Research on Trademark Infringement of Selling Refreshed Genuine Goods
|School||East China University of Political Science|
|Keywords||Selling Refreshed Genuine Goods Trademark Infringement Trademark Functions The Likelihood of Confusion Exhaustion of Trademark Rights|
With the occurrence of the trademark infringement disputes between Nokia Company and Shenzhen FuXingSheng Trade Co.,Ltd, selling refreshed genuine goods begins to gain more and more attention from domestic legal professionals.Phenomenon of such kind is still new thing for domestic trademark law theory and current practical application. Therefore, theoretical studies on aspects, the controversial issues, whether it constitutes trademark infringement or not, even its concept and features and etc. are all in preliminary exploring phase.According to the principle requirement of rule of law system, such exploration must be done on the foundation of law theory and current legislation as well as the effective measures concluded from practice. However, since current domestic practice is too little to explore, research on the nature of selling refreshed genuine goods has to be depend on trademark function theories themselves, the modern trademark law system foundation.Therefore, through detailed analysis of study object by relative trademark theories such as identification function, quality assurance function, advertisement and identity showing function, the likelihood of confusion function, exhaustion of trademark rights and etc., this thesis finally sets up a judging rule of infringement as the principle and non-infringement as the exception to this controversial issues by focusing on different kinds of circumstances of selling refreshed genuine goods. In the meantime, after introducing of the abroad and domestic trademark and corresponding legislation on the aforesaid functions and theories, this thesis puts forward scientific suggestion and correct mind for the development of domestic trademark legislation, and devotes certain significance to both the theory and practice.The essay is divided into four chapters:Chapter One first solves the legal concept problem of the phenomenon through confirming the concept, features and manifestation of selling refreshed genuine goods, and on the foundation of that, introduced various disputes on the legal attribute of selling refreshed genuine goods, and with study of current legal practice, finally formed the correct mind of analyzing and settling disputes from the angle of trademark function.Chapter Two through introducing the likelihood of confusion theory, which is closely related to trademark identification function, analyzes the legal attribute of selling refreshed genuine goods with the likelihood of confusion theory foundation, and states the effectiveness and limit of solving the disputed problem when applying this theory in various conditions of selling refreshed genuine goods.Chapter Three made a theoretical analysis on the settlement of the controversial issues by using the quality assurance function, rights exhaustion theory as well as the advertisement and identity showing function of trademark from aspects other than the mainly angle of the likelihood of confusion theory, and also gave a review focusing on special circumstances of selling refreshed goods.Chapter Four built up the general applicable rule of infringement as the principle and non-infringement as the exception to the controversial issues in legal practice, and provides a practical advice for the improvement of domestic trademark legislation through combining the corresponding legislation conditions both abroad and domestic.