The Responsibility Determination Of E-Commerce Platforms' Trademark Indirect Infringement

As the rapid development of Internet, E-commerce pattern comes to being a significant element for national people. In the first half of the year 2015, the Ecommerce made an income revenue for 7.63 trillion yuan. But the trademark infringements became much more sever as the Internet developing rapidly. Many online sellers earn giant profits through selling fake or unauthorized products. SAIC launched a test results on the network trade commodity orientation in the second half of 2014, which shows Taobao.com provides true and authorized products only occupies 37.25%. The trademark infringement resists the further development of Ecommerce. As for the abundant transactions and information, the righter could hardly find out the one who really causes damages. On the contrast, the seller could barely pay damages to the righter while earn much money. In the end, the infringement would be quite hard to resist and trademark infringement itself would be an industry. According to the balance of interests, as well as equity principle, the providers should answer for the indirect infringement under some conditions. For the benefits of the righter in the new E-commerce area, the law and court accept that the righter could ask the providers for damages. Nevertheless, Chinese law system regulate little in providers' indirect infringement: a little in contributory infringement and little in vicarious infringement; when coming to determine the responsibility, the court's view varies. Considering those circumstance, this paper is going to analyze the providers' doctrine of liability fixation, constitutive requirements, liability exemption condition, as well as the form of assume liability.Apart form the introduction and conclusion section, this paper is divided into five chapters.The first chapter introduces the concept of providers and trademark indirect infringement, as well as the two types of the later liabilities, the providers don't participate in specific transaction, but to provide necessary technique transaction providers for the buyer and seller. The two types of trademark indirect infringement liabilities for the providers, namely contributory infringement liabilities and vicarious infringement liabilities, which is born by subjective fault or law enforces. The second chapter analyzes the doctrine of liability fixation, the contributory infringement liabilities applies the fault principle, while the vicarious infringement liabilities uses the no fault principle. The third chapter defines the elements of two types providers' indirect infringement. Both need the direct infringement exist of ready to happen. For the former type, the providers should provide assist to the infringement, thus cause the damages, and have subjective fault. After that, this paper through out some suggestions in regulating the contributory infringement. The second part in this chapter is about the elements of vicarious infringement, besides the direct infringement, the providers should fulfill two elements in the same time: direct financial benefit as well as the ability and right to control the transactions. This paper also provides some suggestions to how to better the regulation in this type. The fourth chapter presents the liability exemption of the trademark indirect infringement liabilities of the providers, namely safe harbor rules. This part mainly about the applicability and how to use them in our legislation. The last chapter is about the forms of assume liability, usually the providers would bear the responsibly through three types: cease the infringing act, eliminate ill effects and pay for damages. When taking to the actual cases, the types could use in an open way for necessary.