A Research On Indirect Infringement Of Trademark By Internet Service Provider

Currently outside the field of intellectual property, indirect infringement rapid development in theory and jurisprudence, and gradually formed a relatively complete system, field of our country intellectual property law also deeply affected. Due to the challenges brought about by the rapid development of new infringement cases on the internet, the indirect infringement of copyright and patent rules has been developed and improved, and indirect infringement of trademark law related research but relatively weak.Trademark infringement under the network environment is increasing. This new type of trademark infringement makes our existing laws on trademark infringement solve network problems stretched. Cases appearing trademark of indirect infringement on the Internet in recent years, such as Shanghai Volkswagen Transportation Company(public trackbacks) v. Baidu case, Yinian Company v. Taobao case and so on. Although the judge made reference to the theory of indirect infringement regime were foreign judgment, but the legislation was only scattered and in general terms, there are legislative gaps, leading judges to decide cases has no uniform application of standards, or the lack of scientific and reasonable judgment theoretical support reasons. Existing legislative gaps lead to judges to decide cases there is no uniform application of standards or lack of scientific and reasonable judgment theoretical support reasons. So I believe that the theory of indirect infringement should be introduced in order to better address the network environment trademark infringement of this new type of trademark infringement.The introduction in the article describes the background of this writing and two typical cases of trademark infringement dispute introduction, through the "public trackbacks" v. Baidu case with Yinian Company v. Taobao case facts combing main research questions in this article.The first chapter introduces the basic theory of internet service providers’ trademark indirect infringement. First, the paper briefly describes the internet service provider and indirect infringement of the basic concepts and features of the internet service provider indirect infringement. In the introduction to this subject the internet service provider, the mainly discusses the legal search engine positioning service providers and trading platform internet service providers.Understanding the legal status of these two subjects both for trademark infringement identified plays an important role. Second, the paper describes an important breakthrough --trademark infringement network theory "initial confusion" theory and explained the reason of the application of the theory:the theory is to distinguish between new cases of direct infringement of trademark infringement and indirect infringement of an important theoretical tool. Meanwhile, the chapter discusses the relationship between indirect infringement and other similar concepts. Clarify indirect infringement and direct infringement, contributory infringement and, contributory infringement of traditional tort law is different. Pointed out that our country should establish rules of indirect trademark infringement which integration with Copyright and Patent, leading to the formation of an independent system of indirect infringement.The second chapter introduces the principle of attribution and liability form of indirect infringement of trademark and elaborate scholars belief of type for trademark infringement imputation principles and form of responsibilities. The paper discusses the "fault" of that standard and the reason why I believe trademark infringement is applicable the principle of presumption of fault rules and undertake the unreal joint liability.The third chapter describes the rules limit the internet service provider liability-haven rules. In this section, the article describes the following:the orign of Haven rules, the reflected in our legislation, the obligation that internet service provider shall undertake, the appliance of "Notice and Deletion" rules.By comparing related provision of copyright law,I describe the type of reasonable duty of care which should be borne under the Haven rules,suggest lower the standards of notification form elements and the effectiveness of inadequate notice cannot treat as the same.In order to apply to further refine the Haven rules,trademark law should absorb the related provision of copyright law.In finally summary, this paper emphasizes again that the traditional theory of trademark infringement has been unable to meet the real needs. In order to better protect the interests of trademark owners,I suggest that our law shall lead into the "Confusion" theory and the theory of indirect infringement to complete the "Trademark Law". We also pay attention to the Internet and to maintain balance between the interests of the public in this process...