Tort Law Provides Supplementary Protection to IP Rights
By King & Wood's Trademark Practice
The Tort Law of People's Republic of China was adopted on December 26, 2009, under which the IP rights, including copyrights, patent rights, and exclusive rights to use trademarks, are protected as individual rights and interests. Wang Shengming, vice-chairman of the Legislative Affairs Commission under NPC, commented, "Tort Law provides supplementary reference to the protection of IP rights."
The principal remedies that a plaintiff can seek against a tortfeasor are clearly prescribed in the Tort Law, namely: cessation of infringement, removal of obstacles, elimination of danger, returning property, restoration to the original state, compensation for losses, making an apology, elimination of adverse impacts and restoration of injured party's reputation.
Article 36 of the Tort Law deserves special attention because of the rapidly increasing IPR infringement cases related to the internet. According to article 36, internet users and internet service providers bear tortious liability if they conduct infringement through the internet. Where an internet user engages in tortious conduct through internet services, the injured party has the right to inform the internet service provider and the latter must take necessary action against such tortious conduct. The internet service provider failing to do so shall be jointly and severally liable with the internet user with regard to the additional injury or damage suffered. Where an internet service provider knows an internet user is infringing other people's individual rights and interests through its internet service but fails to take necessary action, it shall be jointly and severally liable with the internet user.
Source: http://www.saic.gov.cn/gzfw/gszs/201001/t20100106_79168.html
Could you offer some examples of IPR infringement cases, related to the internet, where the principles of the above article were applied?
Unfortunately, although our editorial staff has conducted extensive searches, no precedent of IPR infringement ruled under Article 36 of Tort Law is located. The reasons, we suppose, may include that the Tort Law has just come into force for only two years and the new cases perhaps have not been openly published yet. Anyway, here is a precedent about the individual's right of reputation involving the application of the said legal provisions, i.e. Wang Haiyang vs. Hainan Kaidi Network Information Co., Ltd. [(2011)guminchuzi.No.399]
Warmly welcome to continuously visit our blog and make remarks. Thank you.
I am interested in the court's decision in Wang Hai Yang case but do not read Chinese. I note that the case has been appealed and want to know the court's decision particularly on the tort liability law and the right to reputation and privacy. Since the Tort Liability Law came into effect, I want to know if there had been any changes to the court's interpretation to right to privacy and right to reputation after Wang Fei case.
I am an Assistant Professor with City University of Hong Kong. I would be very grateful if you can assist.
Thank you.
Rebecca