Study On Type Distinction And Review Obligation Of Network Trading Platform Providers

As today's online trading is quickly changing,service operations and service modes of online trading platform are increasingly diversified.Some only provide online trading platform;some not only provide online trading platform,but also are involved in trading;some other provide value-added services by the way of home page list,indexes,etc.In different modes,the control powers of service platform over merchant's trading behavior are different.Some are passive service platform,and some other are active service platform.For example,ebay,a monomorphic platform,is passive and neutral;hybrid Tmall and some popular sites are active services.Therefore,it is necessary for different network service providers,with different operation and service models,to examine whether the review obligations of merchant tort are the same and whether the indirect infringement liabilities are the same.In tort liability law,operation and service models are not involved in the elements that influence the tort liability of network service providers.However,from the network trademark infringement cases in different areas of the courts selected by the present researcher from 2005 to 2016,the court judicial referee has attached attention to the effects of different operation and service model types on the responsibility ability and indirect infringement liability of online trading platform.According to the criterion of operation and service models and on the basis of distinguishing the types of network service providers,the relevant referee documents present two trends:(1)the responsibility cognizance of different types of network service providers are different,active or passive.(2)the content and criterion of review obligation for different types of network service providers are different,general duty of care of good administrator,or more stringent active review obligations.Centered around the theme above,this thesis studies the following four parts.In the first part,the present researcher selects and analyzes network trademark infringement cases of different service types of online trading platforms from 2005 to 2016,and analyzes the courts' path and basis of judgement of review obligation for different network service providers.In the second part,in the light of different operation and service models,the present researcher divides network service providers into three types: monomorphic providers,hybrid providers and new group-buying model providers.The present researcher also states different service contents,control abilities and the effects on their legal status of different network service providers in the process of online trading.In the third part,the present researcher analyzes different review obligation contents and origins of network service providers with different service models.In the fourth part,the present researcher points out “business model”,the resulting distinction between network service providers,“profit standard”,and “trade object” are major factors in inspecting scope of review obligation contents for network service providers.