The Study On The Trademark Infringement Liability Of Hyperlink Businessmen

Trademark has been playing an important role in the online shopping which is on a basisof internet technology. This phenomenon brings an result that the frequency of trademarkinfringement becomes more and more quickly and the owner of trademark has bought dearlycost. The difficulty of administration of justice follows this process. And due to the difficultyof affirming infringement that the internet technology has brought about, as far as the gapbetween the quickly development of internet technology and the trademark legislation, theowner of trademark is in an embarrassing position. The hyperlink businessmen who plays animportant role in the process of the formation and development of the internet technology, isof important significance to study the trademark infringement in the realm. The hyperlinkbusinessman does not implement the direct infringement in essence. He only plays the role ofbridge and passage. This characteristics determines that the service which is provided by thehyperlink businessman constitutes the secondary infringement. Also we must take the basicaction of the hyperlink on the internet into account when we make the judgment if onebehavior constitutes infringement. There exists dispute on the criterion of liability aboutintellectual property. However, we should apply the criterion of fault liability on the liabilityof the hyperlink businessman. In this way, it has no difference in comparison with thetraditional infringement. But we should notice that how to make a judgment on the subjectivefault is an important and difficult problem. We also should consider the interactionrelationship between the quickly development of the internet and attention duty of thehyperlink businessman and the actual regulatory capacity and operation cost of his. We shouldget the balance between reducing the risks of the hyperlink businessman’s infringement andeach party’s interest. Only in this way can we get the balance between the protection of theinterest of the owner of trademark and force of the development of online shopping. Take thecase of this paper, I will try to study the hyperlink technology used by the hyperlinkbusinessman firstly. Then I will make the assumption on whether this hyperlink will constitutethe use of trademark law. In this paper, I will also make an analysis for the secondarytrademark infringement and constitution element. After this, I will point the difference whichthe behavior of hyperlink businessman brings make an important influence on the trademarklaw and system of China by using the foreign legislation and judicial practice, as also as the latest case happened in our country. Finally some reasonable suggestion will be concluded.