2. The so-called OEM is a form of processing trade. The OEM behavior can be divided into four situations: the first is the behavior of the processor using the same OEM trademark as the registered trademark on the same commodity; Second, the behavior of the processor using an OEM trademark similar to the registered trademark on the same commodity; Third, the behavior of the processor using the same OEM trademark as the registered trademark on similar goods; Fourth, the behavior of the processor to use the OEM trademark similar to the registered trademark on similar goods.
According to what you said, I don't know what kind of branding behavior you are.
4. OEM processing is based on the entrustment of trademark users. The goods entrusted with OEM processing are not sold in China, which is unlikely to cause confusion and misunderstanding among the relevant public and should not be considered as infringement.
According to the fourth point, it is obvious that OEM has not obtained the permission of the trademark holder, and the products produced have not clearly indicated that they are not sold in China. The first point has already constituted infringement.
6. In the case, if the investigation by the Bureau of Investigation is true, the Industrial and Commercial Bureau will impose administrative punishment on you. If the trademark holder agrees to the settlement, the issue of compensation can be discussed. If you don't agree with the punishment or settlement of the industrial and commercial bureau, you must find an arbitration institution or a people's court.
But if you reach an agreement with the trademark owner (with written documents), then the trademark owner should not pursue this trademark dispute. You won't be sentenced or fined, because the plaintiff didn't pursue it. Unless you file a public prosecution, you will only be fined and won't be sentenced. At the same time, you can also ask the trademark owner to revoke the investigation of your criminal responsibility.
7. In this case, you should investigate whether the trademark of the trademark holder is a registered trademark (this is very important, and ordinary trademarks are not necessarily registered trademarks). If you can't find this registered trademark, it's not infringement. If the trademark is foreign trademark, there is no infringement.
From your description, goods and trademarks are not together. Isn't there a trademark on the goods? If it is, it is not infringement.
9. According to Article 16 of the Agreement on Trade-related Intellectual Property Rights: "The owner of a registered trademark enjoys the exclusive right, and it is forbidden for any third party to use the same or similar marks on the same or similar goods or services without its permission, because such use may cause confusion. As long as the same mark is used on the same goods or services, it should be presumed that confusion may occur. " The Supreme People's Court pointed out in relevant normative documents that: if a trademark with the same registered trademark is used on the same commodity without the permission of the trademark registrant, it will constitute fair and reasonable use, and confusion factors need not be considered when determining infringement. Accordingly, the confusion factor in point 4 shall not be considered when identifying the unauthorized trademark infringement. I think you used this trademark without permission.
10. In foreign OEM cooperation, there is no time or even intentional neglect of trademark risks, and production is often based on foreign fax orders and trademark styles. In the event of a trademark infringement dispute, it is inevitable that the OEM will bear the trademark infringement responsibility. In view of this, it is suggested that OEM enterprises should pay special attention to the use of registered trademarks in entrusted processing, and the entrusting party should provide legal and effective trademark registration certificates. If a copy is provided, it shall be certified by the trademark registration administration department or the corresponding institution where the OEM is located. As far as you are concerned, you are responsible for not verifying whether the trademark is a registered trademark before entrusting processing. If you sign a written contract with the production enterprise and don't provide trademark license, then your responsibility is great.
1 1. The signing of the entrusted processing contract must be in written form. Although oral agreement is a type of contract in contract law, it seems that "there is no evidence against death" now, because you can't contact people, even if you do, people can't admit it.
12. I am a processing enterprise in Zhejiang. Many trading companies in our unit entrust processing, but they are all in the export direction and have no trademarks. You should pay great attention to this. If there is a trademark, be sure to check it.
13. However, China's Trademark Law does not stipulate the specific conditions for OEM enterprises to constitute infringement. It is only stipulated in Article 21 of "Answers to Several Issues Concerning the Trial of Trademark Civil Disputes" promulgated by Beijing High Court on March 7, 2006: "If the contractor undertakes to process goods with registered trademarks of others, the contractor shall examine whether the ordering party enjoys the exclusive right to use registered trademarks. Where the goods infringing on the exclusive right to use a registered trademark are not properly handled, the contractor and the ordering party constitute the same infringement and shall be jointly liable for damages with the ordering party.
14. the Supreme People's Court clearly pointed out on the issue of civil liability for trademark infringement: if the registered trademark requested for protection is not actually put into commercial use, it can be ordered to stop the infringement as the main way to determine civil liability, and the fact that it is not actually used can be considered as appropriate when determining the liability for compensation. In addition to the reasonable expenses of rights protection, if there is no actual loss or other damage, compensation is generally not determined according to the profits of the accused infringer; If the registrant or assignee only uses the registered trademark as a tool to claim rights without actual intention, it may not be compensated.
In other words, if the trademark registrant insists on making compensation for a sub-trademark as a registered trademark, it is unreasonable according to the relevant laws and regulations.
15. The goods are unlikely to come back. Even if the foreigner goes, he will not be deported, because he will not be alone, but may be a representative of the company. Then your oral agreement will take effect and he will bear the responsibility. However, he will not go. Commodities are products produced by trademark holders, so commodities will not come back. If it is not the same product, only the trademark will not actually infringe.
16. I'm not studying law. That's all I can do. I wonder if I can help you. You can't sentence me anyway. This is a civil dispute and does not constitute criminal responsibility. In the future, you should pay attention to this. To do business, we must look at contract law, trademark law, labor law, intellectual property law and consumer protection law. Contract is your source of interest, trademark is your weakness, labor law is your employee, and the rest is some knowledge of economic law, at least you should know the laws related to yourself.
I hope I can help you.