The Research On Issues Of Trademark Infringement In The Online Trading

Since the middle of last century, the Internet developed quickly and influntedeveryone’ life. It has two coins, making our life convenient and hinding our action.Especially with the popular of online trading as Taobao, it makes our communicationmore easily. And it also leads many new legal issues. Trademark as the carrier showsa business reputation and goodwill, filling with people’s perspective. The emergenceof network trading makes the trademark rights protection showing a loophole. Withthe new form of infringement, based on the existing law, it couldn’t protect thetrademark rights well. So it is necessary to research trademark infringement theory inthe network trading, finding the point between the trademark law theory and the tortlaw theory.This paper started with the type of network transactions. Chinese onlinetransaction is in the mode of B2C or C2C usually. For example, Taobao as a tradingplatform has two trading modes-Tmall and Taobao. Tmall is in the mode of B2C, andTaobao is in the mode of B2C and C2C. The two trading model have the same tradingsteps, but the seller’s market access, service rules and trading rules are different. Themode of B2C is strict because its sellers are sharper. Because of some services inTaobao are not free, it carries more comprehensive duty of care.In the determination of the seller’ infringement, in my view, it is on the duty ofdirectly tort. In this aspect you could read in "Trademark Law” of paragraph2, article52.But Constitutive requirements are more complex. For example, the infringing actsdon’t only refer to sales action, and the fault isn’t the constitutive requirement. It isworthy to discuss the traditional trademark infringement elements-commercial usingand confusion. In the aspect of commercial using, we should expand the scope. In theaspect of confusion, combined with the particularity of the network transactions, the author focused on analyzing direct and indirect confusion, and pre-sale confusion, thesale of confusion and after-sales confusion. After the demonstration, we knew thescope of commercial using and confusion.In the determination of the network business infringement of the platform, in myview, it is on the duty of indirectly tort. Firstly, I analyzed the legal status. It couldn’tbe the partner, mediator or agent, but it is the trading places provider. In our lawsystem, we couldn’t hold it as the directly tort. So I provide the theory of indirect tort.Secondly, in the aspect of the principle imputation, applies the principle of faultliability, avoiding the punishment too strict. Thirdly, in the aspect of componentelements, indirect infringement trademark was established with a direct trademarkinfringement, illegal behavior, facts of damage, causal relationship, and fault.After analyzing the tort acting of the seller and the online trading platform, weshould discuss the responsibility sharing. Firstly, they established the joint tort, in theview of “joint behavior”. The rights and interests of the people owning the trademarkrights can be more effectively protected. Secondly, in the aspects of undertaking theliability, the writer discussed the article36of “Tort Law”. After denying the theory ofpro rata liability, no real joint and several liability, I think they could take the jointand several liability.In the last, thinking the preceding part of the text, we should perfect ourtrademark infringement system in the network transactions, from the followingseveral aspects: firstly, perfect the legislation of trademark infringement in thenetwork trading. Expand trademark infringement type, clear the commercial use andconfusion theory, introduce the trademark indirect infringement theory. Secondly,perfect the supervision mechanism of the trademark infringement in the networktrading. The market access of network trade platform provider ought to be strict. Setup many of the linkage information platform to punish trademark infringementbehavior. And supervise through establishing the industry association. Thirdly, perfectthe dispute resolution of network trade trademark infringement. Establish specialtrademark dispute resolution institutions to avoid unnecessary measures such as thelitigation cost. Fourthly, perfect the network trade platform provider. Establishinternal mechanism of intellectual property protection, be equipped with the professional, using a complete and reasonable user agreement.To sum up, in our online trading system, the protection of trademark still showsinsufficient. We should comprehensive study trademark law system, makingtrademark owner, sellers and network business platform provider three benefits to bebalance. So that, the network trading could develop steadily, and the economy boom.