Measures for e-commerce platform to control counterfeit goods, with the rapid development of society, the relationship between e-commerce platform and people is getting closer and closer. But sometimes when you buy online, you will find that what you buy is actually a fake. Let's take a look at the measures taken by the e-commerce platform to control counterfeit goods.
Measures to control counterfeit goods on e-commerce platform 1 1. When the platform knows that the goods are counterfeit goods, it should take necessary measures such as deleting, shielding and disconnecting links in time.
2. After receiving the qualified infringement notice from the obligee, the platform shall take necessary measures in time and notify the respondent.
3. The platform shall establish an infringement complaint mechanism for the obligee to issue infringement notice.
4. Report the illegal situation found to the competent department according to law; Provide assistance in accordance with legal procedures when receiving orders from the competent authorities.
5. Check the identity information of the seller (including real name, address and effective contact information), and disclose the above information to consumers in the process of complaints after consumers buy fake goods.
(1) Legislation and justice
1, domestic legislation
With the development of e-commerce industry in China, the problem of online fake goods has become one of the public's concerns about e-commerce, and these goods suspected of infringing intellectual property rights can be regulated by relevant intellectual property laws. However, whether the third-party online trading platform that does not directly participate in online shopping should bear the responsibility and what kind of responsibility it should bear has caused great controversy in practice.
In the early judgments on the liability of Internet platform service providers, the provisions generally cited by obligees and courts are the provisions of Article 130 of General Principles of Civil Law of People's Republic of China (PRC) and Article 148 of Opinions of the Supreme People's Court on Several Issues Concerning the Implementation of General Principles of Civil Law of People's Republic of China (PRC) (for Trial Implementation).
At present, China's laws that directly regulate users to sell fake goods through e-commerce mainly include Article 36 of Tort Liability Law, Regulations on the Protection of Information Network Communication Right, the Supreme People's Court's Interpretation on Several Issues Concerning the Application of Laws in the Trial of Computer Network Copyright Disputes, and Beijing Higher People's Court's Guiding Opinions on Several Issues Concerning the Trial of Network Environment Copyright Disputes (I) and other provisions and judicial interpretations.
Regarding the legal obligations and responsibilities of e-commerce platforms, at present, China's legislation has clarified the following contents:
(1) only undertakes the obligation of identity review, and does not undertake the obligation of proactive information review in advance.
First of all, the definition of intellectual property rights review obligation of e-commerce trading platform should fully consider fairness and efficiency. According to the laws of our country, e-commerce platform has the obligation to examine the identity authentication of sellers and operators. At the same time, since the platform operator's infringement knowledge is only general knowledge, not specific knowledge, the e-commerce platform does not undertake the obligation to actively review the counterfeit goods in advance.
Although the Measures for the Administration of Internet Information Services, the Regulations on the Administration of Internet Bulletin Board Services and the Service Specification for Online Trading Platforms all stipulate that platform operators have the obligation to monitor platform information. In fact, these laws require the platform to conduct prior review:
(1) Content involving national security, national interests, public interests, social stability, obscenity, pornography and violence;
(two) whether there are any objects restricted or prohibited by the state;
(3) Authenticity of registered user information. The monitoring information it refers to does not include the information on whether the goods infringe the intellectual property rights of others.
In fact, due to the possibility of ownership disputes and the existence of intellectual property licenses, it is unrealistic to require e-commerce platforms to actively review whether goods are fakes.
At the same time, Internet service providers do not undertake the obligation of censorship, which basically forms a * * * knowledge in legislation and judicial rules. In legislation, Article 63 of the Copyright Law (Revised Draft) (Draft for Comment) drafted by the National Copyright Administration clearly stipulates: "Internet service providers do not undertake the obligation of information review related to copyright or related rights when providing simple network technical services such as storage, search and linking to network users."
Article 36 of China's Tort Liability Law is the product of transplanting the American safe haven rule. Although this article does not explicitly stipulate that Internet service providers do not undertake the obligation of censorship, the the National People's Congress Standing Committee (NPCSC) Law Commission clearly pointed out in its interpretation of this article: "Internet service providers providing technical services do not undertake the general obligation of censorship."
Judicially, the second paragraph of Article 8 of the Supreme Court's Provisions on Several Issues Concerning the Application of Laws in the Trial of Civil Dispute Cases Infringement of Information Network Communication Rights stipulates: "If an Internet service provider fails to actively examine the infringement of information network communication rights by netizens, the people's court shall not determine that it is at fault."
The Supreme Court clearly pointed out: "Internet service providers shall not bear the general obligation of prior review and higher duty of care."
Article 17 of Beijing Higher People's Court's Guiding Opinions on Several Issues Concerning the Trial of Copyright Dispute Cases under the Network Environment stipulates: "Internet service providers who provide information storage space, search, links, P2P and other services generally have no obligation to actively review and monitor whether others use their services to disseminate works, performances and audio-visual products."
The Beijing Higher People's Court's Answers on Several Issues Concerning the Trial of Disputes over Intellectual Property Rights Infringement by E-commerce stipulates: "Under normal circumstances, e-commerce platform operators do not undertake the obligation to monitor the legality of transaction information, and they cannot assume that e-commerce platform operators know the existence of infringement just because they monitor the legality of transaction information in advance according to relevant management requirements, or because online sellers use their online services to objectively infringe other people's intellectual property rights. "Therefore, the e-commerce platform, as a network service provider, should not undertake the censorship obligation.
(2) Application of notification deletion rule
In view of the phenomenon of counterfeit goods on e-commerce platforms, Article 36 of China's current Tort Liability Law is the main legal basis for judging the responsibility of online trading platforms for selling counterfeit goods.
The first paragraph of this article stipulates: "Internet users and network service providers who use the Internet to infringe upon the civil rights and interests of others shall bear the tort liability." The e-commerce platform referred to in this paragraph is a seller who actually participates in the transaction and directly provides goods or services, rather than a neutral third-party platform, and bears direct tort liability. Similar provisions can also be found in Article 57 of the current Trademark Law and Article 75 of the Regulations for the Implementation of the Trademark Law, which clearly stipulates that deliberately providing an online commodity trading platform that infringes on the exclusive right of others to use trademarks is a direct trademark infringement.
The second and third paragraphs of Article 36 of the Tort Liability Law stipulate: "If a network user uses a network service to commit an infringement, the infringed party has the right to notify the network service provider to take necessary measures such as deleting, blocking and disconnecting the link. If the network service provider fails to take necessary measures in time after receiving the notice, it shall be jointly and severally liable with the network users for the enlarged part of the damage. If the network service provider knows that network users use their network services to infringe upon the civil rights and interests of others and fails to take necessary measures, it shall bear joint liability with the network users. "
Among the two models, the e-commerce platform does not participate in the sales link, but only provides neutral platform services for sellers, and bears the indirect tort liability of knowing the infringement and not taking reasonable measures in time. In fact, this article draws lessons from the "notice-delete" rule of network service providers stipulated in Articles 14 to 17 of the Regulations on the Protection of Information Network Communication Rights, which is the product of transplanting the safe haven rule of the United States. In addition, some scholars believe that the knowing rule in the last two paragraphs of Article 36 draws lessons from the German federal legislation on the general conditions of information and services, embodies the obligation of network service providers to ensure the security of cyberspace, and extends the security obligation of German law to the field of network infringement.
It can be inferred from the behaviors of the e-commerce platform in the contract, such as informing users not to infringe, opening a complaint platform, and formulating punishment rules for selling fake goods, that there is no intention to contact the direct infringer of the e-commerce platform, subjectively there is no intention to induce, abet or help the seller to infringe, and objectively there is no behavior of inducing, abetting or helping.
Some scholars believe that the Internet service provider's tort liability is independent from that of the seller because it fails to fulfill its legal obligation of "taking necessary measures". They believe that the behavior of the third-party e-commerce platform may bear the vicarious liability, and must meet two constitutive requirements: (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 gained economic benefits.
However, China has not yet established the theory of alternative tort liability in the United States, and we cannot assume that e-commerce should bear corresponding responsibilities just because e-commerce charges sellers. In fact, the fee charged by the e-commerce platform is the service fee for providing electronic transactions, not the cost of specific transactions. Therefore, China's e-commerce platform does not assume the substitute responsibility for the construction of judicial offices in the United States.
Regarding whether the seller does not actually constitute infringement, but whether the online trading platform should bear the responsibility for the seller after taking measures such as deleting, shielding and disconnecting links after receiving the notice, at present, China's legislation holds that the e-commerce platform does not bear the responsibility if there is no obvious fault.
The Provisions of the Supreme People's Court on Several Issues Concerning the Application of Laws in the Trial of Civil Disputes over the Use of Information Networks shows that the people's courts support Internet service providers to take "receipt of notice" as the defense. Article 7 stipulates: "Internet users whose published information has been deleted, blocked or disconnected claim that Internet service providers should be liable for breach of contract or infringement, and the people's court should support it if the Internet service providers take notice as the defense. If a network user who has taken measures such as deleting, blocking or disconnecting links requests the network service provider to provide the notification content, the people's court shall support it. "
Regarding the application of the "notice-delete" rule, the Opinions of the Supreme People's Court on Giving Full Play to the Judicial Function of Intellectual Property Rights to Promote the Great Development and Prosperity of Socialist Culture and the Independent and Coordinated Development of the Economy published in 201requires that in order to maintain the basic value of the "notice-delete" rule, in addition to determining that the Internet service provider knows or should know according to the obvious infringement facts, To investigate the tort liability of Internet service providers should be based on the premise of applying the "notice and removal" rule first, which should not only prevent lowering the fault identification standard of Internet service providers, but also invalidate the "notice and removal" rule; It is also necessary to prevent network service providers from being passive and lax in infringing acts by third parties using their network services, as well as abusing the "notice and removal" rule.
(3) Information disclosure obligations
From the perspective of safeguarding consumers' right to know, Consumer Protection Law pays attention to the information disclosure obligations and responsibilities of online trading platforms. According to Article 44 of the Consumer Protection Law: "If the legitimate rights and interests of consumers are damaged and the online trading platform provider cannot provide the real name, address and effective contact information of the seller or service provider, the consumer can claim compensation from the online trading platform provider." That is, if the platform cannot provide seller information, it should bear the liability for compensation first, and then recover from the infringing seller.
(4) The new development of online transaction management.
Recently, under the "internet plus" action, the State Council and various departments paid special attention to the governance of infringement and counterfeiting in the Internet field, and issued a number of the State Council normative documents. Including: General Office of the State Council's opinion on strengthening the management of infringement and counterfeiting in the Internet field, General Office of the State Council's opinion on promoting the healthy development of domestic trade circulation, the State Council's guiding opinion on actively promoting internet plus's action, Notice of General Office of the State Council on printing and distributing the action plan for implementing quality development plan 20 15, Opinions of the State Council on promoting fair competition in the market and maintaining normal market order, Opinions of the State Council on Vigorously Developing E-commerce and Accelerating the Cultivation of New Economic Kinetic Energy, Opinions of the State Administration for Industry and Commerce on Strengthening the Supervision of Online Markets, Measures for the Administration of Online Transactions, Service Specifications for Online Trading Platforms, and Procedures for Formulating Trading Rules for Online Retail Third-party Platforms (Trial).
Chapter II of the Measures for the Administration of Online Commodity Trading, which came into effect on 20 14, is a special provision for operators of third-party trading platforms. It requires: "Operators of third-party trading platforms should review and register the business entity identities 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 disclose the information published in their business licenses or the electronic link logo of their business licenses in a prominent position on the main page of their business activities.
The agreement clarifies the rights, obligations and responsibilities of both parties in terms of platform access and exit, quality and safety of goods and services, and protection of consumer rights and interests. Establish trading rules, trading safety, consumer rights protection, bad information handling and other management systems in the platform. All management systems should be displayed on its website, and technically ensure that users can read and save them conveniently and completely.
Establish an inspection and monitoring system for operators who sell goods or provide services through the platform and the information on goods and services released by them. If violations of laws, regulations and rules on industrial and commercial administration are found, they shall report to the industrial and commercial administration department where the platform operator is located, and take timely measures to stop it. If necessary, you can stop providing third-party trading platform services to them. Operators of third-party trading platforms shall take necessary measures to protect the rights such as the exclusive right to use a registered trademark and the right to name an enterprise. If the obligee has evidence to prove that the operators in the platform infringe upon their rights such as the exclusive right to use a registered trademark and the right to name an enterprise, or engage in other acts of unfair competition that damage their legitimate rights and interests, they shall take necessary measures 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.
The law stipulates stricter responsibilities and obligations for the Internet business platform of specific commodities such as food, medicine and cosmetics, which are related to public life and health. The Measures for Supervision and Administration of the Food and Drug Administration of the United States (Draft for Comment) and the Regulations on Supervision and Administration of Cosmetics (Revised Draft) both require third-party platform providers of online trading to conduct qualification examination, register their real names, perform reports and stop providing online trading platform services according to law.
2011The Opinions of the General Office of the State Council on Strengthening the Governance of Infringement and Counterfeiting in the Internet field issued in June 5 requires that in order to strengthen the governance of infringement and counterfeiting in the Internet field, create an open, standardized, honest and safe online trading environment, promote the healthy development of e-commerce and implement the corporate responsibility of e-commerce. Guide and urge e-commerce platform enterprises to strengthen the qualification examination of network operators, establish and improve the internal monitoring system of online transactions, advertising promotion and other businesses and the credit rating of network operators, stop the behavior of improving the reputation of merchants by means of false transactions, establish and improve the complaint handling mechanism, implement information inspection and cleaning of infringing and counterfeit goods, keep transaction records and logs, fulfill the responsibilities and obligations of reporting illegal and criminal clues, and cooperate with law enforcement departments to trace the operators of infringing and counterfeit goods on e-commerce platforms. Guide and urge self-operated e-commerce enterprises to strengthen internal commodity quality control and intellectual property management, strictly control purchase and sale, and prevent infringing and counterfeit goods from entering circulation channels and markets. Implement the responsibility of network service providers. Supervise network service providers to implement the obligation of "informing-deleting", and take necessary measures such as deleting, shielding and disconnecting the infringing and counterfeiting network information using network services in time.
2. Domestic justice
In China's judicial practice, the responsibility of selling fake goods on e-commerce platforms is mainly trademark infringement disputes, followed by cases of infringement of copyright and patent rights. In addition, based on the difficulty of reviewing trademark rights, copyrights and patents, the platform has the greatest difficulty in reviewing patent ownership, and the scope of its exemption conditions is also larger.
The analysis of the trial results of judicial cases in China shows that:
First of all, the nature of e-commerce platform does not belong to content providers and distributors, and may bear indirect tort liability. The reason why the platform bears indirect tort liability lies in the supervision, management and review obligations of the e-commerce platform to sellers and stores.
Secondly, the operators of e-commerce platforms should not take the initiative to find and deal with the infringement on their platforms, but should take the duty of care to remind and inform, provide complaint channels for consumers and rights holders, and review the identity of sellers, so as to prevent and stop the infringement of intellectual property rights and the sale of counterfeit goods.
The reminding obligation of the platform operators is to formulate the rules for the operation of the platform network, and formulate intellectual property clauses in the rules, so as to inform the sellers on the platform not to sell goods that infringe the intellectual property rights of others, and not to publish information about goods that infringe the intellectual property rights of others. The obligation of identity review is reflected in whether the platform operator has legally reviewed the identity certificates, rights certificates and other materials of sellers and users on the platform, and whether the real-name authentication procedures have been carried out.
Finally, when determining whether the platform bears the tort liability, the platform operator can claim exemption according to the "notification-deletion" rule, that is, whether the platform operator has taken measures such as disconnecting the link, deleting the product information, and removing the product from the shelf while knowing that the fake product exists.
If the platform operator receives a warning letter and complaint from the right holder specifically pointing to infringing information and takes active and effective measures such as deleting links and closing stores in time, the platform operator has fulfilled his duty of reasonable care and will not bear joint and several tort liability.
Measures for e-commerce platform to control fakes 2 What should I do if I buy fakes on the e-commerce platform?
From the perspective of contractual obligations, if the e-commerce website sells fake goods, consumers have the right to request a return. Whether you can get compensation depends on whether the e-commerce website has made relevant commitments before.
At present, the most critical link in consumer rights protection is:
1, identify fakes;
2. Whether it can prove the source of the purchased goods. Some consumers throw away key evidence such as invoices after buying goods, and there will be certain problems in safeguarding rights.
In the identification of fakes, some fakes, such as cosmetics and genuine products, are vague and lack of professional identification institutions, which may be difficult to identify. On this issue, it is not recommended to take the way of safeguarding rights afterwards. Consumers should pay attention to some precautions when buying.
For example, it is best to choose the self-operated products of 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 self-operation. Consumers should also have a certain awareness of prevention.
If you finally resort to the law, although the cost will be higher, from the legal provisions, consumers have laws to follow. The Law on the Protection of Consumers' Rights and Interests has clear provisions to support consumers' rights protection.
Although e-commerce platform has brought people a lot of convenience, it also has its shortcomings. Fake goods frequently enter the market through e-commerce platforms, and then are purchased by consumers, which seriously infringes on the legitimate rights and interests of consumers and seriously affects the market order. After consumers buy fakes on the e-commerce platform, they should actively defend their rights through the above-mentioned rights protection methods, and do not indulge these illegal acts. The legal map has an online lawyer. If you have any questions, please feel free to consult.
Measures for e-commerce platform to control fakes 3 What should I do if I buy fakes on the e-commerce platform?
On the issue of identifying counterfeit goods, it is not recommended to take the way of safeguarding rights afterwards. Consumers should pay attention to some precautions when buying.
The media reported that the suppliers of e-commerce websites were fraudulent, while e-commerce websites turned a deaf ear to consumers' complaints. If you are unfortunate enough to buy fakes on e-commerce websites, how should you protect your rights?
At present, the most critical link of consumer rights protection is the identification of counterfeit goods; Whether it can prove the source of the purchased goods. Some consumers throw away key evidence such as invoices after buying goods, and there will be certain problems in safeguarding rights.
On the issue of returning goods, the law clearly stipulates that if consumers demand to return the goods that have been identified as unqualified by the relevant administrative departments according to law, the operators shall be responsible for returning the goods.
Regarding whether compensation can be obtained, the law stipulates that if a business operator commits fraud in providing goods or services, it should increase the compensation for the losses it has suffered according to the requirements of consumers, and the amount of compensation is three times the price of the goods purchased by consumers or the cost of receiving services; If the amount of additional compensation is less than that of 500 yuan, it shall be 500 yuan. Where there are other provisions in the law, those provisions shall prevail. If the business operator knowingly provides goods or services to consumers, causing death or serious damage to the health of consumers or other victims, the victims have the right to demand the business operator to pay punitive damages of less than twice.
Article 55 of the Law of People's Republic of China (PRC) on the Protection of Consumers' Rights and Interests, if a business operator commits fraud in providing goods or services, it shall increase the compensation for the losses it has suffered according to the requirements of consumers, and the amount of compensation shall be three times the price of goods purchased by consumers or the cost of receiving services; If the amount of additional compensation is less than that of 500 yuan, it shall be 500 yuan. Where there are other provisions in the law, those provisions shall prevail. Where a business operator knowingly provides goods or services to consumers, causing death or serious damage to the health of consumers or other victims, the victims have the right to demand compensation from the business operator in accordance with the provisions of laws and regulations such as Articles 49 and 51 of this Law, and have the right to demand punitive damages less than twice.