By You Yunting
Taobao.com is the biggest e-commerce website in China, it is mainly engaged in platform providing rather than doing the business itself. Therefore, all the products sold on it were by third parties, and its platform could be divided into Taobao market and Tmall. In last month, Jack Ma, CEO of Alibaba Group, published the annual total turnover of Taobao.com will supersede the sum up of eBay (NASDAQ: EBAY) and Amazon (NASDAQ: AMZN) (note: the link is in Chinese). However, on the other hand, with the increasing of the transaction, the risk of intellectual property of the website is also growing, and in fact, we have seen it on the list of notorious market by USA government. In the mean time, considering the strengthened strike on infringements on Taobao.com, the website has been judged for joint liability in dozens of cases. Today, we would like to analyze the judgment of e-commerce’s legal liability by Chinese courts with 2 established cases.
I. Cases
Case 1: the right owner detained many unlicensed selling of share option training courses on Taobao.com which are copyrighted to it, therefore it sent a notice to Taobao.com demanding the deletion of the pages containing the information. Yet to its disappointment, no satisfactory result was fulfilled, with which the right owner filed a lawsuit against the seller and Taobao.com in Beijing Haidian People’s Court.
To the court’s discretion: Taobao.com is fully capable to delete the infringing contents among the transacted objects by key words related. But, as seen that the website delayed in conducting such measures; and that has enlarged the losses suffered by the right owner; consequently, it shall be liable to such losses, and take the joint liability to the infringement within RMB 10 thousand yuan as half of the total RMB 20 thousand yuan by the piracy seller.
Case 2: the right owner of the a clothing trademark found abundant information concerning the infringing information in a Taobao store, and then complained 7 times during the period from 29th September 2009 to 11th November 2009 to Taobao.com, who immediately cancelled the infringing information but make no punishment on the store owner. On 20th November 2009, after purchased the infringing product from Taobao.com and notarized the evidence, the right owner sued the infringement to Shanghai No.1 Intermediate People’s Court.
By the judgment of the court: Taobao.com, as the operator of the transaction platform shall take further measures to limit the information publication, shut down the account and any other necessary measures to hinder the infringement once finding the continuous infringement after the first information deletion. But as evidenced in the case, the company took no measures even on the awareness of the knockoff selling by the store on it. That fueled the infringement and could constitute the aid in infringement. Basing on the ground, the court judged the store owner and Taobao.com compensate the losses suffered by the right owner jointly, as well as for the reasonable fees paid for the infringement ceasing.
II. The problem of Taobao.com.
The case divulges the defects of the process and standard of the court to determine and delete the infringing products by Taobao.com. And by the rule of Taobao.com, like the right owner may demand the deletion of the infringing pages by emails, and Taobao.com may delete the demanded object within 7 days after the full submission of the documents. But to the understanding of the writer, the propaganda on the page is quite different from the actual practices, the demands of infringement deletion by letters has been less than half of the total, also the procedure is time consuming.
Some knockoff transactions could be swiftly changed transacted objects or introduction to it, such as Nike for today but Adidas for tomorrow. Once the articles sold on website are of Nike’s, yet to be changed to Adidas when be examined by Taobao.com, the reported infringement could of no way to be deleted. Some infringing products are illustrated with poor quality picture, and even then the description is as the same as those of the right owner, the unclear picture could be the reason of Taobao.com to refuse the deletion of the picture. And it is unimaginable that the poor picture technology could also be the obstacle to the right protection.
According to the Protection Regulation of Information Communication by Networks, the online infringement against the information communication right shall be deleted within 24 hours after the complaint. But that the period set by Taobao is 7 working days. As investigated by us, most complaints could not be fulfilled within 7 working days. And the examiner would always to demand the complement the evidence to the right owning and the infringement, also in the same time, the annual vacation, training, within-company communication will also suspend the examination on the infringement, and that could explain why so many cases could be prolonged for such a long time.
III. Suggestions to right protection.
Due to our experiences in acting as the attorney of the right owner in the lawsuits or services against the infringement on Taobao.com, we conclude the following suggestions for your consideration:
1. The jurisdiction. To file the lawsuit in the court in the knockoff selling place nearer to the right owner.
2. To first send a notice to Taobao.com for the page deletion and the lawsuit may be filed once the demand is refused or the deletion is not in full.
3. The evidence preservation to cover the claimed pages and the knockoff purchased. But the notarization demands a high technique, and therefore it is suggested to fulfill it with the help of lawyers with abundant experience, thus the defect of the notarization could be avoided.
Other recommended posts on our website:
1. The Actual Term of Trademark Registration in China
2. How to Apply for the Trademark Record in China Custom
3. How to improve the success rate of trademark registration in China?
4. Matters for Attention in Trademark Refusal Review in China
5. Introduction of China’s Legal System of Trademark Renewal
6. Introduction on the Regulations concerning the Capital Contribution in IPR or Domain Name in China
7. The Copyright Registration in China Could Be FREE?
8. China Copyright Protection Term Longer than EU’s?
9. Matters for Attention in the Patent Preliminary Injunction Application in China(I)
Lawyer Contacts
You Yunting
86-21-52134918
youyunting@debund.com, yytbest@gmail.com
For further information, please contact the lawyer as listed above or through the methods in our CONTACTS.
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