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With the increasing development of e-commerce, sales of infringing products over the internet have become a new kind of crime. The author of this article will give a preliminary analysis on the legal problems related to trademark infringement on the internet.
Internet sales are a new type of e-commerce. Due to the abundance of new types of products and their low prices in online stores, as well as the ease of searching and low shipping costs, internet shopping has become a major means of consumption in the society. According to the statistics of CNNIC, the volume of internet deals in China in 2009 reached 25 Billion RMB, which is double the amount of 2008. Along with the extension of market activity from the traditional real market to the virtual space on the internet, the sales of infringing products over the internet have become a new type of trademark infringement.
In recent years, many major and famous online shopping platforms such as Taobao and Eachnet have been sued for trademark infringement, including in some famous cases such as AKTIESELSKABET AF 21.NOVEMBER 2001 vs. Eachnet, Puma vs. Taobao, and Mai Shi Network vs. Taobao. The biggest dispute focus in such kind of case is whether the online shopping platform such as Taobao or Eachnet shall be responsible for infringement. According to the previous judgment by the court, most courts deem that the online shopping platform is not liable for infringement due to their nature and operation means.
The author hereby gives the following preliminary analysis of the relevant legal problems of this type of case
1. Application of law
At present, the court mainly applies the following rules in the trial of trademark infringement which occurs on the internet:
(1) Article 130 of the General Rules of Civil Law: If two or more persons jointly infringe upon another person's rights, thereby causing him damage, they shall bear joint liability.
(2) Article 148 of the Opinions of the Supreme People's Court on Several Issues concerning the Implementation of the General Principles of the Civil Law of the People's Republic of China: A person who instigates or assists others to perform an infringement act shall be the co-infringer, and shall bear civil liabilities jointly and severally.
(3) Article 52.2 of the Trademark Law: the sale of goods that violate the exclusive right to use a registered trademark constitutes an infringement of the exclusive right to use a registered trademark.
(4) Article 50.2 of the Implementing Rules of Trademark Law: The act of providing any person intentionally with such facilities as storage, transportation, post service and concealment for said person’s infringement of other people’s exclusive right to use a registered trademark shall constitute an infringement of the exclusive right to use a registered trademark as referred to in Article 52(2) of the Trademark Law.
(5) According to the features of internet infringement, Article 36 of the Tort Law of PRC which will come into effect as of July 1, 2010 clearly defines the infringement liability for internet service providers: Internet users and internet service providers shall bear tortious liability in the event that they infringe other people's civil rights and interests through the internet. Where an internet user engages in tortious conduct through internet services, the injured party shall have the right to inform the internet service provider that it should take necessary action such as by deleting content, screening, breaking links, etc. Where an internet service provider fails to take necessary action after being informed, it shall be jointly and severally liable with the internet user with regard to the additional injury or damage suffered.
Where an internet service provider knows an internet user is infringing other people's civil rights and interests through its internet service but fails to take necessary action, it shall be jointly and severally liable with the internet user.
This rule provides a general legal standard in handling internet infringement so it can be directly applied to the case of trademark infringement on the internet.
2. Deciding whether the provider of an online shopping platform constitutes direct infringement
I will use the operation mode of Taobao, one famous online shopping website, as an example. The service mode of this kind of website is to offer the user the functions of registration, log-in, search and review via computer system in a visual market, allowing the user to negotiate and confirm a deal for purchasing a commodity, while the delivery of the commodity will be completed by the two parties in the real world.
Based on the above-mentioned operation mode, the court defines websites like Taobao and Eachnet as providers of an online shopping platform in the judgment. Such provider enables its users to publish and transmit the trading information of the commodity. However, before the trade information is published and transmitted, such information is prepared by the user. Therefore it is not the provider of the online shopping platform who indicates the brand of the commodities, so the provider does not constitute direct infringement.
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