Perspective | Determining the Location of Infringement in Third-Party Shipping Network Sales
Published:
2025-02-18
The infringing product in question is sold online, where the online seller only purchases the corresponding goods from a third party after the buyer submits an order, and instructs the third party to directly ship the goods to the buyer. Is the shipping location subject to infringement? Regarding online sales, it is widely accepted that the delivery location should not be used as a jurisdictional connection point for infringement cases against the online seller. However, whether the shipping location can serve as a jurisdictional connection point for the seller in infringement cases remains controversial. The Supreme People's Court has released a weekly case, case number (2023) Supreme Court Civil Jurisdiction Final 170, in which the court clearly supports the idea that the third-party shipping location can be used as a jurisdictional connection point. One of the key points is whether the shipping location is determined by the will of the online purchaser.
Question:The accused infringing product is sold online, and the online seller only purchases the corresponding goods from a third party after the buyer submits an order, instructing the third party to directly send the goods to the buyer. Can the shipping location be considered as an infringing act?
Regarding online sales, it has been widely accepted that the delivery location should not be used as a jurisdictional connection point for infringement cases against the online seller, while whether the shipping location can serve as a jurisdictional connection point for the seller as the defendant remains controversial. The Supreme People's Court issued a weekly case, case number (2023) Supreme Court Civil Jurisdiction Final 170, in which it clearly supports that the third-party shipping location can be used as a jurisdictional connection point. One of the key points is whether the shipping location is transferred at the will of the online purchaser.
1. Legal nature of the third-party shipping location
The Supreme People's Court clarified in case (2023) Supreme Court Civil Jurisdiction Final 170 that although the seller does not directly hold the goods, their act of delivery through a third party still constitutes part of the sales act. The act of direct shipping by the third party according to the seller's instructions should be regarded as the seller's performance act, thus the shipping location should be recognized as the seller's shipping location and can serve as a basis for jurisdiction.
In cases involving online sales, sellers typically purchase goods through third-party platforms and instruct the third party to deliver the goods directly to consumers. In this case, the third party is not a party to the contract but performs the shipping act according to the seller's instructions. Therefore, the third party's delivery act should be recognized as the seller's delivery act, rather than an independent contractual performance act. The instrumental nature of the third party is quite evident, and in the corresponding online sales act, the third party's actions are entirely controlled by the online seller.
Moreover, according to the provisions of the Civil Procedure Law and relevant judicial interpretations, determining the jurisdiction requires considering factors such as the place of the infringing act and the place of contract performance. In online sales cases, the shipping location is usually regarded as the place of the infringing act or the place of contract performance, thus using the shipping location as a basis for jurisdiction has a definite legal basis.
2. Relevance to the online sales act
As clarified in case number (2018) Supreme Court Civil Jurisdiction Final 93 among 50 typical intellectual property cases in Chinese courts in 2018, "the accused infringing product is sold through the internet. When determining the jurisdiction based on the accused seller's sales act, the identification of the sales act location should not only facilitate the certainty of jurisdiction and avoid parties arbitrarily creating jurisdictional connection points but also facilitate the rights holder's protection. In the online environment, the sales act location generally includes the main operating location of the online seller, the storage location of the accused infringing product, the shipping location, or the location of seizure, etc. For example, if the third party controlled by the online seller ships from Wuhan, then Wuhan as the shipping location can become a connection point for the jurisdictional court, even if the online seller's domicile is in another region."
3. Related viewpoints
Some viewpoints argue that the delivery location should not be used as a jurisdictional location, but this viewpoint mainly targets the randomness of the delivery location, rather than the shipping location. The Supreme People's Court has emphasized in several recent cases that the shipping location is directly related to the sales act and has stability, meeting the requirements for jurisdictional certainty, while the delivery location chosen arbitrarily by the online purchaser is generally not suitable as the location of the online sales act.
4. Exceptions and limitations
It should be noted that if the seller has no direct legal relationship with the third party (such as independent sales by the third party), then the shipping location may not be used as a basis for jurisdiction. However, in case (2023) Supreme Court Civil Jurisdiction Final 170, the seller actively instructed the third party to ship, and their actions have continuity. The shipping location as a key link in the sale is the main basis for attributing the sales act to the seller.
5. The Supreme People's Court has clarified in many cases that the third-party
shipping location can serve as a jurisdictional connection point in infringement cases.
5.1 (2023) Supreme Court Civil Jurisdiction Final 170
5.2 (2021) Supreme Court Civil Jurisdiction Final 126
In this case, the Supreme People's Court pointed out that the logistics information involved shows that the accused infringing product was processed through postal express bulk collection, thus it can be reasonably inferred that the shipping location of the accused infringing product is the sales location of the infringing product, and the people's court can determine the jurisdictional connection point based on this.
5.3 Other related cases
In other similar cases, the Supreme People's Court has also repeatedly emphasized the importance of the third-party shipping location in infringement cases. For example, in certain cases, the court held that the third party's shipping act can be regarded as the seller's delivery act, thus making the shipping location a jurisdictional connection point.
In summary, in the infringement acts involved in online sales, the shipping location of the third party can be considered as the place of infringement, but the relative stability of the shipping location should be taken into account.
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