Study On The Issues Of Venue Lessor’s Trademark Infringement Responsibility

In July2005, five world renowned brands sued the Beijing New Silk Market to court, claiming its trademark infringement responsibility, and this is regarded as the first case of venue lessor trademark infringement in China. Subsequently,trademark holders set off a heatwave investigated for venue lessor’s trademark infringement responsibility, the positions are mostly in developed commodity economy areas,such as Beijing, Shanghai and Guangzhou.However, duing to the lag of legislation as well as the increased IPR protection in recent years, the judges lack clear guideline and constraints in the course of the administration of justice, resulting in frequent loopholes when venue lessors constitute trademark infringement. The emergence of the problem is always accompanied by the method to solve the problem.Facing to the problem that is already existed and will continue to be existed,we can’t run away,also can’t escape.The key to solve the problem is only to find problems,to make reasonable judgments and to reach a consensus.This article embarks from the definition of venue lessor, on the basis of its typed distinction to clarify its burden of obligation and duty of care.Through the collection, collation,and analysis of typical cases that have an influence onthe domestic and international,the combination of legislative and judicial actual,the author proposes the constituted responsibility of the venue lessor trademark infringement should have both subjective and objective elements,then analysisthe identification of the two elements deeply.At last, on the basis of the above analysis, the author trys to define the mode and liability form of venue lessor trademark infringement.The article is divided into four parts,about twenty-four thousand words:Part1:First,the author makes a brief introduction of the basic case, and through different judgment ideas of the two trial courts to draw three focus issues that should be concerned in the venue lessor trademark infringement cases.Part2:The author types the venue lessor,then traces the source of obligations by three theories and analyzes that if the venue lessor has a duty of care for trademark holder, which can only be derived from the special relationship.Measuring the ability and strengh of venue lessor,the author suggests that the level of duty of care on venue lessor cannot be treated as the same,instead,it should be on the base of tapyed venue lessor. Part3:Upon the venue lessor trademark infringement in China’s legal, combining with the introduction of American experience and a summary of the domestic practice, the author proposes that the lessor who establishes trademark infringement must satisfy two constituent elements of subjective intent and objective helping behavior. Subsequently,through analysing the theory and practice,the author puts forward that the subjective intent focus on knowing perfectly well, while how to jude it? The judges should rely on the comprehensive consideration of a reasonable person standard and objective evidence standard. Finally, from positive and negative behaviors as two aspects constitute the objective to help analyze the behavior of the venue lessor.Part4:The author starts from the classification of the direct infringement and indirect infringement of trademark,then analysises by the source, the type, and the function of indirect infringement of the trademark and indicts that the mode of venue lessor trademark infringement is a trademark of indirect infringement. Subsequently, balancing the expansion of trademark rightand the interests of the public,the tort way and responsibilities of venue lessor infringement,as well as the trial practice,the author proposes that the liability form of venue lessor trademark infringement is the individual responsibility.