Research On The Legal Regulation On Trademark Infringement In Online Marketplace

The “notice and take-down rule” and “red flag test” are derivative from the DigitalMillennium Copyright Act of the United States of America. Due to the compatibilityof such rules and the features of Copyright, such rules may function efficiently by theeconomical means in the areas of online copyright protection. Therefore, the “noticeand take-down rule” and”red flag test” are introduced into Chinese legislation ofonline trademark protection. However, the author concludes, after the analysis, thatthe differences between trademark and copyright lead to the ineffectiveness of “noticeand take-down rule” and “red flag test” in the area of online trademark protection.Especially, the “notice and take-down rule” cannot function efficiently andeconomically as the initial expectation. This author tries to begin with the analysis ofChinese current situation of trademark infringement in online marketplace, and thento uncover the differences between trademark and copyright, as well as variousinfringement of online trademark. After that, the author points out the pre-conditionsto the application and the reasons of ineffectiveness of such rules. Finally, based onaforesaid analysis, the preliminary suggestions of perfecting the legal regulation oftrademark infringement in online marketplace are proposed.The thesis is constituted by three chapters:Chapter One introduces the legal nature of online marketplace and its infringement liability, and reveals the core elements of the regulation on the trademarkinfringement in online marketplace from Chinese judicial practice concerning onlinemarketplace. Meanwhile, for the discussion of following chapters, the thesis confirmsthe current situation that the “notice and take-down rule” and”red flag test” have beenadopted by Chinese legislation on trademark.Chapter Two emphasizes on the deep analysis on the reasons of ineffectiveness of“notice and take-down rule” and “red flag test” in the area of online trademarkprotection. First of all, the author concludes the pre-conditions of effectiveness ofsuch rules in the area of copyright. Then the comprehensive analysis of thecomplexity of judgment on trademark infringement, proof burden and other aspects,explains the reasons for the failure of the “notice and take-down rules” and “red flagtest” in online trademark protection.Chapter Three proposes the concepts of “diligent economic operator” and “rules ofdual notification” for the improvement of the regulation on the trademarkinfringement in online marketplace, and the author hopes such assumptions mayprovide an option for the legislation of online trademark protection.