How to prevent the defendant from stepping on the pit in advance because of infringement?

Since 2012, in the field of cross-border e-commerce, thousands of China merchants have been sued by their original brands for infringing their trademarks in the United States. Most of the sued businesses are sellers operating on eBay, Ali International Station and AliExpress. With the development of the industry, more and more sellers on other platforms are sued for infringement, such as Amazon and Dunhuang. After a merchant involved in an infringement case is sued for infringing the plaintiff’s trademark, both the platform and the other party’s lawyer will send a notification email to the merchant to inform him that his account has been frozen due to infringement.

With the rise of cross-border e-commerce industry, there are endless cases in which sellers are sued for infringement of products sold on online platforms like eBay. At the same time of being sued, the funds in the PayPal accounts of the sellers will also be frozen, and what’s more, it often happens that they are cleared. But why do sellers fall into the trap of their plaintiffs? The most important reason is that sellers and friends have little knowledge of intellectual property law, and at the same time, they lack understanding of brand knowledge and the ability to judge whether they have caused infringement. Therefore, in order to allow cross-border e-commerce friends to continue to operate shops legally and avoid accounts being “fished” and frozen, Xiaobian decided to write some dry goods to tell you some knowledge that cross-border e-commerce must know.

For sellers in cross-border e-commerce, they should carefully examine their products, which is also to prevent trademark infringement and avoid the risk of being “phishing”. Simply put, don’t sell all kinds of products that involve infringement, whether they are known or should be known. Generally speaking, if sellers have the ability to identify branded goods and know about brand knowledge, they will reduce many acts that obviously cause infringement. However, if the seller knows or should know that the goods have been infringed but are still being sold, he may face the risk of being sued for infringement. So, how can we know whether the products we sell involve infringement?

First of all, it is very important that businesses should have a good understanding of brand and trademark knowledge. We should learn more about the plaintiff companies that have frequently sued in recent years and their great trademark knowledge.

Secondly. How to judge and identify whether infringement is involved after sellers know something about brand trademark knowledge? According to the provisions of the trademark law of the United States, the author summarizes the following points: in judging whether a trademark is infringing, the United States mainly takes whether it will confuse the public as the standard, and the number of similar factors between trademarks is only the main consideration of whether it will cause confusion. The similarity between trademarks mainly depends on the pronunciation, appearance and brand meaning between the two commodity brands. Generally speaking, the words used in trademarks can be judged to be similar in pronunciation if they confuse the public consumers in hearing; Similarity in appearance is judged by their overall feelings, such as letters and images, which confuse the public: similarity in brand meaning is based on whether the two goods have similar meanings. In addition, even if the two goods are neither similar in words nor in appearance and meaning, they still confuse the public and can be judged as similar infringement.

The above sellers and friends can judge whether their goods are involved in infringement. If infringement is involved, it must be dealt with in time.

Many of them are convinced that the platform can help them with product audit. However, in fact, the platform is not obliged to conduct product audit for sellers, because it has not signed any relevant agreements, and the platform only has the right to deal with sellers selling infringing products. Like Alibaba, “If it involves other people’s brands, users need to delete the corresponding information in time or delete other people’s brand information. If it is not cleaned up in time or just removed from the shelves, Alibaba has the right to remove and punish relevant information according to relevant rules and the Integrity Service Agreement. And deduct 4 points from the relevant related accounts, and users whose accounts have been closed with a cumulative deduction score of 60 points or more will not recover the deducted points even if the complainant cancels the complaint. ” Alibaba reserves the right to deal with infringing products released by users after discovery, but as a network platform, it has no obligation to support users’ censorship. This point has been clearly stated in Rudolph Dassler Boma Sporting Goods Co., Ltd. v. Zhejiang Taobao Network Co., Ltd. [(2006) Sui Fa Min San Chu Zi No.179]. The platform only provides an online trading platform for merchants, and does not participate in reviewing a sales activity as a buyer or seller. Therefore, there is no legal basis for asking the platform to undertake the obligation of reviewing products, and it is beyond the service scope of the platform itself. Therefore, in order to prevent property disputes, sellers themselves have the obligation to examine whether the products they sell have caused infringement. If any infringing products are found, they should be removed from the shelves immediately and stop selling, instead of sitting still until they are sued.

At the same time, many sellers and friends don’t think so, and they don’t stop selling products involving infringement even after being sued. This kind of behavior is absolutely unacceptable, which will not only further expand the influence of the incident, but also increase the unnecessary difficulty for out-of-court settlement. The author suggests that the sellers who are lucky enough must take off the shelves and stop selling this infringing product in time, otherwise the plaintiff will use this as a reason to demand a higher settlement compensation, so that we lose more than we gain. Even if you insist on not taking this product off the shelf after the prosecution, after you sign the settlement agreement, this infringing commodity industry Committee will be taken off the shelf, because Zhejiang has become the primary condition for your reconciliation. And in the United States, the settlement agreement given by the plaintiff will generally explain; “The defendant will immediately and permanently stop infringing or unauthorized use of the plaintiff’s trademark, including but not limited to the defendant’s products and/or any additional purchases, sales offers and/or marketing. Additional use of the plaintiff’s trademark for the sale of products not manufactured or licensed by the plaintiff, including but not limited to; ” (The Defense will immediately and permanently cease and desist from infringing or unauthorized use of Plaintiff’s Trademarks, including but not limited to, Defendant’s products and / or any additional purchases, offers for sale and / or marketing. Additional use of Plaintiff’s trademarks to offer to sell products not manufactured or licensed by Plaintiff, Including, but not limited to) The plaintiff agrees to settle with the defendant, and the defendant shall permanently stop using the plaintiff’s logo, and prohibit the sale of any infringing products under any circumstances without the consent of the plaintiff to prevent further infringement. After the defendant agreed to sign the agreement, the two sides reached a settlement. The defendant shall abide by the agreement by taking off the shelf and never using the infringing products again.

For your own benefit, and in order not to increase the difficulty of settlement, we hope that all sellers and friends will stop selling the goods that are involved in infringement in our shop, which will also prevent the plaintiff from demanding higher settlement compensation.

With more and more cases of infringement and account freezing in the United States, sellers are really miserable. Many of them confided to the author that business is really hard to do now, and the online shop that they painstakingly managed turned into compensation in the end, and they were busy all year round. The author is also very sympathetic to your situation and worried about your current situation. But after careful consideration, I have come to a conclusion, that is, you still have some problems, otherwise how can you be sued for no reason?

There are also many e-commerce friends who have a doubt, “Why can’t the goods I purchased by myself be displayed and sold in my own online store? How can it involve infringement? ” There are many more puzzling questions. “It’s the drawings provided by my customers. I just need to make them. Can I refuse this door-to-door business?” But if you e-commerce friends want to operate well, you must be careful again. Because there are still legal rights in this world, there are boundaries for anyone to exercise their rights, and people can’t touch the law, violate society, and even infringe on others’ rights when exercising their rights. For example, if I spend my own money to buy drugs, can I sell them online at will? The answer must be no. Therefore, sellers and friends must be careful not to show or sell any unidentified goods. Remember, don’t follow the trend to produce, manufacture and sell “explosive” goods without copyright, because the property rights of these goods are unknown and there is a risk of infringement. But how can we check whether these goods constitute infringement?

Then, speaking of this, I can give you some ways to distinguish:

The first point is that before you want to produce and sell this commodity, you must repeatedly confirm the legality of the commodity with the merchants or customizers who provide the goods, and whether it involves infringement. For example, when purchasing goods, we must verify whether the other party is legal, such as whether he is a legitimate dealer or agent, and if not, whether he has the authorization certificate of the right holder. When a merchant receives a customized order, he must verify the identity of the other party, whether he owns the intellectual property rights of this product, or whether he has relevant power certificates. After all the verification is completed, it is best to ask the other party to issue a written commitment that the goods will not infringe anyone’s intellectual property rights. If losses occur due to infringement, they will be borne by the other party and have nothing to do with the merchant himself.

The second point is that e-commerce friends must understand the relevant information of major brands. Generally speaking, products that sell well on the platform can be searched on the Internet, and everyone only needs to move their fingers. This simplicity can avoid the risk of infringement, and all e-commerce friends must be cautious.

Thirdly, if the above two methods don’t work, the author suggests that you go to a professional place to find a professional person for consultation, for example, you can find a lawyer to investigate.

As the old saying goes, “Be careful and make no big mistake”. Therefore, here, the author wants to say a word to all e-commerce friends, that is, it is reasonable and legal to operate for a long time, and it is also the only way to succeed. We must actively examine every commodity sold and take precautions to avoid accidents.