Would Those First Users Involved in OEM Constitute Trademark Infringement?

(By Albert Chen) The author once introduced readers to different judicial opinions adopted in the Shanghai and Guangzhou courts over whether trademark infringement could be caused by an OEM. According to a ruling handed down by the Fujian Higher People’s Court in 2012, which came to the attention of the author recently, the judge confirmed that an OEM could lead to trademark infringement, but decide at the same time that no liability shall be taken by the first user of the mark, for no confusion would be made. As for that point, the author certainly has a different opinion.

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Would Those First Users Involved in OEM Constitute Trademark Infringement?

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(By Albert Chen) The author once introduced readers to different judicial opinions adopted in the Shanghai and Guangzhou courts over whether trademark infringement could be caused by an OEM. According to a ruling handed down by the Fujian Higher People’s Court in 2012, which came to the attention of the author recently, the judge confirmed that an OEM could lead to trademark infringement, but at the same time, the court also decided that no liability shall be taken by the first user of the mark, for no confusion would be made. As for that point, the author certainly has a different opinion.

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Why Pfizer Did Not Win the Blue Pill Trademark Infringement Case?

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(By Luo Yanjie) Pfizer is the holder of a blue, diamond-shaped mark (the “Pfizer trademark,” number: 3110761). The trademark was approved in Class 5 for pharmaceutical preparation, medicines made for human consumption, antibiotics, medical nutrition supplements, cleaning agents, and veterinary preparation. The registration period for the trademark commenced on May 28, 2003 and will expire on May 27, 2013.

On July 21, 2005, Pfizer representatives purchased a box of medicine priced at RMB 50 yuan from the New Concept Company. The medicine was mainly intended to cure “erectile dysfunction.” The front and back cover of the package contained both “Viagra”[1] and “TM,” which was underlined and accompanied by the diamond image. The manufacturer was printed as “Jiangsu Lian Huan Pharmaceutical Co., Ltd” (“Lian Huan”) dated on April 14, 2005. The opaque inner packaging also contained the words “Viagra” and “TM,” as well as the manufacturer “Lian Huan.” The packaging of the medicine was also diamond-shaped, in accordance with the shape of the tablet. The medicine itself was light blue in color, diamond compass shaped, and contained the words “Viagra” and “TM.” Pfizer believes that these products constituted three-dimensional trademark infringement and thereby sued the manufacturer and seller.

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