Research On Trademark Aiding Tort Of Web-trading Platform Supplier

This article focuses on constructive conditions and tort liability form of web-trading platform supplier constitutes trademark aiding tort.This paper is divided into four parts.Part one,discuss legal status of web-trading platform supplier,web-trading platform supplier is part of internet services supplier,which is adjusted by Article 36 of Tort Liability Law,clearly know rule and notification rule established in the Article 36 of Tort Liability Law do apply to web-trading platform supplier.Part two,discuss subjective element of web-trading platform supplier constitutes trademark aiding tort.According to the rules of Article 57,Item 6,of the Trademark Law,web-trading platform supplier constitutes trademark aiding tort,subjectively,it must be deliberate,what is the meaning of deliberateness and how to affirm deliberateness,the Trademark Law has no specific provisions,this paper thinks here deliberateness is indirect intention,the cognitive element of indirect intention is clearly know,will element is indulgency,both are indispensable.Affirming method of clearly know divides into direct evidence identification and indirect evidence presumption,the meaning of indulgency is nonfeasance,web-trading platform supplier fails to take necessary measures in time.In addition,network copyright infringement domain and network trademark right infringement domain implement different standards,namely subjective element of network trademark right infringement domain includes deliberateness and clearly know,excludes fault and "ought to know",network copyright infringement domain includes fault and "ought to know",however,in the cases of network trademark right infringement,most courts tend to slide duty of care and fault about identification and demonstration of deliberateness,serious violation of expressly stated deliberateness of Article 57,Item 6,of the Trademark Law,it actually confuses the distinction between "constructive knowledge" and "ought to know",identification method of clearly know should refer to "constructive knowledge" of Article 9 of the Judicial Interpretation of Network Human Rights,combining seven considerations of Article 9 of the Judicial Interpretation of Network Human Rights presumes web-trading platform supplier exists clearly know.Part three,objective element of web-trading platform supplier constitutes trademark aiding tort,providing favorable conditions for network users perform trademark tort.Web-trading platform supplier knows seller performs trademark tort act,continuing to provide web services,if web-trading platform supplier replaces omission with act,at least increase,the difficulty for seller performs trademark tort,web-trading platform supplier nonfeasance provides extrinsic favorable condition just for seller performs trademark tort act,plays a secondary role for network seller performs direct tort.Part four,on tortious liability of web-trading platform supplier constitutes trademark aiding tort,Article 57 of the Trademark Law is unclear,Article 36 of Tort Liability Law should be given priority on tortious liability of web-trading platform supplier.The legal basis of joint liability of web-trading platform supplier is contributory infringement,tort liability form is joint liability,ascertaining true joint liability or untrue joint liability in combination with fact presumption rule.