Research On The Responsibility Of Trademark Indirect Infringement Under The Network Background

With the continuous improvement of economic level and the rapid development of the internet in China,although the network has provided convenience to the human life,it also makes a new type of tort subject,the network service provider,start to move frequently in the field of law.The appearance of the Internet service provider trademark indirect infringement cases such as Eleven major record companies v.YAHOO,Mass moving V.Baidu case and Clothing(Shanghai)fashion trade Co.,Ltd.v.Zhejiang Taobao Network Co.,Ltd.and Du Guofa trademark infringement dispute case show that the Trademark protection under the background of Internet in China has become a major problem.Provisions on the indirect infringement liability of Internet service providers in regulations of the People's Republic of China on the implementation of the Trademark Law,Third party e-commerce trading platform service specification,General Principles of Civil Law of the People's Republic of China,Tort liability law of the People's Republic of China are too simple to operate in Judicial practice.This lead to different standards in Judicial practice when judging Internet service provider trademark indirect infringement liability.What's more,the appearance of some contradictory judgments harm the Judicial authority.In the first part of overview of trademark infringement under the network environment,firstly,the author introduces the concept of trademark indirect infringement under the network environment.Then,the author introduces the characteristics of trademark infringement under the network environment such as the complexity and uncertainty of the subject of tort,diversification of tort,the complexity of the consequences of infringement,jurisdictional uncertainty,the difficulty of collecting evidence of infringement.Then the author introduces the forms of trademark indirect infringement under the network environment through the cases of Mass moving V.Baidu and Clothing(Shanghai)fashion trade Co.,Ltd.v.Zhejiang Taobao Network Co.,Ltd.and Du Guofa trademark infringement dispute case.In the second chapter of identification of trademark indirect infringement liability under the background of network,the author introduces the specific elements of Internet service provider trademark indirect infringement liability in China.Based on the Tort liability law of the People's Republic of China and Information Network Transmission Right Protection Ordinance,the author introduces the specific elements of Internet service provider trademark indirect infringement liability through the aspects of the nature of network service provider,the subjective fault the fact of damage and the nature of liability.In the third chapter,The author introduces the theory of indirect trademark infringement of Internet service providers abroad,such as the Digital Millennium Copyright Act of America,Electronic commerce directive of European Union,Information and communication services specification act of Germany,and HADOPI Act of France.Then,the author discusses the enlightenment of Red Flag Standard system and Safe harbor rule.In the last chapter,based on the foreign advanced legislative experience and the shortcomings of the current legislation in China,the author provides some suggestions on the theory of indirect infringement of Internet service providers such as further improving the criteria for the determination of the subjective fault of the network service provider,perfecting the conditions for the application of the inform-delete rule and constructing of counter notification system to perfect the theory of indirect trademark infringement of Internet service providers and provide a good environment for the Intellectual property protection in China.