Comment On The Case Of Pierre Cardin Agent’s V. Taobao

With the rapid development of ecommerce industry in China, the phenomenon ofinternet transaction platform providers are being suspected of trademark contributoryinfringement occur continuously. In the case of the Pierre Cardin agents prosecutingTaobao for trademark infringement, the main disputes are the followings: Whether anexclusive licensor of a registered trademark owns independently the right to appeal;Whether it’s the responsibility of the internet transaction platform provider to reviewthe users on infringement; Whether the internet transaction platform provider shall beconsidered as a contributory infringer. Due to the differences of a registeredtrademark in right property, right source and censorship system, the trademark licenseuser shall be different from trademark registrant in holding appeal rights, and shallhave independent but effect-limited appeal rights according to china’s relative judicialinterpretations. Under the premise of balancing the interests between the developmentof electronic commerce and obligees, Taobao shall bear the duty of care and thecollateral obligations. Care obligations include prior review and post review. Priorreview is a kind of formalism examination while post review is the remedy for priorreview. And collateral obligations include mainly confidentiality obligation andassistance obligation under which Taobao shall assist the oblige to conductinvestigations and collect evidences under certain conditions. Recognizing Taobao’scontributory infringement of trademark is under the premise of trademark directinfringement and the rule elements of fault liability. What’s most important inobjective elements is helping infringers by providing convenient conditions andexpanding the damaging facts. As judging subjective element and objective element,we shall refer to article36of "Tort Liability Act,"Notice and Deleting“and relevantlaws and regulations.”Notice" shall meet the specific requirements for formalelements and content, while the content of “Deleting" shall be up to taobao.com. Toavoid the increase of Taobao’s operation cost, the notice senders should be requestedto provide a certain amount of money guarantee.