The mechanism for intellectual property protection under Chinese e-commerce law: more powerful than necessary
Huaiwen He · Queen Mary Journal of Intellectual Property · 2020
The notification and taking down procedure of the newly enacted Chinese E-Commerce Law is uncannily applicable to all infringements of all categories of IP in selling all kinds of goods on e-platforms, even to those which cannot be determined with a sufficient degree of certainty on available evidence by the e-platform. This mechanism overreaches grounds for the DMCA notification and taking down procedure and Chinese preliminary injunction. It overstrains e-platforms’ capabilities to assess intellectual property infringement and is indifferent to e-platforms’ lack of legal and technological expertise. It is wrong to be obsessed with the DMCA procedure – which is ceteris paribus – without measuring up to the distinctive e-platforms, e-sellers and e-businesses. Both e-platforms and e-sellers fundamentally have a common interest in the good governance of the platforms. It is out of place for the Chinese E-Commerce Law to encourage e-platforms to be a conduit for passing notifications and to take measures upon notifications of IP infringement mechanically and unscrupulously.