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Handling IPR Infringement Disputes on E-commerce Platforms
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On 10 September 2020, the Supreme Court of the PRC released the <Notice of the Supreme People's Court Promulgation of the Guiding Opinions on the Trial of IPR-related Civil cases Involving E-commerce Platforms>, provides guidance on the rights and responsibilities of IPR holders, e-commerce platform operators and businesses using e-commerce platforms.
The highlights of the Notice are as follows:1. A notice sent by an IPR holder to an e-commerce platform operator shall generally include:1) proof of the IPR in question and information about the true identity of the IPR holder;2) information about the alleged infringing goods or services that can be accurately ascertained;3) preliminary evidence regarding the infringement; 4) a written guarantee for the authenticity of the notice, etc.The notice shall be made in writing.Where the notice involves a patent, the e-commerce platform operator may request the IPR holder to submit statements on the comparison of technical or design features, evaluation reports for utility models or design patents, and other materials.
2. The statement of non-infringement submitted by a business using an e-commerce platform shall generally include:1) true information about the identity of the business using the platform;2) information on goods or services which can achieve accurate positioning and require termination of necessary measures;3) preliminary evidence such as proof of ownership or authorization;4) written undertaking for veracity of the statement etc.The statement shall be made in writing.If the statement involves a patent, the e-commerce platform operator may require the business using the platform to submit materials such as explanations on comparisons of technical features or design features.
4. In urgent circumstances, either the IPR holder or the business using an e-commerce platform may, pursuant to the provisions of the Civil Procedure Law of the PRC, apply to a people's court for adoption of preliminary measures.
5. When judging whether an e-commerce platform operator has adopted reasonable measures, the court may consider the following factors:1) preliminary evidence of infringement;2) possibility of existence of infringement;3) scope and impact of infringement; specific circumstances of infringement, including whether there is malicious infringement or repetitive infringement;4) effectiveness of preventing escalation of damages;5) possible impact on the interests of the business operators using the platform;6) and service types and technical conditions of the e-commerce platform etc.
6. Where an e-commerce platform operator falls under any of the following circumstances, the court may rule that it "should have known" about the infringement:(I) failing to perform statutory obligations, such as formulating rules on the protection of IPRs and examining the business qualifications of businesses using its platform;(II) failing to review the certificates of businesses indicating the type of store as "flagship store" or "brand store" on the platform;(III) failing to adopt effective technical means to filter and intercept links to infringing goods containing such words as "high-quality counterfeit" and "fake", and links to infringing goods which are put on shelves again after the initial complaint was established; or(IV) other circumstances in which the obligations of reasonable examination and care are not undertaken.
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