On September 13, the Supreme People's Court issued the "Approval on Several Issues concerning the Application of Law to Disputes concerning Online Intellectual Property Infringement" (hereinafter referred to as the "Approval of Online Intellectual Property") and the "Guiding Opinions on Hearing Civil Cases Concerning Intellectual Property Rights related to E-commerce Platforms" (hereinafter referred to as the "Opinions on E-commerce Platforms").

A Supreme Court on the infringement of intellectual property rights related to the Internet

The approval of several legal application issues

Supreme People's Court

On disputes involving Internet intellectual property rights infringement

A couple of applications of law

(Judicial Committee of the Supreme People's Court, August 24, 2020)

Adopted at the 1810th meeting, effective as of 14 September 2020)

High People's Courts of all provinces, autonomous regions and municipalities directly under the Central Government, Military Courts of the People's Liberation Army, Production and Construction Corps Branch of the High People's Court of the Xinjiang Uygur Autonomous Region:

Recently, relevant parties have put forward suggestions on some issues concerning the application of laws related to online intellectual property infringement disputes, and some higher people's courts have also submitted requests to the Court. After research, the reply is as follows.

Where the intellectual property rights holder claims that his or her rights have been infringed and files an application for preservation, requiring the network service provider or e-commerce platform operator to promptly take such measures as deleting, blocking or disconnecting links, the people's court shall examine and make a ruling according to law.

02 Network service providers and e-commerce platform operators shall, after receiving the notice issued by the intellectual property right holder according to law, promptly transmit the notice of the right holder to the relevant network users and platform operators, and take necessary measures according to the preliminary evidence of infringement and the type of service; If necessary measures are not taken in accordance with the law, and the right holder claims that the network service provider or the operator of the e-commerce platform bears joint and several liability for the expanded part of the damage with the network user or the operator of the platform, the people's court may support it in accordance with the law.

03 Within a reasonable period of time after the legally transmitted statement of non-infringement reaches the intellectual property right holder, if the network service provider or e-commerce platform operator does not receive the notice that the right holder has complained or filed a lawsuit, it shall promptly terminate the removal, shielding, disconnecting links and other measures taken. Delay caused by special circumstances beyond the control of the right holder such as notarization and certification procedures shall not be included in the above period, but the maximum period shall not exceed 20 working days.

04 Where the malicious submission of a statement causes the operator of an e-commerce platform to terminate the necessary measures and damages the intellectual property right holder, and the right holder requests corresponding punitive damages in accordance with relevant laws, the people's court may support it according to law.

05 The content of the notice issued by the intellectual property right holder is inconsistent with the objective facts, but it claims in the lawsuit that the notice is submitted in good faith and requests for exemption, and can prove it, the people's court shall support it after reviewing the truth according to law.

06 This approval shall apply to cases that have not been finalized at the time when this approval is made; This reply is not applicable to cases where the parties have applied for a retrial or decided to retrial in accordance with the procedure of trial supervision.

2. Guiding Opinions of the Supreme People's Court on Hearing civil Cases involving intellectual property rights of E-commerce Platforms

Supreme People's Court

Guiding Opinions on Hearing civil Cases involving intellectual property rights of E-commerce platforms

In order to fairly try civil cases involving intellectual property rights of e-commerce platforms, protect the legitimate rights and interests of all parties in the field of e-commerce according to law, and promote the standardized, orderly and healthy development of business activities of e-commerce platforms, these guiding Opinions are formulated in light of the actual intellectual property trials.

01 In handling cases involving intellectual property rights disputes involving e-commerce platforms, the people's courts shall adhere to the principle of strict protection of intellectual property rights, punish according to law acts of providing counterfeit, piracy and other infringing goods or services through e-commerce platforms, and actively guide the parties to follow the principle of good faith and properly exercise their rights according to law. And properly handle the relationship between intellectual property rights holders, e-commerce platform operators, operators within the platform and other parties.

02 In handling cases involving intellectual property rights disputes involving e-commerce platforms, the People's court shall, in accordance with the provisions of Article 9 of the Electronic Commerce Law of the People's Republic of China (hereinafter referred to as the Electronic Commerce Law), determine whether the parties concerned are e-commerce platform operators or operators within the platform.

When the people's court determines whether the conduct of an e-commerce platform operator is self-operated business, it can consider the following factors: the "self-operated" information marked on the sales page of commodities; The sales entity information marked on the physical goods; Sales entity information marked on invoices and other transaction documents.

If an e-commerce platform operator knows or should know that an operator within the platform infringes intellectual property rights, it shall take necessary measures in a timely manner according to the nature of the right, the specific circumstances and technical conditions of the infringement, as well as the prima facie evidence constituting the infringement and the type of service. The necessary measures taken shall follow the principle of reasonable prudence, including but not limited to removal, blocking, disconnecting links and other removal measures. If the operator within the platform repeatedly and intentionally infringes intellectual property rights, the operator of the e-commerce platform has the right to take measures to terminate the transaction and service.

04 In accordance with the provisions of Article 41, 42 and 43 of the E-commerce Law, e-commerce platform operators may formulate specific implementation measures for the notification and declaration mechanism within the platform according to the types of intellectual property rights and the characteristics of goods or services. However, the relevant measures may not impose unreasonable conditions or obstacles on the parties to safeguard their rights in accordance with the law.

In accordance with Article 42 of the Electronic Commerce Law, the notice issued by the intellectual property right holder to the operator of the electronic commerce platform generally includes: the intellectual property right certificate and the real identity information of the right holder; Information about the alleged infringing goods or services that can be accurately located; Prima facie evidence constituting infringement; Written assurance of the authenticity of the notice, etc. The notice shall be in writing.

Where the notice involves a patent right, the operator of an e-commerce platform may require the intellectual property right holder to submit a description of the comparison of technical features or design features, a utility model or design patent right evaluation report, and other materials.

06 When the people's court determines whether the notifier has "bad faith" as mentioned in Article 42, paragraph 3, of the Electronic Commerce Law, it may consider the following factors: Submission of forged or altered rights certificates; Submit appraisal opinions and expert opinions on comparison of false infringements; Giving notice knowing that the status of rights is unstable; Failure to promptly withdraw or correct the notice despite knowing that it was wrong; Repeatedly submit error notifications, etc.

Where an e-commerce platform operator or an operator within the platform brings a lawsuit to a people's court on the grounds of damage caused by a wrong notice or malicious issuance of a wrong notice, it may be tried together with an intellectual property dispute case involving an e-commerce platform.

07 In accordance with the provisions of Article 43 of the E-commerce Law, the declaration of non-infringement submitted to the e-commerce platform operator generally includes: the true identity information of the platform operator; Information on goods or services that enable accurate positioning and require termination of necessary measures; Prima facie evidence that there is no infringement, such as ownership certificate or authorization certificate; A written guarantee of the truth of the declaration. The declaration shall be in writing.

Where the declaration involves a patent right, the operator of an e-commerce platform may require the operator within the platform to submit such materials as a description of the comparison of technical features or design features.

08 When the people's court determines whether the statements issued by the operators in the platform are malicious, it may consider the following factors: providing forged or invalid proof of rights and authorization; The statement contains false information or is clearly misleading; The notice has been accompanied by an effective judgment or administrative decision on the infringement, but the statement is still issued; Knowing that the contents of the statement are wrong, but failing to withdraw or correct it in time.

09 In case of emergency, if the e-commerce platform operator does not immediately take measures such as the removal of commodities, which will cause irreparable damage to its legitimate interests, the intellectual property right holder may apply to the People's Court for preservation measures in accordance with the provisions of Articles 100 and 101 of the Civil Procedure Law of the People's Republic of China.

If the e-commerce platform operator does not immediately restore the commodity link, or the notificator does not immediately withdraw the notice or stop sending the notice, and other acts will cause irreparable damage to its legitimate interests, the platform operator may apply to the people's Court for preservation measures in accordance with the provisions of the law mentioned in the preceding paragraph.

Where the application of the intellectual property right holder or the operator within the platform complies with the provisions of the law, the people's court shall support it according to law.

In determining whether the e-commerce platform operator has taken reasonable measures, the people's court may consider the following factors: prima facie evidence constituting infringement; The likelihood of the infringement being established; The scope of the infringement; The specific circumstances of the infringement, including whether there is malicious infringement or repeated infringement; Effectiveness in preventing further damage; Possible impact on the interests of operators within the platform; The service type and technical conditions of the e-commerce platform.

If the operator within the platform has evidence to prove that the patent rights involved in the notice have been declared invalid by the State Intellectual Property Office, the operator of the e-commerce platform will suspend the necessary measures accordingly, and the intellectual property right holder requests that the operator of the e-commerce platform has not taken the necessary measures in time, the people's court will not support it.

11 If an e-commerce platform operator has any of the following circumstances, the people's court may determine that it "should have known" the existence of the infringement:

(1) failing to fulfill legal obligations such as formulating intellectual property protection rules and reviewing the business qualifications of operators within the platform;

(b) did not review the platform store type marked as "flagship store", "brand store" and other words of the operator's certificate of rights;

(3) failing to take effective technical means to filter and intercept infringing commodity links that contain words such as "high imitation" and "fake", and infringing commodity links that are put on the shelves again after the complaint is established;

(4) Other circumstances of failure to perform the duty of reasonable review and care.