Research On The Safe Harbor For Trademark Infringement On The Internet Marketplace

Trademark infringement cannot be ignored while people enjoy the benefits of onlinetrading. However, the courts could hardly determine the liability of trademark infringementcomposed on the internet service provider, due to the lack of relevant regulation. In thejudicial practice domestic and overseas, the Safe Harbor, which also absorbed by the scholarsand experts, could be accepted for judging the internet service provider’s liability oftrademark infringement. In the article, the author reflect on trademark infringementoccurred in the online trade environment, and then analyze the process of knowledge andappliance of the Safe Harbor Rule in the field of theory and judicature. The article furtherdiscusses that the meaning of structuring the safe harbor of trademark infringement for onlinemarket place, and how to structure the safe harbor.The article is divided into five parts. Article One is Introduction. It analyzes themeaning of the paper’s study, and points out the current study of theories and legal expressivesituation and study methods.Article Two states the definition and legal status of online trading platform. The SafeHarbor is introduced as the liability exemption condition for the internet service provider, asthe opposite side of the types of trademark infringement of service provider.Article Three introduces the legislation and judicial cases of safe harbor in maincountries and regions around the world. The disputes of safe harbor focus on the role ofinternet service provider played when they provided services to the third party, the users, andwhether they conduct measures to contain the repeat infringements made by the users.Article Four points out the problems when the safe harbor is applied for the trademarkinfringement of the internet service provider in our country. In the article it is firstlyevaluated the relevant regulations of the safe harbor, including the regulations from Tort Law,and Regulations on the Protection of the Right of Communication through InformationNetwork. More detailed researches are focused on discussing the rationality and restrictive ofsafe harbor problem in this paper and the typical exemplification and counterexample arepresented, including TAOBAO, eBay cases. The safe harbor problem includes the indistinctobject, the rough “Notice-Take Down” procedure, the incurably repeat infringement, the indistinct obligation of reasonable care and prudence for the internet service provider.Article Five states how to complete the safe harbor of trademark infringement forinternet service provider. Measures conclude that the subject scope of the internet serviceprovider should be affirmed, the prior examination duty and remedial measures should beconfirmed rationally. The form and content of Notice from the right owner, as well as thecounter-notice for the user, the Red Flag Standard, are also discussed in the article.