In the post-epidemic era in 2021,people’s lifestyle has been greatly changed under the normalized epidemic prevention and control.Offline social transactions have been restricted for a long time,and the superiority of e-commerce transaction mode has been greatly highlighted.Offline operators have actively entered into e-commerce platforms,and e-payment mode has gained social attention.Digital supply chain has played a significant role in breaking the dilemma of unsalable products and maintaining the balance between supply and demand in the market.Major e-commerce companies have provided important logistical support to ensure the supply of supplies at the front line of the fight against COVID-19 and residents’ daily life.E-commerce transaction mode has been more widely popularized and developed.However,along with the rapid development of e-commerce transaction mode in recent years,there is an increasingly serious problem of intellectual property infringement in the field of e-commerce.Counterfeit and shoddy products and other intellectual property infringement products have been flooded in the development process of e-commerce.As consumers cannot access the physical products through online shopping,it’s difficult to distinguish the authenticity of products compared with offline ones,and the cost of opening online stores is relatively low,which makes merchants who dare not sell counterfeit products offline shift to online ones.In order to regulate the protection of intellectual property rights in e-commerce transactions,China has absorbed the core framework of the "notice-takedown" rule and the"red flag" rule,and enacted the special law,the E-commerce Law,which directly regulates the legal system related to e-commerce.The provisions regulating the online tort liability in the Civil Code of the People’s Republic of China(Articles 1094 to 1097)are the source of basic principles,and the Guiding Opinions on the Trial of Intellectual Property Civil Cases Involving e-Commerce Platforms is the legislative framework for judicial practice guidance.However,with the update of various network technologies and the enhancement of e-commerce platform operators’ ability to control the transaction functions within the platform,the platform has a high degree of control over the information transmission process,and the transaction rules within the platform have gradually established their control over the various stages of e-commerce transaction activities at the legal level.The right holder’s ability to target and strike infringements is even less stronger than the platform’s "active attack".In view of the above situation,the legislation tends to improve the active obligation of e-commerce platform operators for intellectual property protection.On November 9,2020,the market administration,led by the state intellectual property office jointly formulate and officially released the "e-commerce platform protection of intellectual property rights management" national standards,which puts forward clear requirements for platform operators to undertake the active obligation of intellectual property protection,and guides the platform to manage the whole process of intellectual property protection,so as to solve the responsibility and supervision problems in the field of e-commerce intellectual property protection.At the local level,the Trial Guidelines for Intellectual Property Cases involving E-commerce Platforms issued by the Third Civil Court of Higher People’s Court of Zhejiang province on December 2019,and the Beijing local standards for Intellectual Property Services-E-commerce Platforms(draft for comments)issued by The Beijing Municipal Market Supervision Administration on July 2020,specified and stipulated the platform’s active obligations of IP protection in detail,from the aspects of the establishment of the platform’s IP management and protection rules,the substantial examination of infringements in the "notice" and "counter-notice" process,the making of reasonable "necessary measures" and the punishment of malicious complaints.In terms of foreign laws,the United States,representative of the developed e-commerce countries,has also strengthened platform operators’ obligation fulfillment and responsibility undertaking through three legislative updates,mainly including the business information disclosure obligations within the specific product platform,trademark infringement in the e-commerce platform of the passive obligation and responsibility,and comprehensive information disclosure obligation of businesses within the platform.Based on the development status of e-commerce and the existing legal system in China,this paper attempts to sort out the necessity of establishing and enhancing the active obligation of IP protection of e-commerce platform operators.The specific contents of the platform’s active obligation of IP protection is sorted out from the three time points before,during and after the occurrence of platform infringement complaints.The first chapter is the preface,including the background and significance of the topic,the basic framework and research methods of four parts;the second chapter elaborates the concept of e-commerce platform operator,the challenge of e-commerce transaction to IP protection,and the developments of technical ability of e-commerce platform operator in intellectual property protection;the third chapter introduces the status quo of the legislation system of intellectual property protection of e-commerce platform,including the existing legislation system and updates in China,as well as the updates of the rules of the United States,which is one of the most highly developed country in respect of e-commerce;the forth chapter analyzes the necessity of the active obligation of e-commerce platform,including the extensiveness of intellectual property infringement in e-commerce transactions,the deficiencies of the existing rule system,and the legality analysis of clarifying and strengthening the initiative obligation of IP protection of e-commerce platform;the final chapter summarizes the path selection and specific content of the platform’s active obligations,including the platform’s obligations to establish an intellectual property protection system and take the initiatives to combat infringement in advance,the obligation to properly handle intellectual property disputes during the event,and the obligation to review and prevent repeated infringement. |