Research On Subjective Fault Of Trademark Tort Liability In Shopping Website

With the development of electronic-commerce, there are more and more cases about shopping website providers on trademark infringement. To decide the liability born by shopping website providers and those who infringed the trademark right, we should make clear of the meaning of fault. In spite of the fact that there are legislations and cases about network service providers, shopping website are still full of dummies. In view of such fact, the website providers shall be made to bear more responsibilities in stead of playing a role of neutral third party. This paper, beginning with traditional tort theory, from two aspects, which are the establishment and breach of duty of care, aimed at describe the objective criteria of fault. Difficulties and relevant reasons about the decision of fault were given based on the cases. And then some suggestions were put forward. This paper can be divided into four chapters:In the first chapter, the legal status of shopping website provider was given. Then doctrine of liability was described in order to illustrate the importance of fault in deciding shopping website providers’liability. In view of the similarity between shopping website providers and trading place providers, they were compared to conclude some advices on the criterion of fault.The chapter two began with traditional tort theory. A description of judging standard of fault was made from two aspects, which are establishment and breach of duty of care, through subjective and objective analysis on fault. Then the conclusion was obtained that this kind of criterion was uncertain.The chapter three introduced the cases between Yinian Co., Ltd. and Taobao Co.,Ltd. Based on the construction described in Chapter2, an analysis on the court decisions which was a great try was made. Then difficulties and relevant reasons on fault decision in practice were given.The chapter four made some suggestions on the judgment standard of fault. Based on the analysis about the change of legal status caused by shopping website providers’ offering value-added service, a kind of duty of initiative review shall be taken by those providers. Such kind of duty shall be limited in the appropriate scope through the definition of objects and criterion of such review. Due to the fact that breach of reviewing duty constituted negligence, a question was made about the joint liability caused by the contributory infringement. Then the suggestion of establishing the system of indirect infringement was made.