The Secondary Liability Of Internet Service Providers For Online Trademark Infringement

The Internet,as a borderless space of interaction characterized by ubiquity,implies certain difficulties to trademark owner in order to protect his rights.The legislator needs,thus,specific methods to harmonize the interest of right owners,online platforms and the everyday users that develop their business online.Infringement of rights online always requires the cooperation of subjects that are offering services online,namely the Internet Service Providers(ISP).The prevention of online trademark infringement requires cooperation from both e-commerce platforms,as well as online merchants.The main legal tool that worldwide governments found appropriate to use is the secondary liability for ISP,that willfully carry the trademark infringement or refuse to take action following the notification of the trademark owner.The researcher regards the secondary liability of ISP as a feasible remedy for trademark infringement for several reasons.Firstly,the intermediaries have the quickest access to infringing content,as their platform is hosting the online activity.Secondly,they can be notified by trademark owners so the alleged infringing content can be promptly removed,through notice and takedown system.Ultimately,the secondary liability embodies a least cost effective system,exempting the rights owners from a long judicial procedures,and thus courts would not be overcharged with numerous claims.Also,classic judicial remedies would not prove to be the same effective as courts do not own enough tools to efficiently remove the unlawful activity.The main goal of this research is to highlight the ways that different legal systems deal with the issue of online trademark infringement and how secondary liability of ISP was implemented.In addition,the research will try to find realistic solution to combat the phenomenon of online trademark infringement.On the First Chapter,we will analyze the most common issues in the latest generations of Internet Service Providers,which are the online trading platforms and social media.We will describe their legal nature,how they work and the newly arisen issue of protection of user?s rights.In terms of trademark infringement,the research will focus on the domain name as trademark infringement,as well as how technically the infringement would happen through hyperlinks and search engines.The Second Chapter,will examine the liability of ISPs and how their duties perform taking into account the gatekeeper theory of the Chicago school of Law and Economy.Thus,we have to analyze how the trademark infringement takes place online,how the ISPs are involved and why should they be considered the optimal gatekeepers.Subsidiary,we will define the nature of ISPs liability as a secondary for a third party misconduct and the degree of liability by their standard of knowledge about the infringement.However,different legal systems adopted the system of secondary liability taking into account their legislative particularities and conceptions about the imposition of monitoring duties.For instance,within the Chinese system,the diligence of monitoring duties for ISP is higher,fact revealed by the framework of liability drafted by the Chinese Tort Law and Civil code,also considering the new E-commerce Law where monitoring duties for online merchants are better emphasized.On the United States approach of secondary liability is based on the premise that the cyberspace is a sovereign entity,where self-regulation from ISP is qualified to harmonize the online conduct through user contracts.We have to consider the immunity of intermediaries from all the civil liability claims,as well as the exception provided by Section 512 of Digital Millennium Copyright Act act of United States from the rule of intermediary liability.The European system of Internet intermediary liability is based on copyright law,which stimulates ISP from removing infringing content.Therefore,the European scholars highlight the problem of protecting the rights of online merchants while on fighting online trademark infringement.On the other hand,the Chapter will also propose a practical analysis of most relevant cases of online trademark infringement within every system,revealing the most sensitive problems that different jurisdictions have encountered.The third Chapter is analyzing the notice and takedown as a compromise solution for trademark infringement,in the context of Section 512 of Digital Millennium Copyright Act,as well as the problem of imposing monitoring duties to intermediaries.Finally,the Chapter will conclude with a comparative analysis of Chinese,American and European systems of secondary liability in the light of the last regulatory trends,containing recommendations as remedies.The researcher will also propose self-regulatory solutions that ISPs can implement,as well as how they can cooperate with consumers and trademark owners in order to create a better online environment,balancing the interests of all market players.Overall,the researcher hopes that the result of this study will significantly generate ideas for trademark infringement protection,balancing the interest of consumers,trademark owners and online merchants.