(1) Is the contractor a trademark user

According to the Contract Law, processing contracting means that the contractor completes the work according to the requirements of the ordering party, delivers the work results, and the ordering party pays the remuneration. In the processing contract involving OEM, the processing contractor only applies the trademark to the goods according to the instructions of the ordering party, and the contractor's behavior is only a physical attachment behavior, which provides the necessary technical conditions for the ordering party to use the trademark. The real use of the trademark is actually the ordering party. In addition, according to the characteristics of processing contract, the legal consequences of processing contract should be attributed to the ordering party, so even if trademark infringement occurs in the process of processing contract, the result should be attributed to the ordering party, and the contractor should not bear the consequences of infringement.

For example, in the Shanghai Higher People's Court's judgment No.65 (29) Hu Gao Min San (Zhi) Zhong Zi, it was held that: "In the brand-fixing processing relationship, although the behavior of the domestic processor to mark the trademark on the product is formally implemented by the processor, the real user of the trademark is still the overseas entrusting party."

In the judgment of Guangzhou Intermediate People's Court (29) No.65, Hu Gao Min San (Zhi) Zhong Zi, it was also determined that: "Bohong Company's behavior of labeling the alleged infringement mark on its products was formally implemented by the processing party, but in essence it was based on the authorized processing behavior of Kenya Aucma Digital Africa Company, which had the right to use the trademark involved. Although Bohong's products are produced in China, they are all exported to Kenya, and are not sold and circulated in China's domestic market. Bohong Company's use of the "aucma" logo on these products cannot produce the function of identifying the source of products in China and does not play the role of trademark identification, so this behavior is not a trademark use. "

(II) Is the use of the processing contractor a trademark use

The Trademark Law of p>213 stipulates that the use of a trademark refers to: "the use of a trademark on commodities, commodity packages or containers and commodity trading documents, or the use of a trademark in advertising, exhibitions and other commercial activities to identify the source of commodities." For the use of trademarks, there are two requirements:

(1) formal requirements, including the use of trademarks in commodities, commodity packaging or containers and commodity trading documents, and the use of trademarks in advertising, exhibitions and other commercial activities for service trademarks and commodity trademarks; (2) Functional elements, which are used to identify the source of goods. As far as processing contracting is concerned, the contractor may be involved in the production of infringing trademarks themselves, and stick infringing trademarks on commodities, commodity packages or containers, etc., which undoubtedly conforms to the formal requirements of trademark use. However, the use of trademarks also requires that the use of trademarks can realize the function of identifying the source of goods. From the literal point of view, identifying the source of goods identifies the source of their own goods, not the source of goods of others. For the processing contractor, the use of trademarks in the process of processing contract is not to identify the source of their own goods, but to identify the source of others' goods, which is not in line with the function of identifying the source of others' goods. In addition, the whole process of processing and contracting by the contractor is carried out in the contractor's factory. Before the processing and contracting activities are completed, the use of trademarks is only between the contractor and the ordering party, and it will not face the relevant public, so its recognition function will not be realized, so it does not belong to the use of trademarks in the sense of trademark law.

There are two elements of trademark infringement:

First, the use of another person's trademark;

second, there is the possibility of confusion.

from the above discussion, we can know that in the processing contracting activities, although the contractor formally uses the trademark involved, the actual user is the ordering party; And its use can not play the role of identifying the source of goods; It will not cause confusion in the process of processing and contracting. Therefore, the use of trademarks by the contractor in the process of processing and contracting does not constitute direct infringement of trademarks.

second, does the contractor constitute indirect infringement in the process of processing and contracting

since the use of trademarks by the contractor in the process of processing and contracting does not constitute direct infringement, is it possible for the contractor to constitute indirect infringement? "Tort Liability Law" stipulates: "Whoever instigates or helps others to commit tort shall be jointly and severally liable with the perpetrator." Indirect infringement mainly includes two kinds: abetting infringement and helping infringement. Generally speaking, there is no case that the contractor induces the ordering party to infringe, and here we only discuss the case of helping the infringement.

The general elements of aiding infringement are:

1) the existence of direct infringement;

2) subjective fault;

3) objectively helpful behavior.

In terms of processing contract, there are two situations:

one is foreign-related OEM;

the other is ordinary contract processing. For foreign-related OEM processing, due to the regionality of trademarks, the ordering party's overseas sale of goods with the trademark of domestic obligee does not infringe the trademark right of obligee. For ordinary processing contracts, direct infringement exists because the ordering party actually uses other people's trademarks. The determination of fault is mainly reflected in the determination of the contractor's duty of care, which is stipulated in two local judicial documents.