Discussion On The Trademark Infringement Liability Identification Of Electronic Commerce Platform Provider

On May 15,2015,Alibaba Group was prosecuted by French Kering SA because of alleged trademark infringement in the USA,which aroused public concern about the problem of trademark infringement liability identification of electronic commerce platform provider.Electronic commerce develops rapidly in our country.It has brought convenience to people’s lives and increase the risk of the occurrence of trademark infringement at the same time.Coincides with The National People’s Congress is speeding up the development of "electronic commerce law",it provides an historical opportunity for solving the problem of trademark infringement liability identification of electronic commerce platform provider thoroughly.There are many difficulties in the trademark infringement liability identification of electronic commerce platform provider in our country.Legislation performance include the legal provisions are not fine,the nature of legal provision is easy to misunderstand,the contributory infringement theory is difficult to apply,the joint and several liability is unreasonable,the deviation in legislative guiding ideology.Judicial performance is the same kind of cases,the different kind of verdict.In foreign countries,the United States through a series of judicial precedent and assisted by partial enactments,the European Union through the "electronic commerce directive" and partial judicial precedent,they have established trademark infringement liability identification rules of electronic commerce platform provider which is suited to their national conditions;Their beneficial experience is worth us to absorb and draw lessons from.The following theoretical issues need to be clarified in the process of the trademark infringement liability identification of electronic commerce platform provider: The electronic commerce platform provider belongs to Internet Service Provider which provides information storage space in legal nature.The reasonable duty of care which electronic commerce platform provider should undertake includes the duty of care in advance and the duty of care afterwards.The subjective fault identification of electronic commerce platform provider should adhere to the "specific know" standards,follow the safe harbor rules and red flag standard rules.The perfection of our trademark infringement liability identification rules of electronic commerce platform provider should take the following measures: First of all,clear the duty of care of the e-commerce platform.The duty of care which the electronic commerce platform provider should bear include implement the identity authentication of the operators,strengthen correct guidance to operators,perfect the trademark infringement prevention measures and strengthen the trademark infringement relief system beforehand;take effective and necessary measures in time,in order to avoid the expansion of trademark infringement.Secondly,introduce the trademark indirect infringement system.On the legislative ideas,we should separate the direct infringement and indirect infringement in the "Trademark Law";on the legislative mode,we should adopt the combination of generalized and enumerated type mode.Thirdly,establish safe harbor rules in the field of "Trademark Law".The application of safe harbor rules in trademark infringement liability identification of electronic commerce platform provider is the same as the application of safe harbor rules in the network copyright protection in the aspects of applicable purpose,applicable mode and legal basis;the applicable conditions include the trademark owner has issued a qualified notice,and the platform provider has fulfilled the reasonable duty of care.At present,our country is stepping up the development of "electronic commerce law",we hope to incorporate the above measures in the legislative process,in order to properly solve the trademark infringement liability identification problem of electronic commerce platform provider,and realize the interests balance between the electronic commerce platform provider,the trademark owner and the public finally.