A Research On Indirect Infringement Liability Of Trademark By Internet Service Provider

Essentially,it is an exception for 'self-liability' that Internet service providers(ISPs)shoulder the responsibility of indirect infringement of trademark.So its legitimacy should be proved.In the disputes of trademark infringement,ISPs can spend a relatively small amount of social costs to control the consequences of infringement.When Internet users infringe upon trademark,the benefits that ISPs obtain come from the infringement of trademark owners' benefit mode.Therefore,ISPs need to shoulder the responsibility of indirect infringement of trademark.It is of practical significance.Because it not only reflects the legal value of justice,but also in line with the balanced development of policy guidance.The imputation principle for the indirect infringement liability of ISPs is the fault liability principle.If ISPs " obviously know" or "should know" network users' infringement and violate their own statutory obligations,causing the damage fact that the trademark right has be infringed upon,they can be affirmed that they should bear the responsibility of indirect infringement of trademarks.Service providers may be relieved of their liability if they are unaware of direct infringement or have followed the "notice-takedown" rules.In view of the lack of maneuverability of joint liability and vicarious liability in their application,the form of responsibility assumed by ISPs should be supplementary liability.The relevant legislative provisions in our country are fragmented and generalized,resulting in no unified referee criteria and scientific and reasonable theoretical support injudicial trials.In order to improve the system of indirect infringement of trademark infringement of ISPs,legislation should clearly define the components of liability and stipulate that ISPs should assume supplementary liability within the scope of their fault.The judiciary also need to promulgate a relevant judicial interpretations to clarify the criteria of "should know",establish specific rules of the "notice-remove" clause and implement the supplementary liability of the infringing party.