On September 20, 2024, the State Administration for Market Regulation (SAMR) announced on its official website that it held a signatory ceremony of the Self-disciplinary Convention on Improving the Level of Protection of Intellectual Property Rights by E-commerce Platform Operators.
It is said that 81 e-commerce platforms participated in the signatory, including representatives from 23 platforms, such as Taobao and Tmall, Tencent, Douyin, Pinduoduo, etc., singed at the main ceremony place of the SAMR, as well as other e-commerce platforms in the sub-meeting of the signatory ceremonies held in other provinces (e.g., Guangdong, Hainan, etc.) on the same day.
It is reported that the meetings above emphasized that both the market supervision departments and enterprises need to make efforts to promote economic development. According to the sub-meeting held in Guangdong province, it shall 1) strengthen the industry’s self-discipline and promote corporate compliance. The enterprises shall strengthen the protection of intellectual property rights on their platform and assume the social management responsibilities that are compatible to their social influence; 2) effectively strengthen the ability to prevent intellectual property risks and handle disputes, and promptly deal with intellectual property violations; 3) strengthen the cooperation with government departments, actively cooperate with the special enforcement action of “guarding intellectual property rights,” and help improve the effectiveness of supervision and enforcement, etc.
Regarding the Self-disciplinary Convention signed by the e-commerce platforms, it is reported that it contains ten provisions that focus on refining platform complaint rules for IP rights holders. For instance, the platforms shall: 1) establish a smooth channel for accepting infringement notifications, which may include the platform's online complaint system, complaint acceptance e-mail address, complaint acceptance letter, and other addresses; 2) provide a detailed list of evidence requirements and complete the review of the right holder's evidence in a timely manner; 3) forward the evidence that there is no infringement submitted by the operator within the platform to the complainant; 4) take reasonable and necessary measures, including deletion, blocking, and breaking links, in case the evidence of the complaint is sufficient. It is further reported that the said Convention emphasizes cooperation between the platforms and the administrative enforcement department, such as providing data and materials by the platforms when the market supervision department investigates an infringing case; notifying the business holders by the platform within three working days, and timely updating information (e.g., qualifications, certificates, contacts, etc.) when an operator is listed in the name list of an abnormal operation by the market supervision department.
[Comment]
Prior to the signatory of the Self-disciplinary Convention herein, many e-commerce platforms have already certain established corresponding intellectual property protection mechanisms, from setting up a designated email address to accept IP infringement complaints to a more complex and specialized platform where an IP right owner can upload its right certificate and file an infringement complaint.
Such IP protection and complaint filing mechanism is actually requested by the PRC E-commerce Law effective on January 1, 2019. In accordance with Article 41-44 of the E-commerce Law, “E-commerce platform operators shall establish rules for the protection of intellectual property rights, strengthen cooperation with intellectual property rights holders, and protect intellectual property rights in accordance with the law.”
In case of filing an infringement complaint, the intellectual property rights holders are entitled to notify the e-commerce platform with prima facie evidence regarding the infringement and request the latter take necessary measures, such as deletion, blocking, unlinking, termination of transactions and services, etc. Once received, the e-commerce platform shall take timely measures and transfer the complaint to the operator within the platform. If no necessary measures are taken in time, the operator and the e-commerce platform shall be jointly and severally liable for the extension of the damage. The e-commerce platform is also obligated to transfer any non-infringement claim, plus prima facie evidence, made by the operators within the platform to the intellectual property rights holders. Further, all the notifications, statements, and complaint results mentioned above shall be timely published by the e-commerce platforms.
It is also worth noting that the E-commerce Law provides the liability of the e-commerce platform if it fails to fulfill its obligations in terms of the IP protection. For instance, Article 45 thereof provides the civic liability, that is, “where an e-commerce platform operator knows or should know that an operator within the platform infringes on intellectual property rights, it shall take necessary measures such as deleting, blocking, disconnecting, terminating transactions and services, etc.; if it fails to take the necessary measures, it shall bear joint and several liability with the infringer.”
Article 84 of the E-commerce Law further states the administrative liability, in case the E-commerce platform violates Article 42 and Article 45 thereof and “fails to take necessary measures in accordance with law against the infringement of intellectual property rights by an operator on the platform, it shall be ordered to rectify within a certain period of time by the relevant intellectual property administrative department; if it fails to rectify within the time limit, it shall be imposed a fine of no less than 50,000 yuan and no more than 500,000 yuan; and if the circumstances are serious, it shall be impose a fine of no less than 500,000 yuan and no more than 2,000,000 yuan.”
Back to the Self-disciplinary Convention, it seems that it provides more refined rules regarding the intellectual property protection within the e-commerce platforms, according to the disclosed content above. Nevertheless, since the Self-disciplinary Convention is more of a commitment than a mandatory standard, its effect on the combat of IP infringement issues on the e-commerce platforms is to be observed.