China: Has the Dust Settled on OEM Trademark Infringement?

China’s SPC reaffirms that OEM does not infringe on Chinese trademarks

In a recent landmark decision, the Supreme People’s Court (“SPC”) reversed the remarkable appeal decision in the Dongfeng trademark case about Original Equipment Manufacture (“OEM”). The SPC reiterates its view expressed in its November 2015 landmark ruling in the Pretul case, holding that branded products produced through OEM generally cannot infringe upon Chinese trademarks, as long as the goods are not put into commercial circulation within China, and are exported to the trademark owner abroad.

This SPC judgment furthermore cleared up confusion about the “reasonable duty of care” for OEM producers, imposed by the reversed judgement issued in December 2015 by the Jiangsu Higher People’s Court. The reversed judgment came only one month after the SPC’s ruling in Pretul, and held that the respondent committed trademark infringement because it failed to meet its reasonable duty of care in reviewing the status of the marks affixed on the OEM products ordered by the brand owner abroad.

The SPC disagrees that the OEM producer in the Dongfeng case failed to meet its reasonable duty of care, and arrives at a non-infringement ruling, reaffirming that pure OEM use of trademarks is not deemed trademark use.




Authored by Katie Feng, Eugene Low and Helen Xia

Zhen (Katie) Feng
Office Managing Partner
Eugene Low
Hong Kong
Helen Xia


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