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The finding of trademark infringement shall be premised on the fact that the allegedly infringing act meets the trademark use requirement, i.e. the origin function of a trademark has been impaired.
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Manufacturing allegedly infringing goods within the territory of China, which are solely for exportation to a foreign country, does not constitute trademark use in the meaning of Art. 48 of Trademark Law (2013), because these goods are not going to be distributed on the domestic market, and no confusion as to the source of goods would arise on the part of the relevant public.
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Notes
The new revision of Chinese Trademark Law was promulgated in 2013 and has been in effect since May 2014. In the current version of Trademark Law, Art. 48 has replaced the Art. 3 of the previous Trademark Implementing Regulation without substantial changes having been made; Art. 57.1 of the previous Trademark Law has been split into Art. 57.1 and 57.2 in the new version. Since the PRETUL case was decided before the new Chinese Trademark Law came into effect, the previous provisions are still applicable here. For a detailed introduction to the new Chinese Trademark Law, see Weijun Zhang, Lizhou Wei and Yanbing Li, “The Third Revision of Chinese Trademark Law – Analysis and Comment”, 45 IIC 556 (2014) doi:10.1007/s40319-014-0218-7.
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Translated from the Chinese by Lizhou Wei.
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Focker Security Products International Limited v. Pujiang Yahuan Lock Co., Ltd. Trademark Law (2001), Art. 52.1; Trademark Implementing Regulation (2002), Art. 3; Trademark Law (2013), Arts. 48, 57.1, 57.2. “PRETUL”. IIC 47, 629–632 (2016). https://doi.org/10.1007/s40319-016-0494-5
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DOI: https://doi.org/10.1007/s40319-016-0494-5