Trademark cases | Sales of personalized tide brands into infringers? Why is the third party as a platform operator also defendant?

Sales of personality brands are infringers?

 

Why is the third party, as the platform operator, also in the dock?

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Recently, the intellectual property case trial team of Xiaonan District Court successfully concluded two trademark infringement cases, which not only effectively cracked down on intellectual property violations, but also sounded the alarm for online shop operators and platform operators.

 

Review of the case

The plaintiff, a company in Fujian Province, separately sued the defendants Liu and Chen for publicly selling a number of clothing products with the company's registered trademark rights in the online shop opened on an online shopping platform, which violated the exclusive use of its trademark, caused economic losses to the plaintiff, and also damaged the legitimate rights and interests of consumers and the reputation of the plaintiff. At the same time, it sued the online shopping platform, holding that it facilitated the infringement of the two defendants, bearing joint and several liability, requiring the two defendants to immediately stop the infringement, compensate for economic losses, and require the online shopping platform to delete the link of the above goods.

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In the trial, the operating company of the defendant's online shopping platform believed that it was a network service provider, not an actual seller or producer. Instead, it was an e-commerce platform in the mode of third-party entry, and the commodities on the platform were sold directly to consumers by third-party merchants. It did not commit any infringement. The goods involved in the case have been taken off the shelves in a timely manner, disconnect web links and other effective measures, so should not bear joint and several liability. Defendants Liu and Chen argued that they were buying and selling from a wholesale market, did not know that the icon on the goods was a well-known brand, there was no subjective intention of trademark infringement, and that the trademark of the goods they sold was only similar to the trademark registered by the plaintiff, and they were not willing to bear infringement liability.
Considering that intellectual property disputes are more complex, there are difficulties such as "difficult to prove evidence, long cycle, high cost of rights protection", in order to quickly resolve the contradictions between the two parties and reduce the litigation costs of both parties, after accepting the case, the host judge Liu Guanghui carefully sorted out the case at the first time, and fully verified the nature of the defendant's infringement and the original evidence submitted by the defendant and other factors. A detailed legal explanation of the defence submitted by the defendant. After investigation, the third-party platform in this case has taken measures such as deleting and disconnecting the links of the infringed goods after receiving the lawyer's letter, so it should not be liable for compensation. In the end, the two defendants Liu and Chen both realized the illegality of their own infringement, stopped the infringement of the plaintiff's trademark right, and compensated the plaintiff for economic losses and reasonable expenses spent to stop the infringement, realized the case was closed, and effectively protected the legitimate rights and interests of the plaintiff.

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Since the approval of the jurisdiction of intellectual property cases between the two places in June 2022, Xiaonan District Court has always focused on the overall situation of economic development of the jurisdiction, adhered to the strictest policy of judicial protection of intellectual property rights, severely cracked down on illegal acts of infringement of intellectual property rights, and continuously strengthened judicial protection of trademarks and brands. At the same time, taking intellectual property judicial protection work well as the starting point, Safeguard the legitimate rights and interests of small and medium-sized market business entities, improve the correct understanding of all types of market entities on trademark rights, and create a good atmosphere of respect for intellectual property rights, protection of intellectual property rights, and honest and trustworthy business.
In the next step, Xiaonan District Court will give full play to the professional trial function of intellectual property rights, actively explore new paths for the management of intellectual property disputes, continue to increase judicial protection of intellectual property rights, promote the high-quality development of the law-based business environment, and provide powerful judicial services and guarantees for the innovation-driven development of Xiaonan District.
 

Judge's interpretation

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In the above two cases, the third-party platform as an Internet service provider objectively did not participate in the transaction of the commodity, and there was no intentional infringement of trademark rights subjectively, and the platform service provider generally did not have the obligation to review the legality of online transaction information or transaction behavior in advance, so it seems that it should not be a defendant. However, according to the current laws and regulations of China, network users and network service providers who use the Internet to infringe on the civil rights and interests of others shall bear the tort liability. Where a network user uses a network service to commit an infringement, the infringed person has the right to notify the network service provider to take necessary measures such as deleting, blocking, and disconnecting the link. If the network service provider fails to take the necessary measures in time after receiving the notice, it shall be jointly and severally liable for the expanded part of the damage and the network user.
That is to say, if the seller maliciously steals the trademark on the online platform or uses the trademark of others, it is an infringement. As a third-party platform, if it does not stop or effectively manage, the trademark right holder can claim to the court that the seller of counterfeit or counterfeit goods sold on the platform and the platform service provider share the responsibility in the face of counterfeit or counterfeit goods sold on the platformJoint and several tort liability.

At the same time, in the process of hearing, the court will determine whether the platform service provider has done reasonable and necessary prior review and management, as the judgment basis for determining whether the platform service provider is responsible. Since the third-party platform in this case has taken measures such as deleting and disconnecting the links of the infringed goods after receiving the lawyer's letter, it should not be liable for compensation.

 

Rules/Tips

 

Trademark Law of the People's Republic of China

Article 48 of Chapter VI: The use of a trademark refers to the use of a trademark on commodities, commodity packaging or containers and commodity transaction documents, or the use of a trademark in advertising, exhibitions and other commercial activities for the purpose of identifying the source of commodities.
Article 57 of Chapter VII: Any of the following acts shall constitute an infringement of the exclusive right to use a registered trademark:
(1) using a trademark identical to its registered trademark on the same kind of goods without the permission of the trademark registrant;
(2) Without the permission of the trademark registrant, using a trademark similar to its registered trademark in respect of the same kind of goods, or using a trademark identical with or similar to its registered trademark in respect of similar goods, which is likely to cause confusion;
(3) selling goods that infringe upon the exclusive right to use a registered trademark;
(4) forging or manufacturing without authorization the marks of a registered trademark of another person or selling the marks of a registered trademark forged or manufactured without authorization;
(5) replacing its registered trademark without the consent of the trademark registrant and placing the goods with the replaced trademark back on the market;
(6) Intentionally providing convenient conditions for the infringement of another person's exclusive right to use a trademark, helping another person to carry out the infringement of the exclusive right to use a trademark;
(7) causing other damage to another person's exclusive right to use a registered trademark.
Chapter VII Article 63: The amount of compensation for the infringement of the right to exclusive use of a trademark shall be determined according to the actual losses suffered by the right holder as a result of the infringement; If the actual loss is difficult to determine, it may be determined in accordance with the interests the infringer has obtained as a result of the infringement. If it is difficult to determine the loss of the right holder or the benefit obtained by the infringer, it shall be reasonably determined by reference to the multiple of the license fee of the trademark. Where the right to exclusive use of a trademark is maliciously infringed, and the circumstances are serious, the amount of compensation may be determined at not less than one time but not more than five times the amount determined in accordance with the above-mentioned methods. The amount of compensation shall include the reasonable expenses paid by the right holder to stop the infringing act. (Source: Xiaonan District People's Court of Xiaogan City)

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