OEM means production on behalf of others. That is, it is produced by the original equipment manufacturer (=original equipment manufacturer), that is, OEM, and then sold under other companies' brands. So it is also called OEM production.

The OEM phenomenon is relatively common in China. It can be understood that OEM is a major trend in the international division of labor environment and the separation of production and sales. But relatively speaking, although the OEM side avoids the distraction of many aspects of sales and can focus on the production of orders, it cannot share the value of the brand.

Thus, in the international division of labor, there is actually still a discrepancy, and the client’s subordinate position. The profit margin is low, such as the Foxconn labor scandal, which can be understood as contract manufacturing. The passive profit is low, which actually sacrifices the rights and interests of most workers at the bottom.

At the same time, the ratio of OEM phenomenon in electronic products is particularly high. For example, the notebook computers produced by Quanta, a famous notebook OEM, accounted for about 30% of the world's notebooks (2005), while Quanta has no own Note brand.

IT data company iSuppli claims that 86% of notebook computers sold worldwide come from China (August 2006 data). But it is mainly produced under the name of Dell, HP and other OEMs.

Attachment:

A brief analysis of trademark infringement in OEM processing

Edit date: 2005-12-2 9:46:33

OEM processing refers to the behavior in which the entrusting party provides the trademark style or trademark logo, and puts forward product specifications and quality requirements, and the contractor processes the products according to the requirements. With the specialization of industrial production and the development of foreign trade, the OEM processing business has become increasingly active, and the number of trademark infringements has gradually increased.

There are various forms of trademark infringement in OEM processing, but they mainly include the following types:

1. In OEM processing, the contractor will use the excess part of the processing quantity or due to quality reasons. The unqualified parts returned by the entrusted party are sold without the permission of the entrusting party. This phenomenon is common. The contractor often thinks that since the client does not accept this part of the product, it will sell this part of the product out of consideration for corporate benefits, resulting in trademark infringement. For example: Fenghua Huada Security Equipment Factory processed special locks for "Yongfa" brand safes for Ningbo Beilun Yongfa Safe (Group) Co., Ltd., but they were returned due to quality problems. Fenghua Huada Security Equipment Factory processed them without permission from Ningbo Beilun Yongfa (Group) Co., Ltd.’s permission to sell this batch of returns to a third party without authorization.

2. In the custom-made processing business, the principal entrusts the contractor to mark the custom-made products with the trademark of others through one or more layers of resale processing without obtaining the permission of the registered trademark owner in accordance with the law. Registered trademark logo. Once an enterprise in a certain link except the top level is seized by the industrial and commercial department, the OEM processing agreement of the upper level will be used to cover up its illegal activities and deliberately create the illusion of legality. For example: the "Montageau" and "Crocodile" shirts processed by Fenghua No. 6 Shirt Factory are entrusted by Hangzhou Emperor Fashion Co., Ltd., which in turn is entrusted by Taiwan Shengtu Clothing Co., Ltd., Shengtu Clothing Co., Ltd. Entrusted by Taiwan Yasen Enterprise Co., Ltd., these companies were unable to provide legal trademark registration documents or license contracts. This form of entrusted processing is used to create the illusion of legality and carry out trademark infringement or counterfeit registered trademark activities.

3. Trademark infringement in the form of foreign trade exports. Some companies use foreign trade lists as a cover to process and produce international and domestic famous brand products. Since it involves foreign trade business, it is difficult and necessary to find out whether the foreign businessman is the registrant or legal user of the trademark and whether the foreign trade business actually exists. For a long period of time, it is difficult for the industrial and commercial authorities to stop this behavior without conclusive evidence, and illegal actors will take advantage of this time lag to carry out trademark infringement activities.

For example: Ningbo Fengda Garment Co., Ltd. was entrusted by Li Guobiao, a salesperson of the Ningbo Branch of Xiangshan Foreign Trade Company, to produce a batch of "crocodile" brand shirts. The party concerned had already woven and printed the trademark logo and clothing tags, but later Li Guobiao did not provide the foreign trade list. And suspend this processing business.

The prevalence of the above-mentioned trademark infringements not only infringes upon the exclusive rights of trademark registrants and disrupts the social and economic order, but more seriously deceives and misleads consumers, seriously damaging the legitimate rights and interests of consumers. . The existence of these infringements depends on the environment in which they survive, and the reasons are also very complex. In addition to the subjective reasons of the infringers, there are reasons from the trademark registrant, and the influence of the consumers themselves. At the same time, there are also factors from the economic environment. Impact, but the main ones can be summarized as the following aspects:

1. Lack of sound legal norms. Since the "Trademark Law" was implemented in 1983, although it was revised in 1993, in the era of rapid economic development, various new situations and new problems have continued to emerge. The Trademark Law only stipulates trademark infringement in general terms, but does not stipulate the specific rights and obligations of the entrusting party and the processing contractor in OEM processing for the use of registered trademarks, resulting in a lack of clarity on the investigation and punishment of trademark infringement in OEM processing. legal basis.

2. Trademark owners or legal users have low awareness, weak power, and improper methods of protecting the exclusive rights of registered trademarks. Although many companies or industries have jointly established anti-counterfeiting organizations, they are not well integrated with government departments, judicial departments and consumer groups. Their anti-counterfeiting actions are one-sided, localized and short-lived.

3. The supervision of law enforcement departments is not enough, and the investigators are afraid of difficulties. Trademark infringement in OEM processing, especially in layer-by-layer resale processing and foreign trade processing business, involves a wide range of areas and spans many regions, making investigation and prosecution difficult and time-consuming. And due to constraints such as local interests, it is difficult to fully implement penalties. Moreover, investigating and handling these cases requires advanced scientific methods, reliable transportation, communication equipment and necessary financial resources. As the trademark administrative department, the industrial and commercial administration agencies lack funds and do not have advanced transportation and communication tools when cracking down on OEM trademark infringements, which brings great difficulties to investigation and evidence collection, and it is difficult to implement the infringement of OEM trademarks. behavioral regulatory functions.

4. The quality of staff within the industrial and commercial departments cannot keep up with the needs of the current economic development, and there is a lack of professional and comprehensive talents. In particular, some professional talents who understand law, foreign trade, commodity inspection, intellectual property rights, accounting, and finance, as well as comprehensive talents with comprehensive analysis, judgment, coordination capabilities, and familiarity with various legal regulations, can handle complex OEM and processing trademark infringement cases. It often feels like I don’t know where to start.

5. The Trademark Law is not sufficiently publicized. Some processing companies purely want to earn a small amount of processing fees and do not want to infringe on trademarks. However, due to their lack of understanding of the Trademark Law, they fail to strictly examine the qualification certificates and trademarks of the client when contracting processing business. Registration certification documents, only relying on the client's production plan and foreign trade list, to carry out OEM processing, resulting in trademark infringement.

To solve trademark infringement in OEM processing, we should start from the following aspects:

1. Pass legislation and improve trademark legal regulations. First, in OEM processing, the entrusting party shall provide legal and valid trademark registration certification documents to the contracting party, and the contractor shall review the relevant trademark registration certification documents as a legal obligation, which shall be determined in the form of legal provisions. In contracted processing business, if a registered trademark is involved, the entrusting party must hand over the valid trademark registration certificate together with the contracted processing business to the contracting processing party. When the contracting processing party undertakes the processing business, it must strictly examine the trademark provided by the entrusting party. Registration certification documents and other relevant materials, and there are clear terms in the processing contract. After the processing business is completed, the contractor should archive the above materials for future reference. Second, the law gives the trademark supervision and management department the right to require the contractor to provide legal and valid trademark registration certification documents within a time limit when investigating and punishing trademark infringements in OEM processing. If the documents are not provided within the time limit, they may be deemed as trademark infringement or counterfeiting of registered trademarks.

In this way, on the one hand, it encourages the processing contracting parties to proactively request and review trademark registration certification documents in accordance with the law to prevent the occurrence of infringements. On the other hand, it also helps the industrial and commercial administration department to promptly identify and investigate trademark infringements during OEM processing. .

2. It is necessary to continue to increase the publicity of the Trademark Law. Through publicity, producers and operators should not only understand the existence of such a law, but also understand what rights and obligations are stipulated in the law, what is prohibited, and what sanctions should be meted out for illegal activities. Since the overall quality of our country's producers and operators is not very high, just relying on one announcement, a few slogans, and publishing a few books and periodicals is far from achieving the purpose of publicity and education. It is necessary to hold training courses, lectures, knowledge competitions and other means, and use television, newspapers, books, albums, calendars, cartoons, comics and other forms to carry out publicity and education so that they can truly understand the trademark law. At the same time, producers and operators are encouraged to provide themselves with legal consulting services by hiring legal consultants to ensure the legalization of their own operations.

3. Registered trademark owners should strengthen the management, use and protection of their registered trademarks, and establish and improve the trademark management system. Strict management must be carried out on a series of tasks such as trademark design, application, registration, printing, storage, issuance, use, change, transfer, licensing, transactions, export, processing contracting, advertising, and exhibitions, and corporate leaders must personally handle it. , make decisions yourself. At the same time, we will arrange dedicated or part-time personnel to manage trademark work depending on the workload. Employees are required to establish the concept of maintaining trademark reputation, and are mobilized to pay close attention to information about infringement of the company's trademarks in their daily lives and work, so as to create an atmosphere in the company where everyone protects the company's exclusive rights to registered trademarks.

Four. Establish a comprehensive and all-round network system that combines enterprise self-protection, administrative protection from industrial and commercial administration agencies, judicial protection from people's courts, and social protection from consumers. The enterprise establishes a special anti-counterfeiting and rights protection agency, and regularly sends the company's trademark use license, OEM list, address and other main information and related information to the national company's product market or where infringement may occur. Provincial, prefecture (city), and county industrial and commercial administration agencies and consumer groups should be able to keep abreast of dynamic information on corporate trademark use, so as to promptly discover and investigate trademark infringements and counterfeit registered trademarks.

5. It is necessary to improve the quality and hardware facilities of the cadres of industrial and commercial administrative agencies, and cultivate a group of comprehensive talents who understand business and are capable. It is necessary to ensure that the industrial and commercial administrative organs have sufficient funds to investigate and deal with trademark infringements caused by OEM processing, and at the same time, equip with modern transportation and communication facilities, and establish a trademark information network system with powerful functions, comprehensive data, and responsive response. Only in this way can we form a joint force to investigate and deal with difficult trademark infringement cases that occur in various OEM processing.

6. Establish an inspection system and a liaison system to strengthen the supervision of industrial and commercial administrative agencies on trademark infringements of OEM processing. Each industrial and commercial area determines some reputable, law-abiding enterprises as the contact points of the liaison officers. The liaison officers conduct monthly inspections and set up inspection teams to conduct bimonthly inspections of non-contact point enterprises. The companies inspected by the inspection team and the companies contacted by the liaison officers do not overlap with each other. Inspection teams and liaison officers use the comprehensive functions of industrial and commercial administration agencies to supervise large markets and administrative law enforcement to conduct regular inspections of enterprises, and submit OEM processing trademark infringement cases discovered during inspections to the centralized business line for processing.

7. Strengthen the internal supervision mechanism of the industrial and commercial administrative organs, establish the case-handling rules of "investigating one case to the end", and set a time limit for handling cases according to the difficulty of the case. Administrative sanctions will be taken accordingly for those who give up halfway or fail to investigate and deal with laws. Establish a collaborative network in the national industrial and commercial administration system, clarify responsibilities, and implement a responsibility tracing system.