On September 12, 2020, the Supreme People’s Court (SPC) of China promulgated two judicial interpretations (JI) on the IPR disputes involving Internet service providers: one generally applicable to all Internet service providers, namely The Reply to Several Issues Concerning the Application of Law in the Online IPR Infringement Disputes (hereafter referred as “the Reply on Online IPR Infringement”), and the other targeting E-Commerce platforms, namely, the Guiding Opinions on the Trial of Civil IPR Cases involving E-Commerce Platforms (hereafter referred as “The Opinions on E-commerce Platforms”)

The key points of these two judicial interpretations can be summarized as follows:

For all Internet service providers (ISPs)

1. Right owners may apply for court injunction ordering Internet service providers to take measures to remove, block or disconnect the complained links.

2. If users of the online service submit non-infringement statement in response to the notice of the right owners, the ISPs or E-commerce platform operator may terminate the measures of removing, blocking or disconnecting the complained links, provided that right owners failed to file civil litigation or administrative complaint against the complained links within reasonable period. The delays caused by exceptional circumstances beyond the control of right owners, such as notarization and legalisation procedures, shall not be included in the above-mentioned period, but such period shall not exceed 20 working days at most.

3. For the non-infringement statement filed in bad faith, the right owners are entitled to claim punitive damages;

4. If the right owners can justify that the complaint with factual flaws is filed on good faith, they can be exempted from the liability deriving from the filing of such complaint.

For E-Commerce platforms

1. The seller running an operation on an E-Commerce platform may also apply for court injunction ordering the E-Commerce platform to restore the links removed upon the request of the right owners if the legitimate interests of such seller is to be irreparably damaged in urgent circumstances.

2. As regards those complaints or non-infringement statements involving patent, the E-Commerce may require the submission of a description of the comparison of technical features or design features. Where a design or utility patent is involved, the E-Commerce may further request the presence of an appraisal report on the novelty of such patent issued by the China National Intellectual Property Administration.

3. The parameters to be considered in examination of the following matters are specified:

a) Whether bad faith can be ascertained;

b) Whether E-Commerce platforms have taken reasonable measures;

c) Whether E-Commerce platforms knew or should have known the infringement.

In general, these two JIs are relatively friendly to the right owners in reining in online IPR infringement, in aspects like allowing court injunction, giving more grace period for taking legal actions, allowing punitive damage to be claimed based on bad faith non-infringement statement and waiving the liability of the right owners for complaint with factual flaws filed in good faith.

Contributed by: Wei He