Research On The Application Of "Notice And Takedown" Rule For Intellectual Property In E-commerce Field

The "notice and takedown" rule provides a mechanism for dealing with intellectual property infringement disputes in the e-commerce sector,which allows for pre-litigation dispute resolution and responds to the needs of the e-commerce industry for simplicity and speed.The core of the rule is that upon receiving a qualified notice from the right holder,the e-commerce platform is required to take the necessary measures in a timely manner to prevent further expansion of the infringement by suspending the normal business practices of the operator.The dispute resolution mechanism within the e-commerce platform can be quicker and more convenient than other means of dispute resolution.However,improper application of this rule could easily lead to the proliferation of malicious notices,making the rule a means of unfair competition,undermining the legitimate rights and interests of real rights holders,operators within the platform and e-commerce platform operators,and thus interfering with the e-commerce market order.Therefore,a study on the " notice and takedown " rule for intellectual property rights in the field of e-commerce will help regulate the application of the rule,protect the legitimate rights and interests of right holders and operators,and create a favorable institutional environment for intellectual property transactions in the field of e-commerce.This article discusses the application of the " notice and takedown " rule for intellectual property rights in the field of electronic commerce in China through normative analyzes,case studies and comparative analyze.Firstly,we explain the meaning and institutional history of the "notice and takedown" rule,discover the special characteristics of the application of the "notice and takedown" rule to intellectual property infringement disputes in e-commerce,and provide research directions for the following discussion on the dilemma of the application of the rule.Secondly,by examining the legislative and judicial status of the " notice and takedown " rule for ecommerce intellectual property rights,and by sorting out the application process of the rule,we analyze the shortcomings of the rule,such as the lack of specific provisions on the substantive elements of infringement notices,the unclear provisions on the fulfillment of the obligation to delete by e-commerce platforms,and the lack of corresponding effects of counter-notices by operators in the platform.Based on the practice and judicial experience of the application of the " notice and takedown " rule in overseas countries,we summarize the inspiration of the overseas experience for China,and take into account the judicial practice in China.Refine the substantive elements of the infringement notice;clarify the criteria for the e-commerce platform to perform the deletion obligation,such as adopting the substantive review standard,providing a softer and necessary measure option to reduce the pressure of the ecommerce platform’s reasonableness review;and supplement the application of "counter-notice + guarantee" restoration to compensate for the effectiveness of counternotice.