Historical experience, cross-foundry textile industry intellectual property disputes encountered mainly two types of trademark and patent rights. The following were analyzed, and propose countermeasures. 1. OEM Product Identification and disposal measures for trademark infringement, the policy recommendations is an internationally recognized trademark infringement of intellectual property infringement, in the form of recognized standards more uniform. Such as the 52nd country in respect of the provisions of the Trademark Law: "any of the following acts shall be an infringement of a registered trademark; (a) of the registered trademark without permission, in the same or similar goods to use its registered trademark identical or similar trademark; (b) infringement of a registered trademark sales of goods ... ... "transnational foundry business model is the basic legal relationship between the client will have the trademark license to the trustee, the trustee Posts card production. Therefore, the infringement of registered trademark has become China's textile disputes in international OEM common problems. According to European Commission statistics, only in 2006, EU-25 KMT seized 37 300 textile exports to the European market intellectual property infringement cases, involving 128 million of goods, of which 79% came from China; in all intellectual property rights infringement cases, the textile-bit The third column, a total of 14.5 million, of which 63% came from China; this one forgery and trademark counterfeiting and copyright issues accounted for 98% of patent infringement of design and style of 1%. But such serious issues of trademark infringement, may not be able to explain violations of our OEM business has a subjective feeling. State Intellectual Property Office Tian Lipu once by the World Intellectual Property Organization and China's State Intellectual Property Office jointly sponsored seminar class intellectual property policy makers pointed out that the overseas Chinese enterprises suffer a substantial increase in cases of intellectual property infringement claims, many foreign criminal syndicates. Chinese companies are generally required in accordance with foreign orders processed products. , Pay no attention to their products will eventually be labeled what brand to the market, nor be required to pay attention to whether the infringing use of technology. Infringement caused by the fact that, Chinese enterprises have to be a scapegoat. Therefore, some scholars have been advocating for OEM production model produced under the trademark infringement, product liability and other legal issues, trademark infringement should not be entrusted with the responsibility side, products liability, consumer product on the right to directly request were liable to be marked, without considering other factors. However, this absolute claim is difficult to obtain international acceptance, and trademark infringement dispute, or should constitute the basic elements of tort as a starting point, a case specific analysis. On the general theory of tort law, the tort requires subjective components, the so-called fault element, whether the fault behavior is directly related to the nature of their actions determined. Including intentional and negligent fault in two forms. The perpetrator knew the damage their actions will result of the civil rights of others, and hope, or the result of a laissez-faire, and to deliberate. The perpetrator should be foreseen their actions may harm the civil rights of others, but because of negligence and not foreseeable, or it has been foreseen, but credulity to avoid, resulting in damage to the civil rights of others, and for the fault. Measure of whether the conduct at fault, should be based on the specific time, place and conditions and other factors to determine. That is, if the
Cheap Air Shoes business to make reasonable diligence, can be inferred in the subjective intention or negligence if the circumstances do not exist and, therefore, exempt from tort liability can be disposed of. Here, the connotation and extension of reasonable care, to become the OEM business standards of conduct that must be mastered. Intellectual property risk control as possible, do OEM business for at least the following three points: First, in the foundry business entrusted to require clients to provide legal rights for OEM brand that is recognized OEM clients have commissioned the right to basic requirements. In this connection, the former Ministry of Foreign Trade and the State Administration for Industry, enacted in 1995, "Trademarks on the regulations governing foreign trade," Article X clearly asked: "foreign trade dealers engaged in import and export activities, or provide to others to use the specified trademark, the other party should be required to issue a real and effective trademark documents or are licensed to use the mark and did not exceed the permitted range of supporting documents, and be verifiable. "Of course, even if the client issued authorizing the use of that mark, but if the authorization document There is false, may also lead to OEM products as infringing products. Therefore, the foundry and the client should also sign a security provisions, require the client to mark the brand he introduced ownership of responsibility to require guarantees that the product brand is the right to autonomy, not violations of trademark rights of others, if the third person trademark infringement claim, the principal agreed to shoulder all the responsibilities and compensation be paid by the Trustee for all expenses and losses. However, co-commissioned by OEM and can not restrain a third person, so if the product trademark infringement cases, rights holders can choose to use, manufacture, sale, export and all other aspects of the company for damages. Even if the commission agreement entered into in terms of the security responsibility, foundries may be liable prior before recourse against the client. If the foreign client deliberately evade their responsibilities, as cross-jurisdictional OEM restrictions and high cost of international legal action, foundries often difficult to recover losses. Therefore, organizations should make full use of international trademark services, trademark search the exporting country market conditions. Second, the query foundry trademark registration in China. Trademark is strictly regional, acquired in a trade mark rights of individual countries can only be protected within the country, other countries do not recognize their right of course. Currently most countries in the world are taken for the registration of trademark protection principle that must apply for trademark registration, be registered before they could receive the protection of the law. If the OEM products in the country subject to trademark infringement claims, the trustee producers will directly bear the liability arising. Therefore, the companies are getting 国外 OEM production orders, not only require the client to provide brand owners on the Shouquan legitimate uses of the show also should inquire of the trademark registration in China to strengthen intellectual property rights of self- protection awareness, so as not to fall into legal disputes. Therefore, the above "on the trade provisions in the administration of trademarks," also called the mark shall not have the same or similar goods in China registered a trademark identical or similar. In our judicial cases, the Court has made clear that although the principal Spanish companies involved in its own right, "Nike" (NIKE) legitimate trademark owner the exclusive right to use, but with local characteristics of the intellectual property rights, the Chinese courts have jurisdiction within the United States made Nike "Nike" (NIKE) trademark rights should be protected; foundry without the plaintiffs permission, not in any way infringe the plaintiff's exclusive right to register . In addition to the registration is the situation in China, they have to ensure that no other person had the trademark registered in China. Given the complexity of trademark matters and professional, OEM enterprises can entrust Trademark Office to trademark inquiries. Finally, China should be based on conditions, reasonable adjustments to existing regulations, to avoid the foundry business suffered more than the international standard of policy constraints. TRIPs agreement would have required the member countries (regions) Customs on imported goods are intellectual property issues were detained, and did not ask the question on the export of similar goods detained, but our "Customs Protection of Intellectual Property Rights" to WTO trade-related knowledge Property Rights Agreement (TRIPs) as benchmarking, but add their own intellectual property protection responsibilities, commitments to export goods suspected of infringing the Customs seizure. China's "Customs Protection of Intellectual Property Rights," Article XII: "Intellectual property rights were found to be imported or exported goods suspected of infringement, the Customs entry or exit of goods can be made to detain the suspected infringing goods applications." Its "implementing regulations" Article XVII further clarified: "Customs detain the suspected infringing goods, should be the name of the goods, quantity, value, consignee or consignor name, date of declaration of imports and exports, the Customs to detain the date of such notice in writing of intellectual property rights holders. approved by the Customs Intellectual Property Rights one can see the goods detained by the Customs. "from the case handler of view, precisely because OEM products export customs in the exporting country can be detained, the plaintiff can gain significant advantage in the evidence, which largely determine the legal proceedings results. For domestic foundries liability overweight, it is recommended by judicial interpretation or amendment of legal provisions related to mitigation. 2. Foundries to avoid patent infringement patent law in China, "the invention and utility model patent is granted, except as otherwise provided in this Act from any unit or individual without the permission of the patentee is allowed to put its patent, that is production, to make, use, offer to sell, sell or import the patented product, or use the patented process and use, offer to sell, sell or import the patented product directly obtained ... ... the design patent is granted, any unit or individual without the patent, the authorization is allowed to put its patent for the production or business purposes shall not manufacture, sell or import the patented product design. "Patent Law and Article XII states:" Any entity or individual exploiting the patent , and shall conclude with the patentee a written license contract, the Zhuanli Quan pay royalties. Pi licensee no right to authorize the contract other than a unit or individual to exploit the patent. "where" implementation ", including for production or business the purpose of manufacturing and use of OEM no doubt that the regulations are within the scope of the system. If the OEM products infringe patents of others, whether the Client, or contract manufacturers, are likely to bear tort liability. Therefore, the production of textile manufacturing enterprises received a commission from the time of, they should be related to planning. First check with professional organizations may be involved in the patent situation and to call for patent documents, strict examination and verification. Review of the effectiveness of patent elements, mainly refers to whether the client has a patent, that right is still valid and so on. On the one hand, due to patent a legal term, it should ascertain whether the patent is still valid, how long will expire; the other hand, has a regional franchise, but also verify the franchise in which countries and regions within the framework of effective. Need special attention, if the other party to provide a patent license obtained from the right, we must determine whether there are restrictions on the license. For example, exclusive license, is the right person and being allowed to use in the contract within the time and manner, and be allowed to use only the patent right to use the patent, any person not entitled to use the patent, so the question Public companies must require the client to declare whether the right to license third parties to use patented technology transfer to manufacturing. If defined as "sub-license," that are allowed to use the patent and can use its patents, and patent and the licensee has the right to allow other users to use their patent. So Daigong business risk of infringement does not exist. Moreover, in addition to patent warranty terms, commission agreements in general but also on product design, manufacturing process intellectual property rights arising from contract, so you can dispute that may arise after the manipulation to guarantee their own interests. With the enhancement of its own entity, on behalf of China's textile business for the Client to provide the basis of production, gradually became responsible for product design, materials and improvement of value-added services (Original Design Manufacturer, Original Design Manufacturer), in product design, production process produced a number of new intellectual property rights, including the design of utility model patents. "Chinese Patent Law," Article VIII: "two or more entities or individuals cooperate for an invention, a unit or individual in other units or individuals commissioned by an invention, unless otherwise agreed to apply for patent rights are complete or have completed the unit or individual. "Therefore, in the commission of intellectual property generated in the production process, if expressly agreed in the trust agreement which side owned by all, on the Executive pursuant to the agreement; if the commission agreement does not specify the general cases this part of the intellectual property of all those who will be entrusted.
