Accurately defining a trademark and the effect of this on practice

Looking at the trademark laws of countries around the world, and relevant international agreements, one can see that they all require trademarks to be capable of identifying the source of goods. This functional requirement is at the very essence of trademarks. Anything that does not have this function cannot constitute a trademark. By understanding this point, one grasps the crux of trademark law, which is helpful in resolving many legal issues encountered in practice.

With respect to the use of “marks” in the original equipment manufacturing (OEM) sector, there remains a debate as to whether it constitutes infringement. OEM mainly refers to the production of goods by a manufacturer in a certain country, based on the requirements of another manufacturer located in another country, with the “mark” used for the goods provided by the client.

When the trademark provided by the foreign client conflicts with the trademark of a domestic trademark rights holder, an infringement dispute may arise, with the authorities most often dealing with such disputes being customs and people’s courts. At present, not only has no consensus been reached on such cases between customs and courts, but such consensus is also absent within customs and within the courts.