Measures adopted by e-commerce platforms to control counterfeit goods
Measures adopted by e-commerce platforms to control counterfeit goods. With the rapid development of society, the relationship between e-commerce platforms and people is becoming more and more important. close. But sometimes when shopping online, you will find that the things you buy are actually fakes. Let’s take a look at the measures taken by e-commerce platforms to control fakes. Measures taken by e-commerce platforms to control counterfeit goods 1
1. When the platform knows that the product is fake, it should promptly take necessary measures such as deleting, blocking, and disconnecting the link.
2. When the platform receives a qualified infringement notice from the right holder, it shall take necessary measures in a timely manner and notify the respondent.
3. The platform should establish an infringement complaint mechanism for rights holders to issue infringement notices.
4. Report illegal situations discovered to the competent authorities in accordance with the law; when receiving orders from the competent authorities, provide assistance in accordance with legal procedures.
5. The seller’s identity information (including real name, address and valid contact information) should be reviewed, and the above information should be disclosed to consumers during the complaint process after consumers purchase fake goods.
(1) Legislation and Judiciary
1. Domestic legislation
With the development of my country’s e-commerce industry, the problem of online counterfeit goods has become a public concern about e-commerce. One of the concerns is that relevant intellectual property laws can be applied to regulate these products that are suspected of infringing intellectual property rights. However, there has been considerable controversy in practice as to whether third-party online trading platforms that are not directly involved in transactions during online shopping should bear responsibility and what kind of responsibilities they should bear.
In early judgments about the liability of network platform service providers, rights holders and courts usually cited the provisions of Article 130 of the General Principles of the People’s Republic of China and Civil Law on copyright infringement, The provisions of Article 148 of the "Opinions of the Supreme People's Court on Several Issues Concerning the Implementation of the General Principles of the People's Republic of China and Civil Law (Trial)" and other laws and regulations.
At present, the domestic laws that directly regulate users’ use of e-commerce to sell counterfeit goods are mainly Article 36 of the Tort Liability Law, the Regulations on the Protection of the Right to Disseminate Information Networks, and the Supreme People’s Court’s Notice on the Trial of Cases Involving Computers Regulations and judicial interpretations on copyright protection in the Internet environment, such as the Interpretation of Several Issues on the Application of Law in Cases of Internet Copyright Disputes, and the Guiding Opinions of the Beijing Higher People’s Court on Several Issues Concerning the Trial of Cases Involving Copyright Disputes in the Internet Environment (1).
Regarding the legal obligations and responsibilities of e-commerce platforms, our country’s legislation currently clarifies the following:
(1) It only assumes the obligation to review identities and does not assume the obligation to proactively review information in advance.
First of all, the definition of the intellectual property review obligations of e-commerce trading platforms should comprehensively consider factors such as fairness and efficiency. According to our country's laws, e-commerce platforms have the obligation to review the identity of seller operators. At the same time, since the platform operator's knowledge of the infringement phenomenon is only a general understanding and not a specific knowledge, the e-commerce platform does not assume the obligation to proactively review the information of counterfeit goods in advance.
Although, the "Internet Information Service Management Measures", "Internet Electronic Announcement Service Management Regulations", and "Online Trading Platform Service Specifications" stipulate that platform operators have the obligation to monitor platform information. In fact, the content that these laws require platforms to review in advance refers to:
(1) Content that is harmful to national security, national interests, public interests, social stability, and content involving obscenity, pornography, and violence;
(2) Whether there are national restricted circulation items and prohibited items;
(3) The authenticity of registered user information. The monitoring information it refers to does not include whether information or products infringe on the intellectual property rights of others.
In fact, due to factors such as the possibility of ownership disputes over intellectual property rights and the existence of intellectual property licenses, it is unrealistic to require e-commerce platforms to proactively review whether products are fake.
At the same time, it has been basically understood in legislation and judicial rules that network service providers do not bear the obligation to review. In terms of legislation, Article 63 of the "Copyright Law (Revision Draft)" (Draft for Comments) drafted by the National Copyright Administration clearly stipulates: "When network service providers provide simple network technology services such as storage, search, or linking to network users, It does not bear the obligation to review information related to copyright or related rights. ”
The online infringement clause in Article 36 of my country’s Tort Liability Law is the product of transplanting the American safe harbor rules, although this clause is not clear. It is stipulated that network service providers do not have the obligation to review, but when interpreting this article, the Legal Affairs Committee of the Standing Committee of the National People's Congress clearly stated: "Network service providers that provide technical services do not have universal review obligations."
Judicial Above, Article 8, paragraph 2, of the Supreme Court’s “Regulations on Several Issues Concerning the Application of Law in the Trial of Civil Disputes Infringing the Right to Information Network Communication” stipulates: “Network service providers fail to proactively review the behavior of network users that infringe the right to information network communication.” The People's Court should not determine that it is at fault based on this."
The Supreme Court clearly stated: "Network service providers are not required to bear general obligations of prior review and higher duties of care."
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Article 17 of the Beijing Higher People’s Court’s “Guiding Opinions on Several Issues Concerning the Trial of Cases Involving Copyright Disputes in the Internet Environment (I) (Trial)” stipulates: “Provide information storage space, search, link, P2P, etc. Network service providers generally do not have the obligation to proactively review and monitor in advance whether others use their services to disseminate works, performances, and audio and video products.
Beijing Higher People's Court "About Trial." "Answers to Several Issues in Cases of Intellectual Property Infringement Disputes by E-Commerce" stipulates: "E-commerce platform operators generally do not bear the obligation to monitor the legality of transaction information, and they cannot monitor the legality of transaction information just because the e-commerce platform operator complies with relevant management requirements. Prior monitoring, or the objective existence of online sellers using their network services to infringe the intellectual property rights of others, automatically determines that the e-commerce platform operators are aware of the existence of the infringement. "Therefore, e-commerce platforms, as a type of network service provider, do not Should be subject to review obligations.
(2) Application of notification and deletion rules
In view of the phenomenon of counterfeit goods on e-commerce platforms, Article 36 of my country’s current Tort Liability Law prohibits the current sale of counterfeit goods on online trading platforms. The main legal basis for determining cargo liability.
The first paragraph of this article stipulates: "Network users and network service providers who use the Internet to infringe the civil rights and interests of others shall bear infringement liability." The e-commerce platform referred to in this paragraph is an e-commerce platform that actually participates in transactions and directly Sellers who provide goods or services, rather than neutral third-party platforms, bear direct liability for infringement. Similar provisions can also be found in Article 57 of the current Trademark Law and Article 75 of the Implementation Regulations of the Trademark Law, which clearly stipulate that: Those who intentionally provide an online commodity trading platform for infringement of other people's exclusive rights to trademarks are direct trademark infringements .
Paragraphs 2 and 3 of Article 36 of the Tort Liability Law stipulate: “If an Internet user uses network services to commit infringement, the infringed party has the right to notify the network service provider to delete, Blocking, disconnecting and other necessary measures. If the network service provider fails to take necessary measures in a timely manner after receiving the notice, the network service provider shall be jointly and severally liable with the network user for the expanded damage if it knows that the network user uses its network service to infringe upon others. Civil rights and interests, if necessary measures are not taken, the network user shall bear joint liability. ”
In these two paragraphs, the e-commerce platform does not participate in the sales process and only provides neutral platform services to sellers. It is indirect infringement liability for failing to take reasonable measures in a timely manner after knowing the infringement. This article actually draws on the "notice-and-deletion" rules for network service providers stipulated in Articles 14 to 17 of the "Regulations on the Protection of the Right to Disseminate Information Networks" and is a transplantation of the American safe harbor rules.
In addition, some scholars believe that the knowledge rules in the last two paragraphs of Article 36 are based on the "German Federal Legislation on General Conditions for Information and Services", which reflects the network service provider's obligation to safeguard the security of cyberspace and incorporates German law into The interpretation of the security protection obligations on the Internet has been expanded to the field of network infringement.
From the fact that the e-commerce platform informs users in the contract not to infringe, opens a complaint platform, and formulates punishment rules for selling counterfeit products, it can be inferred that there is no different intention between the e-commerce platform and the direct infringer. There is no intention to contact the seller, and there is no subjective intention to induce, instigate or assist the seller in infringement, and no objective inducement, instigation or assistance has been carried out.
Some scholars claim that the network service provider constitutes infringement because it fails to fulfill its legal obligation to "take necessary measures". Therefore, the infringement liability and the seller's liability are two independent responsibilities. They believe that third-party e-commerce platforms The behavior may bear vicarious liability, and must meet two components: (1) the third-party e-commerce platform has the right and ability to control the direct infringer; (2) the third-party e-commerce platform has obtained economic benefits.
However, our country has not yet established the US theory of vicarious tort liability, and e-commerce cannot be determined to bear corresponding liability simply based on the fees it has collected from sellers. In fact, the fees charged by e-commerce platforms are service fees for providing electronic transactions, not fees for specific transaction activities. Therefore, our country’s e-commerce platforms do not assume vicarious liability established by U.S. justice.
Regarding the issue of whether the online trading platform should bear responsibility for the seller after receiving the notice and taking measures to delete, block, and disconnect the seller, although the seller does not actually constitute infringement, my country's current legislation believes that e-commerce platforms cannot It will not be held liable if there is obvious fault.
"The Provisions of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Civil Disputes Using Information Networks to Infringe Personal Rights and Interests" indicates that the People's Court supports network service providers to use "receipt of notice" as a defense. Article 7 stipulates : “If an Internet user whose published information has been deleted, blocked, disconnected, etc., claims that the network service provider shall bear liability for breach of contract or tort liability, and the network service provider defends on the grounds of receipt of a notice, the People’s Court shall Support. If an Internet user who has been subjected to measures such as deletion, blocking, or disconnection requests the network service provider to provide notification content, the People's Court shall support the application of the "notification-deletion" rule. , the "Opinions of the Supreme People's Court on Several Issues Concerning Giving Full Play to the Role of Intellectual Property Trial Functions in Promoting the Development and Prosperity of Socialist Culture and Promoting Independent and Coordinated Economic Development" issued in 2011 requires: The basic value of the "notice and takedown" rule must be maintained , unless it can be determined that the network service provider knew or should have known based on the obvious facts of infringement, the investigation of the network service provider's liability for infringement should be based on the first application of the "notice and takedown" rules, which should not only prevent the degradation of the network The service provider's fault identification standard makes the "notice and takedown" rule useless; it is also necessary to prevent network service providers from being passive and slacking off when third parties use their network services to infringe, and abusing the "notice and takedown" rule.
(3) Information disclosure obligations
The "Consumer Rights and Interests Protection Law" focuses on the information disclosure obligations and responsibilities of online trading platforms from the perspective of safeguarding consumers' right to know. According to Article 44 of the "Consumer Rights and Interests Protection Law": "If the legitimate rights and interests of consumers are harmed and the online trading platform provider cannot provide the real name, address and valid contact information of the seller or service provider, the consumer You can ask for compensation from the online trading platform provider. "That is, when the platform cannot provide the seller's information, it should first bear the liability for compensation and then seek compensation from the infringing seller.
(4) New developments in online transaction management
Recently, under the "Internet +" action, the State Council and various departments have paid special attention to the management of infringement and counterfeiting in the Internet field, and have promulgated A number of State Council normative documents, including: "Opinions of the General Office of the State Council on Strengthening the Governance of Infringement and Counterfeiting in the Internet Sector", "Several Opinions of the General Office of the State Council on Promoting the Healthy Development of Domestic Trade Circulation", "Opinions of the General Office of the State Council on Actively Promoting "Internet+" Guiding Opinions on Actions", "Notice of the General Office of the State Council on Issuing the 2015 Action Plan for Implementing the Quality Development Outline", "Several Opinions of the State Council on Promoting Fair Competition in the Market and Maintaining Normal Market Order", "State Council on Vigorously Developing E-Commerce and Accelerating the Cultivation of E-Commerce" Opinions on New Economic Dynamics", "Opinions of the State Administration for Industry and Commerce on Strengthening Online Market Supervision", "Measures for the Administration of Online Transactions", "Service Specifications for Online Trading Platforms", "Procedures for Formulation of Transaction Rules for Third-Party Online Retail Platforms (Trial) )》.
Chapter 2 of the "Measures for the Administration of Online Commodity Transactions" implemented in 2014 is a special provision on third-party trading platform operators, requiring: "Third-party trading platform operators shall Review and register the identity of the business entities of legal persons, other economic organizations or individual industrial and commercial households who apply to enter the platform to sell goods or provide services, establish registration files and regularly verify and update them, and publish their business licenses in a prominent position on the main page of their business activities. information or the electronic link identification of its business license.
The rights, obligations and responsibilities of both parties in terms of platform entry and exit, product and service quality and safety, and consumer rights protection are established in the agreement. Management systems for intra-platform transaction rules, transaction security, consumer rights protection, and bad information handling, etc., and various management systems should be displayed on its website and technically ensure that users can conveniently and completely read and save them.
Establish an inspection and monitoring system for operators who sell goods or provide services through the platform and the goods and service information they publish. If any violation of industrial and commercial administrative laws, regulations, and rules is discovered, the industry and commerce authority where the platform operator is located shall be informed. The administrative department shall report it and take timely measures to stop it. If necessary, it may stop providing third-party trading platform services. Third-party trading platform operators shall take necessary measures to protect the exclusive rights of registered trademarks, corporate name rights and other rights, and protect the rights holders. If there is evidence that an operator on the platform has infringed upon its exclusive rights to registered trademarks, business name rights, or other unfair competition practices that harm its legitimate rights and interests, necessary measures shall be taken in accordance with the Tort Liability Law.
The "Measures" provide a legal basis for creating a more mature and standardized online shopping environment, requiring e-commerce platforms to assume more responsibilities and obligations.
For the Internet business activities of specific commodities involving public life and health, such as food, medicine, cosmetics, etc., the law imposes stricter responsibilities and obligations on the platform. The "Measures for the Supervision and Administration of Food and Drug Operations on the Internet (Draft for Comments)" and the "Regulations on the Supervision and Administration of Cosmetics (Revised Draft for Review)" both require third-party online transaction platform providers to conduct qualification checks and real-name verification of cosmetics manufacturers and operators entering the Internet in accordance with the law. Register, perform reporting, stop providing online trading platform services and other obligations.
The "Opinions of the General Office of the State Council on Strengthening the Governance of Infringement and Counterfeiting in the Internet Sector" issued in November 2015 aims to strengthen the governance of infringement and counterfeiting in the Internet field and create an open, standardized, honest and safe online transaction environment. Promote the healthy development of e-commerce and require the implementation of e-commerce corporate responsibilities. Guide and urge e-commerce platform enterprises to strengthen the qualification review of online operators, establish and improve internal monitoring systems for online transactions, advertising promotion and other businesses and the credit ratings of online operators, stop the use of false transactions and other methods to improve the reputation of merchants, and establish and improve Establish a mechanism for handling reports and complaints, implement inspections and clearing of information on infringing and counterfeit goods, retain transaction records and logs, perform responsibilities and obligations such as reporting clues on illegal crimes, and cooperate with law enforcement departments to reversely trace operators of infringing and counterfeit goods on e-commerce platforms.
Guide and urge self-operated e-commerce enterprises to strengthen internal product quality control and intellectual property management, strictly control purchase and sales, and strictly prevent infringing and counterfeit goods from entering circulation channels and markets. Implement network service provider responsibilities. Urge network service providers to implement the "notice-and-deletion" obligation, and promptly take necessary measures such as deleting, blocking, and disconnecting the network information that uses network services to commit infringement and counterfeiting.
2. Domestic Judiciary
In my country’s judicial practice, the liability of e-commerce platforms for counterfeit sales is mainly trademark infringement disputes, followed by cases of copyright and patent infringement. In addition, based on the different levels of difficulty in reviewing trademark rights, copyrights, and patent rights, it is most difficult for platforms to review patent ownership, and the scope of their exemption conditions is also wider.
Analyzing the results of judicial cases in our country, it can be seen that:
First of all, the e-commerce platform is not a content provider or a direct seller, and it may bear indirect infringement. responsibility. The reason why the platform bears indirect infringement liability lies in the supervision, management, and review obligations that the e-commerce platform has for sellers and stores.
Secondly, e-commerce platform operators do not have the obligation to proactively discover and deal with infringements on their platforms, but they should bear the obligation to remind and inform in order to prevent and stop intellectual property infringement, sales of counterfeit goods, etc. , provide consumers and rights holders with complaint channels, and have a reasonable duty of care to review the identity of sellers.
The platform operator’s reminder obligation is to formulate platform network operation rules, and formulate intellectual property clauses in the rules to inform sellers on the platform not to sell goods that infringe other people’s intellectual property rights, or to publish products that infringe other people’s intellectual property rights. product information. The identity review obligation is reflected in whether the platform operator has reviewed the identity certificates, rights certificates and other materials of sellers and users on the platform in accordance with the law, and whether real-name authentication procedures have been carried out.
Finally, when determining whether the platform bears infringement liability, the platform operator can claim immunity based on the "notice-and-remove" rule, that is, whether the platform operator took steps to disconnect, Measures such as deleting product information and removing products from shelves.
If the platform operator receives a warning letter or complaint from the right holder that clearly and specifically points to the infringing information, and takes prompt and effective processing, reply, deletion of links, closure of stores and other measures, then the platform operator It has fulfilled its reasonable duty of care and shall not be liable for joint infringement. Measures taken by e-commerce platforms to control counterfeit goods 2
What to do if you buy counterfeit goods on e-commerce platforms
From the perspective of contractual obligations, if an e-commerce website sells fake goods, consumers will You have the right to request a return. Whether compensation can be obtained depends on whether the e-commerce website has made relevant commitments before.
Currently the most critical link in consumer rights protection is:
1. Identification of fakes;
2. Whether Be able to prove the source of the purchased goods. Some consumers throw away key evidence such as invoices after purchasing goods, which will cause certain problems in protecting their rights.
In terms of identifying fake products, the difference between some fake products, such as cosmetics, and genuine products is relatively vague, and there is a lack of professional appraisal institutions, so identification may be difficult. Regarding this issue, it is not recommended to use ex post facto rights protection to solve the problem. Consumers should pay attention to some things before purchasing.
For example, it is best to choose self-operated products from e-commerce websites. At present, some e-commerce platforms are open to third-party merchants, and the control of goods is not as strict as that of self-operated products. Consumers should also have a certain awareness of prevention.
If you ultimately resort to legal action, although the cost will be relatively high, from the perspective of legal provisions, consumers have laws to follow. The Consumer Rights Protection Law has clear provisions to support consumers’ rights protection.
Although e-commerce platforms have brought people a lot of convenience, they also have their drawbacks. Counterfeit goods frequently enter the market through e-commerce platforms and are then purchased by consumers, seriously infringing on consumers’ rights. Legitimate rights and interests have also seriously affected market order.
After purchasing fake goods on e-commerce platforms, consumers should actively protect their rights through the above rights protection methods and must not indulge in these illegal behaviors. Lutu has online lawyers. If you have any questions, you are welcome to consult at any time. Measures taken by e-commerce platforms to control counterfeit goods 3
What to do if you buy counterfeit goods on e-commerce platforms
When it comes to identifying counterfeit goods, it is not recommended to use ex post facto rights protection. solve. Consumers should pay attention to some things before purchasing.
Media reports claim that e-commerce website suppliers engage in fraud, while e-commerce websites turn a deaf ear to consumer complaints. If you unfortunately buy fake goods on an e-commerce website, how should you protect your rights?
At present, the most critical link for consumers in protecting their rights is the identification of fake goods; whether they can prove the source of the purchased goods. Some consumers throw away key evidence such as invoices after purchasing goods, which will cause certain problems in protecting their rights.
Regarding the issue of returns, the law clearly stipulates that if consumers request the return of goods that have been deemed unqualified by the relevant administrative departments in accordance with the law, the operator shall be responsible for the return.
Regarding whether compensation can be obtained, the law stipulates that if an operator commits fraud in providing goods or services, it shall increase compensation for the losses suffered by the consumer at the request of the consumer. The amount of the increased compensation shall be the amount of the consumer's purchase of the goods. Three times the price or the cost of receiving services; if the amount of increased compensation is less than five hundred yuan, it shall be five hundred yuan. If the law provides otherwise, such provisions shall prevail. If an operator knows that the goods or services are defective but still provides them to consumers, causing death or serious damage to the health of consumers or other victims, the victim has the right to demand punitive compensation of less than twice the loss suffered from the operator.
Article 55 of the "Consumer Rights and Interests Protection Law of the People's Republic of China" If an operator engages in fraudulent behavior in providing goods or services, it shall increase compensation for the losses suffered by the consumer in accordance with the requirements of the consumer. The amount of increased compensation shall be three times the price of goods purchased by consumers or the cost of receiving services; if the amount of increased compensation is less than 500 yuan, it shall be 500 yuan. If the law provides otherwise, such provisions shall prevail. If an operator knows that the goods or services are defective but still provides them to consumers, causing death or serious damage to the health of consumers or other victims, the victims have the right to require the operator to comply with Articles 49 and 51 of this Law. Other laws provide for compensation for losses, and the right to demand punitive damages of less than twice the loss suffered.