, whose only to comply with Chinese law. According to Chinese trademark law, within a reasonable range of their obligation to review its product trademark violations of trademark rights in China. If you knew or should have known the infringement, but production still or continue to produce at least constitute contributory infringement, regardless of whether the foreign company provide proof of foreign trademarks. Otherwise, there will be such a strange thing, foreign OEM, foreign trademark rights are legal rights and China's trademark law, trademark registered in China had no effect on Chinese enterprises.