Identification On The Liability For Indirect Infringement On Trademark By Site Provider

In recent years, more and more trademark owners bring litigations to require siteproviders to bear liability for infringement on trademarks of site rentals, namely, require siteproviders to bear indirect infringement on trademarks. The indirect infringement ontrademarks by site providers mainly contains two typical types of lured infringement andcontributory infringement. Owing to the fact that our country has not yet established thesystem for indirect infringement on trademark, as for contributory infringement by siteproviders, the provisions related to contributory infringement in the general provisions of thecivil law is referred in the judicial practice to judge that indirect infringement and directinfringement constitute joint infringement to bear several liability. As for the identification onsubjective fault of site providers, whether site providers constitute indirect infringement ontrademarks is identified according to the provisions in Paragraph2of Article50in theImplementing Regulations on the Trademark in the judicial practice.As for the aforesaid issues, this thesis endeavors to combine the case and theory andresearches the standards for identification on subjective fault of contributory infringement bythe site provider and the forms of liability thereof.This thesis consists of three parts, in which Part One introduces the case and focuses indispute, Part Two analyzes the dispute of the case and Part Three elaborates the researchconclusion.There are two focuses in dispute in the case, including the standards for identification onsubjective fault of contributory infringement by site providers and the forms of liability forindirect infringement on trademark by site providers, that is, the site provider shall bearsupplementary liability, several liability or joint and several liability with direct infringer. Thetwo focuses in dispute are the common issues in debated by the parties concerned in thesimilar cases and also in the academic circle and judicial practice.Through the elaborations on the aforesaid issues, the author holds that in contributory infringement, whether the site provider constitutes infringement with subjective fault may notbe determined only according to the damage in the object, but also according to thecircumstance whether the site provider has fulfilled the obligation of due care, that is, whetherthe site provider has fulfilled the reasonable review and attention prior to admission, dailypatrol obligation, assistance obligation in investigation and remedy obligation after knowingthe infringement; as for the liability for infringement thereby, the author holds that it isinappropriate to apply joint infringement theory to contributory infringement, the site providershall be only liable for the enlarged loss of the trademark owner from providing convenientconditions for the infringer after knowing the direct infringement, not for the whole damage,namely, the direct infringer and the indirect infringer shall be liable for their own actsaccording to causative potency of their respective acts, which conforms to the correspondencebetween obligation and liability, not only effectively avoiding the circumstance that eachparty escapes their respective liability in the joint and several liability but also avoiding thepossible circumstance that the site provider bears too heavy liability therein.