What is the content of the Beijing Higher People's Court's trial guidelines for cases involving Internet intellectual property rights
Beijing Higher People’s Court’s Guidelines for the Trial of Cases Involving Internet Intellectual Property
1. Parts involving network copyright
1. If the plaintiff claims that the defendant, alone or jointly with others, committed the act of providing the involved works, performances, or audio and video products, he should Bear the burden of proof.
The plaintiff provided evidence to prove that it can be played and downloaded through the defendant’s website Or obtain the works, performances, audio and video products involved in the case in other ways, and if the defendant still claims that he did not perform the act of providing, the defendant shall bear the corresponding burden of proof.
2. The plaintiff can provide evidence through notarization and other methods. defendant networkwebsite content, but the integrity of its evidence collection steps and related web pages should be ensured.
3. Implement specific actions against network service providers The nature can be determined through on-site inspection, combined with the evidence of both the plaintiff and the defendant, and in accordance with legal provisions, using logical reasoning and rules of thumb to make a comprehensive judgment.
4. The plaintiff did not explicitly claim that the defendant Whether the behavior constitutes information network dissemination behavior or constitutes instigating or assisting others' information network dissemination behavior, and it is not clear before the conclusion of the court debate. The defendant should be judged based on the plaintiff's and defendant's defense opinions and the evidence in the case. Conduct a comprehensive review of the nature of the conduct committed.
5. The defendant claimed that it only provided information storage space Those who provide network technology services such as search, linking, etc. shall bear the burden of proof.
The defendant should provide information on the works, performances, audio and video recordings involved in the case The provider of the product or the relationship between it and the provider must provide corresponding evidence, otherwise it can be determined that it does not only provide network technology services.
The defendant did not provide evidence or the evidence provided was insufficient If it is proved that the defendant only provides network technology services such as information storage space, search, and links, it can be determined that the defendant has committed acts of providing works, performances, and audio and video products.
6. The defendant claims to provide information storage space services,It can be determined based on the following factors:
(1) The evidence provided by the defendant can prove that its website has the function of providing information storage space services for service users;
(2) The relevant content on the defendant’s website clearly indicates that it provides information storage space services for service objects;
(3) The defendant can provide the uploader’s user name, registered IP address, registration time, uploading IP address, contact information and uploading time, Upload information and other evidence;
(4) Others can Factors proving that the defendant provided information storage space services.
7. The defendant can provide evidence to prove that the following circumstances exist: Yes, it can be determined that it provides link services:
(1) The works, performances, and audio and video products involved in the case were played from the defendant's website to a third-party website;
(2) Although the works, performances, and audio and video recordings involved in the case were played on the defendant’s website, the evidence provided by it is sufficient to prove that the works, performances, and audio and video products involved in the case were played Video products placed on third-party websites;
(3) Other circumstances in which it can be determined that the defendant provides link services.
8. The act of jointly providing works, performances, and audio and video products without permission through division of labor and cooperation is Acts that directly infringe the right to disseminate information online.
Each If there is a subjective communication between the defendants or between the defendant and others to jointly provide the works, performances, audio and video products involved in the case, and the corresponding behaviors are objectively carried out to realize the aforementioned subjective communication, it can be determined to constitute the situation specified in the preceding paragraph.
9. Between the defendants or between the defendants and others If there is evidence such as an agreement showing willingness to cooperate, or if the evidence in the case can prove that the parties are closely connected in terms of content cooperation, benefit sharing, etc., it can be determined that the parties have the subjective intention to jointly provide the works, performances, and audio and video products involved in the case. Contact, unless the defendant can prove its objective needs based on technology or business model, except for the provision of technical services.
10. The disclaimer clauses of network service providers do not apply to the provision of works, performances, audio and video products individually or jointly through division of labor and cooperation.
11. Article 36 of the Tort Liability Law constitutes tort liability Essential terms.
Information networkArticles 20, 21, 22, and 23 of the Regulations on the Protection of Communication Rights belong to the exemption clauses for network service providers from liability for infringement damages.
Those who do not meet the foregoing exemption conditions shall be treated as infringement Article 36 of the Liability Law determines whether the network service provider should bear liability for damages.
12. Web page "snapshot" service provider Any defense of non-infringement based on searches, links or system cache will not be supported.
13. Infringement of web page "snapshot" service provision The determination has nothing to do with whether the content of the web page from which the "snapshot" originated is infringing.
14. Determine whether the web page "snapshot" provides behavior If it does not affect the normal use of the relevant work and does not unreasonably damage the legitimate rights and interests of the right holder in the work, the following factors can be comprehensively considered:
(1) The main purpose of providing "snapshots" of web pages;
(2) Whether the plaintiff can minimize the scope of damage through methods such as notification of deletion;
(3) Whether the plaintiff has clearly notified the defendant to delete the web page "snapshot";(4) Whether the defendant failed to take any measures in a timely manner despite knowing about the alleged infringement;
(5) Whether the defendant provided the behavior from a "snapshot" of the web page Directly obtain benefits;
(6) Other relevant factors .
15. The defendant implemented network real-time without permission For rebroadcasting, if the plaintiff claims to hold the defendant liable for infringement in accordance with Article 10, Paragraph 1, Item (17) of the Copyright Law, it should be supported.
16. The provisions of this section shall apply to the use of mobile terminals such as mobile phones and tablets to infringe the copyright of others through information networks.
2. Parts involving online trademark rights
17. Platform service provider refers to the network platform service that provides transaction information and transaction behavior 18. In the recognized platform service provider When deciding whether to bear legal responsibility for trademark infringement, the rights holders, platform service providers, online sellers, and the public must be taken into consideration.Benefit.
19. Platform service providers usually do not have The obligation to review the legality of online transaction information or transaction behavior in advance, but should take necessary, reasonable, and appropriate measures based on the nature, method, and content of services provided by the industry to which it belongs, as well as the information management capabilities and operating capabilities that should usually be possessed, etc. Prevent trademark infringement from occurring.
20. The plaintiff has preliminary evidence to prove that the platform service provider If the platform service provider can prove that the transaction information or transaction behavior was provided or implemented by the online seller and the platform service provider is not at fault, the platform service provider should not be deemed to be responsible for the infringement. responsibility.
Platform service providers provide entities that can identify online sellers If evidence such as identity, contact information, and network address are provided, it can be preliminarily determined that the alleged infringing transaction information or transaction behavior was provided or implemented by the online seller.
The platform service provider does not provide evidence or is unable to provide evidence. , if the alleged infringing transaction information or transaction behavior is provided or implemented by the online seller, it can be determined that the online seller directly provided the alleged infringing transaction information or implemented the transaction behavior.
21. When platform service providers provide network services , who instigates or helps online sellers to infringe trademark rights shall bear joint and several liability with the online seller.
The platform service provider deliberately uses words to promote technical support ,awardIf points, provision of preferential services, etc. are used to induce and encourage online sellers to commit infringement of trademark rights, this can be determined to constitute instigating online sellers to commit infringement.
Platform service providers know that online sellers use online services to infringe If one fails to take necessary measures such as deleting, blocking, or disconnecting the trademark rights of others, or still provides technical and service support and other assistance, it can be determined that it constitutes helping the online seller to commit infringement.
22. The rights holder notifies the platform service provider to take deletion If necessary measures are taken to prevent online sellers from infringing on their trademark rights, such as blocking, disconnecting, or linking, a notice shall be issued to the platform service provider in writing or by way of public announcement by the platform service provider.
The content of the notification in the preceding paragraph shall be able to enable the platform to serve The trader determines the specific circumstances of the alleged infringement and has reason to believe that there is a greater possibility of trademark infringement. The notice shall contain the following:
(1) Rights The person’s name, valid contact information and other specific information;
(2) Ability to accurately locate information related to the allegedly infringing content;
(3) Proof of trademark ownership and alleged infringement facts;
(4) Rights holderA statement that you are responsible for the authenticity of the content of the notification.
23. The platform service provider sends the Notice, if you know that online sellers use their online services to infringe trademark rights, you should promptly take necessary measures such as deleting, blocking, and disconnecting links.
Whether the necessary measures are timely, reasonable and appropriate, they should A comprehensive judgment shall be made based on factors such as the nature of the network service, the form and content of the notice, the circumstances of the trademark infringement, and technical conditions.
24. After the platform service provider takes necessary measures , online sellers should be clearly informed of the measures taken within a reasonable period of time. If the reasonable period is exceeded and the platform service provider is at fault, causing losses to the online seller, it shall be liable for compensation.
25. Platform service failure due to wrong notification by the rights holder If the online seller takes necessary measures such as deleting, blocking, or disconnecting the link, causing losses to the online seller, the online seller has the right to require the right holder to bear compensation liability.
26. Platform service providers “know” online sellers Using its network services to infringe trademark rights, including "knowingly" and "should have known".
Confirm that the platform service provider knows that the online seller uses online services To infringe on the trademark rights of others, the following factors can be considered comprehensively:
(1) The alleged infringing transaction information is located on the homepage of the website, the homepage of the column, or other clearly visible locations;
(2) The platform service provider took the initiative to edit, select, organize, rank, recommend or modify the allegedly infringing transaction information;
(3) The right holder’s notice is sufficient to make the platform service provider Know that the alleged infringing transaction information or transaction behavior is disseminated or implemented through its network services;
(4) The platform service provider fails to take corresponding reasonable measures against repeated infringement of the same rights by the same online seller;
(5) There is an admission of infringement by the online seller in the alleged infringing transaction information;
(6) Selling or providing well-known goods or services at obviously unreasonable prices;
(7) Platform service providers trade information from networks accused of infringement Directly obtain economic benefits from dissemination or alleged infringing transactions;
(8) The platform service provider knows the alleged infringing transaction information or other factors that cause the transaction behavior to infringe the trademark rights of others.
27. Platform service providers disseminate transaction information from the network that is accused of infringement or are accused of infringement Directly obtaining economic benefits from a transaction means that the platform service provider places advertisements for the specific transaction information or transaction behavior, extracts a corresponding proportion of revenue, or obtains other economic benefits that are directly related to the specific transaction information or transaction behavior.
Platform service providers charge a general fee for providing network services Sexual advertising fees, technical service fees usually standard in the industry, service fees based on the usual business model in the industry, management fees, etc., do not fall under the circumstances specified in the preceding paragraph.
28. It is recognized that the information network is provided through application software Whether the goods or services are identical or similar to the goods or services for which someone else's registered trademark is used, should be determined comprehensively based on the purpose, content, method, object and other aspects of the specific service provided by the application software. It should not be automatically deemed to be the same as computer software. The goods or Internet services constitute similar goods or services.
3. Parts involving unfair competition on the Internet
span>29. Disputes involving unfair competition on the Internet refer to business operations Disputes caused by unfair competition behaviors carried out directly or indirectly through information networks.
30. Hearing disputes involving unfair competition on the Internet, Discretion should be exercised in accordance with the law, taking into account the interests of operators, consumers, and the public, encouraging business model innovation, and ensuring market fairness and free competition.
The operator's alleged behavior is only an infringement of others' copyrights, trademark rights, patent rights and other laws. In the case of expressly stipulated rights, the Anti-Unfair Competition Law should no longer apply
Adjust.
31. The following relationships exist between operators 1. If it may damage the legitimate rights and interests of the plaintiff and cause changes in trading opportunities and competitive advantages, it can be determined to have a competitive relationship:
(1) The goods or services sold have direct or indirect substitution relationships;
(2) There are overlapping, interdependent or other related relationships among business activities.
32. The defendant committed the alleged crime through the information network Unfair competition behavior falls under the Anti-Unfair Competition Law
If there are specific circumstances stipulated in Chapter 2, the provisions of Article 2 of the Law shall no longer be applied for adjustment.
33. In disputes involving unfair competition on the Internet, recognized business ethics refers to business norms and moral principles that are generally recognized by operators in a specific industry and are in line with the interests of consumers and social public interests.
When identifying generally accepted business ethics, the standards common in a specific industry should be used The recognized and accepted ethical standards of economic persons shall be the standard and shall comply with the Anti-Unfair Competition Law
The legislative purpose stipulated in Article 1.
34. When identifying recognized business ethics, you can comprehensively refer to the following content:
(1) Specific industry practices in the information network industry;
(2) Practice norms or self-regulatory conventions formulated by industry associations or self-regulatory organizations based on industry characteristics and competitive needs;
(3) Technical specifications of the information network industry;
(4) References can be made when identifying recognized business ethics. Other content.
35. The defendant carried out one of the following acts through the information network, which was enough to damage the legitimate rights and interests of the plaintiff, disrupt the normal market order, violate the principle of fair competition, and violate the principle of good faith and Generally recognized business ethics can be recognized as anti-unfair competition law
Unfair competition as stipulated in Article 2:
(1) Using website content that can increase transaction opportunities and competitive advantages for the plaintiff without permission and without legitimate reasons, and is sufficient to replace consumers' access to the content source website;
(2) Use of anti- Unfair Competition Law
Plaintiff’s commercial signs other than those stipulated in Article 5 lead to misunderstanding by consumers;
(3) Modifying the drop-down prompt words in the plaintiff’s search bar without permission and without legitimate reasons, directly affecting the plaintiff’s trading opportunities;
(4) Without permission and without legitimate reasons, using the traffic of the plaintiff’s website to insert text into its interface Advertising;
(5) Interrupting, preventing or otherwise damaging the plaintiff’s business activities without justifiable reasons;
(6) Others constituting the Anti-Unfair Competition Law
Situations specified in Article 2.
36. If the defendant carries out one of the following acts through the information network, which is enough to cause misunderstanding among the relevant public, it can be determined as an anti-unfair competition law
Article 9 A stipulated act of misleading false advertising:
(1) When promoting itself and its related products or services, it obviously violates objective facts;
(2) When promoting itself and its related products or services, using terms such as "national", "superior", "best";
(3) Relate itself and its products or services to the plaintiff and its related parties Comparative introduction of products or services, using one-sided and false descriptions;
(4) When promoting and introducing itself and its products or services, the relevant content quoted is provided by others, but the content obviously lacks basis;
(5) Other circumstances that constitute false publicity.
37. The defendant committed any of the following acts through the information network 1. If it is enough to damage the plaintiff's business reputation and product reputation, it can be determined as an anti-unfair competition law
Commercial defamation as stipulated in Article 14:
(1) When disclosing negative information about the plaintiff, there are fabrications, distortions, exaggerations, etc., misleading the relevant public to make negative evaluations of the plaintiff;
(2) When disclosing negative information about the plaintiff, although evidence can be produced to prove the information It is objective and true, but the disclosure method is obviously inappropriate and is enough to mislead the relevant public and lead to wrong evaluation;
(3) Encouraging and inducing Internet users to make negative comments about the plaintiff through words, awarding points, providing prizes or preferential services;
(4) Other circumstances constituting commercial defamation.
38. When determining whether the defendant's purchase and use of bidding ranking services constitutes unfair competition, the following factors can be comprehensively considered:
(1) Whether the plaintiff or its interested parties’ commercial logos that can indicate the quality and source of goods or services have been used as bidding rankings without permission Keywords;
(2) Use of other people’s commercial logos Whether it is justified as a bidding ranking keyword;
(3) Whether the keyword is included in the title and web content introduction displayed in the search results list;
(4) Whether the defendant’s webpage entered through the search results contains the keyword;
(5) Whether it is enough to cause changes in trading opportunities or competitive advantages attributed to the plaintiff, causing damage to the plaintiff's legitimate rights and interests.
39. The bidding ranking service provided by the search engine service provider is an information retrieval service .
40. In the process of providing bidding ranking services, if the search engine service provider fails to select, organize, recommend, edit keywords, etc., it will not be responsible for any information in the bidding ranking services. There is no obligation to comprehensively and actively review the keywords used, except those that clearly violate laws and regulations.
For unfair competition practices using bidding ranking services, the plaintiff has the right to notify the search engine service provider to take necessary measures such as deleting, blocking, and disconnecting links. Search engines If the service provider fails to take necessary measures in a timely manner after receiving the notice, it shall be jointly and severally liable for the expanded damage and the operator who committed the unfair competition.
If a search engine service provider knows that others are using the bidding ranking service to engage in unfair competition and fails to take necessary measures, it shall bear joint and several liability. .
41. According to the Anti-Unfair Competition Law
The second article is confirmed If the defendant is liable for damages, the amount of compensation should be determined based on the plaintiff's actual losses; if the actual losses are difficult to determine, it can be determined based on the profits obtained by the defendant.
According to the provisions of the preceding paragraph, if the actual losses suffered by the plaintiff due to unfair competition are difficult to determine, it shall be required to pay for the losses obtained by the defendant. Proof of profit; when the plaintiff has provided preliminary evidence of the profits obtained by the defendant, and the account books, materials, and back-end data related to the unfair competition behavior are mainly controlled by the defendant, the defendant can be ordered to provide the account books related to the unfair competition behavior. , information, and background data; the defendant refuses to provide it without justifiable reasons orIf false account books, information, or back-end data are provided, the profits earned by the defendant can be determined based on the plaintiff's claims and the evidence provided.
The profits obtained by the defendant can be based on unfair competition The duration, scope of the behavior, number of user visits, related advertising or other forms of income, etc. will be determined comprehensively.
42. The defendant’s improper conduct through the information network If competitive behavior has a negative impact on the plaintiff's business reputation or product reputation, the defendant may be ordered to eliminate the impact.
The way to assume responsibility for eliminating the impact should be consistent with the The circumstances, manner, duration, and scope of harmful consequences of fair competition behavior shall be appropriate.
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