Since the E-commerce Law of the People's Republic of China will take effect from January 1 2019, Shanghai Dongjin wants to remind you of the below points regarding to the points especially on the intellectual property rights which should be taken care of before a retail store have its online shop.
Legal Requirement in the E-Commerce Law and thePoints to be aware of:
Article 42 Where an intellectual property right owner believes that its intellectual property right has been infringed, it shall have the right to send a notice to the operator of the e-commerce platform concerned, requiring it to take necessary measures to delete or block relevant information, disable relevant links and terminate transactions and services. Such notice shall specify preliminary evidence for alleged infringements.
Upon receipt of such notice, the operator of the e-commerce platform shall take necessary measures in a timely manner and forward the notice to operators on its platform; if it fails to take the said necessary measures in due time, it will be held jointly liable with the concerned operators on its platform for the increased part of the damage.
Where the notice issued is unreal and thus causes damage to the operators on the platform, civil liability shall be borne according to the law. Where an unreal notice is issued maliciously, which causes losses to the operators on the platform, the compensation liability shall be doubled.
Dongjin Comments:
The E-Commerce Law requires that the IPR owner shallspecify preliminary evidence for alleged infringements before he/she make the compliant.
The E-Commerce Law requires that the platform has the obligation to forward the compliant to the operator.
The E-Commerce Law let the operator to know the details of compliant.
Article 43 The operator on an e-commerce platform may make a statement to the operator of such e-commerce platform that there exists no infringement, upon receipt of a transferred notice. The statement shall specify preliminary evidence that excludes the existence of any infringement.
After receiving such statement, the operator of the e-commerce platform shall transfer the said statement to the intellectual property right owner that sends out such notice, and inform the right owner of the opportunity to make complaints to the related competent authority or file a lawsuit with the people's court. Where the operator of the e-commerce platform does not receive a notice from such right owner that it has made a complaint or brought a lawsuit, within 15 days of the statement having been successfully delivered to the intellectual property right owner, it shall promptly lift all measures that it has taken.
Dongjin Comments:
Compared with the former regulations, this new requirement is much clear and easier to be carried out.
Article 44 An operator of an e-commerce platform shall make notices and statements as provided in Article 42 and Article 43 herein it has received as well as resolutions public in a timely manner.
Dongjin Comments:
The E-Commerce Law requires the platform make the compliant result to the public.
Article 45 Where an operator of an e-commerce platform knows or should have known that an operator on its platform has infringed any intellectual property right, it shall take necessary measures, such as deleting or blocking relevant information, disabling relevant links, and terminating transactions and services; otherwise, it shall be held jointly liable with the infringing party.
Dongjin Comments:
The platform may have the jointly liable with the infringing party.
Article 84 Where an operator of an e-commerce platform violates Article 42 or Article 45 of this Law by failing to take necessary measures against the acts of operators on its platform that infringe others' intellectual property rights, the administrative department for intellectual property shall order it to make corrections within the required time limits; where it fails to make corrections within the required time limits, it shall be fined more than CNY50,000 but less than CNY500,000; where the case is serious, the fine can be increased to more than CNY500,000 but less than CNY2 million.
Dongjin Comments:
The administrative punishment is highly increased.
Shanghai Dongjinshould remind you that
the online retail company should have the specialist(s) to follow up with the complaints made by the IPR owner and reply it in the professional manner in time.
It is learnt that the different online platform will issue its own detailed regulation on the online stores. The retail company should have a good study on it and react it properly.
If required, we can act as your IPR professionals and help you for the detailed cases.
If you have any question, please contact me.
Mr. Mike Chang
TEL: 0086-21-68868321 / FAX: 0086-21-68868021