A Study On The Trademark Infringement Liability Of The Network Transaction Platform Provider

With the development of shopping online, the trademark infringement cases has been happening frequently in the network transactions, and seriously jeopardize the benefits of the trademark holders and restrict and influence the development of the electronic transaction. If we want to have a balance between the benefits of trademark holder and the healthy and sustainable development of electronic transaction, we should firm the legal position of the network transaction platform provider in the trademark infringement cases. As the intermediary agent which provides transaction platform, the network transaction platform provider will not participate the exchange activities directly, which merely provide a service to the buyers and sellers to enter into a sales contract.The trademark infringement was divided into two categories:direct infringement and indirect infringement. Because the characteristics of neutral of the network transaction platform provider, it will not infringe the trademark directly. There are still many controversies about the juridical status of the network transaction platform provider, the right infringement constitution, doctrine of liability fixation and liability exemption condition. So my paper will give my suggestions to improve relevant legislation on the basis of elaborating all the controversies as mentioned earlier and consulting the existing research.The paper contains four parts:In the first part, I will introduce the concept and the legal status of the network transaction platform provider. Then take Taobao as examples to analyze the operation pattern and profit model of the network transaction platform provider. Last analyze and summarize the obligation of the network transaction platform provider to protect the trademarks.In the second part I will introduce, evaluate and analyze the existing tort theory. Then introduce the constitutive requirement and doctrine of liability fixation of trademark infringement of the network transaction platform provider.In the third part I will introduce the legislative experience and practical experience of other countries, especially the advanced practice of America in the term of protecting the trademarks, so we can use for reference to develop our legislation.In the forth part I will introduce our country's present situation of legislation about this theme, explore and analyze the deficiency, and propose the counter-measure. The perfecting suggestions will contain the legislative style and the legislation contents. The legislation contents will contain confirming the legal status of the network transaction platform providers, stipulating the obligation of the network transaction platform providers and consummating the concrete program of the doctrine of "notification-deleting"The main research method in this study contains documentary analysis, case analysis method and comparative method. The innovation content is the complete summary and in-depth analysis of our country's laws and regulations, local regulations and industry guidelines about the theme.