Study On Market Operator’s Indirect Trademark Infringement

In2005, five well-known foreign corporations bring lawsuits againstXiushuihaosen company. From then on, cases on provider of space indirect trademarkinfringement increase in judicial practice. However, the current trademark legislationin our country doesn’t give a systematic regulation on indirect infringement upontrademark，and judges have different opinions about this and resulting in differentdecisions in similar cases. With the strength of the protection of IP in our country,some courts overemphasize on the protection of trademark owners’ right and makemarket operator carry the burden to police counterfeiting activity, resulting inimbalance of rights. The key to solve these problems is to establish systematicregulation on indirect trademark infringement on the basis of the balance of theinterest between the trademark owner and the market operator.This thesis starts with four typical cases from judicial practice in China andfocuses on the two major controversy involving in the cases: what test for theknowledge needed to hold market operator responsible and how they assume theliability. According to the analysis of the two main problems and the legislativesituation in our country, the thesis proposes the thoughts about the improvement of theregulation of indirect trademark infringement.The thesis is divided into four parts: The first part gives a brief introduction offour typical cases and summarizes the two problems reflected in the cases. The second part talks about the first controversy: the test for the subjective fault of marketoperator in indirect trademark infringement. This part first analyses the courts’controversial point—what is the criterion of the subjective fault, monitoringobligation or duty of care? Then through the comparison with a similar case happenedin USA and the discussion of the reason of monitoring obligation and the right andobligation of the two parties, this part concludes that monitoring obligation should notbe the criterion of the subjective fault, and then puts forward that the duty of careshould be defined on the balance of the right of trade mark and the market operator.The third part analyses the second controversy—how the market operator assume theliability, should the market operator assume independent liability, supplementaryliability or joint and several liability. According to the definition and comparison withcommon tort, this part comes to the conclusion that the market operator shouldassume the liability independently rather than assume the joint and several liabilitywith the direct infringer. The forth part is about the thought of the improvement ofindirect trademark infringement rules. This part proposes the elements of indirecttrademark on the basis of the distinction between indirect infringement and directinfringement and gives out some suggestions on judicial practice.