Joyce Wen
On September 12, 2020, the Supreme People’s Court issued its Official Reply on the Application of Law in Disputes Internet-related Intellectual Property Rights Infringement Disputes (the “Reply”). The Reply mainly sets down clear provisions on the application of law to Internet-related intellectual property rights (IPR) infringement disputes.
For an IPR holder asserting its right and filing an application for preservation, if it is a request to an Internet service provider or e-commerce platform operator to promptly take measures to remove access such as deletion, blocking off or disconnection, the Reply requires the people’s court to examine the case and render a decision in accordance with law.
As to handling a notice from an IPR holder to an Internet service provider or e-commerce platform operator, the Reply specifically requires the notice to be sent to the relevant users and operators on the platform, then timely take necessary measures based on the preliminary evidence of the infringement. If damages are exacerbated by failing to take the necessary measures, the users and the operators on the platform shall be held jointly liable for such increased damages.
Regarding the handling of non-infringement statements from the Internet users and operators on the platform by the Internet service provider and e-commerce platform operator, if the Internet service provider or e-commerce platform operator does not receive a complaint or litigation notice from the IPR holder within a reasonable period of time after the non-infringement statements are sent to the IPR holder, the access removal measures may be suspended. However, if there is a delay due to circumstances beyond the control of the IPR holder, such as the notarization and certification process, the delay period will not be counted, but such period shall not exceed a maximum of 20 working days.
If the interest of an IPR holder is infringed due to an intentional false submission of a non-infringement statement, the Reply expressly authorizes the IPR holder to seek corresponding punitive damages.
If the IPR holder sent out in good faith erroneous notices, the Reply provides that if evidence can show that the submission was done in good faith and exemption of liability is requested, the people’s court may support such request.
Finally, as to the issues in applying the Reply, the Reply may be applied to matters that are still pending at the time of the issuance of the Reply. The Reply shall not apply to matters to which a decision has already been rendered, and the parties apply for a retrial or a retrial is ordered pursuant to the trial supervision procedure.