E-commerce law cases involve many aspects. I don’t know which case you need specifically? The main cases are: A. Domain name squatting\domain name dispute/domain name management case B. Electronic signature case. C. Consumer rights case in e-commerce. D. Information service case, E. Internet unfair competition case, F. Internet unfair competition case, etc. Below I will list one of the above typical cases.
A. Domain name squatting\domain name dispute/domain name management case
(U.S.) Converse Company v. Beijing State Grid Information Co., Ltd. Computer network domain name dispute
Plaintiff: (U.S.) Converse Company, domicile 1 High Street, North Andor, Massachusetts 01845, United States of America. Legal representative Jack Boyce, CEO.
Defendant: Beijing State Grid Information Co., Ltd., domiciled at No. 29 Dongzhong Street, Dongcheng District, Beijing (Room N1, 5th Floor, Building B, East Ring Plaza). The legal representative is Zhao Huichuan.
Litigation request: Request that the defendant be ordered to immediately stop using and cancel the "converse.com.cn" domain name, and bear the litigation costs of this case.
Cause of action:
The plaintiff Converse Company (formerly translated as Converse Company) was founded in 1908 and has the exclusive right to register the trademark "CONVERSE". After more than 90 years of development, " "CONVERSE" has become a famous brand in the world of sports footwear and clothing. It is sold to customers through about 9,000 dealers in more than 90 countries around the world, and has established more than 190 specialty stores and counters in major and medium-sized cities in China.
The defendant Beijing State Grid Information Co., Ltd. preemptively registered "converse.com.cn" and used the domain name on February 23, 2000. However, the website used by the defendant using the domain name was of the Internet type and was inconsistent with the Clothing, sports and footwear have nothing to do with it.
Question:
How do you think this case should be decided? Why?
Judgment: The court judgment held that: my country and the United States are both member states of the Paris Convention for the Protection of Industrial Property. When its legitimate rights and interests are infringed in China, Converse has the right to file a lawsuit against China in accordance with the provisions of the Convention. If a lawsuit is filed in court, the Chinese courts will hear the case in accordance with the provisions of relevant laws and conventions. Converse is the right holder of the "CONVERSE" trademark registered in China, and its exclusive rights to the registered trademark should be protected by Chinese law.
Without legitimate reasons, State Grid Corporation of China has registered Converse’s registered trademark “CONVERSE” as its own domain name and used it, which may cause confusion with the products or services provided by Converse. It may lead the public to mistakenly believe that the holder of the domain name has some connection with Converse, cause public confusion about its origin, and mislead Internet users to visit its website. This behavior took possession of Converse's business reputation for free, damaged its rights and interests, and was subjectively malicious. According to the "Interpretations of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Civil Disputes Involving Computer Network Domain Names", State Grid Corporation's registration and use of the "CONVERSE" domain name constitutes an infringement of Converse's registered trademark rights and is illegal. If there is fair competition, the person shall bear the legal responsibility to stop the infringement in accordance with the law. Converse's litigation claim is established in accordance with the law, and this court supports it.
In summary, in accordance with Article 4 of the "General Principles of the People's Republic of China and Civil Law", Article 2, Paragraph 1 of the "Unfair Competition Law of the People's Republic of China" and the "Supreme People's Court" According to the provisions of Article 4, Article 5 and Article 8 of the Interpretation of Several Issues concerning the Application of Law in the Trial of Civil Disputes Involving Computer Network Domain Names, the judgment is as follows:
Within thirty days from the date of entry into force of this judgment , Beijing State Grid Information Co., Ltd. stopped using and canceled the "converse.com.cn" domain name.
B. Electronic signature case.
Introduction:
In January 2004, Mr. Yang met the girl Han.
On August 27 of the same year, Han sent a text message to Mr. Yang, asking him to borrow money for an emergency. The text message said: "I need 5,000. I just returned to Beijing for eye surgery and cannot go out. Please remit it to my card." Mr. Yang then remitted the money to Han. More than a week later, Mr. Yang received another text message from Han and lent Han another 6,000 yuan. Since the exchanges were all through text messages, Mr. Yang did not ask for an IOU for the second remittance. Since then, because Han never mentioned the loan and borrowed money from Mr. Yang again, Mr. Yang became wary and urged Han. However, the request was unsuccessful, so he filed a lawsuit in Haidian Court, requiring Han to return his 11,000 yuan, and submitted two bank remittance slips and deposit slips. But Han claimed that this was Mr. Yang's repayment of the money he owed her.
To this end, during the trial, in the evidence submitted to the court, Mr. Yang not only provided two bank remittance receipts, but also submitted a Philips mobile phone with the number "1391166XXXX" that he used. part, which records part of the short message content. For example: 15:05 on August 27, 2004, then borrow some financial assistance. August 27, 2004 15:13, why are you so down to earth! I need five thousand, which is neither too big nor too small. In addition, I just returned to Beijing yesterday for eye surgery. Now I can’t leave the door at all and can’t see anyone. If you support me, you have to remit it to my card! Waiting for the contents of 18 text messages sent by Han.
Later, after verification by the judge, the person who answered the phone number provided by Mr. Yang to send the text message was Han himself. Han himself admitted that he started using this mobile phone number in July and August last year.
Court Judgment:
After hearing, the court held that according to the relevant provisions on recognition of the "Several Provisions of the Supreme People's Court on Evidence in Civil Litigation", the mobile phone number of "1391173XXXX" Whether it was used by Ms. Han, Ms. Han clearly admitted it in the first court hearing. Before the end of the second court debate, Ms. Han entrusted an attorney to withdraw her admission. However, her change of intention was without Mr. Yang’s consent and there was no sufficient evidence. To prove that his admission was made under duress or a major misunderstanding, the plaintiff, Mr. Yang, no longer bears the burden of proof as to whether the mobile phone number was used by the defendant, but the defendant should bear the burden of proof that he had not used the phone number, and the defendant No relevant evidence was provided, so the court confirmed that the number was used by Ms. Han.
According to the provisions of the "Electronic Signature Law of the People's Republic of China" that came into effect on April 1, 2005, electronic signature refers to the electronic signature contained in the data message and attached to it. Data that identifies the signer and shows that the signer approves of its content. Data messages refer to information generated, sent, received or stored by electronic, optical, magnetic or similar means. Mobile phone short messages are in the form of electronic signatures and data messages. At the same time, mobile phone short messages can effectively represent the content and can be retrieved at any time; they can identify the sender and recipient of the data message as well as the time of sending and receiving. After this court reviewed the reliability of the method of generating, storing, and transmitting data messages provided by Mr. Yang on mobile phone short messages; the reliability of the method of maintaining the integrity of the content; and the reliability of the method of identifying the sender, it can be determined that the mobile phone The authenticity of the content of phone text messages as evidence. According to the relevant provisions of the evidence rules, audio, video and data messages can be used as evidence, but data messages can be directly used as evidence to determine facts and should be supported by other written evidence.
It can be seen from the mobile phone text messages sent by Ms. Han to Mr. Yang: On August 27, 2004, Ms. Han made a request for a loan of 5,000 yuan and asked Mr. Yang to transfer the money to his card. On August 29, 2004, Ms. Han asked Mr. Yang whether the money was deposited. On August 29, 2004, the personal business voucher of the Industrial and Commercial Bank of China showed that Mr. Yang remitted 5,000 yuan to Ms. Han; on September 7, 2004, Ms. Han proposed Regarding the request for a loan of 6,000 yuan, on August 29, 2004, Ms. Han asked Mr. Yang whether the money had been remitted.
On September 8, 2004, the personal business voucher from the Industrial and Commercial Bank of China showed that Mr. Yang remitted 6,000 yuan to Ms. Han. From September 15, 2004 to January 2005, Ms. Han repeatedly promised to repay Mr. Yang.
The amount and time of the payment stated in the mobile phone text message sent through the number used by Ms. Han provided by Mr. Yang are consistent with the amount and time of the remittance from Mr. Yang to Ms. Han reflected in the personal business certificate of the Industrial and Commercial Bank of China. The amount and time are consistent, and the text message on the mobile phone also states Ms. Han’s intention to repay the loan. The two pieces of evidence corroborate each other, and the fact that Ms. Han borrowed money from Mr. Yang can be determined. Accordingly, the mobile phone text messages provided by Mr. Yang can be regarded as real and effective evidence to prove the truth. This court accepted this and supported Mr. Yang’s request for Ms. Han to repay the loan.
Main questions:
1. It can be seen from the judgment of the judge in this case that the judge cited the provisions of the "Electronic Signature Law". Do you think that in this case, the mobile phone text messages Can it be used as evidence?
2. How to determine the legal effect of text messages?
3. Before the promulgation of the Electronic Signature Law, are there any relevant cases that you know of?
4. What is the significance of this case?
Simple answer:
In this case, the judge cited the relevant provisions of the Electronic Signature Law in judging this case. I think it is appropriate. Based on the description of this case, in accordance with the Electronic Signature Law , the mobile phone text messages in this case can be used as evidence.
The core content of the Electronic Signature Law is to give corresponding legal status to data messages, electronic signatures, and electronic certifications. The concept of data messages is very broad and basically covers all documents, records, and documents that exist in electronic form. Documents, contracts, etc., we can understand as the basic existence form of all electronic forms of information in the information age. Before the introduction and implementation of the Electronic Signature Law, we lacked the most basic regulations on the legal validity of data messages, such as whether data messages meet the requirements of written form, whether they can be used as originals, and what kind of evidentiary effect they have under what circumstances. It is very unfavorable to the development of my country's informatization industry. It can even be said that due to the lack of provisions on the basic legal validity of data messages, the information society we build lacks the most basic legal protection.
According to Article 8 of my country’s Electronic Signature Law, factors that should be considered when reviewing the authenticity of data messages as evidence are: “The reliability of the method of generating, storing or transmitting data messages; maintaining the integrity of the content The reliability of the method; the reliability of the method used to identify the sender; and other relevant factors. "That is to say, the authenticity of a data message as evidence mainly depends on the operator of the system, the operating procedures, and the information system. Its own safety and reliability are considered in several aspects. For example, review whether the system transmitting data messages has considerable stability, how likely it is to be illegally invaded and tampered with, whether the operation is carried out in strict accordance with the required procedures, whether the sender can be effectively identified, etc.
In this case, regarding the main evidence - mobile phone text messages, the judge reviewed the authenticity of the evidence in accordance with Article 8 of the Electronic Signature Law and related regulations. After determining that the source and sending time of the information could be confirmed, As well as the situation that the transmission system is basically reliable, the file content is basically complete, and there is no contrary evidence that is sufficient to negate the probative force of these evidences, the evidentiary force of these mobile phone short messages is recognized. I believe that the applicable law is appropriate and accurate, the judgment method is scientific and reasonable, and meets the requirements of the Electronic Signature Law.
Before the introduction of the Electronic Signature Law, it can be said that there were many similar cases, mainly focusing on whether emails can be used as evidence. Due to the lack of direct legal provisions, the Shanghai High Court also issued relevant regulations. explanation, this situation has been fundamentally changed with the introduction of the Electronic Signature Law.
According to relevant reports, this case is the first case adjudicated by a court based on the Electronic Signature Law after the implementation of my country’s Electronic Signature Law. It is of great significance and means that my country’s Electronic Signature Law has truly begun to enter the judicial process. Data messages The legal effectiveness of electronic signatures and electronic certifications has been fundamentally guaranteed. Through the implementation of the Electronic Signature Law, basically all informatization-related activities have their own corresponding judgment standards at the legal level.
C. Consumer rights case in e-commerce.
Shi Wenquan v. Beijing 3721 Technology Co., Ltd. and others, first-instance civil judgment on consumer rights infringement case (2004) No. 1 China Civil Judgment Chu Zi No. 46
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Author: Source: chinaeclaw.com Time: 2004-12-28 11:33:54
Beijing's First Intermediate People's Court
Civil Judgment
(2004) No. 46 of the First Republic of China
Plaintiff Shi Wenquan, male, Han nationality, born on December 18, 1970, lived in No. 3 Taotiao Hutong, Dongcheng District, Beijing.
The authorized agent is Yu Wensheng, a lawyer at Beijing Lianfa Law Firm.
The defendant, Beijing 3721 Technology Co., Ltd., is domiciled in Room 610, Building B, Heqiao Building, No. 8 Guanghua Road, Chaoyang District, Beijing.
Legal representative Hu Huan, general manager.
The authorized agent is Yang Anjin, a lawyer at Beijing Jincheng Law Firm.
The defendant Guofeng Internet Software (Beijing) Co., Ltd. is domiciled in Room 502, Gate 4, Building 3, No. 1, Shangdi 3rd Street, Haidian District, Beijing.
Legal representative Zhou Hongyi, chairman of the board.
The authorized agent is Yang Anjin, a lawyer at Beijing Jincheng Law Firm.
Plaintiff Shi Wenquan sued defendants Beijing 3721 Technology Co., Ltd. (hereinafter referred to as 3721 Company) and Guofeng Internet Software (Beijing) Co., Ltd. (hereinafter referred to as Guofeng Internet Company) for consumer infringement After accepting the case of a dispute over the rights and interests of the defendant on December 23, 2003, this court formed a collegial panel in accordance with the law and held a public hearing on April 5, 2004. Yu Wensheng, the authorized agent of the plaintiff Shi Wenquan, and Yang Anjin, the authorized agent of both the defendants 3721 Company and Guofeng Inter Company, attended the court. The case has now been concluded.
Plaintiff Shi Wenquan claimed: The plaintiff is an Internet user who often needs to search for information and browse information online. The plaintiff downloaded and installed the Baidu search companion software and used it normally. It was used directly in conjunction with the Baidu website and There are clear icons and menu instructions in the IE toolbar. Recently, the plaintiff was prompted to install "network real-name software" when browsing some websites. After installing the Internet real-name software, the plaintiff discovered that the original Baidu Search Companion software on the computer and the Baidu Search Companion icon and menu in the IE toolbar had been illegally deleted, making it impossible for the plaintiff to continue searching using the Baidu Search Companion software.
During the process of reinstalling Baidu Search Companion, the plaintiff discovered that the download and installation of Baidu Search Companion were illegally blocked by the network real-name software. After the plaintiff clicked the "Online Installation" link on the relevant page of the Baidu website, the system prompted that the installation failed. The plaintiff I tried to download the installation file of Baidu search companion software to my local computer for installation, but it was still illegally blocked by the network real-name software and the installation could not be completed. Only after the plaintiff completely uninstalled the online real-name software was he able to re-download and install the Baidu search companion software. The above-mentioned illegal deletion and blocking of the online real-name software seriously affected the plaintiff's retrieval and use of Internet information, forcing the plaintiff to spend time and energy uninstalling the infringing software and reinstalling Baidu IE Search Companion. In order to prove the above-mentioned illegal deletion and blocking behavior of the online real-name software, the plaintiff applied to the Beijing Notary Office to preserve network evidence in the above situation. The network real-name software comes from the "3721" website, whose website owners are Guofeng Internet Company and 3721 Company. The software has received technical support from Guofeng Internet Company. According to the relevant provisions of the Consumer Rights Protection Law, the online real-name software produced, operated and provided technical support by the above defendants illegally deleted the software on the plaintiff's computer and illegally monitored and blocked some network links browsed by the plaintiff, infringing the plaintiff's right to relevant The legal right to use the software; the software did not provide a detailed description of the infringing functions, which violated the plaintiff’s right to know as a consumer of the software; the software’s behavior of blocking other software violated the plaintiff’s right to independently choose such software, which constituted to force transactions; the software illegally monitors users' online behavior and blocks network links, infringing on users' privacy rights. The plaintiff has the right to claim compensation for its infringement according to law. We specifically filed a lawsuit with the People's Court, requesting the People's Court to order the two defendants to: 1. Stop the infringement; 2. Make a written apology to the plaintiff; 3. Compensate the plaintiff for economic losses of 1,000 yuan; 4. Bear all litigation costs of this case.
Defendants 3721 Company and Guofeng Internet Company *** jointly argued that: 1. The quality of the defendant’s software products meets the requirements. The defendant's "3721 Network Real Name" software is a product for which the defendant legally owns copyright, and its quality does not violate the mandatory provisions of national laws and regulations. When the defendant designed the above-mentioned software, the functions set included: directly entering Chinese and English names in the browser address bar to quickly access the website; obtaining comprehensive search results; cleaning up the URLs in the browser address bar; protecting and repairing the user's IE browser Not be maliciously damaged, etc. The software is developed in the form of IE browser plug-in software, so that it automatically runs when the IE browser is running, in line with industry practice. 2. As free software, the defendant fulfilled its obligations to users. The defendant's software is available for free download by the unspecified public on the website, and users do not need to perform any obligation to pay when downloading. When fulfilling the obligation to inform free users, the defendant only needs to consider the needs of general users, without considering possible Special users. When users downloaded and installed the software, the defendant had explained the software overview, main functions, technical features, legal terms and other matters through the software license agreement, prompt boxes, etc., and also provided two consultation methods: the Internet and toll-free telephone. When installing the software, the user can check the software license agreement content, function introduction, usage method and other detailed information provided by the defendant, and select "Yes" or "No" in the dialog box to decide whether to install. There is no force to install the software. Behavior. Finally, the defendants also provided safe uninstallation and deletion methods for users to completely remove the software from their computers. Therefore, the defendant did not violate the plaintiff’s right to know and other rights. 3. The phenomenon claimed by the plaintiff was not caused by the defendant’s fault. Ordinary users would choose to install the official version of the software without installing the defendant's network real-name software in advance, but the plaintiff mistakenly installed the repaired version of the software. The repaired version of the software can only be downloaded and installed if the network real-name software has been installed and damaged. This may be one of the reasons for this case. Another reason is software conflicts. The plaintiff used the defendant's 3721 network real-name software and Baidu's search companion software respectively.
These two softwares use an IE address bar, and are very similar in terms of functions, interfaces, and operating mechanisms. This often leads to software conflicts. What the defendant can do is to try to avoid two conflicting software running at the same time, but this mainly depends on the consumer's choice. 4. The facts stated in the plaintiff’s complaint lack basis. The plaintiff claimed in the lawsuit that after installing the defendant's software, it was discovered that the original Baidu Search Companion software on the computer and the Baidu Search Companion icon and menu in the I.E. toolbar had been illegally deleted. During the process of reinstalling the Baidu Search Companion software, the plaintiff was subjected to network The illegal blocking of real-name software, these facts were not reflected in the evidence. Other facts in the plaintiff's indictment are only conclusions reached through speculation based on notarized phenomena and lack of evidence support. In summary, we request the court to dismiss the plaintiff’s claim. Guofeng Internet Company also argued that it is not an operator and service provider of the Internet real-name business. The plaintiff only believed that Guofeng Internet Company was an operator and service provider of the Internet real-name business based on the owner of the "3721" website, which was inconsistent with the facts. Therefore, the plaintiff It was wrong to sue Guofeng Internet Company and requested to revoke its status as an ineligible party.
After trial, it was found that:
On November 2, 2002, Beijing Internet Guofeng Network Software Technology Development Co., Ltd. (referred to as Internet Guofeng Network Software Company) notarized to Changan The office applied for the preservation of evidence, and the Chang'an Notary Office notarized the process of its agent's operations on the computer and the Internet, and produced (2002) Changzheng Neijingzi No. 03799 notarization. Guofeng Internet Company uses the "3721 Network Real-name Software License Agreement" to prove that it has fulfilled its obligation to inform users of possible conflicts and solutions to its software. The license agreement includes 12 clauses, the main contents of which are: the copyright of this software is owned by Beijing Internet Guofeng Network Software Technology Development Co., Ltd., this software is free software, the functions of this software, the installation of this software, and the deletion of this software , Automatic upgrade of this software, free support of this software by Beijing Internet Guofeng Network Software Co., Ltd., telephone, fax, etc., exemption of software conflicts, and if the compatibility problem cannot be solved, the user can delete the software, etc.
On December 23, 2002, Internet Guofeng Network Software Company applied to the Changan Notary Office for evidence preservation. The Changan Notary Office investigated the computer operations and actions of Internet Guofeng Network Software Company’s agent. The process of downloading the required files on the Internet and the downloaded files were notarized, and a (2002) Changzheng Neijingzi No. 05338 notary certificate was produced, which completely notarized 94 steps. On November 12, 2003, 3721 Company applied to the Beijing Notary Office for evidence preservation. The Beijing Notary Office charged 3721 Company’s agent with operating the office’s networked computers, and charged Baidu IE search companion and CNNIC general website software , Sina IE, and each step of the direct website control were notarized, and the notarization certificate No. 13563 of (2003) Jingzhengjingzi was produced. Guofeng Internet Company and 3721 Company used the above two pieces of evidence to prove the phenomenon of software conflicts and that this phenomenon is an unavoidable normal phenomenon in the keyword addressing industry.
On October 13, 2003, 3721 Company applied to the Beijing Notary Office for evidence preservation. The Beijing Notary Office conducted an investigation into the operation of the networked computers of 3721 Company’s agents. Notarized and produced (2003) Jing Zheng Jing Zi No. 12414 Notary Certificate. 3721 Company uses the "3721 Network Real-Name Software License Agreement" to prove that it has fulfilled its obligation to inform users of possible conflicts and solutions to its software. The "License Agreement" has 18 clauses. The main contents include: the copyright of this software is owned by Guofeng Internet Company, this software is free software, the functions of this software, the installation of this software, the deletion of this software, this software Automatic upgrades, free support for this software by Guofeng Internet, telephone, fax, etc., exemption of software conflicts, and when software conflicts occur, conflicting software will be overwritten or uninstalled, etc.
On November 17, 2003, 3721 Company applied to the Beijing Notary Office for evidence preservation. The Beijing Notary Office conducted an investigation into the operation of the networked computers of 3721 Company’s agents. It was notarized and produced (2003) Beijing Zhengjingzi No. 15877 Notary Certificate. After 3721 Company installed the 3721 network real-name software, it can be used normally. Then it installed Baidu IE search companion software, and the page displayed: "Unfortunately, the installation failed. The reason for the failure may be that your browser does not support our software, or you may have installed other similar software that conflicts with our software. If you are willing, you can contact Baidu..." Follow The operation of the prompt box is to uninstall the network real-name software, and then install the Baidu IE search companion software. The installation is successful and can be used normally, which proves that it has fulfilled its obligation to inform users about possible conflicts and solutions to the software, and that it is feasible.
On December 3, 2003, Shi Wenquan applied to the Beijing Notary Office for evidence preservation. On December 7, 2003, under the supervision of two notaries from the Beijing Notary Public Office, Shi Wenquan operated his personal IBM THINKPAD X31 laptop and logged into the Baidu website (the URL is: /search.asp There are many cases on it
Li Decheng: Analysis of typical e-commerce legal dispute cases
Moderator (Li Yingfeng): Thank you Mr. Zhang. The last speaker this morning is Mr. Li Decheng, a member of the Information Network Professional Committee of the National Lawyers Association and a lawyer. , the topic of his lecture is analysis of typical e-commerce legal disputes.
Li Decheng: Dear Secretary-General Li Yingfeng, distinguished ladies and gentlemen, I am not here today! I think about this topic so much that I write a case every month to give some opinions and suggestions to the industry. I would like to use this opportunity to refine the case I wrote.
The first question. It’s about the Electronic Signature Law. I personally participated in the drafting of the Electronic Signature Law until it was finally submitted to the National People’s Congress for deliberation. I participated in soliciting opinions. I know the importance of this law. We should not think that the issue of integrity in the online environment , it cannot be solved by this kind of electronic signature law alone. I am not throwing cold water on you. I am very aware of the problems of this law. It mainly solves fraud, mainly for third parties. We need to understand a truth. I have repeatedly talked about the impact of legislation. I have repeatedly said that we should not place our hope on all problems that the law can solve. The problems that the law can solve are very limited. I have been engaged in research in this area for a long time, but I have repeatedly reminded everyone not to Issues that are not legal should be studied within the law. In addition, we should not expect that all legal issues related to e-commerce can be solved by this law. We must be aware of this.
The next step is for us. Regarding the implementation of the Electronic Signature Law, at a meeting in Shanghai, we had a realization that there is still a process for the Electronic Signature Law to truly come into play. I am very happy to see the drafting of supporting systems with the participation of various ministries and commissions. I would like to mention something related to this issue, because Lawyer Chen and I have hosted many events for American scholars on cyber legal research. During our exchanges, we were surprised to find that their response to electronic signatures was positive. In their words, the first electronic signature law in the United States had little effect, but it was different in China. The industry self-regulatory organizations and media present here jointly promoted it. This was the first electronic signature law in the United States. Question. The second question is about the establishment of the system. I don’t want to elaborate more on this issue.
I want to remind you.