Research On The Counter-notification Rules In Handling Intellectual Property Infringement Notification

The rapid development of Internet technology has promoted the prosperity of platform economy.While e-commerce is booming,it has also triggered a large number of disputes about intellectual property right,which has caused certain difficulties in the judicial governance of Internet.The number and variety of infringements in this field have undoubtedly imposed a huge impact on Internet trading.Innovation promotes the continuous birth of new development in all walks of life,and intellectual property is the soul of innovation,so protecting intellectual property is protecting innovation.In order to safeguard the legitimate rights and interests and intellectual achievements of intellectual property right holders in the field of e-commerce as,China has introduced the safe harbor rule in the field of American copyright law,and has gradually explored and constructed a "notice-delete" rule applicable to the current development of ecommerce in China,including the counter-notification rule.The function of the counter-notification rule is to protect the legitimate rights and interests of the alleged infringer: while facing an infringement notice issued by the intellectual property right holder,the infringer shall have the opportunity to raise a defense,which restricts the right holder’s abuse of power.This fully embodies the concept of balance of interests,that is,while paying attention to the protection of intellectual property right,it also delimits the right holders to exercise their rights in order to curb malicious notice.However,it is undeniable that previous theoretical research has always focused on the perspective of notification,and there has been little direct research on counter-notification.Therefore,the current counter-notification rule is not mature enough,and there are still unreasonable stipulations about constitutive requirements,procedural requirements and subsequent rights relief.In terms of constitutive elements,the current substantive requirements for accepting counternotification are relatively high,which has caused certain obstacles for the alleged infringer to submit a qualified counter-notification statement.It has also increased the review obligation and difficulty of the e-commerce platform,making it difficult for the alleged infringer to submit the statement.The counter-notification rule protects their own rights and interests.The substantive requirements for acceptance of notice and counter-notification are very different.In the case where the existence of the exemption clause makes the platform tend to protect the interests of the right holders,setting a high threshold for counter-notification is not conducive to the protection of the rights of the respondent.Taking into account that issuing a counter-notification cannot directly change the necessary measures,it is sufficient to conduct a formal review of the counter-notification;for the notification,it is still necessary to conduct a substantive review.In terms of procedural requirements,there have been a lot of discussions in the theoretical and practical field around the waiting period,which involves the application issues caused by the inconsistency of relevant legal expressions and the choice of deadlines.Considering that certain goods or services in the context of e-commerce condense huge traffic,the waiting period has a significant impact on the accused infringer,and the flexible expression of "reasonable time limit" should be adopted uniformly to reduce the application problems caused by rigid provisions.In practice,there have been situations such as counter-notification advance and counter-notification guarantee.Although rules have not been drawn up in China,judicial practice has shown a tendency to support this new type of mechanism,and there are also relevant legal regulations outside the territory.For reference,in terms of subsequent rights relief,it should be clear that the role of the platform is not only a "messenger",but also a "judge".The e-commerce platform should play its role in substantive review of notifications and recognize the platform’s discretion within a reasonable range.Whether the right holder who issued the wrong notice should bear the corresponding responsibility directly affects the right relief of the complained infringer.In this regard,it is necessary to consider the difficulty of judging intellectual property infringements in the field of ecommerce,but also to take into account the strong position of intellectual property right holders relative to the complainant,aiming to improve the state of imbalance of rights,and uniformly adopting the fault liability "general negligence".Based on the background that protection of intellectual property right has been elevated to major strategic decisions of the state,research on counter-notification rules should also receive more attention to avoid system design in a vacant position.At present,more and more scholars have focused their attention on the field of counter-notification.China’s counter-notification rules can only be “true to the name” only when they truly exert their due role in restricting rights.