The Duty Of Online Marketplace Operator-From The Trademark Infringement Side

In recent years, with the development and maturity of online marketplace, theproblems of infringing intellectual property have sharply increasing, and extremelyfor the trademark infringement. Most papers were discussed about the contributoryand secondary liability of the online marketplace operators (the OMOs), but for theissue of duty of care, there was no further research. However, this is the very essentialof the OMOs’ fault, and also the difficult point of the liability. This paper will analyzelegislations and practices from China and other countries and districts, criticize andinherit the current experience, summarize a way to harmonize the OMOs, sellers andconsumers.Around with the subsistent problems in OMOs’ duty of care, the paper consists fourchapters:ChapterⅠrepresents the essential of duty for the OMOs. The paper will find theconcept of the OMOs, and tell where its name come from. Explaining why the OMOsadopt the fault duty to attribute their liability, and duty of care as the judgment offault.Chapter Ⅱ compares the legislations and practices in America, France, German andthe EU. Analyzing these countries and districts first distinguish the nature of theOMOs, and discussing what are the duties. Most countries and districts think OMOsare playing an active role in the transaction, so they can’t exempt their liabilities; and as the duty of care, there are different opinions: France, as the luxuries productioncountry, attending to give OMOs strictly duty of care. America, at the same time,thinks duties should be loosen. German and the EU think only receiving the noticeand then product duties of care. However, both American and France legislationshows the governments mean to shrink the duties.Chapter Ⅲ is about the duties of OMOs in Chinese legislation and practice.Summarizing two difficulties: firstly, the online service providers are not subdivided.Secondly, the legislation and practice didn’t tell the content of the duties of OMOs.Chapter Ⅳ is about proposals for legislation about the duty of care. This paperdefinite the OMOs as an active players, and provide the OMOs’ duties as before theevent, on the event, and after the event, making the provisions more feasible.