Supreme Law Intellectual Property Dispute Determination Rules | Whether the court of the place of receipt of infringing products purchased online has jurisdiction
Published:
2020-10-22
Origin of the problem
According to Article 25 of the "Interpretation of the Supreme People's Court on the Application of the the People's Republic of China Civil Procedure Law", "The place where the information network infringement is committed includes the location of the computer and other information equipment that committed the alleged infringement, and the place where the infringement result occurred includes the domicile of the infringed." For the plaintiff, it greatly reduces the cost of litigation and is conducive to the rights of the right holder. But it also exists, the patentee often through the designated network to buy infringing products to the address to "set up" the jurisdiction of the connection point, and then determine the case jurisdiction court. It will lead to the expansion of the scope of the court under the jurisdiction of the right holder, and even lead to the right holder becoming a "migratory bird for safeguarding rights", where the penalty is high and where the evidence collection lawsuit is.
Different applicable rules will appear in different levels of courts, for example, some courts, in accordance with the relationship between general law and special law, believe that the original intellectual property jurisdiction rules should be directly applied, or that the judicial interpretation applies only to personal injury, and exclude the application of the judicial interpretation. Due to the lack of specific regulations of laws and judicial interpretations, and the particularity of intellectual property infringement disputes compared with general civil infringement disputes, when applying the civil procedure law and its interpretations to determine the jurisdiction, people often have different understandings of this particularity. The various rulings in judicial practice have affected the unity and authority of judicial decisions to a certain extent.
Supreme Court ruling
(2016) in the objection to the jurisdiction of Guangdong manel clothing co., ltd. v. new bailun trading (China) co., ltd. over unfair competition disputes, the supreme people's court held: "cases of infringement of intellectual property rights and unfair competition are all infringement cases, and article 28 of the the People's Republic of China civil procedure law (hereinafter referred to as the civil procedure law) stipulates that lawsuits for infringement, it shall be under the jurisdiction of the people's court of the place where the infringement is committed or where the defendant has his domicile. Article 24 of the Interpretation of the Supreme People's Court on the Application of the Civil Procedure Law (Fa Shi [2015] No. 5) (hereinafter referred to as the Judicial Interpretation of the Civil Procedure Law) stipulates that the place of infringement stipulated in Article 28 of the Civil Procedure Law includes the place where the infringement was committed and the place where the result of the infringement occurred. In the case of infringement of intellectual property rights, because the goods attached with trademarks or other rights have a wide range of negotiability, how to determine the place of infringement is different from the particularity of general civil dispute cases. Article 6 of the Interpretation on Several Issues Concerning the Application of Law in the Trial of Trademark Civil Dispute Cases (Fashi [2002] No. 32) stipulates that civil lawsuits filed for infringement of the exclusive right to use a registered trademark shall be under the jurisdiction of the people's court of the place where the infringement is committed, the place where the infringing goods are stored or seized, and the place where the defendant is domiciled as stipulated in Articles 13 and 52 of the Trademark Law (referring to the Trademark Law). According to this article, in cases of trademark infringement, in addition to the place where a large number of infringing goods are stored and the place where the infringing goods are sealed up or seized by the customs, industry and commerce and other administrative organs in accordance with the law, only the place where the infringement is committed or the domicile of the defendant can be used as the basis for jurisdiction, and no longer determine jurisdiction based on the place where the infringement occurred. In this case, New Bailun Company believes that Manel Company's infringement is based on Zhou Lelun's authorization to sell the accused infringing products through the "Bailun BOLUNE" WeChat public account. With reference to the above judicial interpretation, New Bailun Company can bring a lawsuit in the people's court where Manel Company is accused of infringement and the place where the company has its domicile. Manel's domicile is located in Tianhe District, Guangzhou City, Guangdong Province, and New Bailun has no other evidence to prove that it has committed infringement in areas other than the company's domicile, so the domicile should be used as the basis for determining jurisdiction over Manel's corresponding actions. Article 20 of the Judicial Interpretation of the Civil Procedure Law stipulates: "For a sales contract concluded by means of an information network, if the subject matter is delivered through the information network, the place of residence of the buyer shall be the place of performance of the contract; if the subject matter is delivered by other means, the place of receipt shall be the place of performance of the contract. If the contract has an agreement on the place of performance, from its agreement." This provision is a supplement to the provisions of Articles 23 and 34 of the Civil Procedure Law on the place of performance of the contract. For the contract of sale concluded by means of information network, there are certain difficulties in determining the place of residence of the defendant or the place of performance of the contract, so the judicial interpretation of the article is clear. Due to the great difference between contract cases and cases of infringement of intellectual property rights and unfair competition, contract cases generally occur between the parties to the contract, and their influence is basically limited to specific behaviors and specific parties. In the case of fair competition, the parties obtain the accused infringing products through online shopping, although the form is no different from "concluding a sales contract through information network, however, its claim of infringement is not only for this particular product, but for all products that contain specific rights, and its claim is not only for the other party to the contract, but may be related to this product and may constitute infringement under the law. Considering the above differences, and considering that there are special provisions on the determination of the place of infringement in cases of infringement of intellectual property rights and unfair competition cases, in such cases, if the plaintiff purchases the accused infringing products through online shopping, it is not appropriate to apply the provisions of Article 20 of the judicial interpretation of the civil procedure law to determine the geographical jurisdiction of the case. The court of first instance quoted the provisions of Article 20 of the judicial interpretation of the civil procedure law and determined that Nanjing was not only the place where the infringement of manel company was committed, but also the place where the infringement result occurred. The application of the law was improper, and the court corrected it."
Depth analysis
The above-mentioned cases are trademark and unfair competition disputes, can they be applied to patent cases? The meaning of "sale" in intellectual property sales infringement cases is much smaller than the meaning of "sale" or sale in the sales contract, and it is actually only a link in the sales behavior (conclusion, delivery, receipt, inspection, installation, commissioning, maintenance), that is, it is limited to the conclusion of a contract to complete the sales infringement. On the contrary, if it is believed that the payment or receipt of goods will not constitute sales until the completion of the subsequent payment or receipt of goods, it will lead to a "blank area" for the obligee to protect his rights, that is, the obligee cannot prevent his contracting act, that is, he cannot claim to stop the infringement, but can only claim his rights after the actual performance of the contract, which is obviously inconsistent with the prohibition of unauthorized manufacture, use, promise of sale, sale, sale, sale, sale and import and import and other rights under the patent law. Article 19 of the (II) of Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Patent Infringement Disputes: "If a product sales contract is established in accordance with the law, the people's court shall determine that it belongs to the sales stipulated in Article 11 of the Patent Law."
Civil Code "Article 491 If the information of goods or services published by one party through the Internet and other information networks meets the conditions of the offer, the contract shall be established when the other party selects the goods or services and submits the order successfully." The completion of the sale of infringing products purchased by the information network is the conclusion of the sale contract on the date of the successful submission of the order. Then, where is the result of sales infringement? In sales infringement, the infringement result is that the monopoly of the intellectual property owner's right to sell is infringed. The defendant sells infringing products through the network platform. When the defendant and the other party reach a deal on the network and the network buyer successfully places an order to purchase the infringing products, the market share of the patentee is embezzled at the same time, and the defendant's behavior constitutes a sales infringement. Thus, it can be determined that the place where the infringement was carried out coincides with the place where the infringement result occurred, and both are the places where the defendant carried out the sales. The plaintiff's purchase of products for the purpose of obtaining evidence is not a market act in itself. After receiving the products, it is found that they are indeed infringing products. The place of receipt of online shopping should be the place where the infringement facts are found, not the place where the infringement results occur. Therefore, the place of receipt of online shopping should not be used as the connection point to determine the jurisdiction of the case, except for the determination of the jurisdiction of domestic courts after shopping on foreign websites.
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