Online infringement in China – case law update

The Court organised an critical hail and supported Xu's claim on 16 September 2019, attesting the following 


 Tian Qinghong was also an online dealer of jackass- hide gelatin cutlet and was a direct contender of Xu. 

 Tian had filed, in total, 17 takedown notices grounded on her alleged brand in respect of the galettes' packaging; still, Xu suspected that the brand instruments had been forged. 

 Liu Yanbo and Shandong Shibo had filed a farther six takedown notices against Xu's online shop; still, the brand enrollment information handed was inconsistent with that recorded at the Copyright Office. 

 substantiation showed that Tian, Liu and Shandong Shibo had egregious connections they had used the same agent to save their violation substantiation, they had participated the same dispatch address and they had used the same internet protocol address when filing the takedown notices. thus, by using incompletely altered or forged power, publication and authorisation instruments, as well as other accoutrements , to file brand violation complaints against Xu's Taobao store several times, the three defendants had successfully removed Xu's product deals. They had therefore excluded a contender, gained a competitive edge and seized request share. similar bad- faith complaints were suspected of concertedly constituting acts of illegal competition. 

 The Court considered that failure to take injunctive measures would beget irrecoverable detriment to Xu for the following reasons 


 Afterlife and downtime are peak deals seasons for jackass- hide gelatin cutlet. National Day, New Year's Day, Spring Festival and thee-commerce platform's" Double Eleven" and" Double Twelve" promotional days all took place during afterlife andwinter.However, it would affect deals and affect in deals losses for Xu, If no injunctive measures were taken. 

 The loss caused by the takedown would be unrecoverable. Online deals are different from offline deals. The ranking of a trade is the result of nonstop advertising input, the accumulation of deals volume and positive consumer conditions, which directly affect the probability of successful deals. Once removed, all the advantages associated with the particular trade are gone and can not be restored. 

 According to Taobao's rules, once an violation complaint is established, in addition to junking from the transaction, it frequently triggers penalties similar as downgraded store conditions, restrictions on the release of goods or denied access to marketing openings, which would affect the deals of the entire store. 

 Eventually, by taking into account the lengthy trial period for illegal competition controversies between the two parties, to balance the interests of both sides and with reference to the peak deals season of the goods involved, the Court decided that the instruction proscribing the defendants from filing a takedown complaint had to remain valid until the end of February 2020. 


 Bosheng Plastic v Lian Rui Company 

 On 11 December 2019, Bosheng Plastic sued Lian Rui Company for dealing mops on Tmall that allegedly infringed its mileage model patent and claimed several million yuan as damages. Lian Rui Company challenged the validity of Bosheng Plastic's mileage model before the China National Intellectual Property Association( CNIPA). 


 On 10 April 2020, the Ningbo Intermediate People's Court affirmed the mileage model violation, ordered Lian Rui Company to pay3.16 million yuan as damages and ordered the immediate junking of the infringing link from Tmall. Lian Rui Company appealed to the Supreme People's IP Court( the unique appeal court for all patent- related cases). 


 In the meantime, on 9 September 2020, the CNIPA issued a decision vacating Bosheng Plastic's mileage model. Bosheng Plastic appealed to the Beijing IP Court. 


 As the" Double Eleven" date( Alibaba Group's notorious shopping jubilee, when an online dealer's deals numbers may regard for further than half of its periodic development) was approaching, and in view of the serious challenge concerning the validity of the mileage model invoked by Bosheng Plastic, on 4 November 2020 – during the appeal procedure – Lian Rui Company requested the Supreme People's Court to order Tmall to restore the mop trade link within 48 hours, due to the urgency of the situation.