Beijing High Court Publishes Guidelines for Adjudication of Network-related IP Cases
On 13 April 2016, the Beijing Higher People's Court published the Guidelines on Adjudication of Network-related IP Cases. The Guidelines comprise 42 articles and address issues relating to adjudication of network-related IP disputes over copyright, trademark, and unfair competition.
For adjudication of network-related copyright cases, the Guidelines provide for the allocation of burden of proof between the copyright holder and the network service provider; the determination of the nature of an act conducted by the network service provider; the establishment of division of labour in direct infringement; the application of law regarding constitutive requirements of tort liabilities, exemption of infringement liabilities, and online real time broadcast; as well as the reasonable uses of webpage snapshots.
For network-related trademark cases, the Guidelines stress the consideration for balance of interests among the parties involved and the factor of whether reasonable measures have been taken by the platform service provider to prevent infringement during adjudication of relevant disputes. The Guidelines also cover issues concerning the burden of proof in direct infringement on the part of the platform service provider; the legal consequences of incorrect notification; as well as the determination of an effective notification, whether a platform service provider "knows" the infringement via his network service, and whether goods or services provided by application software and through information network are identical or similar to those designated under another party's registered trademark.
As regards network-related unfair competition cases, the Guidelines touch upon, among others, the determination of publicly recognised business ethics, false advertising, and commercial defamation; the constitution of paid listing as an act of unfair competition; as well as the calculation of damages.
