Related cases: Wang Xiaofei and her ex-wife Da S's "mutual tearing" drama accidentally made Ma Liuji Hot and Sour Noodles popular. On November 24, the news that "Ma Liuji Hot and Sour Noodles sold for over 5 million yuan in two days" became a hot search on Weibo. According to data from the e-commerce platform, as of November 24, the sales of hot and sour noodles in Wang Xiaofei’s mother Zhang Lan’s live broadcast room have exceeded 70 million yuan. The OEM company for this hot and sour rice noodle is Akuan Food, which is currently rushing to be listed on the A-share market. According to Akuan Food, the company's customized sales business mainly provides customers with OEM and OEM services, which is divided into domestic customized sales business and foreign customized sales. Most of the revenue comes from domestic customized sales business. The company's customized sales customers are mainly large and well-known Food e-commerce companies, such as Three Squirrels, Baicaowei, Li Ziqi, NetEase Yanxuan, etc., mainly sell externally through third-party e-commerce platforms. Ouyang Nana's first stop in "going to the sea" was scolded and became a hot search topic. On November 30, Ouyang Nana’s own brand became a hot search topic on Weibo due to its high price and low cost. A pure white bathrobe of 988 yuan, a pure white pajama set of 988 yuan, two pairs of pure white socks of 168 yuan... Ouyang Nana launched her own lifestyle brand "nabi", which is so expensive The shocking pricing sparked heated discussions among netizens. On November 28, Xu Qing (pseudonym), the person in charge of a textile factory in Huaian, Jiangsu Province, said that polyester fiber, commonly known as polyester, is one of the cheaper fabrics. Taking towels and bathrobes as an example, the cost price of towels made of polyester fiber is 0.035 yuan/g, and the cost price of bathrobes is about 50 yuan/piece. According to him, the process of OEM for a brand is very simple. Add the brand's LOGO or the pattern that needs to be designed to the existing product. Generally, you add money based on the design on the basis of the bare price of the product. He settled an account for @Times Weekly. According to the material of nabi bathrobes, the production cost is about 60 yuan/piece, and adding a LOGO is about 65 yuan/piece. Including packaging design and brand licensing, if an ordinary brand is sold on an e-commerce platform, according to the market industry, the selling price of a piece will not exceed 300 yuan at most. At present, there are not many domestic laws and regulations regarding OEM products. Once a dispute occurs, how to define the legal liability?

How to divide the responsibilities in legal disputes caused by OEM products?

1. Legal Relationships in OEM OEM In OEM, there is a processing contract legal relationship between the entrusted processor and the trustee based on the entrusted processing agreement. Compared with direct production, there is an additional The multi-layer relationship involves at least three subjects: the principal, the trustee, and a third party (consumer or the infringed person), and the legal relationship is more complicated. Based on possible disputes between the three parties, the legal relationships and responsibilities of the three parties are divided as follows:

(1) Internal relationship: the legal relationship between the principal and the trustee, that is, the entrusted processor and the actual production of the product The rights and obligations of the supplier (entrusted processor) regarding internal responsibilities for product quality. In internal relationships, the distribution of legal responsibilities between the principal and the trustee is generally distinguished as follows: 1. The situation where the principal has absolute dominant control over the foundry process. For example, the client masters the key core technologies and is responsible for the design and development of new products. It even has clear requirements for the selection of raw material formulas, production processes, packaging materials, storage and transportation methods used by the entrusted processors, and sets up quality inspection supervision, etc. Procedure, the processor has very little subjective initiative in the production process, and the responsibility for product quality at this time should be borne by the entrusted processor. 2. The trustee is at fault in the tort dispute. If the infringement of OEM products is caused by the trustee, such as poor control of production conditions, environment, and equipment, operational errors in the production process, unauthorized changes to packaging methods or storage and transportation methods, or the trustee In case of illegal procurement and infringement of other people's intellectual property rights, the entrusted enterprise shall bear the legal liability resulting therefrom.

(2) External relationship: the legal relationship between the product manufacturer and a third party, that is, the rights and obligations between the principal and the trustee respectively and the third party. In external relationships, it can be divided into product quality breach liability and product tort liability: 1. Product quality breach liability is the civil liability when product quality problems have not caused personal or other property damage other than defective products, such as product quality that does not meet the agreed , does not have the required performance and other responsibilities.

2. Product tort liability means that when a product causes harm to a person, the persons related to the product causing harm, that is, the manufacturer, seller, etc., shall be liable for compensation for the damage caused. It is a special tort liability. According to the Product Quality Law, product quality infringement refers to damage to persons and other property other than defective products caused by defective products. Infringement of intellectual property rights is also a type of product infringement liability.

II. Division of legal responsibilities in disputes arising from OEM products

(1) Liability for quality breach of contract of OEM products 1. In terms of external liability, According to Article 40 of the Product Quality Law: “If a product sold has any of the following circumstances, the seller shall be responsible for repairing, replacing, or returning the product; if it causes losses to consumers who purchased the products, the seller shall compensate for the losses: (1) Does not have the performance that the product should have without explanation in advance; (2) Does not comply with the product standards stated on the product or its packaging; (3) Does not comply with product descriptions, physical samples, etc. In other words, the commissioned processor, as the actual manufacturer and seller of the product, needs to bear the liability for product quality breach. Therefore, in the production model of OEM processing, the commissioning party actually controls the sales channel and carries out the product sales. Sales and consumers can require the principal to bear liability for product quality breach based on the sales contract and contract privity. 2. In terms of internal liability, the client can, in accordance with the processing contract agreement signed with the entrusted processor, stipulate that after the client externally assumes liability for product quality breach of contract, it can seek compensation from the inward trustee and require the entrusted processor to pay for its failure to comply with the contract. Product quality problems caused by production behaviors that comply with the agreement shall bear the final responsibility, that is, the principal shall seek internal compensation from the trustee.

(2) Liability for personal and property infringement caused by OEM products 1. In terms of external liability, according to Article 43 of the "Product Quality Law", "Infringement of personal property due to product defects" "If another person's property is damaged, the victim may demand compensation from the producer of the product or the seller of the product." The third party (consumer or the infringed party) can choose the principal or trustee (consumer) at will. It may be difficult to know the actual producer, and the right to claim cannot be deprived because of this. Only preliminary evidence is required) to bear full liability for compensation. 2. In terms of internal liability, according to Article 1165 of the Civil Code, "If an actor infringes upon the civil rights and interests of others due to fault and causes damage, he shall bear tort liability." The relationship between the principal and the trustee shall be based on The agreement divides the obligations and responsibilities between the principal and the trustee. If there is an agreement, the agreement shall prevail. If there is no agreement, the faulty party shall bear the tort liability.

Legal Risk Tips in OEM Production Article 119 of the Civil Procedure Law stipulates: When a plaintiff files a civil lawsuit, there must be a clear defendant, and the plaintiff should submit preliminary evidence to prove that the plaintiff is Depending on specific litigation claims, the defendant may bear civil liability. In short, for the review of the conditions for prosecution, whether the defendant is "qualified" only needs to be examined whether the plaintiff has provided preliminary evidence that the defendant is related to the legal relationship at issue, and should not be judged through the substantive trial process. The basis for judgment is whether the defendant is ultimately the subject of obligations or liability in the disputed legal relationship. Otherwise, the purpose of the lawsuit will be defeated and the lawsuit will not be able to proceed. To sum up, in legal disputes caused by OEM processing, whether it is product quality or product infringement liability, as long as the plaintiff submits preliminary proof, the brand party as the client of OEM processing may become the defendant in the lawsuit and thus bear the liability. corresponding legal responsibilities. Therefore, in order to prevent legal risks arising from OEM, we recommend: (1) Choose a qualified product OEM manufacturer. When choosing a contractor to cooperate with, the entrusted processor can focus on its production qualifications and processing level, and choose a factory with good production strength, scientific research level, and good cooperation reputation. (2) Strengthen the supervision of the production of the trustee's products. Strictly control, supervise and spot-check from the three aspects of process standardization, full openness and process precision to further strengthen product quality and safety supervision. Procedures such as spot checks and acceptance inspections can be adopted to supervise the product production activities of the trustee and prevent and control product quality problems from the source. (3) Standardize the procurement behavior of the trustee.

The client should establish and improve a procurement demand management system, detail work requirements and implementation standards, clarify job authority and responsibilities, strengthen risk prevention and control of procurement needs, predict various risk matters in the process of formation and realization of procurement needs, and provide targeted Propose countermeasures and alternatives comprehensively to prevent and resolve various risks from the source. In the purchase agreement or entrusted processing agreement, the quality standards and behavioral norms that the products produced by the trustee should meet are clarified, and the resulting product quality breach liability and tort liability are stipulated to enhance the trustee's awareness of responsibility. (4) Improve consumer rights protection and intellectual property protection services. Both the client and the trustee should pay attention to the protection of consumer rights and intellectual property rights, actively respond to feedback from consumers and intellectual property rights holders, and improve the consumer protection system and intellectual property registration and authorization system. For OEM products that do not participate in the design, the provider of the OEM product design solution should be specified in the contract; if you need to provide technical solutions by yourself, you should evaluate in advance whether the technical solution has the risk of intellectual property infringement, and communicate with the processing company in the contract The parties agree on the sharing of responsibilities when products are suspected of infringement and prevent the occurrence of infringement of consumer rights and intellectual property rights.