Suggestions on judicial practice of repackaging and re-selling trademarked goods under Chinese law

What the paper says

With regard to the legal regulation of repackaging and re-selling trademarked goods, the problem of different judgments in the similar case is more prominent in Chinese judicial practice. For similar cases, some courts have upheld the plaintiffs’ claims and some have rejected them. Starting from the steps for determining trademark infringement in Chinese trademark law, this article first examines whether the act of repackaging and re-selling constitutes trademark use in the sense of trademark law, and when an act itself does not constitute trademark use, trademark infringement is unlikely to occur. Second, it examines whether the act of repackaging and re-selling constitutes the exhaustion of trademark right. This part examines the conditions of application of the EU and the United States on the exhaustion of trademark right and points out that repackaging and re-selling may be subject to exhaustion of trademark rights under certain conditions. Finally, if the repackaging and re-selling does not meet the conditions for the exhaustion of trademark right, it should be examined whether the act creates a likelihood of confusion. The likelihood of confusion is central to the determination of trademark right infringement and is derived from the theory of anonymous origin. The quality assurance function is another aspect of the anonymous source doctrine and does not need to exist separately. It would be inappropriate for a court to regulate repackaging and re-selling on the basis that the quality assurance function has been impaired, but rather, it may unduly expand the scope of the exclusive right of trademark. The above steps examine the repackaging and re-selling from the perspective of trademark law. Even if the specific act of repackaging and re-selling belongs to the exhaustion of trademark right, or does not constitute a likelihood of confusion, and thus does not constitute a trademark right infringement, the act may still be subject to the regulations of the Anti-Unfair Competition Law in China.