David Yang, Emerson, QBPC Automation & Electric IWG Coordinator
On March 15, some representatives of QBPC Automation & Electric IWG (A&E IWG) held an in-depth exchange on online brand protection issues with the Platform Governance Department of Alibaba Group at Alibaba’s Hangzhou headquarter. The participants included 12 A&E IWG members and Director Wang Xuming of Alibaba Group's Platform Governance IP Brand Protection as well as Zhao Yuan, Wang Xin and Ke Qiu, the leaders of the Industrial Group, Clothing, Shoes and Housewares Group and IP Online Complaints Team.
At the beginning of the meeting, Wang Xuming briefed on the main functions, organization structure and work content of the Platform Governance Department, which was very inspiring and instructive for QBPC participants. After that the Alibaba team introduced the Alibaba Anti-Counterfeiting Alliance (AACA) and its role. The team looked forward to better cooperation with the A&E IWG members in intellectual property protection.
The meeting focused on the hot issues raised by the A&E IWG members. The issues included prima facie evidence of ownership in the process of copyright complaints, infringement determination in patent complaints, the transfer of counterfeit identification reports or materials and the issue of reference of similar cases in intellectual property protection complaints.
The Alibaba side responded to the problem of excessive proof requirements for copyright ownership from right holders. For example, even the original image and picture trivia are required. On May 20, 2020, the National Copyright Administration issued Notice of Regulating the Order of Copyrights in Photographic Works, which clearly requires in Article 10 " When making an administrative complaint on Photographic works to the copyright administration department, the copyright owner shall submit the application form, proof of rights, the infringed work and other evidence. The original copy of the photographic work, the legal publication, the certificate of copyright registration, and the contract for acquiring the rights can be used as evidence of the acquisition of copyright. The statement of rights and the watermark on the photographic works cannot be used alone as evidence of copyright ownership." According to this provision, Alibaba has also imposed a corresponding requirement. In the meantime, Alibaba platform also provides a copyright filing channel which can alleviate the proof burden on right holders.
The rights holders have been somewhat confused about the specific mechanism and process of patent complaints. The Alibaba team made a detailed explanation. Because of the complexity of patent infringement judgement and the stability of patents, Alibaba was currently the only platform that provided a channel for complaints against patents infringement. It was difficult for Alibaba to make this kind of judgement. Alibaba suggested right holders take the initiative to issue infringement assessment reports when filing complaints. This would not only help to reduce the work load of the platform, but also greatly increase the success rate of complaints. Moreover it would be ideal to provide a court decision that had come into effect as the basis for the infringement determination.
In addition, both parties discussed the issue of forwarding the identification report of counterfeit goods provided by the right holder during the complaint process. According to Article 42 of the new E-Commerce Law, "Upon receipt of the notice, the e-commerce platform shall promptly take necessary measures and forward such notice to the operator within the platform; if the necessary measures are not taken in a timely manner, the expanded portion of the damage shall be jointly and severally liable for the platform and the operator within the platform." Therefore, the issue of forwarding files was a compliance requirement for Alibaba. In regard of the secrets in the identification materials, the E-commerce law only required the preliminary evidence instead of the specific content and form of the evidence. Therefore, the rights holders can be flexible in handling the contradiction between the identification report and the point of confidentiality.
After the meeting, all participants visited the Alibaba campus and continued to exchange on the hot topics. Through the communication, the brand owners understood the platform's standpoints and reflection on IPR protection, and the platform also learned about the most cutting-edge IPR protection practices. The platform would make adjustments accordingly for the specific issues in future work, promoting communication and cooperation between the brand owners and the platform. Finally, both parties expressed that they would strengthen communication and coordination to protect the IP rights and interests of the rights holders.