First, trademark infringement in e-commerce
(1) Domain name registration of trademarks
This is the main form of online registered trademark infringement at present. The conflict of domain names lies in that although the regionality and specificity of trademarks allow multiple identical trademarks to coexist peacefully in different countries and different commodities, under the COM domain name, a domain name can only be owned by one person in the world. Domain name cybersquatting includes two situations: one is in the true legal sense? Cybersquatting? Infringers deliberately register a large number of well-known or relatively well-known trademarks or firms as domain names, and these cybersquatters usually sell, rent or make the trademark transferor pay a high price? Redemption ; The other is the right conflict between domain name registrant and intellectual property owner, that is, domain name registrant has no intention? Rob? Is it because of the uniqueness of the domain name and? Apply first, register first? Inevitably, there is a conflict of rights with the owners of intellectual property rights.
Although this situation has the fact of cybersquatting, it does not constitute a real legal sense? Cybersquatting? . In foreign countries, cybersquatting appeared as early as a few years ago, and there were also some ironic events. For example, at the beginning of the creation of the domain name system, the domain name of Inter2NIC, the organization responsible for global domain name registration, was squatted. The typical case is as follows: Hongtashan registered a factory in the Philippines, and later set up a factory there, producing a large number of cigarettes, which were sold to many Asian countries and even sold back to China. In recent years, the serious registered trademarks in China should be the famous trademarks of China and Hongkong, such as? Hengyuanxiang? 、? Dabao? 、? Little nurse? 、? Zhenjiang vinegar? 、? Flying in the snow? It's all been squatted.
(2) Trademark infringement in network links
On the Internet, files on different servers can be linked through Hypertext Markup Language. As long as the surfer clicks on the hyperlink part of the web page (also known as? Anchor? ) to present another webpage or another part of the webpage on the user's computer screen. Reasonable links are allowed on the Internet, because link technology is the basis of the existence of the Internet. But if you set other people's registered trademarks or well-known trademarks as links on your own web page, and use deep linking or frame linking technology to bypass the homepage of the linked website, will this behavior use the popularity of other people's trademarks to improve your click-through rate and page views? Hitchhiking? Suspected.
(3) Trademark infringement in search engines
Meta-tag refers to a software parameter of the hypertext markup language of the World Wide Web, which is used by webmasters to describe their own websites, including the basic information of webmasters, copyright statements and keywords, which are invisible to visitors, but search engines must rely on it to work. Use other people's trademarks as meta tags of their own web pages, and bury the meta tags in the keywords of their own web pages. Although other people's trademarks are not used in a visible form, when consumers use search engines to find other people's trademarks, the actor's web pages will jump out of the search results. Therefore, if someone else's trademark is buried in the meta-tag of a webpage, netizens will unconsciously visit the website when searching through a search engine. This behavior of using a trademark as a keyword without the permission of the trademark owner obviously constitutes an infringement on the legitimate rights and interests of the trademark.
(four) other trademark infringement in e-commerce.
In addition, there are also infringements in e-commerce, such as online advertising, remote login database search, e-mail accounts, counterfeiting and stealing other people's registered trademarks, selling their own products or services, or arbitrarily slandering other people's trademark reputation online.
Second, the causes of new infringement in the e-commerce environment
(1) The domain name of the registered trademark.
In the traditional trademark law, unless otherwise stipulated in the international treaties to which China is a party, the trademark right can only be generated according to the laws of a certain country, and it is only valid in the legally generated area and only protected by law within the country. No country recognizes the trademark rights protected by other countries or regions. However, with the advent of the network era and the development of e-commerce, the inherent regionality of trademarks is gradually weakening. Because the domain name itself is international, many businesses and enterprises engaged in e-commerce register other people's well-known trademarks as domain names in order to attract users' attention, which leads to a large number of domain name cybersquatting infringement cases. The imperfection of laws and regulations in China has also contributed to cybersquatting.
(2) Trademark infringement in network links
On the Internet, although files on different servers can be linked through Hypertext Markup Language, the URL of the linked file is rarely used directly as an icon. Designers often use titles, words or symbols to mark the appearance of signs. Therefore, the names or trademarks of some famous enterprises are used to attract users, which leads to online trademark infringement. Because this connection technology is simple and easy, and with the weakening of the regionality and timeliness of trademarks in the e-commerce environment, this kind of infringement has gradually become the main form of trademark infringement in the e-commerce environment.
In addition, because this kind of infringement is not directly directed at specific goods or services, but directly directed at specific links, the current laws and regulations have no clear provisions on this kind of behavior, and at present, it can only be regulated and regulated through the relevant provisions in the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Laws in the Trial of Trademark Civil Disputes and the Anti-Unfair Competition Law. The lag of law is also the reason for the increase of infringement.
(3) Trademark infringement in search engines
Under the environment of e-commerce, the use probability of trademarks across regions and industries is constantly expanding, which brings new difficulties to the identification of trademark rights, paid use, infringement monitoring and the implementation of protecting their exclusive rights. Based on this situation, if we make a fuss about the meta-tags of web pages, bury other people's trademark words in their own meta-tags, and embed keywords to search, netizens will unconsciously visit the web pages when looking for other people's trademarks through search engines. This behavior of using a trademark as a keyword without the permission of the trademark owner obviously constitutes an infringement on the legitimate rights and interests of the trademark.
Third, the protection strategy of trademark rights in e-commerce environment.
The healthy development of e-commerce needs a suitable legal, regulatory and policy environment. In China's existing legal system, there is no special legislation on e-commerce. In this regard, experts in law and e-commerce should be organized. According to the actual situation of China's e-commerce and trademark rights, we should refer to the successful practices of developed countries to strengthen legislation and bring it under legal control. Fill in and correct the defective parts.
(A) Analysis of the constitutive elements of trademark infringement in the e-commerce environment
To crack down on trademark infringement in e-commerce environment, we must first determine what kind of behavior is considered as trademark infringement in e-commerce environment, that is, the constituent elements of trademark infringement in e-commerce environment. In essence, there is no essential difference between trademark infringement in e-commerce and traditional trademark infringement identification. Compared with traditional commerce, e-commerce only changes a transaction form. However, trademark infringement in e-commerce is a new type of trademark infringement after all, and its constitutive elements should emphasize the subjective fault of the actor in addition to infringement, damage result and causality. Because the imputation principle of trademark infringement in e-commerce is mainly the principle of fault liability, and the fault element is one of the important necessary elements in the identification of trademark infringement liability in e-commerce, the actor is required to be intentional or negligent subjectively, that is, he knows or should know that his behavior infringes on the trademark rights of others or seeks illegal interests, so that he can be investigated for legal responsibility. This is to protect the legitimate rights and interests of the rational use of trademarks in e-commerce and promote the rapid development of e-commerce.
(2) Some suggestions on infringement regulation in the e-commerce environment.
1. In view of the shortcomings of "Detailed Rules for the Implementation of Internet Domain Name Registration in China" and "Interim Measures for the Administration of Internet Domain Name Registration in China", which are currently used for domain name management and standardization in China, the following adjustments and supplements can be made: First, aiming at the problem of cybersquatting. When receiving the application for new domain name registration, the domain name registration authority is responsible for inquiring whether the domain name used by the user conflicts with the registered trademark or enterprise name to the trademark registration authority or the administrative department for industry and commerce.
Secondly, domain name disputes can be solved in the following three ways: first, when the first registrant and the disputing party can provide their own trademark registration documents to prove that they have the legal right to use a specific name, the first registrant can continue to use the domain name, and both parties can resort to law to resolve the dispute according to the court ruling; Second, when the first registrant can't provide it, but the disputing party can provide the trademark registration document to prove that it has the legal right to use the domain name, the Internet Network Information Center can require the first registrant to register and activate another domain name within 90 days, and the disputed domain name is not allowed to be used by either party until both parties resort to the court to resolve the dispute according to the court's ruling; Third, the two sides reached a compromise, and the Internet Information Center implemented it according to the agreed solution.
Finally, it can be clearly presumed that there are infringement cases involving domain names in e-commerce in existing laws and regulations. Domain name infringement is often associated with the trademark, commodity and enterprise name of the enterprise, so domain name disputes are often associated with these existing intellectual property rights, thus evolving into trademark rights cases or unfair competition cases. It can be presumed that trademark law and anti-unfair competition law are applicable.
2. Formulate special laws and regulations to regulate trademark infringement in web links and search engines, so as to clearly define legal and illegal behaviors and reduce laws and regulations? Vacuum? State. Among them, the illegal act should conform to the constitutive requirements of trademark infringement analyzed above. First of all, there must be violations, including the way to do it and the way not to do it. Secondly, there must be damage results, that is, the damage behavior causes the reduction or loss of the legitimate interests of the trademark owner, the trademark is diluted, and the value of the trademark is reduced, which will eventually damage the value of the goods or services provided by the trademark owner.
There is an inherent and inevitable connection between the actor's tort and the damage result. Finally, there must be the subjective fault of the infringer. In a short period of time, the existing trademark infringement cases involving web links and search engines in e-commerce can be solved by referring to the solutions of domain name infringement cases in e-commerce, and it is clearly inferred that the general principles of civil law, trademark law and anti-unfair competition law should be applied. In particular, the legal liability for trademark infringement of web links and trademark infringement of search engines. Specifically, it should include: civil liability, administrative liability and criminal liability. Among them, civil liability should include: stopping the infringement; Apologize, eliminate the influence and compensate for the losses.
Administrative responsibility can refer to the Trademark Law and the Anti-Unfair Competition Law, that is, the competent department can order the infringer to stop trademark infringement in e-commerce activities and impose a certain amount of fine within the scope prescribed by law. In the aspect of criminal responsibility, because there is no specific provision on the criminal responsibility of trademark infringers in China, we can refer to the Criminal Law of People's Republic of China (PRC) on? Counterfeiting, illegally manufacturing and selling trademarks and products? According to the relevant provisions of China's Criminal Law, if the trademark infringer has constituted the characteristics of trademark crime stipulated in China's Criminal Law, criminal responsibility shall be investigated.
3. Strengthening international exchanges and cooperation Due to the characteristics of network communication, the limitations of time, space and region have been gradually broken. The formulation and revision of intellectual property legal systems in various countries have basically developed from seeking common ground while reserving differences in the early stage to seeking common ground while reserving differences in the later stage, and then to the overall convergence today. Therefore, in order to protect the trademark rights of enterprises more effectively in the e-commerce environment, it is necessary to coordinate the relevant legislation of various countries, strengthen communication and coordination with international organizations, and actively participate in the formulation and revision of international protection rules for trademark rights.