Study On Contributory Trademark Infringement Over The Internet

The influence of trademark is becoming bigger and bigger with the development of commercial trade on the Internet. Meanwhile, infringements of trademark appear rapidly as well. It is very hard for trademark owners to plead for legal action to all the infringers, so they usually tend to ISP for remedy. Thus, it is very important to adopt ISP's trademark infringement liability correctly so as to protect trademark owners'interests and to maintain a formal order of online trade.Except for direct online trade, most ISPs, who supply online services such as connection and trade flat which make a complementary effort on direct infringement, do not infringe trademark directly. So they cannot be prosecuted for direct infringement liability. This thesis begins from clearing the definition and legal characteristics of contributory infringement. On the basis of researching on the development of legislation and legal practice on contributory infringement liability of trademark at home and abroad, the thesis analyses the constituting elements of contributory infringement liability of ISPs , and gives some suggestions on improving trademark legislation of contributory infringement liability in China.Generally, contributory infringement is a kind of action that induces others to carry out something infringed on purpose, or the action that supply actual help when knowing someone is doing/is going to do something infringed. It has character of subordination, indirection and subjectivity.The theory of trademark contributory infringement of America is most typical in the worldwide. It is originated from the theory in contributory infringement of Patent Law and Copyright Law, and set up the standard of defining contributory infringement through a series of cases in Trademark Law, which mentions that one should take responsibilities if supplying products or places to infringement when knowing the fact. While the research on the theory of contributory trademark infringement started a little bit later in China . And there hasn't been any clear and systematic regulation in trademark law, which result in different reasons and results in legal practice, especially in the cases related with Internet trademark infringement on ISP's infringement liability.The contributory infringement liability of ISP should be considered from both subjective and objective aspects. In subjectivity, the principle of liability for fault should be adapted, that is if ISPs know the matter of direct infringement or should have known it , but still provide network services for it or get benefits from it, the act can be defined as contributory trademark infringement. However, it is unnecessary to adopt ISP's subjective responsibilities too strictly because of frequent commercial activities online. While, if infringed activities are over obvious, or ISPs don't finish their services after receiving notice from trademark owners, it can defined as subjective fault. At the same time, ISPs should take the responsibility of preliminary examination for users and ask them not to infringe other's trademark right.As mentioned above, it is necessary to set up clear policies of contributory trademark infringement to balance benefits among different sides in Internet. Accordingly, there are some suggestions on trademark legislation of contributory infringement in China: (1) regulate specification of contributory trademark infringement in general while typical types of it shall also be clearly laid out;(2) regulate ISP's responsibility of preliminary examination;(3) the in time action of finishing online services after receiving notice from trademark owners can not be defined as contributory infringement;(4) if infringed activities are so obvious that it is impossible to be ignored, ISPs cannot be exempted.