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Study on the problem of trademark disputes in the licensing process

Author: FengXiaoWei
Tutor: CaiBaoGang
School: Yangzhou University
Course: Civil and Commercial Law
Keywords: OEM trademark use confusion infringement of trademark
CLC: D923
Type: Master's thesis
Year: 2011
Downloads: 35
Quote: 0
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Based on the deepening of economic globalization, the licensing process has become one of the China’s rapid developments of emerging industries. Then many small and medium enterprises in coastal areas of China are currently engaged in the licensing processing business. However, our laws do not explicitly on the licensing process regulations. Additionally, these companies started late and they are lack of legal awareness. In this case, the intellectual property disputes, caused by the licensing process, occur frequently and most notable is the trademark disputes. At present, the judiciary tends to identify the current set of licensing process is a tort. Actually, there are a lot of disputes about this in the theoretical circles. The focus of such trademark disputes is the licensing process in the processing side of the OEM whether acts of trademark sense of "trademark use" and for the processing of brand whether the case should be processed by confusion theory as a principle. The focus of such trademark disputes in the licensing process is whether OEM belongs to the "trademark use" according to the Trademark Law and whether confusion theory as a principle should be used as a principle when it comes to the OEM cases. Ambiguous laws in some certain areas put those small and medium enterprises, depending on the licensing process, into dilemma, which is harmful to the development of enterprises and national economic growth. Therefore, theoretical and systematic analyses in terms of licensing process are very necessary. At present, China theoretical circles for this type of trademark disputes only focus on the case discussion, and there is no theoretical and systematic analysis. In this paper, the causes of trademark dispute would be analyzed. Moreover, based on the trademark infringement theory and actual type of the licensing process, the licensing process will be regulated in order to benefit such similar cases later on.In the study, the trademark dispute will be discussed in four aspects.Firstly, the concept and features of the licensing process would be introduced not only in board way but also in narrow way. However, the narrow sense would be mainly discussed in the paper, which is domestic processing by accepting foreign processing of orders for its products and attaching labels to the final product which would be delivered to the hirers who take care of the sale part, the nature is processing contract. On this basis, different types of licensing process would be separately elaborated.The second part mainly focuses on the comparison of cases, reflecting the different results regarding to the judicial dispute cases of licensing process in order to sum up the focus of trademark disputes, the definition of OEM and whether the court should use "confused" as a decision basis. Preliminary analysis of the points in the dispute also leads to the thinking of regional problem.In the third part, the focus in the last part would be analyzed theoretically. In the first place, OEM is identified. OEM on the processing side does belong to the "commercial use" based on the trademark law. According to the purpose of the Trademark Law in China and regulations of "commercial use" in the other countries, trademark sense of "use" must be in business practices or for the purpose of selling. While processing side of OEM is partly fulfilling its obligation, which does not meet with the features of sell. Secondly, according to the comparison of standards between trademark infringement in China and abroad, the confusion, in trademark infringement theory, would be given the core position; the licensing process cases would be judged by public perspective and guided by principles.Last but not least, some new ideas would be raised after summarizing the first three parts. Firstly, fault liability should adhere to the principles of trademark infringement. Moreover, the relevant laws and regulations should be adjusted accordingly. In this case, based on the specific types of licensing process and staring from situation of right in foreign countries, the trademark disputes would be regulated in China.

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