Study On The Liability Of Trademark Indirect Infringement On Online Trading Platform

Notice and Takedown Rule and Red Flag Rule are both legal rules applicable when recognizing indirect infringement under internet environment in the realm of copyright law. As the two rules accord with the characteristic of copyright, the application of the rules in the field of online copyright matters is very economical and efficient. With the successful application of the rules in copyright field, Notice and Takedown Rule and Red Flag Rule are gradually introduced to online trademark field. However, trademark right differs from copyright in nature and characteristic. So the two rules are not effective when applied in online trademark matters as ideal as used in copyright field. In particular, the application of Notice and Takedown Rule cannot meet the expectation when the mechanism is originally designed. Nowadays, trademark infringement prevails on online trading platforms in China. Among other factors, the lack of effective legal rules is also a reason.In this study, the author tries to commence from the analysis of the situation of trademark infringement on online trading platform, and to find the precondition under which Notice and Takedown Rule and Red Flag Rule can take effect and the possible reason of failure by comparing the difference when applying the two rules in online trademark infringement and online copyright infringement. Finally, based on the analysis reached, this chapter proposes some improving idea and suggestion on the legal rules of trademark infringement on online trading platform in China by taking reference to foreign cases.The study consists of four chapters.In Chapter One, the author firstly introduces the nature and legal position of online trading platform, and then analyses the role of which in trademark infringement and the liability thereof. In the meantime, the author also confirms that Notice and Takedown Rule and Red Flag Rule have been adopted by legislation in the field of online trademark.In Chapter Two, the author has a deep analysis on the critical reason of the failure when applying Notice and Takedown Rule in online trademark field. The argument starts by analyzing the precondition under which the rule takes effect in copyright field, and then comprehensively analyses in the aspects of the complexity of online trademark infringement and the cost of adducing evidence thereof to reveal the critical reason why Notice and Takedown Rule cannot take effect.In Chapter Three, the author analyses on the failure of Red Flag Rule in online trademark field which accords with Chapter Two in terms of structure and logic of argument.In Chapter Four, based on the above three chapters, the author analyses the insufficiency to face the severe online trademark infringement by only bearing duty of care on the side of online trading platforms and further points out the necessity to introduce duty of examination. The boundary of the duty of examination is also proposed to have a balanced mechanism.