Research On Online Trading Platform Provider’s Standard Of Duty Of Care In Trademark Indirect Infringement

With the rapid development of network technology and the rise of e-commerceindustry, a series of new legal issues arises at the historic moment,trademarkinfringement litigations that Internet trading platform providers are regarded as thedefendant happen worldwide, and the court’s decision vary wildly, point of view ofthe courts in China have many differences,either. The reason for this is that theInternet trading platform providers standard of duty of care in trademark indirectinfringement is inconsistent. Based on the typical representative of Internet tradingplatform providers taobao, after analyzing the20domestic trademark infringementcases that taobao was regarded as the defendant,I come to the conclusion that thiskind of case in judicial practice at present in our country law focused on Internettrading platform providers standard of duty of care, and point out the fuzzy term ofexisting theories, and furthermore,on this basis,I draw lessons from foreign typicallegislation and judicial practice experience and put forward some specific legislativeproposals for the aim of problems existing in the legislative status. Around theexisting related issues of the Internet trading platform providers’s indirectinfringement, this paper can be divided into three chapters:The first chapter is the analysis of the Internet trading platform providers’s indirect infringement cases and theories. This article selects taobao as the example ofthe typical online trading platform provider, the first section analyzes the collection of20cases that taobao is regarded as the defendant, and conclude the reason lies in thecourt that lead to inconsistent decision is that there are different standards of duty ofcare in online trading platform providers’s trademark infringement, and the standardof duty of care involves "notice and remove rules" and online trading platformprovider’s technical business model and legal status. In the second section for theonline trading platform provider’s trademark indirect infringement theory analysis,Istart with the the definition of Internet trading platform providers, and analysis thetechnology business model of taobao, and then clarify the legal status of taobao andtaobao’s components of the indirect trademark infringement liability, lay thefoundation for later analysis.The second chapter is the Internet trading platform providers attention obligationcognizance standard research. First I clear the connotation and definition of the dutyof care, and determine what is the duty of care. Secondly I summarize the laws、theories and regulations related to the standards of duty of care, point out the specificcontent of duty of care and classification.On the further analysis I point out thestandard of duty of care, and have further study of the the connotation of thedefinition of "notice and remove rules" and "red flag standard", and state the troubleof the application of it. Finally, draw lessons from foreign countries mainly is theEuropean Union and the United States about the judicial practice of the typical caseand the main points about online trading platform provider’s standard duty of care intrademark infringement.The third chapter is the suggestions about perfecting the Internet trading platformproviders’s standards of duty ofe care. First I put forward the principles that weshould follow in perfecting the standards of Internet trading platform providers’s dutyof care–economic efficient principle and fair principle. Secondly, follow the twobasic principles, on the basis of draw lessons from foreign experience, through theestablishment of "notice and the notice" system and special audit institutions andcredit guarantee system to perfect "notice and remove rules" and "red flag standards", and then clear standard of duty of care; In addition, combined the technology oftaobao’s business model analysis, point out the technology business model’s influenceon the standards of the duty of care.