The Liabilities of Online Marketplaces for Trademark Infringement
Date Issued
2014
Date
2014
Author(s)
Li, Yixiao
Abstract
Sales of online marketplaces are booming in the last few years. However, there’s a problem accompanying the prosperity of online trade, about whether the online marketplaces should be held liable for online sellers’ sale of counterfeits. The discussion of Internet service providers’ liabilities is often limited to the field of copyright infringement, and mature regulations have been developed for this issue. But as to the liabilities of online marketplaces, there’s no systematic theory.
The basic opinion of the thesis is that online marketplaces should be held liable for such infringement, but the liabilities shall not be too much.
Firstly, by comparing the laws and cases of several countries, it is noted that there are two ways in solving the problem of online marketplaces’ liabilities when a third party sells counterfeits: one is strictly explaining the components of infringement, and the online marketplaces may not be held liable because its action is not deemed as trademark infringement; another way is setting a loose escape clause.
In the discussion of basic theories, this thesis firstly reclassified the online marketplaces into ones that are parties of the sales contracts and ones that are not, and then discuss about them respectively, which will help in the judges’ judgment of their liabilities. Besides, online marketplaces shall not be burdened with an individual supervising duty, while they should take some duty of care to prove they are with no fault. Further, the concept of “indirect infringement” is commonly used as a concept in the U.S. law, and using this concept in the civil law system may cause a confusion of concepts. What’s more, the rules in the copyright laws shall not be directly applied to the trademark infringement due to the differences between the nature of copyrights and trademarks, as well as the nature on Internet service providers in the copyright infringements and online marketplaces in trademark infringements.
As for law practices, it is roughly regulated in the Tort Liability Law in Mainland China, so the interpretation of the laws should be done first. The concept of “necessary actions”, “awareness” should be explained clearly. Besides, since the infringement of trademarks and copyrights are of some differences, it is better to set rules respectively in trademark laws and copyright laws. In Taiwan, online marketplaces may not be held liable because the issue is not specificly provided in the Trademark Law and the theories in civil law don’t acknowledge aiding or abetting without a conscious cooperation. The Trademark Law may be revised to set rules about the liabilities and escape clauses of online marketplaces in this issue in reference to the regulations in the Copyright Law, if it is needed in Taiwan.
Subjects
網路交易平台
商標侵權
民事責任
類推適用
間接侵權
注意義務
免責條款
Type
thesis
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