This paper intends to cover measures available to immediately stop the infringer by achieving a take-down of the counterfeit products from Chinese e-commerce platforms. As such, this paper only covers take-down notices on the example of Alibaba and in a summary manner administrative enforcements as well as preliminary injunctions. This paper does not address any aspects of criminal enforcement or liability.
The business with counterfeit products is booming and has been described as the ”crime of the 21st century”. The BASCAP has conducted an investigation on behalf of the ICC with the aim, amongst others, to estimate the economical effect of counterfeiting on a worldwide basis. This investigation came to the conclusion that ”the total value of counterfeit and pirated products” reached $455 billion - $650 billion4 in 2008 and is expected to reach $1,220 trillion - $1,770 trillion in 2015.
According to the WCO, the PRC accounts for 71% of all seized counterfeit products worldwide in 2013 (46.6% for China and 24.7% for Hong Kong). The 2013 seizure statistics from the U.S. shows that the PRC is accountable for 93% of all seizures in terms of value in the U.S. (China for 68% and Hong Kong for 25%).
Table of Contents
1. Introduction
1.1 E-commerce and Counterfeit Products in China
2. Informal Take-Down of Counterfeit Products
2.1 Legal Basis
2.1.1 Introduction
2.1.2 IT Communication Regulation
2.1.3 Chinese Tort Law
2.1.4 Conclusion
2.2 Take-down Notice in Practice
2.2.1 General Consideration
2.2.2 Alibaba’s IT Policy
2.2.3 Formal Proceedings for Take-Down of Counterfeit Products
2.2.4 Timing
2.2.5 Fees
2.3 Good Faith Take-Down
2.4 Conclusion
3. Formal Take-Down
3.1 Administrative Actions
3.1.1 Scope, Purpose and Goals
3.1.1.1 SAIC
3.1.1.2 NCA
3.1.1.3 SIPO
3.1.1.4 Costs
3.2 Preliminary Injunctions in Court Proceedings
3.2.1 Legal Basis
3.2.2 Requirements
3.2.3 Proceeding
Objectives and Research Themes
This paper examines the legal and procedural mechanisms for combating counterfeit goods on Chinese e-commerce platforms, with a specific focus on the Alibaba Group. It aims to clarify the efficiency of "take-down" notices as a tool for intellectual property rights holders to stop infringements.
- Legal framework for notice-and-take-down procedures in China
- Alibaba’s internal IP protection policies and enforcement mechanisms
- Comparison between informal take-down procedures and formal administrative/judicial enforcement
- The role and limitations of "Good Faith Take-Down" systems
- Strategic considerations for IPR holders navigating Chinese e-commerce platforms
Excerpt from the Book
2.2.1 General Consideration
The take-down of counterfeit products can generally be split into the following three steps:
1. Delivery of documents to the ISP. These papers should proof (1) the IP owner’s existence and (2) the IPR to the IP;
2. Verification of the documents by the e-commerce platform; and
3. Submission of a take-down request (provision of links).
The law firm Harris & Moure, pllc, has repeatedly reported that if all prerequisites are fulfilled, Chinese e-commerce platforms usually remove the products in question, however the respective policies must be followed "to the letter". In any case, it is advisable to have a Chinese speaking advisor available who is familiar with Chinese IP laws.
As a site note, it shall be mentioned that it is advisable to have registered the respective IPR in China. This would not only facilitate the take-down request but also a potential litigation. Last but not least, having the IPRs registered in China is a requirement on some e-commerce platform in order to send a take-down notice (Alibaba does not have such a requirement). Therefore, registration in another country is usually not an option.
Summary of Chapters
1. Introduction: This chapter provides an overview of the global counterfeiting problem, highlighting the significant role of the People's Republic of China and platforms like Alibaba in the distribution of counterfeit goods.
2. Informal Take-Down of Counterfeit Products: This section explores the legal basis for notice-and-take-down procedures, details Alibaba's internal policies, and evaluates practical steps for rights holders to remove infringing listings.
3. Formal Take-Down: This chapter analyzes alternative enforcement pathways, specifically administrative actions and judicial preliminary injunctions, for cases where standard notice-and-take-down procedures fail.
Keywords
Alibaba, Intellectual Property Rights, IPR, Counterfeit Products, Take-Down Notice, China, E-commerce, Trademark, Copyright, Patent, Enforcement, Legal Basis, Notice-and-Take-Down, SAIC, SIPO
Frequently Asked Questions
What is the core subject of this publication?
The work focuses on the legal and procedural methods available for Intellectual Property Rights (IPR) holders to combat the sale of counterfeit products on Chinese e-commerce platforms, specifically examining Alibaba's internal mechanisms.
What are the primary thematic areas covered?
The themes include the Chinese legal framework for IP protection, notice-and-take-down procedures, Alibaba's corporate IP policies, and formal legal enforcement options such as administrative actions and preliminary injunctions.
What is the main goal of the research?
The primary goal is to provide a comprehensive guide and analysis on how IPR holders can effectively utilize take-down notices to stop infringements on Chinese websites, while navigating the associated legal risks and requirements.
Which scientific methods are employed?
The author employs a legal analysis approach, evaluating relevant Chinese statutes, international conventions, and corporate policy documents, supported by industry reports and legal expert commentary.
What topics are discussed in the main body?
The main body treats the legal basis for online take-downs, practical steps for submitting claims to Alibaba, the "Good Faith Take-Down" fast-track system, and the limitations of administrative enforcement in China.
Which keywords characterize this work?
Key terms include Alibaba, Intellectual Property Rights, Counterfeit Products, Take-Down Notice, Chinese Law, IPR Protection, and Enforcement.
How does Alibaba's "Good Faith Take-Down" differ from their standard process?
It is a fast-track system introduced in 2015 that offers a simplified notification process, faster review times (1-3 days vs. 5-7 days), and dedicated customer service for eligible companies with a proven history of valid infringement reporting.
Why is it often recommended to register IPRs in China, despite Alibaba not strictly requiring it?
Registration in China is recommended to facilitate the take-down process and is essential for potential formal litigation or administrative enforcement, as relying on foreign registrations can be legally complex and ineffective in Chinese proceedings.
What are the limitations of administrative enforcement actions in China?
Administrative enforcement is generally faster but has a limited scope of remedies; specifically, it typically does not allow for the recovery of damages or the issuance of court-ordered interim injunctions.
- Citar trabajo
- Martin Grod (Autor), 2015, Chinese IP IT Law. Take-Down of Counterfeit Products, Múnich, GRIN Verlag, https://www.grin.com/document/333733
