On April 13, 2016, the Beijing Higher People’s Court promulgated the Guidelines for the Hearing of Network-Related Intellectual Property Cases (hereinafter described as the Guidelines), which summarizes the experiences of Beijing courts during their hearings of network intellectual property cases and touches on the tough legal problems connected to network copyrights, trademarks and unfair competitors, and hence it is anticipated to act as a guide for court trials in the future. In this post, we will inform and evaluate the crucial clauses of the Guidelines. If you wnat to sue your bank get info here.
Articles 1 through 4 of the Guidelines provide guidelines relevant to allocating the problem of proof and approaches for courts to evaluate evidence when attempting network copyright cases. Afterwards, the Guidelines examine the primary defenses that an accused might potentially claim, supplying that if the offender merely supplies internet innovation services and does not infringe upon content, such activity shall not make up an act of infringement.
The Guidelines also examine the division of labor” that is usually related to network copyright cases. These standard types of division of labor consist of collaborations in between video providers and video platforms (most of the times by getting in into cooperative contracts) that offer infringing works, performances or audio and video recordings, and partnerships in between game designers and game platforms that offer infringing video games, and so on. According to the Guidelines, the exemption for network service companies will not use if the offenders (in particular the platform carriers) directly infringe upon info network transmission rights. That is to state, under the division of labor approach, the offender cannot defend itself by asserting that it was simply supplying internet innovation services. In addition, the Guidelines improve the pertinent rules found in the Provisions of the Supreme People’s Court on Several Issues Concerning the Application of Law in the Hearing of Civil Information Network Transmission Right Infringement Dispute Cases (hereinafter described as the “Provisions”), by clarifying the definition of division of labor,” and specifying the allowance of the problem of proof and the relevant scope of exemption arrangements. In sum, the Guidelines are expected to play an essential function in directing the case trials with respect to information network transmission rights.
Subsequently, Article 12 to Article 14 stipulate further details with respect to the provision of web cache as referenced in the Provisions, by specifying that courts shall choose whether the web cache offered by the defendant constitutes violation according to whether the web cache would adversely affect the regular use of relevant works or whether it would damage the legitimate rights of others.
Lastly, Article 15 explicitly supplies that the arrangement of web broadcasts, which is considered as a non-interactive communication activity, shall be secured together with other copyrights. This will put an end to the enduring dispute in these cases over whether to use the pertinent provisions for info network transmission rights or broadcast rights.
The most striking element about the Guidelines is that they set out the rules for the application of a safe harbor principle for network trademark cases. It is well known that the concept was first presented for the settlement of info network transmission right conflicts with regard to copyright infringement, with the pertinent rules and requirements even more detailed in the Ordinance. In practice, in order to settle network trademark conflicts, the courts formerly conjured up Article 36 of the Tort Liability Law as there were no other conclusive guidelines readily available.
The Guidelines initially define platform carrier and specify the basic principles for choosing platform provider liability for trademark infringement. It is noteworthy that Article 20 is the crucial clause with regard to a platform service provider’s problem of evidence and the court’s decision of tort liabilities. According to the Guidelines, after a plaintiff supplies preliminary proof of violation, the platform provider might present counterevidence and prevent violation liability if the platform carrier shows that it was not at fault for the online seller offering the deal details or executing the transaction activities. If the platform provider cannot do so, it shall be deemed to have actually dedicated violation by directly supplying the transaction details and executing the deal. The platform service provider’s counterevidence describes the proof enough to verify the identities, contact information and site addresses of the online sellers.
The Guidelines establish an in-depth and useful safe harbor for network trademarks by drawing on pertinent arrangements with respect to information network transmission rights. Article 21 specifies two kinds of violation for platform suppliers, aiding and abetting hallmark infringement, for which the platform service provider may go through joint and numerous liability with the online seller.
Furthermore, Article 21 through Article 25 talk about the “notification – delete” system for network trademarks disputes, which describes the material required in notifications of infringement, the needed actions for platform carriers after receipt of a notification as well as providing for legal liability when it comes to incorrect notifications. In particular, Article 26 states that the platform company s awareness of the violation is a subjective requirement for violation. Elements to be considered to determine whether the platform supplier was aware of the violation consist of: whether the challenged transaction was accessible from a clearly visible location on the platform website, whether the platform carrier had actually modified, picked, sorted, ranked, recommended or changed info for the deal, whether the complainant had provided a notice of violation, whether the platform company had actually taken reasonable actions against repeated violations by sellers, whether the service provider sold/ provided widely known items or services at plainly unreasonable costs, and whether the provider straight acquired economic take advantage of the disputed transactions, etc
In addition to the “safe harbor” concepts, the Guidelines also explain that goods or services offered through apps shall not necessarily be regarded as similar products or services of computer software or web services. Rather, the nature of such goods or services will be determined by thinking about a full range of elements consisting of the purpose, content, methods, and the target customers for whom such goods or services are offered. In present practice, plaintiffs have the tendency to submit complaints for violation against apps by conjuring up hallmark right on class 9 computer software or class 42 web services. For example, an app that specializes in food purchasing services might be held liable for violation by utilizing trademarks on class 9 computer software products, although the app does no greater than just order food. As the e-commerce industry booms, apps might frequently serve only as a channel or approach for providing specific goods or services. In this case, running the app will not necessarily lead to a hallmark violation on class 9 computer software or class 42 internet services.
Network Unfair Competitions
With regard to unfair competition, the Guidelines initially clarify the meaning of the idea and appropriate concepts suitable at trial. Post 31 provides a broadened analysis of the competitive relationship principle by showing that a competitive relationship exists amongst company operators if the products or services of the operators are interchangeable with one another, directly or indirectly, or the operating activities thereof are overlapping, reliant, or otherwise related to one another. The arrangement is a summary of judicial practice since the courts had currently specified the meaning of competitive relationship in trial practice.
The Guidelines additional information the rules under Article 2 of the Anti-Unfair Competition Law in two elements. Second, the Guidelines summarize certain actions which cannot be covered under the Anti-Unfair Competition Law regulations, but which are, nevertheless, breaches of great faith and normally accepted company values, by stipulating that all of those behaviors shall be considered to be unfairly competitive behaviors as referred to in Article 2 of Anti-Unfair Competition Law.
Next, Article 36 and Article 37 list various acts of incorrect propaganda and commercial vilification. Then, Article 38 through Article 40 concentrate on regulating paid listings, which prevail in practice. According to the Guidelines, since the paid listings are one kind of information retrieval service, if an online search engine supplier does not select, organize, advise or modify the keywords, the service provider will not be obligated to voluntarily implement a previous evaluation. However, as an internet service provider, internet search engine service providers have to still assume remedial commitments, such as eliminating, screening, or disconnecting web links. Factors needed to be thought about to determine whether buyers or users of paid listing services have committed unreasonable competitors include whether the trademarks of other operators are used and, if they are, whether there is affordable cause for such use, and whether the search results and the promo pages include keywords, etc