{"id":3853,"date":"2020-09-24T23:41:00","date_gmt":"2020-09-24T15:41:00","guid":{"rendered":"https:\/\/east-ip.com\/?p=3853"},"modified":"2025-05-08T23:51:37","modified_gmt":"2025-05-08T15:51:37","slug":"zhejiang-province-higher-peoples-court-guidance-on-the-determination-of-ip-trials-involving-online-trade-platforms-translation","status":"publish","type":"post","link":"https:\/\/www.east-ip.com\/zh\/insights\/zhejiang-province-higher-peoples-court-guidance-on-the-determination-of-ip-trials-involving-online-trade-platforms-translation\/","title":{"rendered":"Zhejiang Province Higher People\u2019s Court\u2013 Guidance on the Determination of IP Trials Involving Online Trade Platforms (Translation)"},"content":{"rendered":"

Chapter 1 \u2013 Basic Principles<\/h1>\n\n\n\n
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  1. In the course of trials for intellectual property cases involving e-commerce platforms, we must adhere to the basic value orientation of \u201cstrict protection\u201d and at the same time properly handle the relationship between intellectual property owners, e-commerce platform operators, operators within the platform and public interest to realize a balance of interests among all parties.<\/li>\n\n\n\n
  2. Following the principle of \u201cparity of authority and responsibility\u201d ( \u6743 \u8d23 \u4e00 \u81f4 ), respect should be given to the boundaries of e-commerce platform operators giving them a certain degree of autonomy; the behavioral boundaries of e-commerce platform operators should be ascertained, reasonably defining their legal responsibilities with the aim of promoting the healthy development of Internet-related industries.<\/li>\n\n\n\n
  3. There should be adherence to the concept of collaboration in network governance, strengthening of the organic connection between judicial protection and administrative law enforcement, mediation and arbitration, encouragement of all parties to jointly participate in promoting governance and share in the e-commerce market management system.<\/li>\n<\/ol>\n\n\n\n

    Chapter 2 \u2013 General Rules<\/h2>\n\n\n\n
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    1. The following factors should be considered where the People\u2019s Court determines whether the e-commerce platform operator\u2019s behavior in a case is providing platform services or developing its own business:<\/li>\n<\/ol>\n\n\n\n

      (a) information on the product page indicating the seller\u2019s identity, or labeling on the product page such as \u201cself-run\u201d (\u81ea\u8425) or \u201crun by others\u201d (\u4ed6\u8425);
      (b) the seller\u2019s information marked on the actual product;
      (c) the seller\u2019s information marked on transactional documents, such as invoices.<\/p>\n\n\n\n

      In the event these three types of information above regarding the seller are inconsistent, it should normally be determined that each relevant entity has jointly engaged in sales activities, except when the seller indicated on invoices are legally authorized by tax authorities to issue invoices on behalf of the [actual seller].<\/p>\n\n\n\n

        \n
      1. In cases of infringement of intellectual property rights, where the plaintiff purchased an infringing product through an e-commerce platform, the place of delivery of the product purchased is neither the place where the contract is performed, nor the place where the infringement has taken place; therefore, the place of delivery of the product purchased shall not be considered for the purpose of determining jurisdiction.<\/li>\n\n\n\n
      2. The act of selling infringing products through an e-commerce platform is not an \u201cAct of Information Network Infringement\u201d (\u4fe1\u606f\u7f51\u7edc\u4fb5\u6743\u884c\u4e3a) as stipulated under Article 25 of \u201cThe Interpretation of the Supreme People\u2019s Court on the Application of the Civil Procedure Law of the People\u2019s Republic of China\u201d (\u300a\u6700\u9ad8\u4eba\u6c11\u6cd5\u9662\u5173\u4e8e\u9002\u7528\u3008\u4e2d\u534e\u4eba\u6c11\u5171\u548c\u56fd\u6c11\u4e8b\u8bc9\u8bbc\u6cd5\u3009\u7684\u89e3\u91ca\u300b), and therefore jurisdiction should not be determined based upon the place of residence of the infringed [party].<\/li>\n<\/ol>\n\n\n\n

        Chapter 3 \u2013 Notices and Take-Downs<\/h2>\n\n\n\n
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        1. E-commerce platform operators should establish unimpeded channels for intellectual property complaints and reasonably publish them on their websites.<\/li>\n\n\n\n
        2. \u201cNotices\u201d issued by the intellectual property owners should include the following:<\/li>\n<\/ol>\n\n\n\n
            \n
          • The identity and contact information of the intellectual property owner (and its entrusted agent);<\/li>\n\n\n\n
          • Information or URLs that can accurately identify the alleged infringing products, services or contents;<\/li>\n\n\n\n
          • Prima facie evidence of infringement, including evidence of ownership and evidence of the existence of the infringement.<\/li>\n<\/ul>\n\n\n\n
              \n
            1. \u201cCounter-notices\u201d submitted by operators within the platform [sellers] should include the following:<\/li>\n<\/ol>\n\n\n\n
                \n
              • Subject information, such as the name and contact information of the counter-notifier;<\/li>\n\n\n\n
              • URLs of the products, services or contents where termination of necessary measures is requested;<\/li>\n\n\n\n
              • Prima-facie evidence of non-infringement.<\/li>\n<\/ul>\n\n\n\n
                  \n
                1. Both notices and counter notices should be sent in writing, and the notifier and the counter-notifier shall be responsible for the authenticity thereof.<\/li>\n\n\n\n
                2. E-commerce platform operators may within the legal framework, and based upon their own verification requirements, the types of intellectual property rights involved and the actual situation of industrial development among other factors, request clarification and refinements to the actual requirements for notices and counter-notices and publish them in a timely manner.<\/li>\n<\/ol>\n\n\n\n

                  For notices involving patents, e-commerce platform operators may require intellectual property owners to provide an infringement comparison; for those involving design and utility patents, e- commerce platform operators may also request that intellectual property owners provide a patent evaluation report or written decision following a request for a declaration of invalidity of a patent right.<\/p>\n\n\n\n

                    \n
                  1. Requirements for notices and counter notices issued by e-commerce platform operators shall not set unreasonable conditions or obstacles for parties to enforce their rights according to law, such as imposing additional conditions unrelated to the content of the notices and counter notices or imposing excessive demands for prima facie evidence.<\/li>\n\n\n\n
                  2. E-commerce platform operators should check the contents of notices and counter-notices to determine whether key formal documents are in place and reject notices that obviously do not constitute intellectual property infringements and counter-notices that obviously cannot prove the legality of the conduct of the party receiving notice.<\/li>\n<\/ol>\n\n\n\n

                    When the People\u2019s Court determines whether a case falls under the category of \u201cobvious\u201d as abovementioned, it should consider the average judgment capacity of e-commerce platform operators, not judging from the perspective of an intellectual property law professional.<\/p>\n\n\n\n

                    In the event an e-commerce platform operator chooses to raise the examination standards for notices and counter notices, it shall bear legal responsibility resulting from its wrongful examination.<\/p>\n\n\n\n

                      \n
                    1. The types of \u201cnecessary measures\u201d to be applied by e-commerce platform operators after receipt of a qualified notice includes but is not limited to: deletion, blockage, disconnection, termination of transactions and services, freezing of the notified party\u2019s accounts or requesting the notified party to pay a bond.<\/li>\n\n\n\n
                    2. The People\u2019s Court should determine whether e-commerce platform operators have taken reasonable necessary measures based on the \u201cprinciple of proportionality\u201d, taking into actual consideration including but not limited to the following:<\/li>\n<\/ol>\n\n\n\n
                        \n
                      • the likelihood that an infringement is taking place;<\/li>\n\n\n\n
                      • the seriousness of the infringement;<\/li>\n\n\n\n
                      • the impact [of enforcement] on the interests of the counter-notifier [seller];<\/li>\n\n\n\n
                      • the technological capability of the e-commerce platform.<\/li>\n<\/ul>\n\n\n\n

                        Where the notified party has intentionally infringed the intellectual property rights of others on multiple occasions, the e-commerce platform operators shall take measures to terminate transactions and services.<\/p>\n\n\n\n

                          \n
                        1. When determining whether the necessary measures taken by the e-commerce platform operators are \u201ctimely\u201d, consideration shall be given to factors such as the level of difficulty in determining the infringement, the specific types of necessary measures, among other factors, with the aim of making a comprehensive evaluation.<\/li>\n\n\n\n
                        2. In the event an e-commerce platform operator determines that a notice does not meet (its) requirements, it shall provide feedback to the notifier regarding the verification results together with reasons such that the notifier can amend the notice.<\/li>\n<\/ol>\n\n\n\n

                          Where a further notice is sent by a notifier which has previously been processed and bears no difference from the prior notice, the e-commerce platform operator may not process it.<\/p>\n\n\n\n

                          Chapter 4 \u2013 Regarding Determination of E-commerce Platforms Liability<\/h2>\n\n\n\n
                            \n
                          1. For an e-commerce platform operator to be held responsible for acts of intellectual property infringement by vendors within their platform, [the operator] must know or should have known about [the infringement].<\/li>\n\n\n\n
                          2. In the event an e-commerce platform operator knew or should have known of the infringement activities on its platform but failed to take necessary measures in a timely manner, even if the rights owner has not sent a notice, the e-commerce platform operators should also be held jointly and severally liable for direct infringement.<\/li>\n<\/ol>\n\n\n\n

                            In the event an e-commerce platform operator knew or should have known of infringing activities on its platform but took necessary measures in a timely manner after receipt of notice from the rights owner, it shall only be held jointly and severally liable for losses of the rights owners before it took such necessary measures.<\/p>\n\n\n\n

                            In the event an e-commerce platform operator knew or should have known of infringing activities on its platform and did not take necessary measures after receipt of notice from the intellectual property owner, it shall be held jointly and severally liable for all of the losses of the rights owners.<\/p>\n\n\n\n

                            In the event an e-commerce platform operator did not know or should not have known of infringing activities on its platform but did not take necessary measures in a timely manner after receipt of notice from the rights owner, it should be held jointly and severally liable to additional loss attributable to the platform operator.<\/p>\n\n\n\n

                              \n
                            1. The People\u2019s Court shall determine whether an e-commerce platform operator is at fault based on a combination of the type of intellectual property rights involved and other specific circumstances of the case; consideration in this regard shall not be given to whether the e- commerce operator knew or should have known of the existence of certain infringement activities based solely on its prior monitoring of the legality of transaction information in accordance with relevant management regulations or mere awareness of the possibility of intellectual property infringements on its platform.<\/li>\n\n\n\n
                            2. \u201cKnow\u201d refers to the subjective state of the e-commerce platform operator actually knowing of infringing activities.<\/li>\n<\/ol>\n\n\n\n

                              After receipt of a qualified notice from the rights owner, the e-commerce platform operators should be regarded as knowing the existence of infringing activities. The People\u2019s Court should not conclude that the e-commerce platform operators subjectively did not know solely based on rightsholders\u2019 failure to send notices or inadequate notices; [rather] the receipt of notices from administrative departments, receipt of consumer complaints, and so forth, can also qualify as evidence that they knew the presence of infringing activities.<\/p>\n\n\n\n

                                \n
                              1. \u201cShould have known\u201d refers to the subjective state that the e-commerce platform operators should notice or should have noticed but did not notice the presence of infringing activities.<\/li>\n<\/ol>\n\n\n\n

                                In the event it is determined that the e-commerce platform operator should have known, the People\u2019s Court should primarily consider its reasonable duty of care in protecting the intellectual property rights of others; if the e-commerce platform operator did not perform or was negligent in meeting its reasonable duty of care within its ability and range of foreseeability, it should be determined that this constituted \u201cshould have known\u201d.<\/p>\n\n\n\n

                                  \n
                                1. The reasonable duty of care relating to the protection of intellectual property rights by e- commerce platform operators does not include a general obligation of proactive monitoring; but if the following conditions are met, the People\u2019s Court may rule that the e-commerce platform operator has not fulfilled its reasonable duty of care:<\/li>\n<\/ol>\n\n\n\n