Comment On The Trademark Infringement Case Of E Land Co.V.Taobao Co.,Du

infringements of intellectual property rights are also arousing frequently in the network trade. The network trade platform is gradually becoming the soil for problems of infringements of intellectual property rights. As the third party in the network trade, the platform providers also become the subject of litigation, which result in the dissension on trademark infringements. Article 36 of Chinese Norms of Liability for Tort is the special norm for liability for tort on the network. However, the principles of the Article 36 is not concertized enough. The network trade platform providers’legal status, subjective fault, legal obligation, constitutive requirements of tort liability and so on are not clearly prescribed in the principle. The vagueness leads to controversies in theoretical field and difficulties in judicial practice, which causes the phenomenon that one case has different decision. How to set the rules for network trade providers in tart as well as effectively guarantee trademark obliges’legal rights and interests and make the network industry develop well? It deserves to be delved into.E·LAND Garment Commerce Co., Ltd. Shanghai Subsidiary (hereinafter referred to as E-LAND) prosecuted Zhejiang Taobao Co., Ltd. (hereinafter referred to as Taobao) and buyer Du. E·LAND brought suit against Taobao and Du. for trademark infringement. The case is profoundly instructive to the improvement in judicial practice. The network trade platform provider is independent of the buyer and seller in the network trade. The provider does not take part in the trade, so generally he would not constitute direct trademark infringement. If the network users have direct trademark infringement act on the platform while the platform provider don’t observe legal obligation to take the necessary measures to prevent the act, the provider may commit indirect trademark infringement. The indirect infringement is different from traditional infringement to some extent. The constitutive requirements of the tort are the precondition of direct infringement act, illegality in act, facts of damage,mistake of causation, and subjective fault. Among the requirements above, illegality in act is based on the prerequisite of the breach of legal obligation. Due to the open and virtual environment of the network, the the legal obligation for the network trade platform provider should not be unduly strict. The platform provider’s main legal obligation should include initial inspection, interim auditing, and post remedy. Subjective fault should be restrictively interpreted into act of knowingly infringement which can be analyzed and judged by related articles of law and his objective act. The effectiveness of the notification is one of the conditions for judging the subjective fault. The notification should mainly be in the written form. The main contents can refer to Article 14 of Regulations for Internet Transmission. The network trade platform provider whose act comprises infringement.For the sake of better guidance in judicial practice, protection for judicial authority and legitimate rights and interests of both parties, and promotion for the development of the network industry, legislation shall refine the rules of infringement, legal status, and legal obligation for the network trade platform provider as well as give specific connotation to notification, necessary measures, and awareness.