How does the sunshine of intellectual property shine on the e-commerce platform
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core tip: in recent years, I recently visited the "Mother River" - the upper reaches of the Danghe River in Dunhuang. I saw that China's e-commerce maintained a rapid development momentum and the market scale was expanding, but the problem of intellectual property protection was also increasingly prominent, It has become an important factor affecting the healthy development of e-commerce industry
[China Packaging News] in recent years, China's e-commerce has maintained a rapid development momentum and the market scale has been expanding, but the problem of intellectual property protection has also become increasingly prominent, which has become an important factor affecting the healthy development of the e-commerce industry
according to the relevant provisions of the tort law, if someone uses network services to carry out infringement, the obligee has the right to notify the e-commerce platform to take necessary measures such as deleting the outline description, combining with removing, shielding, disconnecting links, etc. after receiving the notice, the e-commerce platform will bear the joint liability if it fails to take necessary measures in time, which is commonly known as the "notice deletion" rule
although this rule has been applied for many years, there are still many difficulties in reality
"rule of law weekend" held a "seminar on the protection of intellectual property rights in e-commerce" on the occasion of the 16th World Intellectual Property Day of "April 26". Participants suggested adding "counter notification and recovery" procedures to make e-commerce develop healthily and orderly
liuruntao, associate professor of the Institute of trademark and industrial economics at East China University of political science and law, believes that the "Notice of removal" rule should be carefully applied when dealing with patent disputes. If we want to use the "notice removal" rule, we should also build a complete procedure of notice, forwarding notice, counter notice and then removal, so as to directly affect the survival and living problems of nearly 300000 people and improve the qualified and effective notice standard
Liu Runtao suggested that consideration should be given to introducing a guarantee system into the "Notice of removal" rule, because the pre litigation injunction requires that the series of printers are a micro printer to provide guarantee, and it is very strict for this condition, so it is rarely applied in judicial practiceZhan Ying, assistant director of the intellectual property research center of Zhongnan University of economics and law, said that the application of the "Notice of deletion" rule in infringing patents should be strictly limited. "That is, if we can't exclude it, we also need strict restrictions if we want to apply it, and we can raise the threshold of notification."
the representatives of e-commerce platforms attending the meeting said that infringement and malicious infringement coexist in practice. If the complainant is too trusted, because the complainant's notice directly removes the goods from the store, the seller may lose the opportunity to defend and prove, and injure the normal operation right of the business. And if it is infringement, it may be joint and several because of the increased consequences of infringement
Zhang Xiaojin, member of the judicial committee and President of the Beijing Intellectual Property Court, believes that "notice deletion" deletes goods, unlike books in the field of copyright. It is possible that once this commodity is deleted, it will bring great losses to sellers. Due to the particularity of patent infringement, when applying the "notice removal" rule, the threshold of complaint notice is higher than that of copyright and trademark rights. It should contain more authoritative and credible certification materials, and it does not need the platform operator to conduct substantive examination of patent infringement
Tao Jun, a judge of the Beijing High Court, said that not allowing platform service providers to undertake the obligation of prior review is also taking into account the current situation of intellectual property protection. Infringers of intellectual property rights will send malicious infringement notices on specific holidays. If the obligee registers a trademark and the trademark itself lacks significance, the infringer will send various "notices" to the platform service provider, resulting in competitors or corresponding network sellers may be removed from the shelves because of this "notice"
Li Ying, President of Zhongguancun court of Haidian District People's court in Beijing, said that many times, based on the consideration of competition, if merchants delete it after receiving the notice, it may cause accidental injury to legitimate operators. At present, some platforms try to protect themselves through notification, counter notification, guarantee and counter guarantee. Some may require the businesses complained to provide sufficient counter guarantee without deleting or removing them from the shelves
Li Ying found in the trial practice, "although the number of cases involving e-commerce platform infringement accepted by the court has increased in the past two years, in fact, many cases are handled by the platform through its own complaint and reporting mechanism and equipped with a lot of personnel, digesting a large number of cases."
"I feel that the situation of 'notice deletion' is chaotic, and there are a large number of false complaints. Many complaints are unreasonable, which immediately increases the cost and reduces the efficiency of e-commerce platforms." Zhu Wei, deputy director of the communication law research center of China University of political science and law, believes that the consumer protection law protects consumers, not professional dummies
the experts at the meeting believed that the lag of legislation obviously can not meet the needs of practice. E-commerce platforms are in the front line of intellectual property protection every day. E-commerce platforms should be boldly encouraged to explore ways to solve such disputes through interconnection