The Indirect Tort Liability Of Trademark Infringement In The Internet

With the widespread of the internet and the rapid development of networktechnology in China, the trademark infringement in the internet is increasing. Thearising of the new problems has caused the present law too incompetent to resolve thetrademark infringement in the internet. In judicial practice, the courts have differentopinions on these problems, and that leads to judicial disorder. Furthermore, thenetwork service providers can not foresee the legal consequences of their behaviors,and it is improper for the reasonable protection of trademarks or for the normaloperation of the network service providers and will hinder the development of China’snewly-born internet industry. Therefore, the focus of the paper is how to use the lawcorrectly and efficiently to regulate the trademark infringement properly in theinternet environment in order to promote the flourish of the internet economy.Trademark infringement in the internet has many new features, which is a bigchallenge for the trademark owner to protect his trademark rights effectively，such asthe virtuality，imperceptibility, multiplicity, and the expansion of the consequentialdamages. The question on whether the network service providers shall be completelyrelieved from the responsibility in the traditional trademark infringement initiatesfierce disputes in academia. Seeing from relevant cases, we can find that the courtsgradually identify that a network service provider shall be subject to trademarkinfringement liability under certain conditions but each court has its specific recognition criteria. Therefore, on the basis of the traditional trademark infringementtheory, we shall introduce the theory of trademark indirect infringement so as toeffectively resolve the problems of trademark infringement in the internetenvironment.The first chapter is an overview of trademark infringement in the internetenvironment and the theory of trademark indirect infringement. It illustrates what istrademark infringement in the internet and its characteristics, as well as the mainpoints discussed in the paper. Meanwhile, it makes an introduction of the theory of thetrademark indirect infringement, including the concept, types, and development of thesystem. At last, it discusses the necessity for China to implant the system of trademarkindirect infringement.The second chapter regards of identifying the trademark indirect infringement inthe internet environment. The main problems are how to regulate the constituentelements of trademark indirect infringement and what is reasonable use of trademarkin the internet environment. The imputation principle for the indirect infringement ofthe network service providers will be discussed in details in the “constituentelements” part.The third chapter demonstrates the specific problems concerning the two typicaltrademark-indirect-infringement subjects in the practice, who are search engineservice providers and network trading platform provider. It illustrates their concepts,discusses the hot issues in academia, and presents my opinions on the focus questionscombined with judicial cases.The fourth chapter presents some recommendations to improve the protection ofinternet trademark in China. Thinking of the current theories is insufficient to supportjudicial practice，China shall establish the trademark indirect infringement systemand stipulate specific regulations for special subjects, such as network serviceproviders.