Research On The Mechanism Of Judging Subjective Fault Of Trademark Infringement Of Trademark Platform Provider

Research on the trademark infringement of trading platform provider is a hotspot of theresearches about the Trademark Law in resent years. The existing system is based on theintroduction of the existing experience of the western countries, which first introduced intothe field of copyright law and later applied into the field of trademark law by the scholars andjudicial officers of our country. In addition, most existing researches always analyze the entireconstitutive requirement of the trademark infringement liability, and there is little analysisfocused on the subjective fault requirement. With the occurrence of a series of far-reachingtrademark infringement cases in our country, the academics and the judiciary graduallyincreased the emphasis on the subjective fault requirement. Therefore, I would like to takethis opportunity to explore how to establish the system of confirming the trading platformprovider’s subjective fault in our country. So I choose this topic as my paper’s subject andexpand it.This paper consists of the introduction, text and conclusion, and the text consists of fiveparts.The first part is mainly about the status of trademark infringement of the trading platformproviders. First of all, this part states the production of the trading platform providers whobrought great convenience in the real life, but at the same time has become a hotbed breedingtrademark infringement, being a new problem of confirming the trademark infringementliability. Then, I analyze a typical trademark infringement case of the TaoBao company,leading to the question this paper will discuss.The second part briefly discuss the trademark infringement liability of the tradingplatform providers. Firstly, this part simply introduces the trading platform provider, thesubject this paper will talk about. Secondly, this part analyzes the nature of the infringementliability the providers will undertake. Lastly, this part briefly lists the constitutive requirementof the trademark infringement of the providers, aiming at bringing out the key point of thispaper: the recognition system of subject fault.The third part mainly talks about the meaning of subject fault and the method,standardsand results of confirming subject fault. At first, this part defines the connotation of subjectfault as:“knowingly” and “should have known”, after analyzing the traditional trademarkinfringement theory, existing theories of domestic and overseas, and the legal provisions about the subject fault. Then, this part analyzes the feasibility and limitation of confirming thesubject fault by applying the rules of Notice-to–Delete and Red-Flag, and put forward thatthe reasonable care should be brought into the system of confirming the subject fault;Additionally, this part discusses the standard and the result of confirming fault. In the end,this part analyzes the relationship between the Safe Harbor rule and the subject faultrecognition. The Safe Harbor rule is just an exception of the platform providers’ trademarkinfringement, not a method to confirm the subject fault. This part mainly talks about therecognition system of our county, aiming at providing realistic basis and jurisprudent supportfor establishing the recognition system.The fourth part examines the recognition system of the subject fault in other countries.This part mainly introduces and references the foreign experience, respectively analyzing thedifferent models of the recognition system of the subject fault in America, Canada and theEuropean Union. This part aims at providing advanced foreign experience for our existingsystem.The fifth part as the conclusion section of the paper, mainly completes the recognitionsystem of the subject fault. In the first place, this part proposes some legislation advice. Iconsider that not only the connotation of subject fault should be defined explicitly as“knowingly” and “should have known” in the legal provision, but also the methods ofconfirming the subject fault, namely the Notice-to-Delete rule and the Red-Flag, should bereflected more obviously in the legal provision. At the same time, the reasonable care of theplatform providers should be stated expressly. Secondly, we can set up the counter-noticesystem and apply the method of reasonable care to improve the rules of Notice-to Delete andRed-Flag. Finally, from the perspective of business administration, we should urge thee-commerce trading platform providers to be more rational cautious. The platform providershould positively build their own system and sign the service agree with the network users,making sure that the network users can permanently develop on their own platform. In themeantime, the trademark holder’s rights should be protected sufficiently, as well as theplatform providers can avoid the unexpected legal risk, promoting the harmony relationshipsamong the platform providers, network users and the trademark holders. This part is also theemphasis and difficult point of this paper.