The Liability Of Trademark Infringement Of Online Transaction Platform Provider

The trademark infringements are increasing rapidly on online shopping platformswith the rising of online shopping market, corresponding with the growing ofprotection activities of trademark right owners. In the process of dealing with relevantcases, when the direct infringer, the selling party, shall undertake direct liability oftrademark infringement, whether the operator of a platform, the online transactionplatform provider, shall undertake liability for trademark infringement which iscommitted by a selling party on the platform? Different understandings regarding thisissue turn up since it has not been explicitly specified by recent China laws. Thisarticle intends to discuss the above issue and expect to provide references for thelegislation and judicial practice of our country.The introduction section primarily presents the current development of ourcountry’s online shopping market, as well as related judicial cases indicating differentliabilities of the online transaction platform provider. The author proposes severalissues regarding research of indirect liability of trademark infringement of the onlinetransaction platform provider.In section Ⅰ, the legal status of online transaction platform providers will bedefined by introducing the operation and features of online transaction platforms. Theoperation and features of the online transaction platform distinguish from real-lifetransactions. It should be determined as a unique category of online service providers by considering its features comprehensively, and should not be determined byapplying any styles or modes of real-life transaction directly, such as sellers, brokersor counter lessors, Etc.Section Ⅱ mainly studies the basic theory of trademark indirect infringement andanalyzes the difference between indirect and direct infringement and the currentsituation of legislation of indirect trademark infringement in our country. Combiningthe features of online transaction platforms, the author may specify that the onlinetransaction platform provider shall only undertake indirect infringement liability fortrademark infringement committed by selling parties on the platform. In addition,through the analysis of patterns of trademark indirect infringement, this sectionindicates the possible trademark indirect infringements conducted by onlinetransaction platform providers and confirms FAULT is the key of determining theliability of indirect trademark infringement conducted by online transaction platformproviders.Section Ⅲ focuses on FAULT determination of online transaction platformproviders in the indirect trademark infringement. Obligation is the precondition of theFAULT, from author’s perspective, and online transaction platform providers have nomonitoring obligation but reasonable duty of care. Under this precondition,“Noticeand Takedown” principle applies to the determination of the FAULT of onlinetransaction platform providers. Nevertheless, the validity of right owner’s noticeshould be considered. And with respect to repeat complaint and offence, thereasonability of necessary measures adopted by online transaction platform providersshall be comprehensively identified case by case. And “red flog standard” is notadapted to apply to the determination of the FAULT in online transaction platformproviders’ trademark infringements.Section Ⅳ is the Conclusion. Through analyzing the entire article, the author indicates someexisted problems in our trademark laws and further correspondent refining suggestions.