Study On Trading Website's Secondary Trademark Infringement Under E-commerce

With rapid development of E-Commerce and economy, buying products on websites become one of the most popular consuming ways which are welcomed by modern people. Under this background, many trading websites appear. E-Commerce trade involves the sale of products, so among all the legal problems involve in the course of trading, the legal issue of Intellectual Property is an essential one, especially in the aspect of trademark. The role which trading website plays in online sales is more likely to be an internet trading platform provider. Trade is made between sale party and buying party that they negotiate online and delivery products off the Internet. The trading website do not directly sales other's product, but because of the role he it plays in trade, it deemed to bear the liability of secondary infringement under certain conditions. According to the common theory of torts, if one person orders, induces or offers substantial help to a direct infringer, he or she is liable for secondary infringement. Many cases related to the secondary infringement of trading websites happened both in domestic and abroad and different counties show different attitudes on these disputes. The aim of the thesis is to analysis relative cases and statute both of our county and of some foreign countries, identify the common rule of the secondary trademark infringement, at the same time focus on the duty of care which trading website should bear. And this thesis also discusses the differences between monitoring obligation and duty of care, and the ground of"Notice and Takedown"rule to be adopted in trademark area. In conclusion, according to the problem reflected from the cases and learnt from other countries, the author give some own suggestion from legislative and management aspects so as to perfect the legal system of trading website's secondary trademark infringement under E-Commerce. By using of practical and contractive analyzing methods,this thesis studies on trading website's secondary trademark infringement from five parts. The first part analysis trading website's working mode, legal statue, forms and laws and regulations of secondary infringement; the second part taking Taobao and eBay as examples, manifests several case relate to trading website's secondary trademark infringement. On the basis of these cases, the author concludes the problems exist in legislation and judicial practice; the third party of this thesis firstly introduces the development of secondary infringement in US, and then contract the attitude towards this issue with some developed counties in European; the fours part concludes the common principles in judgment and remedy of secondary trademark infringement, and focus on the study of the criterion of duty of care as well as"Notice and Takedown"rule in trademark area; the fifth part gives out some suggestions on legislation of trademark law and some special measures to optimize the surrounding environment of enterprises so as to avoid disputes.