International Core Journal of Engineering Volume 8 Issue 11, 2022

ISSN: 2414-1895 DOI: 10.6919/ICJE.202211_8(11).0018

Intellectual Property Protection in E-commerce

Ya Wang1,2, Yanmei Yang2, *
1 Shanghai Urban Construction Vocational College, Shanghai 201415, China
2 Suqian Xinxiu Internet Co., Ltd., Suqian 223800, China

Abstract
China is a big e-commerce country, and the popularity of the Internet has rapidly driven
the development of e-commerce. However, with the rise of e-commerce industry, a large
number of adverse phenomena of infringement of intellectual property rights have also
emerged, which is not only related to the incompleteness of the system, but also related
to the specific implementation of the system. In order to strengthen the protection of
intellectual property rights in e-commerce, based on the legal analysis of China's
Electronic Commerce Law and in combination with the current protection dilemma, we
further put forward four suggestions, namely, raising the threshold of complaints,
establishing a joint review mechanism for professional judgment, strengthening the
supervision and guidance of private rights, and making differentiated protection of
trademarks and patents, with a view to continuously strengthening the protection of
intellectual property rights in e-commerce.

Keywords
E-commerce Platform; Intellectual Property Protection; Legal Principles; Difficulties;
Suggestions for Improvement.

1. Introduction
In recent years, the popularity of the Internet has greatly promoted the vigorous development of
China's e-commerce industry. People can buy their favorite products without leaving their homes
through Internet information to trade goods or services, which greatly facilitates people's life.
However, with the rapid development of e-commerce, there is a serious problem of infringement of
intellectual property rights. From the current e-commerce market, counterfeiting, piracy and patent
infringement are particularly prominent, causing serious damage to the copyright, trademark and
patent rights of the oblige. According to the random sampling survey conducted by the former State
Administration for Industry and Commerce in 2014, nearly half of the products sold by e-commerce
platforms are fakes, with alarming results. The infringement of intellectual property rights by e-
commerce platforms cannot be underestimated. It is related to the implementation of the national
innovation driven development strategy, the healthy development of China's future e-commerce
environment, and the enthusiasm of citizens to participate in innovation. As the main front of current
trading activities, e-commerce is in urgent need of strengthening the protection of intellectual
property rights[1].

2. Legal Analysis
The first formal Electronic Commerce Law of China was officially implemented on January 1, 2019,
providing legal guidance for the standardized development of China's e-commerce industry and legal
protection for strengthening the protection of e-commerce intellectual property rights.
(1) Principal provisions

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ISSN: 2414-1895 DOI: 10.6919/ICJE.202211_8(11).0018

Article 5 of the E-Commerce Law has specific provisions on the protection of intellectual property
rights in the field of e-commerce, emphasizing that e-commerce operators should actively perform
their obligations to protect intellectual property rights, accept supervision and do a good job in
protecting intellectual property rights. In China's e-commerce law, e-commerce operators are divided
into e-commerce platform operators, platform operators and other e-commerce operators who sell
goods and provide services. As an e-commerce operator, e-commerce platforms should, of course,
actively abide by this principle, consciously improve the awareness of intellectual property protection,
and do a good job in protecting the intellectual property rights of e-commerce platforms[2].
(2) Specific provisions
Articles 41 to 45 of the Electronic Commerce Law further stipulate the specific obligations of e-
commerce platforms in e-commerce business activities. First of all, article 41 emphasizes that e-
commerce platforms not only have the obligation to establish intellectual property protection rules,
but also strengthen cooperation with obliges to jointly protect China's intellectual property rights.
This rule has a very important guiding significance for e-commerce platforms, aiming to emphasize
the role of "platform autonomy". Secondly, Articles 42 and 43 of the Electronic Commerce Law refer
to the "notification deletion" rule derived from the United States Millennium Digital Copyright Act.
According to the rule, when the oblige believes that his rights have been violated, he can send a notice
of infringement to the e-commerce platform and provide preliminary evidence of the infringement of
his rights. The e-commerce platform should take necessary measures such as disconnecting links and
deleting in a timely manner, prevent further expansion of losses; Correspondingly, operators in the
platform can exercise the right to counter notification. In this process of "notification - taking
necessary measures - anti notification", the e-commerce platform has the obligation to transmit the
notification, take measures and publicize the results. It is the information circulation link between the
oblige and the business, and acts as the "judge" of infringement judgment. In addition, in order to
urge e-commerce platforms to actively perform their regulatory obligations, under the "safe harbor
principle", the E-Commerce Law also specifically stipulates the "red flag principle" as an exception.
According to the provisions of Article 45, the e-commerce platform shall know or should know about
the infringement of merchants, and shall take necessary measures; Otherwise, it is necessary to jointly
bear relevant joint and several liabilities with the infringer[3].
From the above jurisprudential analysis of China's Electronic Commerce Law, both principled
provisions and specific provisions on the principle of safe harbor and the principle of red flag play an
autonomous role in emphasizing specific infringement disputes of e-commerce platforms. It is
undeniable that e-commerce platform autonomy is more targeted and feasible. It can not only solve
problems in a timely and targeted manner, but also better understand the actual internal situation of
e-commerce industry. When formulating rules, we can take into account the differentiated needs of
specific platforms, so as to formulate practical rules and achieve the desired governance effect.
However, while actively playing the role of platform autonomy, in the actual governance, it cannot
effectively curb the infringement of intellectual property rights in the field of e-commerce, and
sometimes it catalyzes other undesirable phenomena[4].

3. Analysis of Realistic Difficulties and Causes

(1) Realistic predicament
Since the implementation of the intellectual property protection rules of the Electronic Commerce
Law, it has made great contributions to safeguarding the interests of the oblige, and severely cracked
down on illegal acts such as selling counterfeit goods. However, while safeguarding the interests of
obliges, the provisions on the protection of intellectual property also cause great problems to e-
commerce platforms, making the protection of intellectual property face the following problems.
Malicious complaints increase the burden of e-commerce platform review and supervision. Malicious
complaints mainly refer to malicious complaints to relevant authorities in the name of intellectual
property rights protection in order to obtain illegal interests. With the vigorous development of e-

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ISSN: 2414-1895 DOI: 10.6919/ICJE.202211_8(11).0018

commerce, the e-commerce platform has added an online complaint mechanism, which can achieve
the purpose of protecting rights by providing preliminary evidence of infringement, and greatly
facilitates the parties' rights protection. But while it is convenient and the threshold for complaint is
low, it has led to a large number of malicious complaints, especially for trademark rights. Many
malicious complainants apply for some common words or hot words of the industry as registered
trademarks, and then complain to the platform in the name of rights protection to seek illegal benefits.
Low cost causes malicious complaints to be rampant, which seriously interferes with the normal
operation of the platform and increases the platform review obligation.
The review capability of e-commerce platform does not match the practice. According to the
provisions of China's Electronic Commerce Law, after receiving the notice of infringement, the e-
commerce platform should be subject to special review, and then make the necessary measures
accordingly. If the platform is not handled properly, it may also need to bear legal responsibility.
Generally speaking, it is easier to determine the infringement of copyright and trademark rights. Most
of them are infringement links of movies, books, and counterfeit goods. The e-commerce platform
can have a good protection effect if it is deleted in time after being notified. However, the
determination of patent rights is more complex. Because patent rights are more technical than
copyright and trademark rights, and infringement is hidden, it is not only difficult to find, but also
requires highly professional people to determine after discovery. However, most of the current
platform audit teams do not have this ability, which is one of the reasons why patent protection in
China's e-commerce industry is difficult to achieve results.
As a private power subject, e-commerce platform lacks necessary supervision. According to the
provisions of the Electronic Commerce Law, e-commerce platforms have at least three powers: the
power to formulate rules for the protection of intellectual property rights, the power to review the
preliminary evidence of infringement after receiving the notice of infringement, and the power to take
necessary measures according to the specific circumstances of the complaint. Of course, some
scholars believe that these three points belong to the obligations of e-commerce platform, which is a
refinement of the obligations of intellectual property protection of e-commerce platform. However,
whether it is power or obligation, the first three acts of e-commerce platform will have a certain
degree of impact on the other party. As a private power subject, e-commerce platform undertakes the
"third party obligation" of e-commerce governance. While it has great independent rights, it is still a
commercial subject, and pursuing profits is its ultimate pursuit. If there is no necessary supervision,
it will inevitably lead to the expansion of private power. For example, the "one out of two" behavior
in e-commerce obviously belongs to the abuse of power. E-commerce platforms require businesses
to sign exclusive cooperation agreements with the platform by formulating rules. Such monopolistic
behavior will seriously damage the interests of businesses and consumers, and damage fair
competition in the market. In addition, due to the lack of necessary supervision over the platform,
many e-commerce platforms have been constantly squeezing and suppressing competitors in the same
industry by formulating rules conducive to their own development, which has formed a super strong
monopoly situation and seriously interfered with the normal operation of the market economy.
The "notification deletion" rule is difficult to apply to trademark and patent protection. The
"notification deletion" rule was originally formulated based on the protection of copyright, and later
it was gradually extended to apply to trademark and patent protection after achieving good protection
effects. However, trademarks and patents are different from copyrights after all. The infringement of
copyrights in the field of e-commerce is mostly in the form of piracy, copycat, infringing links, etc.
It is easy to make a judgment of infringement, but trademarks and patents are more technical. It is
difficult for e-commerce platforms to make a judgment of infringement through formal examination,
which is also the reason why the protection of trademarks and patents in the field of e-commerce is
difficult to achieve results.
(2) Cause analysis

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From the above points of view, the current unsatisfactory effect of intellectual property protection in
the field of e-commerce in China is caused by many factors, both in legislation and law enforcement.
From the legislative point of view, the threshold for obliges to lodge complaints is too low. According
to the provisions of the Electronic Commerce Law, the oblige generally only needs to meet two
conditions to protect his rights: one is that the oblige thinks his rights have been violated, and the
other is to provide preliminary evidence of infringement. From these two points of view, in fact, it
only needs the oblige to provide preliminary evidence of infringement, and does not need to provide
any "margin" to achieve the effect of safeguarding rights. This is extremely beneficial to
strengthening the protection of intellectual property rights and suppressing illegal acts. However, the
threshold for complaints is too low, and everyone can complain. The number of complaints is too
large, which will inevitably lead to poor results in rights protection, and also give those who have
ulterior motives and make profits by taking advantage of legal loopholes an opportunity. At the same
time, the legislation did not further detail the "effective notice" and "effective measures" of trademark
and patent infringement, which not only increased the platform review burden, but also resulted in
poor trademark and patent protection.
In terms of law enforcement, the administrative organ transfers part of its power to the e-commerce
platform. The e-commerce platform formulates rules for the protection of intellectual property rights,
judges the notice of infringement complaints, supervises the operators on the platform, and hopes to
protect intellectual property rights in the way of platform autonomy. This is originally a good
mechanism for the protection of intellectual property rights. However, in the process of specific
implementation, while making the e-commerce platform bear too many obligations, the lack of
necessary professional assistance from administrative organs also affected the enthusiasm of the
platform to safeguard its rights. On the other hand, e-commerce platform is essentially a commercial
subject, pursuing profits is its ultimate goal, fairness and justice is not the value orientation of the
platform, and it is easy to abuse private rights in the process of exercising power.

4. Suggestions
(1) Increase the threshold of complaints, so as to correct and abuse complaints
The "notification deletion" rule of China's Electronic Commerce Law is similar to the idea of pre
litigation injunction, that is, the oblige meets the following four conditions without the court's
infringement judgment: first, there is a real possibility of infringement; Second, it is urgent to take
measures, and failure to take relevant measures in time is likely to cause irreparable losses; 3 not to
damage public interests; 4. In order to require the applicant to provide a guarantee at the same time
of application, the applicant may request to stop the infringement by providing preliminary evidence
of infringement. This can not only remedy the loss caused by the wrong injunction, but also avoid the
indiscriminate litigation caused by the low threshold. Compared with the "notification deletion" rule
in China's Electronic Commerce Law, although this idea has been used for reference, it does not have
all the elements for the establishment of the pre litigation injunction. It is the lack of elements that
makes the problems in the implementation of the "notification deletion" rule prominent, and instead
encourages the unhealthy wind of false rights protection. Therefore, it is necessary to use the method
of pre litigation injunction for reference, introduce guarantee, appropriately raise the threshold of
complaint, reduce the review burden of e-commerce platform with the wind of legitimate and
indiscriminate litigation, focus on legitimate rights protection, and give play to the effect of
intellectual property rights protection in e-commerce field.
(2) Establish a joint review mechanism with intellectual property professional institutions to make
professional judgments on infringement
The e-commerce industry in China is developing rapidly, covering all aspects of the current economic
life, with a huge scale. It is difficult for any single platform service organization to accurately review
and judge tens of thousands of goods and services. On the one hand, the huge audit and supervision
burden will bring great pressure to the e-commerce platform, which easily leads to the fact that most

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ISSN: 2414-1895 DOI: 10.6919/ICJE.202211_8(11).0018

of the infringement judgments can only be subject to formal review, which is not conducive to the
protection of intellectual property rights; On the other hand, intellectual property is the result of
intellectual activities, and infringement judgment has a high technical threshold, especially for patent
issues. Not every e-commerce platform can guarantee the accuracy of judgment. Therefore, it is
necessary to establish a joint review mechanism with professional intellectual property institutions to
jointly review the judgment of intellectual property infringement. If necessary, a hierarchical review
mechanism can be established. The e-commerce platform will conduct a preliminary review of the
notice of infringement, and the professional intellectual property service agency will conduct further
identification and judgment on difficult intellectual property issues with strong expertise, so as to
increase the accuracy of infringement judgment.
(3) Strengthen the guidance and supervision of the exercise of private rights
The exercise of power must be supervised, which is the most concentrated embodiment of modern
democratic spirit. In China's E-Commerce Law, compared with the provisions on the power of e-
commerce platforms, there are not too many rights and obligations for the operators on the platform,
which means that disputes can only be resolved through the relevant standard clauses formulated by
e-commerce platforms, and the operators on the platform are obviously in a weak position in e-
commerce activities. Therefore, we must strengthen the restriction and supervision of e-commerce
platforms, establish offline and online power supervision mechanisms, and prevent excessive
expansion of power from harming the interests of others.
(4) Make differentiated provisions on trademark and patent protection
The "notification deletion" rule is not the general rule of intellectual property protection. Although it
can have an immediate effect on copyright protection, it may not have the same effect on the
protection of highly technical trademarks and patents. Therefore, based on the "notification deletion"
rule, we can further refine and formulate the provisions on the protection of differences. Specifically,
we can define the rules of trademark and patent protection in legislation, and make more specific and
differentiated provisions on a series of issues such as what is "effective notice", what is
"infringement", and what is "taking necessary measures". This can not only improve the accuracy of
infringement judgment, but also unify platform standards, avoid abuse of private power, and ensure
that the exercise of power is fairer and just.

5. Conclusion
The "Fourteenth Five Year Plan" continued to emphasize the strengthening of intellectual property
protection and the protection of national innovation initiative. The protection of intellectual property
has never been given as much attention as it is today. The booming e-commerce has gradually become
the main position to promote economic development, which means that the protection of intellectual
property rights in the e-commerce field must be strengthened to stimulate the source of innovation
and inject fresh blood into economic development. It is believed that through the continuous
improvement of the legal system and the effective play of the autonomous role of the e-commerce
platform, the protection of intellectual property rights in the field of e-commerce will be strengthened,
adding vitality to economic development.

Acknowledgments
This work was supported by the fifteenth batch of "Six Talent Peaks" high-level talent project in
Jiangsu Province (SZCY-022).

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