Beijing High People's Court
on Trial of Internet-related IP cases
[Data Source: Website of the Beijing High People's Court at China Court]
Beijing High People's Court ("BHPC") promulgated the Guidelines on Trial of Internet-related Intellectual Property Right Cases (“Trial Guidelines”) to regulate the trial of Internet-related intellectual property cases. The core concept is condensed as that a platform service provider shall be jointly and severally liable for the damages with the Internet seller if it abets or aids an Internet seller in the activity of trademark infringement while providing Internet services.
With regards to Internet-related trademark rights, the Trial Guidelines proposes that the "Doctrine of Balance of Interests" and the "Doctrine of Reasonable Prevention" should be applicable to the trial of such cases, and specifies in respect of issues such as the burden of proof for investigating whether the act of a platform service provider constitutes a direct infringement, the determination of an "effective notice" and the legal effects of an "incorrect notice", the factors for determining platform service provider’s "awareness" factor, the determination of similarity between applications and services, and so on. To strengthen the protection of IPRs, and effectively strike infringement activities, the Trial Guidelines confirms that a platform service provider shall bear the burden of proof for the specific information of its associated Internet sellers, and specifies in detail the way, contents and legal effects of the "notice" issued from a right holder, and the legal effects that might incurred by an "incorrect notice".
In addition to trademark rights, the Trial Guidelines specifies in respect of issues related to disputes involving copyrights and unfair competition on the Internet. Regarding Internet-related copyrights, it mainly stipulates on six major issues including the allocation of burden of proof between the copyright holders and the Internet service providers (ISP), the determination of the nature of the act of the ISPs, the way to determine "labor division and coordination", the applicability of the elements for infringement and for immunity from liabilities, reasonable use of a "snapshot" of a web page, the application of laws for broadcasting over the Internet, etc. Regarding unfair competition on the Internet, it mainly sets forth on major issues including the basic rules for judging disputes of the kind, the determination of "commonly recognized business ethnics", the specific determination of false adverts and commercial defamation set forth in Article 2 of the Anti-Unfair Competition Law, regulation in law against acts of "bidding rank" and calculation of damages.
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