In some cases a party that has branded goods manufactured in China
for export ("OEM" manufacturing) holds the relevant
trademark in the country of destination, while another party holds
the relevant trademark in China. This raises the question whether
this could result in an infringement of the trademark rights of the
holder of the Chinese trademark.
Recently, the Supreme People's Court of China held that OEM
manufacturing solely for export was not "use" under
Chinese trademark laws as the exporter only engaged Chinese OEM
manufacturers and did not distribute nor advertise the branded
products in China. Even though the Supreme Court's opinion is
not codified in statutory laws, it provides some degree of clarity
and guidance to lower courts and administrative authorities as to
how to deal with this legal issue in future practice.
To improve their position based on this recent Supreme Court
ruling, it will help non-Chinese trademark right holders if they
expressly provide in agreements with their OEM manufacturers that
the manufactured products are made solely for export. In addition,
they should provide proof to the OEM manufacturers that they
legitimately possess the trademark rights in the country of
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