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The Study of the Indirect Trademark Infringement in Network Environment

Author: ChenShaoLing
Tutor: WangQian
School: East China University of Political Science
Course: Legal
Keywords: Internet Search Service Provider Internet Trade Platform Provider Indirect Trademark Infringement Duty of Monitor Duty of Care
CLC: D923.43
Type: Master's thesis
Year: 2009
Downloads: 211
Quote: 3
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Abstract

The indirect trademark infringement in network environment has affected the interest of the trademark owners and customer, and embarrassed the development of the internet service provider. This article aims to discuss the rules to identify the liability for the indirect trademark infringement, and to propose a useful option for China’s jurisdiction.The introduction section mainly introduced the development of the internet service in china, and the author argued that the indirect trademark infringement was a problem in the development. After the analysis of the sorts about the indirect trademark infringement, the author claims that in order to study the infringement, several issues must be settled first.Section I introduces the basic theory about the trademark infringement. In order to research the indirect trademark infringement, the boundary between the direct trademark infringement and the indirect trademark infringement must be clear. Trademark is different from the other IP rights such as patent, copyright etc.; the scope controlled by right which is only used by the trademark owner and the right which is granted to trade owner to prevent others to use the trademark is not identical. All the conduct to infringe the both two rights is direct infringement, the conduct to abet, induce, and help the direct infringement is indirect infringement. It is different from the direct trademark infringement that the punitivity to the indirect infringement is the ISP’s fault. So the author argues that the rule to determine the liability is equal to the rule to determine the ISP’s fault.SectionⅡanalyses the duty of monitor which means ISP must monitor the infringement conduct positively. If the duty of monitor is legal, the violation of the duty is the ISP’s fault; the ISP must assume infringement liability. The author claims that both internet search service provider and the internet trading platform provider should not assume the duty of monitor.SectionⅢdiscusses the rule to determine the internet search service provider’s liability of the indirect trademark infringement. The Ad Word is actually not the AD under the law. And the internet search service provider should not assume the duty of care to the Ad Word and its customer’s web. Actually the real AD is the web linked by the Ad Word; the customer’s web may infringe the trademark. If the internet search service provider cannot assume care duty, the liability of direct trademark infringement arises. And the notice and remove rule and red flag rule may be applied to determine the provider’s fault.SectionⅣdiscusses the rule to determine the internet trade platform provider’s liability of the indirect trademark infringement. The internet trade platform is a kind of AD, but the provider’s duty of care is limited to the homepage. The violation of the duty of care means the provider’s fault. And the fault can be check by the notice and remove rule and the red flag rule. And the author argues that because of the characteristic of both internet and trademark, the red flag rule cannot be applied to all the cases.The SectionⅤis about the conclusion. The author summarizes the entire article, and pointed out that the jurisdiction is very important in this research. The author wishes to check his prospective in the practice.

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