Safe Harbor Provisions’ Application In Cases Of Online Trademark Infringement In China And Legislation Improvement

With the arrival of the Information Age, trademark infringement on the internet is becoming more and more serious. Among the studies of online trademark infringement, safe harbor provisions is not only a important basis for internet services providers’(ISPs’) to be exempted from liabilities, but also is a hot issue in nowadays. Currently, though there is no any law in China to define clearly that safe harbor provisions can be used in trademark infringement cases, the provisions actually guide the judicial judgment. Because of the defects of legislation and the limited level of the judge, the judgments of the same case are often different due to different judges. Thus it is necessary to study safe harbor provisions’ situation in its application of trademark infringement cases, analyze its deficiency in these case and the faultiness in China’s current legislation, use for reference from the experiences of network copyright legislation to improve the safe harbor provisions used in online trademark infringement.The thesis contains three parts, namely exordium, main text and conclusion. The exordium is a discussion on the background in home and abroad, theoretical and practical significance, research outline as well as status which all relates to this research.In chapter one, the paper studies the safe harbor provisions’ origin, main contents as well as its application and development situation in foreign countries.Base on some judicial decisions, chapter two analyzes safe harbor provisions’ application and its deficiency in the cases of trademark infringement on the internet. Online trading platform is the basic condition for trademark infringement on the internet, thus the paper analyzes four different cases related to these online trading platforms, point out the faultiness in the cases. Namely, judge different duty of care to the same operators, do not audit the feasibility of announcement obligation, strictly prohibit repeated infringement obligation in the judgment, et al.Chapter three definite the conditions of safe harbor provisions’ application should base on ISPs’ neutrality, the establishment of valid notice’ channel, no subjective fault, and valid notice exists, then point out corresponding deficiencies in the legislation.Based on the deficiencies in the legislation analyzed in chapter three, after analyzing the intercommunity between the legislation in network trademark infringement and network copyright infringement, chapter four point out that it should use for reference from safe harbor provisions and the regulations in the internet copyright law to improve related legislations about network trademark infringement. Furthermore, this chapter holds the view that it should be a public way of receiving notice, supervise duty of care and management model as well as interests association. Meanwhile, based on the online copyright infringement and its correlation rules, the paper proposes measures to restraint the repeated tort which comes from online trademark infringement, and gives advice that it should base on the Graduated Response System and use monitoring measures to balance the interests between the network station operators and trademark holders, so as to improve legislation.