At present, if foreign-related OEM processing (OEM commonly known as "OEM") infringes upon China's registered trademark rights, whether China's trademark law applies is a theoretical issue and an urgent issue in practice. In an OEM contract, the Chinese contractor produces products based on orders from foreign companies. All products are exported and not sold in China. The names of Chinese producers do not appear on the products. The industry has different understandings of whether this situation is governed by Chinese law, that is, whether the OEM may infringe Chinese trademark rights. Some people believe that this does not constitute infringement because the Chinese contractor is not the trademark owner and does not use the relevant trademark to identify its own goods. This does not constitute "use on goods" under my country's trademark law and does not fall within the meaning of China's trademark law. business transactions. Therefore, behaviors similar to foreign-related OEM processing should not be judged as infringement of Chinese trademark rights according to Chinese trademark law. At the same time, this type of contract is a processing contract, and the object is a simple product in the production process, not a commodity in the sense of trademark law. The relevant products are not transformed into goods in the sense of trademark law until they reach the overseas destination. The author believes that these views limit trademark infringement to direct infringement and limit the scope of application of trademark law to the circulation field, so they are worth exploring. In fact, China’s Trademark Law is fully applicable to foreign-related OEM processing contracts. 1. China’s Trademark Law prohibits anyone from using a registered trademark without permission. The main text of Article 52 of my country’s Trademark Law stipulates: “Anyone who commits any of the following acts shall infringe the exclusive right to use a registered trademark,” among which item 1 is deemed to be an infringement of a registered trademark. The act of exclusive right is to use an identical or similar trademark to the registered trademark on the same or similar goods without the permission of the trademark registrant. In other words, the main text of Article 52 and Item 1 of the Trademark Law do not further limit the prohibited entities, that is, there is no restriction and only the use of the trademark on one's own goods constitutes trademark infringement. Therefore, in the OEM contract relationship, although the Chinese manufacturer is not the trademark owner and does not use the relevant trademark to identify its own operations, it still cannot escape the framework stipulated in Article 52 of the Trademark Law. If similar behavior occurs, it will still be considered trademark infringement. 2. The provisions of Article 52, Item 1 of China's Trademark Law apply to the production field. Article 52, Item 2 of my country's Trademark Law stipulates: "Sales of goods that infringe the exclusive rights of a registered trademark constitute trademark infringement." This regulation is obviously aimed at the circulation field. In contrast, one of the key points of the regulations in Article 52, Paragraph 1 of the above-mentioned Trademark Law is obviously aimed at the production field. The trademark law of any country is adjusted not only for the field of commodity circulation, but also for the field of commodity production. A trademark owner not only has the right to license others to sell trademarked goods, but also has the right to license others to produce trademarked goods. The right to license others to produce trademarked goods is the basic right of the trademark owner and the main source of licensing income. No one may use a registered trademark in the production process of identical or similar goods without the permission of the trademark owner, even if it is processed and produced for others. Last year, during a nationwide special campaign to crack down on intellectual property infringement and the production and sale of counterfeit and shoddy goods, the Supreme People's Court issued a criminal case involving trademark crimes in the field of pure production: the defendant Mai Jianxing registered a trademark without "ZIPPO" The owner gave permission to process "ZIPPO" lighter casings and other accessories at the Kalu Metal Products Factory in Dongfeng Town, Zhongshan City, which he operates, and entrusted Liliang Hardware Processing Shop in Xiaolan Town, Zhongshan City to use laser printing "ZIPPO" on the above-mentioned lighter accessories. ? Wait for graphic and text labels, and then assemble the accessories into finished products, package and store them in the rental house. In the end, Mai Jianxing was sentenced to 5 years in prison and fined RMB 1 million. Such cases make it clear that in our country, as long as a trademark that is identical or similar to the registered trademark is used on the same or similar goods without the permission of the trademark registrant, even if there is no sales and only simple production, it will constitute trademark infringement. Illegal behavior or even criminal behavior does not require the cooperation of sales behavior and export behavior.

3. The use of registered trademarks on goods is not within the scope of protection of trademark law. Article 52, paragraph 1, of my country’s Trademark Law prohibits the use of registered trademarks on identical or similar goods. It only stipulates the scope of goods protected by registered trademarks, that is, trademarks. Protection is limited to "identical or similar goods" and does not involve "dissimilar or dissimilar goods". In fact, this is delineating the categories of infringing goods rather than stipulating the scope of application of trademark law. The main text of Article 52 of my country's Trademark Law states that any of the following acts shall constitute an infringement of the exclusive right to register a trademark. The provisions here are the scope of application of the Trademark Law, that is, whether it is production, sales, warehousing, transportation, or mailing , acting as an import and export agent, providing loans, funds, account numbers, invoices, certificates, licenses, or using a registered trademark without the permission of the trademark owner shall constitute trademark infringement. Therefore, there is no legal basis for elevating technical regulations on the category of infringing goods to regulations on the scope of application of trademark law. 4. Processing contracting constitutes at least assisting infringement. Paragraph 2 of Article 50 of the Regulations for the Implementation of my country’s Trademark Law stipulates: Anyone who intentionally provides warehousing, transportation, mailing, concealment and other convenient conditions for infringement of the exclusive right to use a registered trademark is an infringement of the exclusive right to use a registered trademark. Behavior. Article 16 of the Interpretation of Several Issues Concerning the Specific Application of Laws in Handling Criminal Cases of Intellectual Property Infringement by the Supreme People's Court and the Supreme People's Procuratorate stipulates: Knowing that others have committed crimes of intellectual property infringement, and providing them with loans, funds, account numbers, invoices, certificates, Licenses, or providing facilities and assistance such as production and business premises or transportation, storage, import and export agency, etc., shall be punished as criminals for the crime of intellectual property infringement. The above are the relevant provisions in my country regarding trademarks assisting infringement and crimes, constituting same infringement and same crime. It involves a variety of commercial activities, all of which can result in relevant contracts, such as providing production and business premises under a contract, warehousing, transportation, mailing, concealment, and import and export agency, etc. The most common feature of these contracts is that they have nothing to do with the production of trademarked goods; they can be said to only provide services such as warehousing, transportation, mailing, concealment, and import and export agency for the production of products rather than for goods; in the contract Neither party providing services uses a registered trademark on its own goods, but it can still constitute a common infringement and a common crime. The reason is that subjectively, there is the subjective fault of knowing or should have known the other party's infringement; objectively, there is the actual act of providing help. These two points also exist in OEM contracts. Compared with custody, warehousing, and transportation contracts, processing and contracting contracts are the same in terms of provision of labor services. The labor service providers are not trademark owners, but as long as they know or should know that the products being stored, transported, kept, or mailed are trademark infringing products, they will It constitutes contributing to infringement or co-infringement. However, processing contract contracts are closer to commodity transactions. The custody, warehousing, and transportation contracts have nothing to do with the production or branding of the product, but the processing contract not only involves the provision of labor, but also the provision of tangible results; the processing contractor directly uses the trademark on the goods and their packaging. Therefore, the processing contractor is even more legally responsible to ensure that the products produced do not infringe China's trademark rights and intellectual property rights. In the OEM relationship, the Chinese processing contractor is a Chinese corporate legal person, and the only thing it has to abide by is Chinese law. According to China's trademark law, it is obliged to examine whether its product trademarks infringe China's trademark rights within a reasonable scope. If you know or should know about the infringement, but still produce or continue to produce, it will at least constitute contributing to the infringement, regardless of whether the foreign company provides proof of foreign trademark rights. Otherwise, strange things will happen. In foreign-related OEM processing, foreign trademark rights are legal rights; while Chinese trademark law and Chinese registered trademarks have no effect on Chinese enterprises. (Zhang Yurui)