Research On The Application Of Rule"Notification And Deletion"of The E-Commerce Law

On August 31 st,2018,the National People's Congress deliberated and passed the E-commerce Law of the People's Republic of China(hereinafter referred to as the E-commerce Law),which will be implemented from January 1st,2019.Articles 42 to 45 of the E-commerce Law are specific contents of the rule "notification and deletion" of the protection of intellectual property that in the field of e-commerce.The relevant provisions of the rule "notification and deletion" in the E-commerce Law have developed from Article 36 of the Tort Liability Law,and basically have remained the same.The specific content of E-commerce Law has been improved in detail.The improved content include that a notice of infringement should include preliminary evidence,necessary measures,compensation liability for loss caused by error notification and malicious error notification,appealing notification mechanism of operators in e-commerce platform,and subjective elements of joint and several liability of infringement on e-commerce platform,including "knowing" or "should know" ” etc.The rule "notification and deletion" was initially applied to copyright disputes.The advantage of this rule is that it is very efficient and convenient to deal with network infringement disputes.In the era of rapid development of e-commerce,network infringement disputes have not only occurred in the field of copyright,but also in trademark infringement and patent infringement cases.In order to deal with disputes quickly and protect the legitimate rights and interests of intellectual property owners better,the rule "notification and deletion" has been used in the fields of trademark right and patent right.There are still many imperfections in the relevant provisions of the rule "notification and deletion" in the E-commerce Law.Due to the low "threshold" of the rule "notification and deletion" and the fast speed of taking measures,there is a phenomenon of malicious use of the notice right for commercial competition.In addition,if the audit obligation of the e-commerce platform is not clear,the waiting period of 15 days is too rigid and vicious The subjective elements of the notice of intentional error are not clear and so on.For this reason,the author will discuss the application of the rule "notification and deletion" in the case of intellectualproperty infringement disputes,the existing problems and how to improve it.In addition to the introduction,this paper is made up of four parts,the specific structure and content are as follows:The first part is an overview of the rule "notification and deletion",including the origin of the rule,its extraterritorial application and the development of China after transplanting the rule "notification and deletion" The second part mainly discusses the problems existing in the application of the rule "notification and deletion" in judicial practice after the adoption of the electronic commerce law,this part mainly discusses the imperfections of the provisions in the application of the rule "notification and deletion" in the network environment;the third part is some suggestions on the imperfections;the fourth part is a summary of the full text.