On Liablity For Trademark Infrigement Of Online Transaction Platform Providers

Along with the rapid development of e-commerce transaction volume of China’sonline shopping platform innovation, and create a "do not go out shopping will be able totake a stroll around the world" a new era. However, the prosperity and development of anew thing at the same time, it will create some new problems, new challenges. Tortliability law aspects of some vacancies online shopping virtual-extensive concealment andother new features as well as China’s online shopping platform trademark, the onlineshopping platform trademark infringement cases continue to emerge, and there is agrowing trend. Judicial practice before theory and legislation state that based on theadministration of justice in our courts and the verdict is very confusing.Start from the jurisprudence of the judicial practice, summed up the focus ofcontroversy and difficulty, mainly through the four parts to clarify the view of the authorof these disputes. Part I Introduction to introduce several representative cases and analyzethe legal basis and reasons for judgment applied by the courts, a result, in order tosummarize the judicial trial process that the main basis for trademark infringementliability for Internet trading platform provider and the presence of the problem. The sametime, a literature review of the relevant issues, academia, research has combing, a clearfocus of this study and significance. The second section explains the theoretical basis oftrademark infringement liability of online trading platform provider, first defined thedefinition and legal status of online trading platform provider, and then analyze the natureof tort liability, the paper argues that the responsibility for the establishment in the onlinetrading platform provider under the premise of the responsibility of indirect tort liability,rather than general joint infringement. Finally, the online trading platform providerInfringement overview and further illustrates the theoretical basis for the online tradingplatform provider assume liability for trademark infringement. The third part onlinetrading platform provider business model they ought to bear obligations defined in theview either that the online trading platform provider only obligation of prior review andsubsequent remedial obligations, either generally considered take the initiative to reviewobligations, arbitrary, abstract, can not solve practical problems. This paper argues that,according to the principle of rights and obligations relative, etc., should proceed from thebusiness model of the online trading platform provider, analysis of the interests of thenumber, the strength of the ability to control the network seller users trademark infringement, analyze specific issues, different business model to assume different levelsof duty of care. Construction and Determination of the fourth part discusses the onlinetrading platform provider trademark infringement liability, the principle of imputation onthe existing theoretical system fault imputation principle, and clearly the constituentelements. At the same time, it focuses on the infringement subjective fault assessmentstandards and exemption system should make the provisions of the applicable conditionsof the "notice and delete rules, can not use unlimited online trading platform providers tocircumvent this should bear tort liability. This regard eliminate the "notice and delete rulesapplicable only if the criteria of" necessary measures "repeat infringers occurredresponsibility blind spot problem.